Abrego Garcia's lawyers ask judge to drop vindictive prosecution hearing, dismiss criminal case

Lawyers for Kilmar Abrego Garcia have asked a federal judge in Nashville to dismiss his criminal case entirely, arguing in a new filing Thursday that the Trump administration failed to provide the necessary discovery or to allow key witness testimony during a two-day evidentiary hearing next week. 

U.S. District Judge Waverly Crenshaw scheduled the upcoming hearing to weigh Abrego Garcia's request that his criminal case be dismissed on the grounds of "vindictive" and selective prosecution by the government. 

Crenshaw ruled earlier this month that Abrego Garcia had established a "realistic likelihood" of vindictiveness in his criminal case, which was initiated by the Justice Department while he was detained in El Salvador earlier this year.

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Abrego Garcia's lawyers noted in Thursday’s filing that after a judge finds a "realistic likelihood" of vindictiveness in a case — as Crenshaw did earlier this month — a rebuttable presumption arises for the government, which then bears the burden of providing "objective, on-the-record explanations" to show the case was not brought for retaliatory purposes.

If the government fails to do so, the indictment should be dismissed completely, his lawyers said — arguing that the Trump administration had stonewalled them by refusing to allow witnesses to testify or hand over relevant discovery information.  

It is unclear how, or when, Crenshaw will rule on the motion to dismiss, and whether he would opt to cancel next week's hearing in light of the allegedly unclear submissions by the Trump administration. 

More information could be revealed Friday afternoon, after lawyers for all parties will participate in a counsel-only conference set by the judge.

Still, the request comes as Abrego Garcia's dueling criminal and civil cases have emerged as a major flashpoint in the Trump administration's broader immigration crackdown. 

Justice Department officials told another federal judge in Maryland on Monday they have no plans to allow Abrego Garcia to remain in the U.S. to stand trial in Tennessee. Instead, they said they will seek to remove him as quickly as possible to a third country — possibly Liberia.

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Lawyers for the Trump administration also told the same federal judge in Maryland earlier this month that they had identified three African countries — Uganda, Ghana, and Eswatini — as suitable third country locations to deport Abrego Garcia, pending dissolution of an earlier court order keeping him in the U.S. They have since changed the country of removal to Liberia, as lawyers for the administration testified on Monday. 

It is unclear whether Liberia has agreed to accept Abrego Garcia.

Separately, Crenshaw had ordered additional discovery and a two-day evidentiary hearing for Trump officials to rebut the allegations of vindictive and selective prosecution, and to make the case that they did not act with genuine animus in bringing the criminal case against Abrego Garcia. 

A federal grand jury indicted Abrego Garcia in May on two counts related to immigrant smuggling, stemming from a 2022 traffic stop.   

Though Judge Crenshaw has appeared skeptical of the government's timeline and earlier assertions, it is unclear whether he would go as far as to grant Abrego Garcia's effort to toss the criminal case completely — at least for now. 

In the new filing, lawyers for Abrego Garcia argued that the Trump administration has failed to comply with any discovery obligations despite the court order weeks earlier — or even identified which categories of documents they plan to produce for next week's hearing.

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Lawyers for the Justice Department asked Judge Crenshaw earlier this week to review certain categories of evidence privately, or in camera, before deciding what materials the government must turn over to Abrego Garcia’s legal team for consideration next week.

These actions were the basis of Thursday's new motion to dismiss the criminal indictment outright. 

"Although the defense bears no burden at the evidentiary hearing while the presumption remains unrebutted—and we believe it will continue to be unrebutted on the limited evidence the government is apparently prepared to offer—the defense is entitled to cross-examine the government’s witnesses, which requires the timely, pre-hearing production of documents to the defense," Abrego Garcia's lawyers said in their filing.

They also noted the government's ongoing attempt to quash subpoenas from two senior Trump administration officials to testify next week, including the second-highest-ranking Justice Department official, Todd Blanche. 

(Crenshaw’s ruling earlier this month named Blanche directly on several occasions, which could present a significant hurdle for the Trump administration as it seeks to quash his subpoena.)

Still, the road ahead will likely be difficult for both defense attorneys and the Justice Department. 

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It is notoriously difficult to have a case dismissed on the grounds of selective or vindictive prosecution, and few attempts have made it to the discovery phase — meaning the outcome in Abrego Garcia’s case is far from clear. 

Existing precedent requires a defendant to prove both that prosecutors acted with genuine animus in bringing the case, and that prosecutors singled them out because of that animus. 

Selective prosecution requires the defense to prove that "similarly situated" persons have not been prosecuted. 

Trump officials, for their part, have railed against the "activist" judges whom they argue are blocking their agenda and impinging on the president’s executive branch authorities.

Earlier this week, Judge Crenshaw ordered the Justice Department to provide the court with communications regarding the government's decision to prosecute the criminal case against Abrego Garcia, and what "factual circumstances" motivated the change in the government's position. 

He also admonished DHS Secretary Kristi Noem and Attorney General Pam Bondi for failing to limit their comments on Abrego Garcia’s ongoing criminal case in Tennessee — a violation of local court rules — and ordered prosecutors to notify all Justice Department and DHS employees to prevent future public remarks.

"Government employees have made extrajudicial statements that are troubling, especially where many of them are exaggerated if not simply inaccurate," Judge Crenshaw said on Monday.