The Kilmar Abrego Garcia Case: Prosecution as Political Cover

The indictment has given the administration a convenient offramp

Photo by MARVIN RECINOS/AFP via Getty Images

There is nothing at all remarkable about the Justice Department's indictment of Kilmar Abrego Garcia, on its face. If not for the politically electrified name on the defendant’s side of the “v.”, nobody beyond the named parties would’ve much noticed or cared. But the indictment itself, misleadingly proffered by the administration as vindication on a roiling public controversy, exposes a Justice Department that has become hopelessly politicized under President Donald Trump and Attorney General Pam Bondi.

Abrego Garcia, you’ll surely recall, was improperly deported in March by the Trump administration. Immigration officials sent him to El Salvador, despite the existence of a 2019 judicial order that specifically prohibited his deportation to… El Salvador. In a fleeting moment of candor, DOJ attorneys acknowledged that the removal was an “administrative error.”

Yet the government refused to fix its own mistake, and the case quickly became a firestorm – an emblem to the left of Trump’s haphazard, lawless deportation efforts and to the right of the President satisfying his campaign promise to crack down on illegal immigration, even if sloppily executed.

Weeks after Abrego Garcia’s wrongful deportation, the Supreme Court unanimously instructed the administration to “facilitate” his return to the United States – where he would likely face a renewed effort by the government to deport him to some other country, but through which he could exercise basic due process rights. In response, the Trump administration pled impotence and engaged in a pedantic campaign to find the meekest possible interpretation of “facilitate,” while the El Salvadorian president smirked that he couldn’t possibly smuggle a terrorist into the United States. It seemed we’d reached a stalemate: Abrego Garcia’s supporters clamored for his return, the administration edged unnervingly close to defiance of the Supreme Court, and Abrego Garcia remained locked up indefinitely in El Salvador.

But suddenly, the indictment has given the administration a convenient offramp: We’ll bring him back alright – to face criminal charges. The same federal government that had maintained it was powerless to secure Abrego Garcia’s return from a foreign ally suddenly had him on a plane back to the United States with the filing of a single court document.

The indictment itself charges that Abrego Garcia was part of a large-scale conspiracy over nearly a decade to transport thousands of undocumented aliens from Texas to Maryland and other parts of the United States. He’d allegedly drive six to ten people per trip, at times using cars that had been unsafely reconfigured with extra seating. According to the indictment, passengers travelled without luggage; some passengers were children, who rode on floorboards; and Abrego Garcia and his co-conspirators typically took away passengers’ cellphones until they reached the final destination.

The indictment also mentions (in passing, but not really) that Abrego Garcia allegedly was associated with the MS-13 gang, that he at times transported guns and drugs, and that he “abused” female passengers. Prosecutors further claim in other court documents and public announcements that he “solicited nude photographs and videos of a minor” and played a role in the murder of a rival gang member’s mother.

Despite these sensational allegations, the actual charges against Abrego Garcia are exceedingly simple: Unlawful Transportation of Illegal Aliens. The government must prove merely that Abrego Garcia knew he was transporting people who were in the United States illegally, and that he took them across a state line. That’s it. Despite its overheated public fanfare, the Justice Department has chosen not to file charges relating to firearms, narcotics, assault, child pornography, or murder.

There’s a tell in the overkill here. It is common for prosecutors to include in indictments and other court filings damaging information about a defendant that goes beyond the core elements of the charged crimes; I did it often when I was a prosecutor with the Southern District of New York, and there’s nothing inherently wrong with the practice. Those details can paint a fuller picture of the charged crimes than a bare recitation of the statutory elements, and can persuade a judge to deny a bail application. But there’s a good faith limit, and it’s wildly excessive to casually drop uncharged allegations of child pornography and murder into what is, at bottom, a dry case of interstate transportation of illegal migrants. (Abrego Garcia has a court appearance today; we’ll see if the government intends to add charges to the indictment, but I wouldn’t bet on it.)

If there was any question about DOJ’s true motivation, Bondi answered it when she took to the podium to announce the Abrego Garcia indictment. A case like this ordinarily would barely merit a written press release from the local U.S. attorney’s office, and certainly not a press conference – never mind an in-person announcement by the attorney general herself for the national media. Bondi stood behind that podium, flanked by her top DOJ lieutenants, and yelled into the mic for one reason: politics. She used the occasion as a victory lap for the Trump administration where none was due (and to casually reinforce for the national media allegations of child pornography and murder in a case that charges neither offense).

Ben Schrader, the head of the criminal division for the U.S. attorney’s office in Tennessee (which is prosecuting the case) resigned in protest. In his farewell message, the 15-year Justice Department veteran pointedly invoked a mantra commonly embraced by nonpolitical DOJ career prosecutors: “Do the right thing, in the right way, for the right reasons.”

We’ve seen the opposite here. Ordinarily, prosecution leads to deportation; prosecutors identify an illegal alien who has committed an additional crime, charge him, imprison him, then remove him from the country. But here, deportation (and the politics around immigration enforcement) is driving the prosecution.

Despite its post hoc sanitization efforts, the fact is the Justice Department didn’t remove Abrego Garcia in March because they knew he was a criminal. They barely knew who he was at all, and hadn’t even sufficiently reviewed his immigration file to find the order prohibiting his deportation to El Salvador. Rather, the Justice Department has indicted Abrego Garcia now because of the political tempest over his botched deportation.

What if the government had properly removed Abrego Garcia back in March to, say, Mexico (which would have been permissible)? He’d have had no serious basis to challenge his deportation, nobody would have known his name, and there’s no chance DOJ would’ve indicted him and then brought him back to the United States. But because the administration got caught in a screwup, and then chose to flip off the Supreme Court rather than to faithfully comply with its directive, they created a political mess. The indictment became the easy way to mop it up.

The most consequential issue here isn’t whether Abrego Garcia is guilty as charged. He very likely is, and it’ll be up to him (if he chooses to plead guilty) or a jury to make that determination. The far more important point is that, however the case comes out, the Justice Department of Trump and Bondi has betrayed its own core principles by using the power of criminal prosecution for overtly political ends.