Update on Kilmar Abrego Garcia

Today I am going to provide an update regarding Kilmar Abrego Garcia, the Maryland father who was arrested by Immigration and Customs Enforcement while driving his son home from his grandmother's house and subsequently sent — in violation of a court order — to El Salvador's Terrorism Confinement Center or CECOT. There have been a number of developments since I last wrote about Abrego Garcia, the most important of which is that he has been returned to the United States and charged with two felonies related to transporting undocumented migrants from Texas to other parts of the country.

I am continuing to follow this case because I believe that it is an almost perfect representation of the dishonesty, incompetence, and sheer mendacity of the administration of cult leader, convicted felon, and failed President Donald Trump. Many times this administration's actions warrant questioning of whether they are the result of malice or incompetence. With this administration, we can almost always ensure ourselves that it was both. I quoted now-suspended ABC News correspondent Terry Moran yesterday and will do so again today. For that matter, I may do so every day for the foreseeable future. His description of Trump and White House Deputy Chief of Staff Stephen Miller as “world-class haters” is one of the most accurate characterizations of this duo. It says a lot about the state of the U.S. media that stating the truth is grounds for suspension. If you doubt Moran's characterization, the plight of Abrego Garcia is a good demonstration of the lengths to which Trump and Miller will go due to their loathing of migrants.

Let's review how we got here. In March 2019, Abrego Garcia was detained in the parking lot of a Home Depot in Hyattsville, MD. A Prince Georges County police officer interviewed Abrego Garcia and completed a "Gang Field Interview Sheet". According to that document, Abrego Garcia was wearing a "Chicago Bulls hat and a hoodie with rolls of money covering the eyes, ears, and mouth of the presidents on the separate denominations." This was alleged to be indicative of "Hispanic gang culture". In addition, a confidential source told the police that Abrego Garcia was a member of the "Westerns clique" of MS-13. As evidence, this is problematic. The "Westerns clique" is based in New York, a place that Abrego Garcia never lived. Moreover, the police officer who interviewed Abrego Garcia was later placed on the Prince George’s County State’s Attorney's "do not call" list because he pleaded guilty to charges of sharing confidential information with a sex worker and, therefore, his testimony was not considered trustworthy. Nevertheless, federal officials attempted to deport Abrego Garcia.

Two immigration judges heard the case against Abrego Garcia and ruled that he could be deported. It is important to remember that immigration judges are employees of the executive branch and have very limited authority to review evidence. They are essentially required to accept the government's evidence as true. A third judge, however, issued a “withholding order” that prevented Abrego Garcia's deportation to El Salvador.

In December 2022, Abrego Garcia was stopped for speeding in Tennessee by a highway patrol officer. The officer noted that there were eight people in the vehicle and that they had no luggage. A second officer suspected that this could be a case of human trafficking. Abrego Garcia explained that he was transporting construction workers between work sites and no charges were filed.

Abrego Garcia was arrested on March 12 by ICE and told that his immigration status had changed due to his alleged gang affiliation. In fact, his status had not changed and, when he was sent to El Salvador three days later, that violated the court order preventing such action. Lawyers went to federal court in Maryland on his behalf. The case ultimately went to the U.S. Supreme Court where the justices ruled unanimously that the government should "facilitate" Abrego Garcia's return to the United States. In response, Trump administration lawyers claimed that Abrego Garcia was in custody of a foreign government and that the U.S. did not have the ability to return him. Abrego Garcia's lawyers argued in court that the Trump administration was in contempt and should be sanctioned. Federal District Judge Paula Xinis began a process to allow discovery for the case.

On June 6, Abrego Garcia's lawyers announced that he had been brought back to the U.S. in order to face charges of human trafficking. Abrego Garcia is currently being detained in Tennessee. While his lawyers are attempting to free him while he awaits trial, Trump officials have suggested that if he is released, he will immediately be arrested again by ICE. Therefore, there is little chance that Abrego Garcia will be free in the near future. The case against Abrego Garcia does not appear to be strong. It is mostly based on the testimony of a past associate who is now in jail and agreed to testify in exchange for limited immunity. As ABC News reported, "The decision to pursue the indictment against Abrego Garcia led to the abrupt departure of Ben Schrader, a high-ranking federal prosecutor in Tennessee, sources briefed on Schrader's decision told ABC News. Schrader's resignation was prompted by concerns that the case was being pursued for political reasons ". Schrader had spent 15 years working in the U.S. Attorney's Office in Nashville and was the chief of the criminal division when he departed.

The indictment of Abrego Garcia was issued on May 21, though it was sealed until June 6. During that time, Abrego Garcia's lawyers were still pursuing the contempt case in the Maryland Federal court. They were outraged by the charges against their client. One attorney, Simon Sandoval-Moshenberg, stated that "They'll stop at nothing at all -- even some of the most preposterous charges imaginable -- just to avoid admitting that they made a mistake, which is what everyone knows happened in this case". Trump officials had spent months claiming that they had no means of returning Abrego Garcia, only to do so when it was convenient for them.

What is clear in this case is that in its rush to send migrants to El Salvador, the Trump administration demonstrated its usual incompetence. By the government's own lawyers' admission, the government errored by sending Abrego Garcia. But in addition to being incompetent, the Trump administration is also malicious. Therefore, rather than rectify its error, the administration launched a new investigation to find charges to press against Abrego Garcia. I have no idea whether or not Abrego Garcia is guilty of the allegations against him. Frankly, driving undocumented migrants from Texas to Maryland does not seem to me to be the sort of thing that necessitates a long jail sentence in any case. Regardless, he now has the opportunity to defend himself in court. I suspect that he will have a strong defense. The credibility of the witness against him may not be as strong as the government might wish, and, again due to Trump administration incompetence, Abrego Garcia will be able to argue that the Administration has prejudiced his case. Pam Bondi may be among the least competent people ever to set foot in the U.S. Department of Justice, and both she and Trump have made repeated statements that such officials would normally avoid. In doing so, she has harmed her own case. Meanwhile, Trump officials still face the possibility of sanctions in Xinis's court.