Attorney General Todd Blanche has been in the big chair for all of two weeks, and his Justice Department is already back on its bullshit. This time the target is a familiar one: Kilmar Abrego Garcia, the Maryland man the government deported to El Salvador by mistake, fought tooth and nail to avoid bringing back, and then — once a court forced its hand — greeted at the airport with a human-smuggling indictment.
That indictment is dead. In May, Chief U.S. District Judge Waverly Crenshaw dismissed it as presumptively vindictive, which was the only sensible read of a prosecution that materialized the instant Abrego Garcia won at the Supreme Court. So this week the DOJ asked the Sixth Circuit to bring it back.
But re-animating one indictment isn’t the only scary part.
Monday’s appeal contains a much bigger ask. The DOJ doesn’t merely want the charges against Abrego Garcia revived, it wants the court to rewrite the vindictive prosecution doctrine so that judges can almost never apply it to anyone. The DOJ’s position is that this presumption should be available only in the narrow scenario where a prosecutor “ups the ante,” piling on more counts or a more serious charge after a defendant exercises a procedural right. On a prosecutor’s first and only charging decision, the government argues, it should “never” be appropriate to presume vindictiveness at all.
This legal ask would carve out of the doctrine the entire category of cases where the government hauls someone into court for the first time precisely because they embarrassed it, where the opening charge is the retaliation. Which is, as it happens, exactly the kind of prosecution this administration specializes in.
The DOJ brands Crenshaw’s ruling a “dramatic expansion” of judicial power and an intrusion on the executive. The more honest description is that the standard is functioning as designed, and the administration would very much like it to stop.
Because the timing here is spectacular.
The Trump DOJ is drowning in vindictive prosecution motions, for the elementary reason that it keeps prosecuting the specific people the president has publicly demanded be prosecuted. There’s the James Comey seashell saga, in which the former FBI director stands accused of threatening the president by photographing shells, after a separate set of charges were thrown out becuase they were brought be a fake U.S. Attorney. There’s Letitia James, whose mortgage-fraud prosecution was so flimsy that a grand jury no-billed the reindictment attempt — twice. There’s the Southern Poverty Law Center, where a prosecutor got told by a Trump-appointed judge that it couldn’t prove vindictive prosecution without discovery — discovery she then declined to permit. And trailing behind all of it is a parade of ethics complaints, including the New York bar complaint against Blanche himself over this very Abrego Garcia prosecution.
Every one of those cases lives in the category the DOJ is now asking the Sixth Circuit to gut, so it’s pretty clearly a strategic move.
Whether it works is anyone’s guess, and the venue does not inspire confidence: the Sixth Circuit runs 10–6 Republican, seven of them Trump appointees, and the question is almost certainly bound for a Supreme Court that has not distinguished itself of late. Sen. Chris Van Hollen, who visited Abrego Garcia in CECOT last year, put it plainly:
Let’s call this what it is: Blanche & Trump’s DOJ are continuing their vindictive prosecution of Kilmar Abrego Garcia because, as the judge said, he exercised his constitutional rights. They go after anyone who challenges them.
So no, the DOJ isn’t only trying to convict Kilmar Abrego Garcia. It’s trying to guarantee that the next time it charges someone for making the president angry, the doctrine that would catch it simply won’t exist anymore. If the Sixth Circuit — or inevitably Supreme Court — hands them that win, well, you’ll get whiplash watching how fast they cash it in.
Read the full filing below.
Earlier: The DOJ Insists There’s ‘No Serious Dispute’ About A Phrase Everyone Is Disputing
DOJ Adds Another No Bill To Its Trophy Case
Trump Judge Rules SPLC Can’t Prove Vindictive Prosecution Without Evidence, Which She Also Won’t Let Them See
Todd Blanche Faces New York Bar Complaint After Federal Judge Flags Vindictive Prosecution
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
The post An Administration Drowning In Vindictive Prosecution Motions Would Like To Abolish The Category appeared first on Above the Law.
Attorney General Todd Blanche has been in the big chair for all of two weeks, and his Justice Department is already back on its bullshit. This time the target is a familiar one: Kilmar Abrego Garcia, the Maryland man the government deported to El Salvador by mistake, fought tooth and nail to avoid bringing back, and then — once a court forced its hand — greeted at the airport with a human-smuggling indictment.
That indictment is dead. In May, Chief U.S. District Judge Waverly Crenshaw dismissed it as presumptively vindictive, which was the only sensible read of a prosecution that materialized the instant Abrego Garcia won at the Supreme Court. So this week the DOJ asked the Sixth Circuit to bring it back.
But re-animating one indictment isn’t the only scary part.
Monday’s appeal contains a much bigger ask. The DOJ doesn’t merely want the charges against Abrego Garcia revived, it wants the court to rewrite the vindictive prosecution doctrine so that judges can almost never apply it to anyone. The DOJ’s position is that this presumption should be available only in the narrow scenario where a prosecutor “ups the ante,” piling on more counts or a more serious charge after a defendant exercises a procedural right. On a prosecutor’s first and only charging decision, the government argues, it should “never” be appropriate to presume vindictiveness at all.
This legal ask would carve out of the doctrine the entire category of cases where the government hauls someone into court for the first time precisely because they embarrassed it, where the opening charge is the retaliation. Which is, as it happens, exactly the kind of prosecution this administration specializes in.
The DOJ brands Crenshaw’s ruling a “dramatic expansion” of judicial power and an intrusion on the executive. The more honest description is that the standard is functioning as designed, and the administration would very much like it to stop.
Because the timing here is spectacular.
The Trump DOJ is drowning in vindictive prosecution motions, for the elementary reason that it keeps prosecuting the specific people the president has publicly demanded be prosecuted. There’s the James Comey seashell saga, in which the former FBI director stands accused of threatening the president by photographing shells, after a separate set of charges were thrown out becuase they were brought be a fake U.S. Attorney. There’s Letitia James, whose mortgage-fraud prosecution was so flimsy that a grand jury no-billed the reindictment attempt — twice. There’s the Southern Poverty Law Center, where a prosecutor got told by a Trump-appointed judge that it couldn’t prove vindictive prosecution without discovery — discovery she then declined to permit. And trailing behind all of it is a parade of ethics complaints, including the New York bar complaint against Blanche himself over this very Abrego Garcia prosecution.
Every one of those cases lives in the category the DOJ is now asking the Sixth Circuit to gut, so it’s pretty clearly a strategic move.
Whether it works is anyone’s guess, and the venue does not inspire confidence: the Sixth Circuit runs 10–6 Republican, seven of them Trump appointees, and the question is almost certainly bound for a Supreme Court that has not distinguished itself of late. Sen. Chris Van Hollen, who visited Abrego Garcia in CECOT last year, put it plainly:
Let’s call this what it is: Blanche & Trump’s DOJ are continuing their vindictive prosecution of Kilmar Abrego Garcia because, as the judge said, he exercised his constitutional rights. They go after anyone who challenges them.
So no, the DOJ isn’t only trying to convict Kilmar Abrego Garcia. It’s trying to guarantee that the next time it charges someone for making the president angry, the doctrine that would catch it simply won’t exist anymore. If the Sixth Circuit — or inevitably Supreme Court — hands them that win, well, you’ll get whiplash watching how fast they cash it in.
Read the full filing below.
26-5555_appellants_opening_br_filed_copyDownload
Earlier: The DOJ Insists There’s ‘No Serious Dispute’ About A Phrase Everyone Is Disputing
DOJ Adds Another No Bill To Its Trophy Case
Trump Judge Rules SPLC Can’t Prove Vindictive Prosecution Without Evidence, Which She Also Won’t Let Them See
Todd Blanche Faces New York Bar Complaint After Federal Judge Flags Vindictive Prosecution
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
