{"id":161361,"date":"2026-08-24T10:19:36","date_gmt":"2026-08-24T18:19:36","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/08\/24\/an-administration-drowning-in-vindictive-prosecution-motions-would-like-to-abolish-the-category\/"},"modified":"2026-08-24T10:19:36","modified_gmt":"2026-08-24T18:19:36","slug":"an-administration-drowning-in-vindictive-prosecution-motions-would-like-to-abolish-the-category","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/08\/24\/an-administration-drowning-in-vindictive-prosecution-motions-would-like-to-abolish-the-category\/","title":{"rendered":"An Administration Drowning In Vindictive Prosecution Motions Would Like To Abolish The Category"},"content":{"rendered":"

Attorney General Todd Blanche has been in the big chair for all of two weeks<\/a>, and his Justice Department is already back on its bullshit.<\/a> 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 \u2014 once a court forced its hand \u2014 greeted at the airport with a human-smuggling indictment.<\/p>\n

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.<\/p>\n

But re-animating one indictment isn\u2019t the only scary part.<\/p>\n

Monday\u2019s appeal contains a much bigger ask. The DOJ doesn\u2019t 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\u2019s position is that this presumption should be available only in the narrow scenario where a prosecutor \u201cups the ante,\u201d piling on more counts or a more serious charge after a defendant exercises a procedural right. On a prosecutor\u2019s first and only charging decision, the government argues, it should \u201cnever\u201d be appropriate to presume vindictiveness at all.<\/p>\n

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<\/em> the retaliation. Which is, as it happens, exactly the kind of prosecution this administration specializes in.<\/p>\n

The DOJ brands Crenshaw\u2019s ruling a \u201cdramatic expansion\u201d 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.<\/p>\n

Because the timing here is spectacular.<\/p>\n

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\u2019s the James Comey seashell saga<\/a>, 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\u2019s Letitia James<\/a>, whose mortgage-fraud prosecution was so flimsy that a grand jury no-billed the reindictment attempt \u2014 twice. There\u2019s the Southern Poverty Law Center<\/a>, where a prosecutor got told by a Trump-appointed judge that it couldn\u2019t prove vindictive prosecution without discovery \u2014 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<\/a> over this very Abrego Garcia prosecution.<\/p>\n

Every one of those cases lives in the category the DOJ is now asking the Sixth Circuit to gut, so it\u2019s pretty clearly a strategic move.<\/p>\n

Whether it works is anyone\u2019s guess, and the venue does not inspire confidence: the Sixth Circuit runs 10\u20136 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:<\/p>\n

\n

Let\u2019s call this what it is: Blanche & Trump\u2019s 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.<\/p>\n<\/blockquote>\n

So no, the DOJ isn\u2019t only trying to convict Kilmar Abrego Garcia. It\u2019s trying to guarantee that the next time it charges someone for making the president angry, the doctrine that would catch it simply won\u2019t exist anymore. If the Sixth Circuit \u2014 or inevitably Supreme Court \u2014 hands them that win, well, you\u2019ll get whiplash watching how fast they cash it in.<\/p>\n

Read the full filing below.<\/p>\n

26-5555_appellants_opening_br_filed_copy<\/a>Download<\/a><\/div>\n

Earlier:<\/strong> The DOJ Insists There\u2019s \u2018No Serious Dispute\u2019 About A Phrase Everyone Is Disputing<\/a>
DOJ Adds Another No Bill To Its Trophy Case<\/a>
Trump Judge Rules SPLC Can\u2019t Prove Vindictive Prosecution Without Evidence, Which She Also Won\u2019t Let Them See<\/a>
Todd Blanche Faces New York Bar Complaint After Federal Judge Flags Vindictive Prosecution<\/a><\/p>\n

\n

\"\"<\/p>\n

Kathryn Rubino is a Senior Editor at Above the Law, host of\u00a0The Jabot podcast<\/a>, and co-host of\u00a0Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email\u00a0her<\/a>\u00a0with any tips, questions, or comments and follow her on Twitter\u00a0@Kathryn1<\/a>\u00a0or Bluesky\u00a0@Kathryn1<\/a><\/em><\/strong><\/p>\n

The post An Administration Drowning In Vindictive Prosecution Motions Would Like To Abolish The Category<\/a> appeared first on Above the Law<\/a>.<\/p>\n

<\/em><\/strong><\/p>\n

\"\"
\n\t\t\t\t\t\t\tKilmar Abrego Garcia Photo by: Graeme Sloan\/Bloomberg via Getty Images\t\t\t\t\t\t<\/figcaption><\/figure>\n

Attorney General Todd Blanche has been in the big chair for all of two weeks<\/a>, and his Justice Department is already back on its bullshit.<\/a> 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 \u2014 once a court forced its hand \u2014 greeted at the airport with a human-smuggling indictment.<\/p>\n

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.<\/p>\n

But re-animating one indictment isn\u2019t the only scary part.<\/p>\n

Monday\u2019s appeal contains a much bigger ask. The DOJ doesn\u2019t 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\u2019s position is that this presumption should be available only in the narrow scenario where a prosecutor \u201cups the ante,\u201d piling on more counts or a more serious charge after a defendant exercises a procedural right. On a prosecutor\u2019s first and only charging decision, the government argues, it should \u201cnever\u201d be appropriate to presume vindictiveness at all.<\/p>\n

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<\/em> the retaliation. Which is, as it happens, exactly the kind of prosecution this administration specializes in.<\/p>\n

The DOJ brands Crenshaw\u2019s ruling a \u201cdramatic expansion\u201d 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.<\/p>\n

Because the timing here is spectacular.<\/p>\n

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\u2019s the James Comey seashell saga<\/a>, 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\u2019s Letitia James<\/a>, whose mortgage-fraud prosecution was so flimsy that a grand jury no-billed the reindictment attempt \u2014 twice. There\u2019s the Southern Poverty Law Center<\/a>, where a prosecutor got told by a Trump-appointed judge that it couldn\u2019t prove vindictive prosecution without discovery \u2014 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<\/a> over this very Abrego Garcia prosecution.<\/p>\n

Every one of those cases lives in the category the DOJ is now asking the Sixth Circuit to gut, so it\u2019s pretty clearly a strategic move.<\/p>\n

Whether it works is anyone\u2019s guess, and the venue does not inspire confidence: the Sixth Circuit runs 10\u20136 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:<\/p>\n

\n

Let\u2019s call this what it is: Blanche & Trump\u2019s 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.<\/p>\n<\/blockquote>\n

So no, the DOJ isn\u2019t only trying to convict Kilmar Abrego Garcia. It\u2019s trying to guarantee that the next time it charges someone for making the president angry, the doctrine that would catch it simply won\u2019t exist anymore. If the Sixth Circuit \u2014 or inevitably Supreme Court \u2014 hands them that win, well, you\u2019ll get whiplash watching how fast they cash it in.<\/p>\n

Read the full filing below.<\/p>\n

26-5555_appellants_opening_br_filed_copy<\/a>Download<\/a><\/p>\n

Earlier:<\/strong> The DOJ Insists There\u2019s \u2018No Serious Dispute\u2019 About A Phrase Everyone Is Disputing<\/a>
DOJ Adds Another No Bill To Its Trophy Case<\/a>
Trump Judge Rules SPLC Can\u2019t Prove Vindictive Prosecution Without Evidence, Which She Also Won\u2019t Let Them See<\/a>
Todd Blanche Faces New York Bar Complaint After Federal Judge Flags Vindictive Prosecution<\/a><\/p>\n

\n

\"\"Kathryn Rubino is a Senior Editor at Above the Law, host of\u00a0The Jabot podcast<\/a>, and co-host of\u00a0Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email\u00a0her<\/a>\u00a0with any tips, questions, or comments and follow her on Twitter\u00a0@Kathryn1<\/a>\u00a0or Bluesky\u00a0@Kathryn1<\/a><\/em><\/strong><\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

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, […]<\/p>\n","protected":false},"author":3,"featured_media":161340,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-161361","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2026\/08\/IMG_5243-1-scaled-e1623338814705-620x568-8Z3mq6.jpg?fit=620%2C568&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/161361","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=161361"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/161361\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/161340"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=161361"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=161361"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=161361"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}