Jun.27

electoral-vote.com

Dem 47

   

GOP 53

Adventures in Overreach, Part III: Trump, Bondi Have Managed to Saddle Themselves with a Real Mess

The courts have been working overtime for the last week or two, perhaps because the Republican Party is giving them an awful lot to do. Truth be told, it's tough to keep up, as we don't want to turn this site into LawFare or SCOTUSblog. So, today, we're going to do an update on the Kilmar Abrego Garcia case, and then over the next few days we'll get to some other legal news, including the ruling the Supreme Court will issue today about birthright citizenship, and the ruling that South Carolina uncorked yesterday, looking to gut Planned Parenthood.

As readers will recall, Abrego Garcia was returned to the United States from CECOT, the gulag in El Salvador where he was unlawfully sent, and from which Trump administration officials repeatedly said no one could ever be returned. The ostensible reason Abrego Garcia was brought back was not to comply with a Court order to facilitate his return, but to face criminal charges for transporting, and conspiring to transport, alleged undocumented immigrants around the U.S. Those are the only charges in the indictment. And yet, despite these being the only charges, the indictment is rife with irrelevant, highly inflammatory allegations, such as an accusation that Abrego Garcia transported weapons and physically abused some of the people he allegedly drove around.

One can infer that, given the absence of any charges related to those claims, the DoJ has insufficient evidence to support them. Further, it appears that the only support for the crimes he is actually charged with comes from alleged co-conspirators, some of whom are currently serving time for actual smuggling. Needless to say, these will be less-than-credible witnesses, both because they are convicted felons, and because such witnesses often received something in exchange for their testimony.

Indeed, at the detention hearing in the criminal case on June 13, it was revealed that one of the witnesses with a criminal record, who is in the U.S. illegally, will be given preferred immigration status in exchange for his testimony. A second witness is a relative of the first witness and is also serving time—he agreed to cooperate in exchange for his release from jail. The federal public defender remarked that the government is going to give actual criminals deals to stay in the U.S. just to get this one person. There is no indication that there is any evidence to independently corroborate what these witnesses will claim. When all you've got are less-than-credible witnesses being given powerful incentives to say whatever the government demands, the odds of an embarrassing loss are pretty high.

This past Sunday, a judge ruled that Abrego Garcia must be released pending the criminal trial, finding that Department of Justice had failed to prove he was a danger or a flight risk, while observing that many of the allegations look to be overblown. However, the judge also said that ICE could still detain him and initiate deportation proceedings. So, Abrego Garcia will have to go before an immigration judge to argue he should be released on bond pending any immigration proceedings. That's two cases in two different courts, as the government works desperately to defeat the person who has become the poster boy for Trump administration overreach. Using all of these government resources to destroy this man is not only unconscionable but constitutes clear waste and abuse—where is DOGE when you need it?

The indictment also includes allegations that Abrego Garcia is a member of MS-13—but again, there are no charges related to those claims. In fact, Abrego Garcia's history, that he fled El Salvador with some members of his family to avoid the gang and escape their extortion and threats, does not fit with the narrative the Trump administration is peddling.

It's no surprise, then, that so many legal analysts are calling this indictment "thin." Oh, and incidentally, if knowingly transporting undocumented immigrants is a crime, the DoJ has a much stronger case against Govs. Greg Abbott (R-TX) and Ron DeSantis (R-FL), who deliberately flew planeloads of undocumented men and women to other states to try to overwhelm their resources. We aren't holding our breath that those charges will be brought.

The bottom line is that these damning, unnecessary statements are not relevant to the actual charges. They seem designed purely to cast Abrego Garcia in a sinister light, and to sell the narrative that the Trump administration is successfully targeting "the bad guys." And Abrego Garcia's defense attorneys and the trial court may have something to say about that. These types of extraneous statements, especially when alleged by the DoJ, can constitute sanctionable conduct and an abuse of power. Moreover, when one adds to that the Attorney General of the United States conducting a concerted smear campaign, sanctions can be levied not only at staffers at the DoJ, but also at AG Pam Bondi herself.

There are several problems with Bondi's grandstanding. She is already the subject of an effort to have her disbarred in Florida where she is licensed. Her performance here is not going to help her cause. (Ironically, you don't have to be a licensed attorney to be the U.S. AG, which is probably lucky for her, but not so much for the American people whom she is supposed to be representing.)

But as far as this case goes, there are at least half a dozen issues:

1. Defendant's Right to a Fair Trial: Every defendant accused of a crime is innocent until proven guilty. And prosecutors, at least the ethical ones, are careful in their statements to the press to avoid trying the case in the court of public opinion before a jury can hear it. Not only has Bondi violated that basic maxim, but she has gone even further and accused Abrego Garcia of crimes and conduct that do not appear in the indictment. She has accused him of everything from sex trafficking to terrorism. This opens the door to motions for a mistrial for tainting the jury pool and for selective and vindictive prosecution. It sure seems like the DoJ has it in for him and Bondi is doing nothing to dispel that notion.
   
   
2. Sanctionable Conduct for Misrepresentations to the Court and Unsupported Allegations: The indictment has led to the resignation of Ben Schrader, the chief of the criminal division of the U.S. Attorney's office in Nashville, the office that brought the charges, and where he worked for 15 years. The indictment was signed by the acting U.S. Attorney for the Middle District of Tennessee, Robert McGuire, who refers to himself as the "accidental acting U.S. Attorney" after two predecessors resigned after Trump took office. Schrader's resignation obliquely states that "the only job description I've ever known is to do the right thing, in the right way, for the right reasons" and ABC news quotes sources that he quit out of concern the case was being pursued for political purposes. At the end of the day, the DoJ has to have evidence to not only prove its case but to bring it in the first place. If there is evidence that the DoJ misled the grand jury or misrepresented the facts (see below), the judge could not only dismiss the charges but could sanction the government and Bondi herself.
   
   
3. Civil Suit for Malicious Prosecution: Readers may have seen that Newark Mayor Ras Baraka, who was arrested outside a Newark detention facility and charged with trespassing, only to see those charges dropped, has sued the Department of Homeland Security and U.S. Attorney for New Jersey Alina Habba for malicious prosecution and false arrest. If the DoJ loses its case here, Abrego Garcia would likely also sue for these claims.
   
   
4. Civil Suit for Defamation: Bondi could also be liable for defamation for her extrajudicial statements. Once again, Baraka's suit is instructive. He sued Habba personally for her statements to the media that he "stormed" the detention facility, when in fact he was invited there and was escorted inside the gates. As we've written before, executive officials enjoy only qualified immunity, which can be defeated by showing that the statements were not made in good faith and were knowingly false. Such a suit could seek compensatory and punitive damages.
   
   
5. Motions to Dismiss and Exclude Irrelevant Evidence: Even if the case survives, the defense will likely bring many pre-trial motions to dismiss the case and exclude irrelevant evidence, including anything related to weapons or narcotics smuggling, alleged abuse, or international trafficking since, since Abrego Garcia is not charged with any of that. Along these lines, just a few words about that van with the extra seats: Abrego Garcia is not accused of reconfiguring the van. Instead, the indictment uses the passive voice: Abrego Garcia is alleged to have "transported undocumented aliens in an unsafe manner, including using reconfigured vehicles with after-market unattached seating rows... " So, according to the indictment, the problem with the van is that it was unsafe—not that the seats are themselves evidence of an illegal operation.
   
   
6. Contempt Charges: It's worth noting that the contempt hearing is still alive and well in Judge Paula Xinis' court for the government's failure to comply with her orders regarding discovery and the facilitation of Abrego Garcia's return. And federal judges are well aware of the debate over the budget bill that contains a provision that would prohibit enforcement of contempt orders unless the prevailing party has put up a bond for the injunctive relief that led to the violation. So, judges are now ordering a bond to be paid... in the amount of $1. Turns out teachers aren't the only ones who know something about malicious compliance. The Senate caught wind of this, and was ready to amend the bill to require the bond to cover the costs of injunctive relief, but now it would appear to be a dead-letter issue thanks to the Senate Parliamentarian.

Finally, it bears repeating that this administration always, always overreaches when it could very likely achieve many of its goals by playing it straight. The Tennessee Highway Patrol, in the 2022 traffic stop, remarked that it looked like Abrego Garcia was transporting undocumented immigrants. But he was not cited, and the Department of Homeland Security declined to pursue it after they were given a referral. This new investigation only began after he had been mistakenly deported to El Salvador, in violation of a 2019 court order prohibiting his removal to that country. In the unlikely event that the timing was just a coincidence and the DoJ had uncovered new evidence that supported the THP's hunch, they could have brought a charge for the unlawful transportation of undocumented aliens and perhaps could have prevailed in court.

However, by doubling- and tripling-down on the original mistake, and insisting on characterizing Abrego Garcia as a hardened criminal who is the mastermind of an international smuggling ring, while apparently having no actual evidence to back up those claims, Trump's underlings have probably blown their chance of proving anything and have opened themselves and the administration up to liability and penalties on many fronts. Moreover, in a serious misstep, the indictment contradicts the police report. And if it was an intentional misrepresentation to the grand jury, that will be a big problem for them. The indictment alleges that Abrego Garcia lied to the THP and denied being in Texas despite cell phone evidence to the contrary. In fact, according to the THP report, when asked where he had been, Abrego Garcia said that he was driving from Houston to Maryland via St. Louis. This is a continuation of the "shoddy" work that the courts have been seeing from the DoJ since Trump took office and then installed loyalists who routinely ignore the law and their oaths for purely political purposes.

In the end, as with the budget bill, and with the Iran bombing, the administration cares primarily about "winning" THIS news cycle, without worrying too much about what happens next, and without being willing to put in the hard work of doing their jobs properly. Trump knows he can get away with this, because neither his voters nor the courts are likely to hold him personally liable. However, the folks underneath him, from Bondi on down, are nowhere near as bulletproof. Watch for an item next week on this subject. (L & Z)