13 hours ago
Breaking down the Justice Department's case against Kilmar Abrego Garcia
Kilmar Abrego Garcia – the man mistakenly deported to a Salvadoran prison then brought back to the US only to face a criminal human smuggling indictment – has been held out by the Trump administration as an example of the danger of having undocumented immigrants in the US.
Yet amid the political, diplomatic and court standoff, parts of the Justice Department's criminal case against Abrego Garcia appears to be so tenuous that a federal magistrate judge in Tennessee strongly questioned whether keeping him locked up pending trial is merited.
Abrego Garcia has pleaded not guilty to transporting other undocumented people from Texas to Maryland in an SUV in 2022 and taking part in a smuggling conspiracy.
During a six-hour hearing last week, prosecutors road tested their portrait of a crime-ring-connected, cold-blooded man who state troopers stumbled upon in a 2022 traffic stop. They presented evidence and witness testimony from a Homeland Security special agent, but the defense team was able to raise major doubts regarding its accuracy and authenticity with the judge.
Acting US Attorney for the Middle District of Tennessee Robert McGuire argued that Abrego Garcia may be a danger to the community because a 15-year-old minor allegedly in the SUV might not have been wearing a seatbelt when being driven from Texas to Maryland. The prosecutor also pointed to years old complaints of domestic violence by Abrego Garcia's wife.
'The federal government wants to make a statement, that it is serious about immigration violations and also wants to overcome the embarrassment associated with shipping (Abrego Garcia) out of the country and having to bring him back,' said Chris Slobogin, a criminal justice law professor at Vanderbilt University in Nashville, Tennessee.
Prosecutors have also asserted that Abrego Garcia could flee while awaiting a trial, citing his notoriety, which came about after he was deported in March.
Magistrate Judge Barbara Holmes called that an 'academic discussion' at the hearing, because Abrego Garcia is likely to remain in immigration custody for the foreseeable future no matter what happens in the criminal case.
The direct questioning and cross-examination in the hearing, however, gave Abrego Garcia's defense team and the judge plenty of opportunities to raise doubts about how solid the evidence against him may be.
'A grand jury did indict based on evidence, but it seems the defense has identified some potentially productive grounds for cross-examination,' said CNN legal analyst Elie Honig.
The evidence included a video of the traffic stop and police body camera footage from when Abrego Garcia was pulled over in November 2022 for speeding on an interstate in an SUV. Nine other men, without identification or luggage, were in the vehicle.
No charges were brought for years after the traffic stop – not until Abrego Garcia had become a political football in the Trump administration's use of a prison for terrorists in El Salvador to take undocumented immigrants apprehended in the US. Since then, federal authorities have gathered additional evidence from the state troopers and others, and even now say they continue to investigate.
Information from investigators showed the SUV Abrego Garcia had driven belonged to a person previously convicted of smuggling, and that it was unlikely he was coming from St. Louis when stopped, which is what he told troopers.
Here's the other key evidence in the case:
The troopers had asked the passengers in the vehicle to each write down their names, their dates of birth and potentially their residences.
The prosecutor called this 'functionally the roster of passengers as they wrote themselves.' One of the passengers self-identified his birthday as being in 2007, making him 15 at the time of the traffic stop.
Both Holmes and the defense questioned the validity of that date, and others. Undocumented immigrants in the US may not be willing to disclose their true names and birth dates when asked by law enforcement in a traffic stop, defense Attorney William Allensworth argued.
Allensworth also told the judge that undocumented adults in the US may be motivated to say they are underage, given the protections given under deferred action policies for children brought to the US illegally. Holmes also noted there was no other evidence in court that signaled the alleged 15-year-old looked young, like a child.
'The defense has suggested maybe (the alleged 15-year old) was lying about his age for reasons known only to God,' McGuire responded. 'If the 15-year-old logically was the last person to receive a piece of paper to write his name on it, he would be sitting in the back. Your honor, there would not be seatbelts.'
But the judge pressed him: 'What evidence do I have of that?'
'It's walking-around sense,' McGuire said.
'I would bet everybody in this courthouse an ice cold beer that there were not seatbelts in that back row,' he added.
Investigators also say one state trooper at the traffic stop said he took photographs of passports some of the men had, with no stamps from US ports of entry in them. But Peter Joseph, the special agent who testified Friday, said the federal investigators could not find and do not have those photographs.
The credentials of the people providing information about Abrego Garcia aren't unimpeachable – and in this investigation, they're seizing upon an opportunity to provide information that could help them immensely in their own legal issues, defense attorneys pointed out.
One cooperator, the court proceedings confirmed, is a two-time felon who had been deported from the US five times, only to return illegally, yet is now attempting to stay in the US and get work authorization. That cooperator is currently finishing a criminal sentence in a halfway house.
Another cooperator has admitted to human trafficking and already been deported once, yet now is in custody and criminally charged after reentering the US.
The two male cooperators are close relatives. A female cooperator, also seeking leniency in her own immigration proceedings, was in a relationship with one of those men.
Some of the cooperating witnesses' risk of deportation and conviction appeared to be much more severe than Abrego Garcia's, his defense attorneys argued, an insinuation that they may be more motivated to lie to help the DOJ's case.
Abrego Garcia's defense also incisively questioned what the cooperators told investigators.
The two male cooperators alleged that Abrego Garcia was making the drive from Texas to Maryland multiple times a week. Sometimes, his wife and children were with him, with the kids potentially sitting on the floorboards.
'You ever been on a road trip with your children?' Allensworth, the public defender, asked Joseph.
'They get a little antsy,' the special agent responded.
'You ever did (24 hours) … and made them sit on the floor when they're in a packed van with other men?' Allensworth asked. According to the cooperators, in one week, 'after 144 hours on the road, he'd finally stop driving with his children sitting on the floorboards.'
Several times during the hearing, Abrego Garcia's attorneys objected to the use of hearsay – or even multiple tiers of hearsay, they said – as evidence in court. Examples of this during the hearing included when the federal agent, on the witness stand, told the judge he had heard that a cooperator had heard from another person Abrego Garcia may have sexually harassed women.
The allegation of Abrego Garcia being linked to MS-13 had similarly come to federal authorities through a chain of sources, the hearing revealed.
At one point in the hearing, McGuire tried to point, as validity of the dangerousness of human smuggling, to a wreck in Mexico during an operation that killed many people.
The judge clarified from the bench that Abrego Garcia wasn't involved in that incident.
'It is of marginal relevance of what may have happened in some other kind of similar organization of which Mr. Abrego Garcia may be a part,' she said.
Some legal experts, such as Honig, say that Abrego Garcia's smuggling case itself is the type that wouldn't have gotten much notice at all, let alone a televised press conference from Attorney General Pam Bondi announcing the indictment.
'Bondi stood behind that podium, flanked by her top Justice Department lieutenants, and yelled into the mic for one reason: politics,' Honig wrote in a recent New York Magazine article.
Indeed, both Bondi and McGuire have emphasized how dangerous they believe men like Abrego Garcia may be, and their interest in keeping them off the streets.
'There were children involved in that, you know, human trafficking, not only in our country but in our world is very, very real. It's very dangerous,' Bondi said at the press conference announcing the indictment.
She then noted how, in unrelated cases, MS-13 may bring children to the US to groom them to become gang members.
'My job is to try to protect this community,' McGuire said at the court hearing. When pressed by the judge repeatedly, though, on whether he had evidence to show in recent months that Abrego Garcia may be dangerous, he responded that he was relying more on his common sense, a lack of evidence showing the opposite, and his belief.
