And even if he is convicted, the Trump administration’s core problem remains: He cannot lawfully be deported to El Salvador unless a 2019 order is reversed.
T he Justice Department worked some atrophied muscles by indicting Kilmar Abrego Garcia last week. This was a welcome development.
For weeks, in its newfangled role as annex to the White House Press Office, the Trump DOJ had peddled uncharged evidence of the illegal alien’s criminal activities, domestic abuse, and membership in Mara Salvatrucha — i.e., MS-13, the violent international gang that the Trump administration has designated as a foreign terrorist organization. The most notable information was that, in 2022, Abrego Garcia had been detained by Tennessee state troopers in what appeared to be a human-smuggling operation — although he had not been placed under arrest, much less charged with a crime.
Several times during our podcast, I wistfully recounted for Rich Lowry the days of yore, when the Justice Department adhered to its rules against making public evidentiary disclosures about people it had not charged with crimes — rules premised on the quaint notion that the DOJ is in the business of law enforcement, not political narrative. Nutty as this sounds, I wondered whether Attorney General Pamela Bondi, rather than amplifying media stories in her many appearances on nighttime cable shows, might someday have one of her subordinates put some of the information that could actually be proved into, you know, one of those indictments that used to happen before the DOJ press statements.
Otherwise, I’ve wondered why Bondi, rather than discipline the DOJ lawyer who correctly admitted to a judge that Abrego Garcia had been unlawfully deported to the one country to which it was illegal to send him, had apparently not executed the legal process for undoing an order of withholding of removal to El Salvador. It is that 2019 order, which the DOJ in Trump’s first administration failed to appeal, that rendered Abrego Garcia’s 2025 deportation to El Salvador illegal. I have to assume that the DOJ is working to reverse the order — doing so would have strengthened its arguments against returning the alien to the U.S.
The Indictment
Finally, last week, the DOJ indicted Abrego Garcia in Tennessee federal court (see our editorial). It looks like a case the government should win. But as is typical, the Trump DOJ is hyping a modest case, involving two run-of-the-mill immigration-law offenses, as ballast for a political narrative that the alien is a top leader of a murderous gang and is himself complicit in international narcotics trafficking, interstate gun trafficking, and sexual abuse.
Specifically, the indictment charges Abrego Garcia with two counts of harboring and transporting illegal aliens — the substantive offense of doing so, and the offense of conspiring to do so, both in violation of Section 1324 of the immigration laws. Each charge is punishable by up to five years’ imprisonment, and potentially no imprisonment (the two counts statutorily aggregate to zero to ten years’ imprisonment, but for sentencing guidelines purposes they’d likely be folded into one offense, punishable by zero to five years).
This is not to minimize the offenses. They are felonies. The Justice Department should have been charging such cases routinely over the past two decades. If it had, we would not have such an out-of-control illegal immigration problem; a significant source of smuggling income that supports MS-13’s other crimes (as well as its recruitment of new gang members) would also have been stanched.
What the Indictment Doesn’t Charge
Nevertheless, Abrego Garcia is not charged with any other crimes. Why is that worth pointing out? Because the indictment strongly suggests that the government is poised to present information from accomplices (referred to as CC-1 through CC-6, with “CC” standing for “co-conspirator”) that Abrego Garcia was “a member and associate of” MS-13, which is “a criminal enterprise engaged in, among other activities, acts and threats involving murder, extortion, narcotics trafficking, firearms trafficking, alien smuggling, and money laundering.”
Moreover, the indictment states that Abrego Garcia and his coconspirators, in conjunction with the alien-smuggling activities at the heart of the case, occasionally (a) transported firearms illegally purchased in Texas for distribution and resale in Maryland (where Abrego Garcia lived); (b) transported (presumably illegal) narcotics purchased in Texas for distribution and sale in Maryland; and (c) transported other MS-13 members and associates in furtherance of the organization’s criminal activities. Furthermore, the indictment states that Abrego Garcia was once reprimanded by three of his co-conspirators for having “abused some of the female undocumented aliens” he was transporting, which the conspirators considered “bad for business.”
Understand: Federal criminal law is replete with statutes criminalizing racketeering (see, e.g., RICO, Sections 1961 and 1962 of the penal code); participation in the criminal activities (including human trafficking) of street gangs (see Section 521); the illegal possession and transportation of firearms, including during the course of committing other crimes (see Sections 922 and 924(c)); sex trafficking, particularly of minors (see, e.g., Sections 1591 and 2423); and the possession, transportation, and distribution of illegal narcotics (see Section 841 of the drug laws). Historically, the Justice Department has charged many alleged MS-13 members with RICO offenses (see, e.g., here, here, and here).
Yet, there are no such charges against Abrego Garcia. The Trump DOJ is trying to brand him with these crimes without charging him with these crimes.
Now, in federal jurisprudence, prosecutors are given a wide berth to introduce what’s known as “background evidence,” particularly in conspiracy cases. If Abrego Garcia goes to trial, a judge should give the DOJ leeway to prove that the smuggling conspiracy alleged in the indictment was indeed orchestrated by MS-13, and that MS-13 is a notorious international criminal gang with (a) a reputation for violence and (b) significant involvement in alien trafficking, including along the route from Mexico to Texas and then on to other locations throughout the United States, such as Tennessee and Maryland.
Beyond that, however, in a prosecution in which the defendant is not charged in the enormities of MS-13, no judge is going to admit evidence of murder, drug trafficking, weapons trafficking, or sexual assault, or that the defendant appeared to be treated with a level of respect and fear befitting high rank in MS-13. Experienced federal prosecutors know that, when the defense inevitably moves to preclude such testimony and strike the pertinent passages from the indictment, the judge is going to rule that if the government wants to try Abrego Garcia for these activities, it should charge them as crimes and prove them beyond a reasonable doubt — otherwise, they will be ruled out of the case as unfairly prejudicial.
The Trump DOJ’s Case Hinges on the 2022 Smuggling Incident
If the Justice Department were confident it could prove these heinous crimes, it would charge them. Given that it has not, we can only assume that prosecutors are not very confident in their accomplice witnesses. Hence, even though the indictment purports to cover a nine-year span (from 2016 through the present), when it is closely examined, we find that the case is actually built on the one aforementioned incident in 2022. That incident is portrayed as merely “representative” of the indictment’s overarching allegations about MS-13 and Abrego Garcia’s alleged complicity in its human-smuggling operations, but it is clearly the anchor of the case.
The evidence that this incident, a traffic stop, proves human trafficking, at least on this one occasion, appears convincing.
Abrego Garcia was allegedly the driver of a Chevy Suburban, in which he was conveying nine other “Hispanic males . . . none of whom had any identification.” The Suburban had been outfitted with a makeshift third row for seating, in what would normally be the cargo-storage area. Abrego Garcia is said to have falsely claimed that the group was headed to Maryland after two weeks of working construction in St. Louis. Yet, there was no construction equipment onboard, and the government asserts that it can prove, through license plate reader (LPR) data, that (a) the Suburban was nowhere near St. Louis in the preceding months but (b) it had been in Houston within the week leading to the traffic stop. During the stop, while interviewed by state troopers, the passengers dubiously claimed to be headed for the same address in Maryland, which smacks of a cover story; the troopers also found that Abrego Garcia possessed $1,400 in cash, which is consistent with payment for transporting aliens.
All that said, though, the troopers did not arrest Abrego Garcia and his passengers. Quite likely, this is because they did not appear to be in serious violation of state law, and because the troopers knew the Biden Justice Department would not take enforcement action against the group anyway.
Bottom line: This looks like a strong enough case for the government to win, but it’s no slam dunk. The indictment does not allege that any of the six numbered coconspirators was involved in the 2022 incident, so presumably they can’t testify about it. It’s also not clear whether the government has identified any of the passengers who were in the Suburban (i.e., people who’d be in a position to testify about how and why Abrego Garcia ferried them to Tennessee). Prosecutors are clearly hoping that the testimony of dodgy accomplices about MS-13’s smuggling activities will add weight to the suspicious circumstances of the 2022 traffic stop that resulted in no charges and that, in turn, the suspicious circumstances of the traffic stop will convince a jury to believe the accomplices’ testimony implicating Abrego Garcia in those smuggling activities.
Nothing wrong with that. The jury will be instructed to view the evidence as a whole; it is common for weak accomplice testimony to be buttressed by a factual occurrence that lends some credence to the accomplices’ version of events. In this case, that should be enough for a jury to find Abrego Garcia guilty of alien smuggling.
It should probably also be sufficient to support the administration’s claim that Abrego Garcia is at least an associate of MS-13, provided that the jury finds him guilty on the conspiracy charge. There is no allegation in the indictment that other MS-13 members were detained with Abrego Garcia during the 2022 alien smuggling incident; to convict him of conspiracy, a jury would have to buy at least some of the accomplice testimony tying Abrego Garcia, and thus the 2022 conduct, to MS-13.
Still, as the case is pleaded, there will not be sufficient evidence to tie Abrego Garcia to murder, drug trafficking, gun trafficking, or sexual abuse — contrary to cavalier claims by administration officials. To make such connections, prosecutors would need to charge and prove those crimes. Since they haven’t, we can only assume these scattered statements, which are unnecessary to prove the two immigration-law charges, are included in the indictment for political purposes.
A Few Final Points
Even if Abrego Garcia is convicted on those two charges, the administration’s core problem would remain: He cannot lawfully be deported to El Salvador, the place to which the administration has tried to repatriate him and presumably still wants to repatriate him, unless the 2019 withholding of deportation order is reversed. Remember: All along, Abrego Garcia has been removable because he was an illegal alien; the sole issue was removing him to El Salvador. The administration does not need to convict him of a crime to justify deporting him someplace else; on the other hand, convicting him of a crime would not change the 2019 DOJ immigration court ruling that his alleged fear of persecution in El Salvador is credible and precludes repatriation there.
It is hard to say, then, what the indictment accomplishes, aside from bolstering the administration’s political rhetoric that Abrego Garcia is a terrible human being. On the other hand, the government’s announcement that Abrego Garcia will be returned to the United States to face the charges puts the lie to the administration’s claims that, because he was transferred to the jurisdiction and custody of President Nayib Bukele’s government, the administration was powerless to return him to the United States. Instead, what Trump officials are effectively saying is: We could have brought him back at any time for our own purposes; we were just unwilling to bring him back either to rectify our illegal deportation of him or to vindicate the due process rights that the courts, including the Supreme Court, have ruled that he has.
While it crows about Abrego Garcia’s indictment, the DOJ must realize that the new prosecution undermines its similar claims, in the case of scores of Venezuelans also deported to El Salvador, that the administration is powerless to return them to the United States. I’m referring, of course, to the Venezuelans whom the administration alleges are members of Tren de Aragua (TdA) and thus, by dint of a presidential proclamation, removable under the Alien Enemies Act (AEA). The courts, including the unanimous Supreme Court, have since held that those aliens have a right to challenge their deportation — specifically, to litigate whether the AEA was lawfully invoked and whether they are TdA members. These Venezuelans have been incarcerated since mid-March in El Salvador’s anti-terrorism prison (CECOT), and last week, Judge James Boasberg, an Obama appointee to the federal district court in Washington, D.C., ordered the administration to facilitate their ability to challenge their deportation.
Finally, in Abrego Garcia’s case, his lawyers have just asked Judge Paula Xinis, an Obama appointee to the federal district court in Maryland, to continue pursuing contempt proceedings. They urge the court to conclude that their client’s sudden return to the U.S. to face criminal charges establishes that the administration officials were lying when they represented — most recently, six days after Abrego Garcia’s May 21 indictment (under seal) — that they “d[id] not have the power to produce him” for U.S. judicial proceedings.
The Trump Justice Department was right to charge Abrego Garcia with crimes, rather than continue leveling uncharged allegations against him, in violation of longstanding DOJ rules. That said, the indictment — along with Abrego Garcia’s sudden reappearance in the United States after the administration repeatedly asserted that he could not be returned here — raises more questions than it answers.