In light of the law and the actual charges, the ruling is not a surprise — and he will remain detained under immigration law.
As our Benjamin Rothove reports, a federal magistrate judge granted bail to Kilmar Abrego Garcia in connection with his criminal indictment on alien trafficking charges, and the ruling is academic since he will remain in custody, under immigration law, as an illegal alien subject to a removal order.
When the Trump Justice Department charged Abrego Garcia a couple of weeks ago, I explained that the indictment raises more questions than it answers. The indictment charges two comparatively minor felony offenses and no violent crimes. The Trump DOJ larded the indictment up with allusions to gun trafficking, drug trafficking, sexual abuse, and membership in MS-13, a notoriously violent gang. But it doesn’t actually charge Abrego Garcia with any of those things. They are included so that there would be a record from which administration officials could keep up their public portrayal of Abrego Garcia as a dangerous sociopath.
He may be one for all I know, but the actual charges in the case do not bear that out. Experienced prosecutors well know that if they’ve only charged a defendant with a couple of counts of transporting illegal aliens from place to place, no judge is going to let them put uncharged evidence of serious criminal conduct in front of a jury.
To repeat, it looks to me like the government has a good chance of winning its case, but it’s not a slam dunk. Since prosecutors didn’t bring charges based on what its informants say about Abrego Garcia’s gang, guns, and drug activities, we have to assume that the government doesn’t have much faith that a jury will find those informants credible. And in fact, the government’s theory on Abrego Garcia’s connection to MS-13 is unclear: The indictment variously suggests that he is a member of the organization, a mere associate who occasionally works with MS-13, or an apparent leader highly respected by MS-13 members — but nowhere does it even hint that Abrego Garcia is connected to murder or other crimes of violence routinely committed by MS-13. (The government may truly believe that he is, but the court has to presume him innocent, especially where the government hasn’t charged him with heinous crimes.)
Otherwise, the case is built on a single traffic stop by state police, as to which there is strong evidence that Abrego Garcia was engaged in alien smuggling. But even that incident did not result in Abrego Garcia’s arrest, much less in charges against him — probably because the state police knew the Biden administration was more likely to give the state a hard time for trying to enforce immigration law than to prosecute an alien for alien smuggling.
In a bail hearing, to succeed on a motion for pretrial detention, the government has to show that the defendant is either a serious flight risk or a danger to the community, or both. In principle, I think illegal aliens should be detained as flight risks since they have ties overseas. But here, Abrego Garcia has been fighting deportation and there is a DOJ immigration court ruling (which the Trump DOJ did not appeal in 2019) that he fears persecution in El Salvador, the foreign country to which he has ties. It is thus tough to win the flight risk claim in a criminal justice system in which bail is the rule and detention is the exception.
As for danger to the community, in light of the run-of-the-mill charges and absence of evidence tying Abrego Garcia to violence, that claim was uphill for prosecutors. Again, our system’s default position is that defendants who stand accused but not convicted should get bail; unless the government has strong proof of violent propensities, a judge is going to find that there are release conditions that will protect the community while assuring that the defendant makes his required court appearances.
The criminal justice system is separate from the immigration enforcement system. In the latter, what matters is that Abrego Garcia is an illegal alien with an order of removal that allows him to be deported to any country except El Salvador. That is enough to detain him, end of story. In fact, the only curious things are why the DOJ in Trump’s first term agreed to Abrego Garcia’s release in 2019, and why the current Trump DOJ has not taken action to try to undo the 2019 withholding of removal order that bars his repatriation to his native country.
Finally, I repeat that the indictment does not solve the administration’s problem. The administration wants to send Abrego Garcia back to El Salvador. But convicting him of alien trafficking would not extinguish the 2019 order barring extradition to El Salvador; and, on the other hand, if the Justice Department did get the 2019 order reversed, it wouldn’t need to convict him of crimes in order to remove him to El Salvador — and even now, it need not convict him of crimes in order to deport him to some other country.