The Criminal Case Against Kilmar Abrego Garcia Is Highly Suspect

On Friday, the Trump administration finally complied with multiple court orders to bring Kilmar Abrego Garcia back to the United States, securing his release from a prison in El Salvador. The catch: Federal officials promptly placed Abrego Garcia in criminal custody, unveiling an indictment alleging that he unlawfully smuggled migrants across the U.S. He will now be detained in Tennessee—far from his home and family in Maryland—awaiting trial on these charges.

The indictment is, quite obviously, an effort by the White House to save face after losing its legal battle to keep Abrego Garcia imprisoned overseas. It has been nearly three months since the government deported him, due to its own “administrative error,” in clear violation of a court order. And it has been almost two months since the Supreme Court ordered the government to “facilitate” his return from the Salvadoran prison where he has been held. Although Abrego Garcia lacks permanent legal status in the U.S., he was protected against removal to his home country of El Salvador and denied due process during his expulsion, along with hundreds of other migrants to the notorious CECOT prison complex. (After his case garnered international attention, he was moved by Salvadoran authorities to a different prison.) Now, after repeatedly suggesting that it would defy SCOTUS, the Trump administration has finally complied, begrudgingly, by bringing Abrego Garcia back to the United States to face criminal prosecution.

The charges against him may be valid. They may be exaggerated. Or they may be fabricated. It is far too soon to tell, and an indictment—which is notoriously easy to obtain—sheds little light on the matter. But already, there are at least five reasons to be skeptical that the government is acting in good faith and telling the truth about Abrego Garcia.

First, it is unclear why the Trump administration waited so long to bring this indictment if the facts are as damning and undeniable as it claims. The White House has been desperately searching for ways to smear Abrego Garcia since it first deported him in March. It incessantly alleged that he was a known gang member without proffering any credible evidence; the White House’s alleged “proof” rested on the word of a disgraced former cop who later pleaded guilty to providing confidential information to a sex worker he had hired. The administration also accused Abrego Garcia of human trafficking because, in late 2022, he was pulled over while driving in a car with eight other Hispanic men. That episode now forms the basis of his indictment. But if that’s true, why did federal prosecutors wait two and a half years to charge him?

Second, and relatedly, the federal government took a very different view of the 2022 incident when it occurred. There was no overt evidence that Abrego Garcia was smuggling immigrants across the country, as prosecutors now claim. At the time, any inference of human trafficking rested entirely on circumstantial evidence and racial profiling. (A known construction worker, Abrego Garcia reported that he and his passengers were on their way to a construction site.) After pulling him over, Tennessee police reported Abrego Garcia and his passengers to federal law enforcement—but federal officers directed local police to let them continue along their way. The federal government did not see fit to even detain or investigate him then. Now it has brought felony charges against him. What changed—other than the president and his suddenly urgent desire to find a justification for his blatantly unlawful rendition program?

Third, as Just Security’s Ryan Goodman has noted, the government’s account of the 2022 traffic stop has shifted as well. In their indictment and motion for pretrial detention, prosecutors claim that Abrego Garcia lied to officers during the encounter, concealing that he was driving his passengers up from Texas. That allegation lies at the heart of the case: It ostensibly confirms that Abrego Garcia was dishonest about his actions and intentions, giving rise to a reasonable suspicion that he was covering up criminal activity. The allegation, though, appears to be false. According to a 2022 Department of Homeland Security referral report, he was driving his passengers from Texas to Maryland for construction work. This report thus contradicts the government’s new assertion that Abrego Garcia deceptively omitted the fact that his journey began in the Lone Star State.

Fourth, prosecutors have now brought forth a raft of disturbing allegations about Abrego Garcia’s behavior, accusing him of regularly smuggling guns, transporting migrants for cash, and attempting to solicit child pornography. But it has provided literally no supporting evidence for its claims about child pornography, or even the scantest details about this eye-popping accusation. Meanwhile, its allegations about human smuggling rest entirely on Abrego Garcia’s alleged co-conspirators, who have since been imprisoned or deported. This kind of evidence is notoriously unreliable, in part because the government frequently offers deals—including payments, sentence reductions, or early release—to informants in exchange for inculpatory evidence. This practice incentivizes hyperbolic or made-up claims and disproportionately leads to wrongful conviction. Indeed, the Supreme Court recently took the rare step of overturning a capital conviction that rested on the dubious testimony of the defendant’s alleged co-conspirator. The Trump administration’s accusations should therefore be regarded with healthy suspicion.

Finally, ABC News has reported that Ben Schrader, a high-ranking federal prosecutor in Tennessee, has resigned over his office’s conduct in this case, fearing that Abrego Garcia was targeted for political reasons. Schrader’s unusual move is a flashing red warning sign that something has gone terribly wrong in this case. There could be no clearer indication that the Trump administration is, indeed, persecuting Abrego Garcia as punishment for his efforts to fight his illegal deportation—a perverse attempt to ensure that, although he may have succeeded in returning to the U.S., his remaining time here will be spent behind bars.

In 1940, shortly before his elevation to the Supreme Court, Robert Jackson issued a warning about the sweeping discretion of federal prosecutors. “With the law books filled with a great assortment of crimes,” Jackson explained, “a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.” This approach, Jackson warned, represents the “greatest danger of abuse,” especially for those who happen to be “unpopular” with the government.

It is abundantly clear that in Abrego Garcia’s case, the Trump administration started by “picking the man,” then looking for the crime. That alone is cause for concern that this indictment represents a grievous abuse of the criminal justice system. The facts that come out at trial may or may not substantiate the charges. But at this point, the case bears so many hallmarks of a political prosecution that no one should assume that the government is speaking a word of truth.

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