Before President Donald Trump stuffed the Department of Justice full of his personal criminal attorneys and other assorted minions with a cult-like devotion to him, the possibility of a defendant prevailing on a selective or vindictive prosecution motion was vanishingly small. But now, the administration’s targeted efforts are so transparent, so bad faith, that they may actually break new ground in, well, losing.
Right now, Kilmar Abrego Garcia is trying to get Deputy Attorney General Todd Blanche to testify under oath as part of the Salvadoran immigrant’s vindictive prosecution claim. And the Trump administration is howling about it with a long whine of how dare you besmirch the intentions of Todd Blanche!
Usually, as in nearly 100% of the time, a defendant can’t haul the person prosecuting him into court to talk about prosecutorial decisions. And that makes sense. Prosecutions, by their very nature, involve selecting who to charge and what to charge. Additionally, those internal discussions are generally privileged, which also makes sense.
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However, when a defendant can show that they were singled out for prosecution in a way other similarly situated people were not, and that the prosecutor had an improper motive, like retaliating against someone for exercising their rights, they might prevail on a selective prosecution claim.
Vindictive prosecution is a bit different, requiring a defendant to show that the prosecutor has “genuine animus” toward the defendant and that the defendant was only charged because of that animus.
In Abrego Garcia’s case, he’s alleging that he was vindictively prosecuted, and he’s not conjuring that out of thin air. Rather, it’s based on Blanche going on Fox News to shoot his mouth off and boast that the DOJ started criminally investigating Abrego Garcia only after a judge in Maryland found they had no right to deport him, and then Abrego Garcia was indicted “on very serious charges.”
So, the deputy attorney general went on television to admit that the federal charges against Abrego Garcia were manufactured after a judge ruled against the administration in Abrego Garcia’s deportation proceedings.
That looks a lot like vindictive prosecution. However, it’s hard to prove that without being able to question Blanche about his motivations and the nature of the “investigation” that was undertaken—hence needing to get him on the stand.
Kilmar Abrego Garcia, right, and his brother Cesar Abrego Garcia, center, arrive at the Immigration and Customs Enforcement field office in Baltimore on Aug. 25.
Abrego Garcia has already advanced further than most defendants in raising this type of claim. The judge has already granted the Maryland sheet metal worker’s motion to stop government employees from making “extrajudicial statements that are troubling, especially where many of them are exaggerated if not simply inaccurate.”
What type of statements, you might ask? Those would include Homeland Security Secretary Kristi Noem popping off to say that Abrego Garcia is an “MS-13 gang member, human trafficker, serial domestic abuser, and child predator.” So-called “border czar” and bribe enthusiast Tom Homan saying that Abrego Garcia is “a criminal alien…a member of MS-13…a wifebeater…a human trafficker…[and] a bad person [who is] not going to be here.” Or how about Attorney General Pam Bondi saying, “He was a smuggler of humans and children and women. He made over 100 trips, the grand jury found, smuggling people throughout our country.”
These are not little slip-ups. Prosecutors know that they can’t make statements about someone’s character or reputation, or express views on a defendant’s guilt or innocence. And they certainly can’t lie about what the facts underlying the charges are. Nonetheless, administration officials cannot stop themselves from doing so.
The judge in Abrego Garcia’s case has also already found that there was a “reasonable likelihood of vindictiveness” and ordered an evidentiary hearing, which is where questioning Blanche would come in.
If all of this sounds familiar, it’s because former FBI director James Comey has raised both selective and vindictive prosecution claims as reasons to dismiss the DOJ’s indictment against him. Comey, of course, can point to even more public statements showing that his prosecution was ordered by Trump despite there being no real basis to charge him.
He’s got Trump’s accidental shoulda-been-a-DM Truth Social post, where he excoriated Bondi for not moving faster to indict Comey. There’s also the firing of the U.S. Attorney for the Eastern District of Virginia for refusing to bring charges, only to be replaced by the incompetent rake-stepper Lindsey Halligan, who obligingly charged Comey ASAP.
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It’s really a perfect example of Trump’s overall worldview of “for me but not for thee” that Trump tried this argument in his election interference case. He lost, of course, because there was no evidence that special counsel Jack Smith or former President Joe Biden or literally anyone else wanted to target Trump personally based on their hatred of him. That’s because normal people in normal administrations don’t do that.
What the administration is running into here is that it cannot be a tough shit-talker to the press about criminal defendants, doing it all for the ‘gram and the headlines and the memes with no reservations about lying, and then claim they are just widdle guys following the rules, and nothing they have said publicly should be taken seriously. You can’t have it both ways—at least not until the Supreme Court weighs in.
