The Kilmar Abrego Garcia saga has been one of the more embarrassing chapters for the Trump administration, consisting of illegally sending Abrego to El Salvador, then saying he would never come back and then finally getting him back, only to prosecute him in a case that a judge dismissed as unconstitutionally vindictive.

While separately still trying to deport him, the Justice Department is seeking to salvage the prosecution by appealing the judge’s rare vindictiveness ruling.

When the government got Abrego back to the United States last year, it had an indictment waiting for him in Tennessee, alleging that he illegally transported undocumented immigrants. He pleaded not guilty to the charges, which stemmed from a 2022 traffic stop.

Before dismissing the indictment in May, U.S. District Judge Waverly Crenshaw had observed that the yearslong delay from then to Abrego’s 2025 charges was “atypical” in his jurisdiction. The Obama appointee ultimately concluded that “absent Abrego’s successful lawsuit challenging his removal to El Salvador, the Government would not have brought this prosecution.”

Vindictive prosecution motions are rarely granted but have been brought by several defendants targeted by the administration in President Donald Trump’s revenge-themed second term.

Still, Crenshaw said he didn’t reach his stark conclusion lightly.

“The Executive Branch closed its investigation on the November 2022 traffic stop,” he wrote, adding, “Only after Abrego succeeded in vindicating his rights did the Executive Branch reopen that investigation.”

Recently confirmed Attorney General Todd Blanche, who was already a top DOJ official at the time of Abrego’s indictment, played a prominent role in Crenshaw’s vindictiveness ruling. The judge referred to Blanche’s investigation into Abrego as “tainted.” The judge wrote that instead of investigating the 2022 traffic stop to identify who was responsible for the human smuggling, “Blanche started the investigation to implicate Abrego. He did so to justify the Executive Branch’s decision to remove him to El Salvador.”

But the Trump DOJ said it was Crenshaw who overstepped in unprecedented fashion with reasoning that “threatens a serious and untenable encroachment on prosecutorial decision making far beyond this case.”

In its opening brief filed Monday, the department said the district judge wrongly applied a presumption of vindictiveness to the government’s initial charging decision, and that he further erred in concluding that the government failed to rebut that presumption.

The DOJ said the decision to prosecute Abrego wasn’t unlawfully infected from afar by Blanche in Washington, but rather rested solely with Robert McGuire, who led the Tennessee district office in which Abrego was charged. McGuire “had no stake” in Abrego’s prior civil challenge to his illegal removal, the DOJ said in its brief to the U.S. Court of Appeals for the 6th Circuit, which hears cases from Tennessee and nearby states.

“[E]ven if Blanche had expressed animus,” the DOJ’s brief said, “McGuire’s independent decision to prosecute would break any causal chain to Blanche’s statements — and thus undermine any argument that the prosecutor’s actions were unreasonable based on Blanche’s statements.”

In his ruling dismissing the indictment, Crenshaw said McGuire “was not objectively independent in any sense that rebuts the presumption” of vindictiveness. He said McGuire’s “subjective good faith explanations” were “at odds with all the other evidence” and “also at odds with the concern of his own Criminal Division Chief, who warned that the prosecution could appear vindictive.”

The judge called McGuire “a talented, gifted prosecutor brought into a tainted investigation, handed a star witness by Main Justice to obtain a tainted indictment.”

Abrego’s lawyers will have a chance to respond to the DOJ’s brief before the appeals court weighs in. The next step in the appellate process is the Supreme Court, if the losing party decides to challenge the circuit court’s eventual ruling to the justices.

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