Vindictive Prosecution

 Studying for the MPRE—the legal ethics exam they make all would-be lawyers take before they can be admitted to the bar—the instructors dwell in one unit on the responsibilities of prosecutors. Such officials must "seek justice, rather than merely a conviction," they say. 

Prosecutors must only prosecute in the courtroom, they also say, and not seek to prevail in the "court of public opinion"—such as by giving press conferences in which they smear the character of defendants with irrelevant character assassinations, rather than sticking to the facts of the case before them. 

But judging from the Trump administration, it appears all of those ethics rules are out the window now. What are we supposed to tell young, aspiring prosecutors when the Attorney General herself and the entire administration she serves has pursued a relentless campaign of vilification against an innocent man—all to cover up for their own mistake in wrongfully deporting him in the first place? 

We all know by now that the Trump administration never had legal authority to remove Kilmar Abrego Garcia to El Salvador. An immigration judge had granted him withholding of removal to his home country, because of fear of persecution there (fears which proved in the event to be eminently justified). 

We know that—once their mistake was discovered—instead of moving to correct it—they fired the attorney who had acknowledged the error (in line with his ethical duty of candor to the court). The highest-level members of the administration then took to the airwaves to issue demonstrably false allegations to smear Abrego's name—as if doing so would change his legal rights anyway. 

And finally, Pam Bondi announced that they had flown him home—only to stand trial on a nakedly concocted set of criminal allegations—pieced together out of a 2022 traffic stop, for which he was not charged at the time, and a set of statements by various government "confidential informants" who were offered relief in their own immigration cases if they would be willing to talk. 

Trump and his other officials talked openly about how they were prosecuting Abrego in order to try to vindicate their own decision to wrongfully deport him. Charging Abrego would "show everybody how horrible this guy is," Trump said publicly at the time. 

Finally, Abrego and his lawyers had had enough of this. Yesterday, they filed in court accusing the Justice Department of vindictive prosecution. Such allegations are notoriously hard to prove—they concede in the filing. But—they add—that's because prosecutors usually don't telegraph their retaliatory motive quite so nakedly and brazenly as this administration has done. 

If ever there were an obvious case if vindictiveness and prosecutorial misconduct for political gain—it's this. 

"Kilmar Abrego Garcia has been singled out by the United States government [...] It is obvious why," the lawyers wrote in their brief. Indeed—it is obvious why. It's because they wanted the hundreds of innocent people the administration illegally kidnapped and renditioned to El Salvador to remain nameless and faceless to the public—so that they could be cast as "criminal illegal" bogeymen. 

By challenging his deportation and defending his rights in court, Abrego put a human face and a human story to this false narrative. In doing so—he threatened the core of the dehumanization campaign on which the entire second Trump administration rests. 

So, of course he had to be punished for it; of course the administration had to try to re-cast him—however falsely—as a monster. 

The Times summarizes: 

Even after the White House realized that he had been mistakenly deported to a notorious terrorism prison in that country, officials “quickly latched onto unsubstantiated claims” that he was a member of the street gang MS-13 “to justify its mistake,” the lawyers wrote.

In short—the reason the government wanted so badly to prosecute Abrego is the same reason the British government was so desperate to make bogus charges of "treason" stick against twelve political prisoners they were trying to send to the gallows in 1794. As William Godwin wrote in their defense at the time—in a document that may have ultimately saved their necks from the noose: 

Government hastily involved itself in a dilemma, by apprehending these men for the sake of propagating alarm; and it is thought better to hang a few innocent persons, than that the Minister should stand detected in an error, or that the arm of government should be weakened by an act of justice.