As Todd Blanche takes the reins at the Justice Department, a federal judge is set to decide whether controversial remarks made last year by the now-acting attorney general should lead to the unravelling of one of the Trump administration’s marquee criminal cases.
Blanche’s public statements about human smuggling charges brought against Kilmar Abrego Garcia, who the US wrongly deported to a mega-prison in El Salvador, have for months frustrated prosecutors’ ability to bring the case to trial as Abrego Garcia has asserted that he’s being vindictively targeted.
A judge is poised to decide at any time whether to use those comments to dismiss the charges. But if doesn’t toss out the charges, he could decide to summon Blanche to his courtroom in Nashville, Tennessee, to answer questions under oath about the department’s motivation for criminally pursuing Abrego Garcia.
The situation underscores how public missteps by the Justice Department’s top brass have the potential to lead to major real-world consequences for an agency that is of particular interest to President Donald Trump.
When Pam Bondi was attorney general, her inaccurate comments on Epstein landed her in hot water more than once – most notably when she suggested on Fox News she had a list of names of men who were clients of Jeffrey Epstein.
“The judge’s determination as to the truthfulness of Blanche’s statements takes on extra importance now that Blanche is the acting attorney general and, potentially, a candidate for the permanent job,” said Elie Honig, a CNN senior legal analyst and former federal prosecutor.
“If the judge finds that Blanche’s statements support a finding of vindictive prosecution, that’ll be a black eye for Blanche, and for DOJ, and will impact his credibility,” Honig added.
The Justice Department did not respond to a request for comment.
The Abrego Garcia case has been a sore spot for the Trump administration since he was deported in error last March to his home country of El Salvador. Courts at every level of the federal judiciary said the mistake needed to be corrected, yet officials spent months resisting demands that they bring back to Maryland the father of three whom the US government claims is a dangerous member of the MS-13 gang.
He was finally flown back to the US in June after federal prosecutors in Tennessee secured a pair of human smuggling charges against him that stemmed from a traffic stop in the state years earlier.
The day officials announced Abrego Garcia’s return, Blanche told Fox News that the Justice Department started probing Abrego Garcia after a judge in Maryland both concluded that the administration “had no right to deport him” and accused officials “of doing something wrong” in its approach to him.
Abrego Garcia’s lawyers seized on those words as they pressed the judge overseeing his case, Waverly Crenshaw, to dismiss the two charges based on their contention that the charges were brought as a vindictive prosecution. A pair of rulings from the judge last year showed that he was leaning toward doing just that.
The appointee of former President Barack Obama said in October that the burden was on the government to fend off a presumption that officials only reopened a years-old probe into Abrego Garcia, and subsequently asked a grand jury to approve charges, to punish him for filing the case in Maryland over his wrongful deportation.
“Deputy Attorney (General) Blanche directly linked the Maryland lawsuit to the investigation of criminal behavior by Abrego. At minimum, this suggests the (Trump administration’s) frustration with Abrego, and that his case was not a run-of-the-mill prosecution,” Crenshaw wrote at the time.
Crenshaw gave prosecutors the chance to fend off the presumption that they were wrongly prosecuting Abrego Garcia by putting witnesses on the stand earlier this year to buttress their claim that key decisions in the matter were made locally and not by top officials in Washington, like Blanche and his deputies, or through indirect pressure from them.
That testimony, Abrego Garcia’s attorneys told the judge this week, does little to aid prosecutors’ crumbling case. They argued that the two witnesses who answered questions under oath about the matter “were unable or unwilling” to fill in critical details that could ultimately keep the case alive.
And, importantly, they pointed to the fact that Blanche himself was not there to explain his comments from last June that have imperiled the case.
“Mr. Blanche did not come to court to rebut the presumption resulting from his own statements,” they wrote in court papers. “The government has fought tooth and nail to put any explanations beyond the court’s reach.”
“The most likely explanation for that resistance is that any attempted explanation would be futile and expose the vindictiveness at the core of this prosecution,” Abrego Garcia’s lawyers argued.
For its part, DOJ maintains that the lead prosecutor in the case, Robert McGuire, was the sole decision-maker when it came time to seeking an indictment against Abrego Garcia.
“That decision was not animated by animus toward (Abrego Garcia),” prosecutors told Crenshaw on Monday. “It was not made under political pressure or expectation. Equally as undisputed, the decision to indict was not ordered by leadership at the Department of Justice. Rather, the decision was guided only by the evidence.”
If Crenshaw concludes that prosecutors successfully rebutted the presumption of vindictiveness, the decision will kick off another round of court proceedings that will include him having to decide whether Blanche himself must testify about the origins of the case.
Honig said that while Blanche’s temporary – and potentially more lasting – perch atop the department could cut in his favor if the case moves to that phase, his position is no proverbial get-out-of-jail-free card.
“As a technical legal matter, it makes no difference whether the person is the deputy AG or the acting attorney general or the confirmed attorney general,” he said. “As a practical matter, though, the higher up you get in the Justice Department, the more judges are going to try to avoid dragging someone into the courtroom – unless it’s simply unavoidable.”
Meanwhile, the government’s desire to bring Abrego Garcia to trial is confounding the Maryland judge who initially ordered officials to work to bring him back stateside last year.
US District Judge Paula Xinis, who has issued a series of rulings preventing the government from quickly re-detaining and re-deporting Abrego Garcia, sharply questioned Justice Department lawyers on Tuesday about their efforts to remove those barriers so the Department of Homeland Security can move ahead with deporting him to Liberia while other lawyers at DOJ are working at the same time to keep his criminal case on track.
DHS has for months been trying to deport Abrego Garcia to several different African countries, while simultaneously rejecting his desire to be sent to Costa Rica, which has said it would grant him some form of legal status should he arrive there. He’s unable to self-deport to the Central American country because of the pre-trial release conditions imposed on him in the Tennessee case.
“The Department of Justice and acting Attorney General Todd Blanche are prosecuting him in the Middle District of Tennessee,” Xinis said during a hearing, adding later: “You can’t have it all ways.”
“There seems to be no inclination that the Department of Justice is dismissing this indictment,” the judge said. “The bottom line is either you want him here for the criminal case or you don’t.”
“But if you want expeditious removal and you want the criminal case to proceed, that raises some serious concern about what’s happening in” Liberia, she added, appearing sympathetic to Abrego Garcia’s argument that the US’ push to “exile” him to the West African country is little more than “punishment” for his decision to sue over his initial deportation last year.
More wrangling over Xinis’ orders barring the government from re-deporting him is expected to play out at another hearing later this month.
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