Justice Department gets ominous news in court - Brian Tyler Cohen

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Legal Breakdown episode 646: Justice Department faces steep hill with new Kilmar Abrego Garcia ruling.

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BTC: You're watching the Legal Breakdown. Glenn, we have a good development here and a pretty ominous sign for the DOJ. Can you explain what just happened in court?

GK: Yeah, Brian, it looks like Abrego Garcia, our viewers will recall, he was one of the many people who were unlawfully deported to that prison in El Salvador, but the courts directed that he be brought back. He was brought back but then vindictively in my opinion based on the evidence DOJ brought criminal charges against him down in Tennessee.

Abrego Garcia has been winning on the deportation front and it looks like Abrego Garcia is also winning in his criminal case down in Tennessee because here is what just happened in that case. The presiding judge, Judge Crenshaw canceled the trial date. Why? Because he said, "I believe Abrego Garcia has presented substantial evidence." The legal term is he made a prima facie showing on its face enough evidence to prove at this stage he's being prosecuted vindictively in violation of his due process rights. So, let's kind of walk through procedurally what happens once a defendant, and this is rare, proves to a judge's satisfaction that the prosecutors are going after him vindictively, not in a righteous prosecution.

The burden shifts to the government, to the Department of Justice to present evidence to prove to the judge's satisfaction that they're not going after him vindictively. So, what Abrego Garcia's lawyers did is they filed for subpoenas because at the upcoming hearing on the vindictive prosecution issue, which is now set for January 28th, brego Garcia's lawyer said, "Okay, we need to put people like Todd Blanche and other high DOJ officials on the stand because we believe that they are going to help us prove this is a vindictive prosecution that should be dismissed."

And the judge said, "Okay, I will take that request under advisement, but we now have to do this by the numbers." One, Abrego Garcia's lawyers convinced me there's prima facie evidence that he's being vindictively prosecuted. Now, the burden shifts to DOJ, and DOJ has to present evidence. They have to call witnesses to try to prove to the judge's satisfaction that it's a righteous, not vindictive, prosecution. And here's the thing, Brian. If they can do that, then the burden shifts back to Abrego Garcia and his lawyers to show, "No, now we're going to put the evidence on through Todd Blanche and other high DOJ officials that we have subpoenaed to undercut whatever it is that DOJ's witnesses try to convince you, your honor, of regarding this not being a vindictive prosecution."

So, there's this little game of legal ping-pong back and forth, but there's a really ominous line in this four-page order that was just issued by Judge Crenshaw. He said, "You know what? Fine. We're going to do it by the numbers. I'm going to give DOJ the opportunity to put on whatever witnesses from DHS or wherever else they want to put on to try to convince me that DOJ wasn't acting vindictively against Abrego Garcia." And you know they may be able to prove it but he says something in the motion that leads the reader to conclude he's pretty skeptical, but he said I'll give you a chance but if you satisfy me that maybe this is a righteous prosecution then I'm going to go back to Abrego Garcia's lawyers and then we're going to take up their motion to get that subpoena issued for Todd Blanche and I think it's two other high DOJ officials because then he will still have the opportunity to prove it's a vindictive prosecution.

So when you read between the lines of this four-page order, it seems pretty ominous for Donald Trump's DOJ because the judge has already canceled the trial date and already made a prima facie finding that Abrego Garcia has presented evidence that shows this is a vindictive prosecution.

BTC: You know, I know that you and I speak about atmospheric precedent quite a bit where you know, you have a similar an analogous case happening in another jurisdiction and while that might not directly impact the ongoing litigation here, for example, it can still have some atmospheric impact, it's still taken under advisement by the judge. And so I'm curious to what extent do you think that a possible vindictive prosecution in the Kilmar Abrego Garcia case might impact the Letitia James or James Comey cases that of course the Trump administration is going to appeal and try to get back onto the docket here or vice versa if you have one of those cases that go first and the judge agrees to hear it on the merits if they can get it back into the courtroom because I know the prosecutors who've brought those cases were disqualified, but if they can figure out a way to get them back into the courtroom and those judges there find that Trump, for example, engaged in vindictive prosecution, then would the judge in the Kilmar Abrego Garcia case be able to say, "Oh, this guy has a proclivity to engage in vindictive or selective prosecutions, and so now I'm going to be more likely to rule in Kilmar Abrego Garcia's favor?"

GK: You know, Brian, that's a great question. You are one heck of a law student at this point, and you've probably learned much of what we need to know to contend with, you know, the Trump lawlessness of the day.

But so here's what will happen. We have seen vindictive prosecutions of Leticia James and James Comey. Now of course they were dismissed on other grounds because there was an in there was an unqualified US attorney Lindsey Halligan who got these indictments in the first place. But you know ordinarily you don't look to one case to provide evidence or information in another unrelated case except when there is a pattern when there is an MO modus operandi or method of operating demonstrated by one party or the other. And boy, it sure looks like there is a pattern of vindictive prosecutions against people that Donald Trump perceive as his political enemies or foes, you know, for some reason.

So, I can tell you if I were the lawyers in those cases, I would absolutely seek to introduce evidence of vindictiveness in other cases as they impacted my case and my defendant that I was representing. And then it's up to the judge either to accept it and factor it in to his or her decision or say, "I hear the argument you're making, but I'm just going to deal with this case on its four corners without regard to possible vindictive prosecutions by this very same administration in other cases.” But, you know, I like the defendant's chances of kind of cross-pollinating evidence of vindictiveness as it pertains to Abrego Garcia and James Comey and Leticia James, not to mention John Bolton and John Brennan and others who the Trump administration is hellbent on weaponizing the rule of law to go against.

BTC: And so in a way, isn't the fact that Trump is so eager to prosecute all of his political allies the very thing that may take him down in the end, the very thing that may lead to his inability to prosecute any of them?

GK: Yeah, it's all working against him. And we see Donald Trump and his DOJ failing in court over and over and over again, including trying to get his, you know, unqualified, lawless US attorneys in place in various US attorneys offices to do his dirty bidding. So, I think ultimately we see the rule of law continuing to stand strong against Donald Trump's lawlessness and abuse, you know, but the Supreme Court, I know that's always the ultimate challenge, but I'll tell you, the trial court judges and most of the courts of appeal, the criminal courts of appeal have been holding strong as a bulwark against Trump's lawlessness.

BTC: And last question here, Glenn, as it relates to Kilmar Abrego Garcia specifically, it feels to me like this administration just recognizes that it needs to make an example out of him and that if they were to deign to allow him, you know, to be to walk free because all of their prosecutions are completely baseless, that that would be more of a blow to their ego. And so, you know, if we know anything about the Trump administration, it's that God forbid you take a swipe at Trump's ego. And so do you think um given you know the power that the DOJ has to make someone's life a living hell that Kilmar Abrego Garcia has a decent chance of being able to walk free or do you think that if it's the last thing they do this DOJ is going to see to it that Garcia you know either is prosecuted in this criminal case or deported or whatever it may be?

GK: Brian, I think both things are in play. First of all, the court in Maryland in Abrego Garcia's deportation case has held strong and has ruled in his favor virtually at every turn. And it looks like that will probably continue to the end of that litigation. The courts in Tennessee, the judges are holding strong, but I happen to think even if Abrego Garcia is vindicated and exonerated in both of those cases, the Trump administration will find some way to make his life a living hell beyond those two cases, I would probably put my $1 bet on that as well. Um, but at the end of the day, you know, Donald Trump will continue to fail and maybe at some point they will, you know, no longer want to look foolish in the court of public opinion. Of course, what they will always fall back on, Brian, every time they lose in court is that the judges, even if they're appointed by Republican presidents, are radical left-wing lunatic judges.

BTC: Right. Well, look, plenty more to come on this case in particular. For those who are watching, if you'd like to follow along, the best way to do that is to subscribe to both of our channels. I'm going to put those links right here on the screen and also in the post description of this video. Best way to support our work and it is and always will be 100% free. I'm Brian Taylor Cohen…

GK: …and I'm Glenn Kirschner.

BTC: You're watching the Legal Breakdown.