Feds may not release Kilmar Abrego Garcia even if judge orders that
After a judge sharply questioned the claims against the Maryland man, the top prosecutor said ICE would hold and likely deport him if she orders his release.
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Style Note: During the hearing, Kilmar Abrego’s attorney Richard Tennent said that his client prefers to be identified by the surname Abrego, not “Garcia” or “Abrego Garcia” as widely reported.
After a judge sharply scrutinized the evidence against Kilmar Abrego Garcia, the top federal prosecutor in Nashville offered a “Heads I win, tails you lose” proposition to the Maryland man.
If a judge orders Abrego’s release, Immigration and Customs Enforcement will detain him and likely deport him, Acting U.S. Attorney Robert E. McGuire said on Friday.
“He is deportable to any country except El Salvador right now,” McGuire said in court.
U.S. Magistrate Judge Barbara D. Holmes did not immediately rule on Abrego’s detention, indicating that she would review the body-warn camera footage of his 2022 traffic stop once again before issuing a decision.
Abrego pleaded not guilty on Friday morning to conspiring to smuggle undocumented immigrants into the United States, forcing the first reckoning into whether the Trump administration’s allegations against him pass muster in a court of law.
The administration appears to be failing that first test: Judge Holmes repeatedly remarked that the evidence included multiple layers of hearsay and authenticity issues.
A years-old traffic stop
Exactly one week ago, Trump’s Justice Department unsealed Abrego’s indictment and returned him to the United States months after whisking him to an El Salvador terrorism prison.
Acting U.S. Attorney McGuire, who has not been confirmed by the Senate, presented arguments for his detention personally rather than through a line prosecutor. McGuire quickly called Homeland Security Investigations agent Peter Joseph to testify about the genesis of the investigation, which largely springs from a three-year-old traffic stop in Tennessee.
Agent Joseph said that his investigation began on April 28 of this year, less than a month before returning an indictment on an alleged conspiracy based on years old actions. Cross-examination revealed that many of his key witnesses were convicted of serious crimes and received lenient treatment in exchange for their cooperation. Joseph acknowledged that he learned about the corroborating statement of other witnesses secondhand.
The day that the investigation began, Trump’s border czar Tom Homan held a White House press conference defending Abrego’s expulsion in the wake of a Supreme Court decision ordering the government to “facilitate” the return.
Federal authorities quickly turned to trying to warm up the years old traffic stop.
In late 2022, the Tennessee Highway Patrol pulled over Abrego for speeding, a traffic stop that took renewed focus after the Trump administration had to justify whisking the Maryland man to El Salvador in defiance of a court order. Authorities said that they observed that Abrego’s Chevrolet Suburban had nine Hispanic men packed into the SUV.
Prosecutors now claim that body-worn camera footage represents evidence of a conspiracy to smuggle undocumented immigrants into the United States.
The HSI agent testified that the car belonged to Jose Hernandez-Reyes, who is serving a 30-month sentence in Alabama for transporting undocumented migrants. Reyes, a two-time felon who was deported five times, is now the cooperating witness identified in the indictment as CC-1. Since his cooperation, Hernandez-Reyes has been transferred to a halfway house, and he may be eligible for work authorization.
Agent Joseph identified CC-3 as another significant witness against Abrego: CC-3 is a close relative of Hernandez-Reyes and an admitted smuggler, who is cooperating with the government in return for his release from jail. Agent Joseph acknowledged that CC-3 applied for deferred action on immigration.
Agent Joseph emphasized that he did not personally offer the cooperating witnesses those benefits: “Absolutely not.”
“I would never offer somebody anything to testify without going through the chain of command,” Joseph said, adding that he did not know who did.
During the traffic stop, authorities allegedly found roughly $1,400 in an envelope in Abrego Garcia’s pocket. Hernandez-Reyes and CC-3 claim that Abrego ultimately made six figures on these trips.
Despite the government’s allegations, Hernandez-Reyes said that he didn’t see visible signs that Abrego was a member of MS-13. Judge Holmes skewered the evidence suggesting that Abrego was affiliated with the gang as “contradictory.”
“Seems slanderous”
Attorney General Pam Bondi sparked controversy about legal ethics during a press conference when she said Abrego had been accused of soliciting sexual images of a minor, even though he has never been charged with that crime.
The witness behind those allegations has been anonymously identified as NV, who told authorities that she was 15 when Abrego sought a nude image of her on Snapchat.
Agent Joseph acknowledged that she received compensation from the government for her testimony, and Abrego’s attorney Richard Tennent said that she was “connected” to the same family as Hernandez-Reyes and CC-3. The government has tried to tie, but not charge, Abrego with gun running, drugs and sexual misconduct involving minors.
Tennent said the entire line of questioning “seems slanderous.”
U.S. Magistrate Judge Barbara D. Holmes struck one piece of testimony on that subject, finding it involved “multiple levels of hearsay.”
“Because it’s a critical issue, it’s important that I get the most reliable sources of testimony,” Holmes said.
During the afternoon session, the magistrate later reversed her prior ruling, given the low evidentiary threshold for a detention hearing, but she previously cautioned the government to tread cautiously with such testimony.
“You’re going to need to present this in as expeditious, non-salacious a manner as possible,” she said.
Former U.S. Attorney
noted in that the most serious allegations in Abrego Garcia’s indictment seem to be attributed to those purported co-conspirators.The same day that a grand jury returned a sealed indictment against Abrego Garcia, Ben Schrader — then-chief of the criminal division for the U.S. Attorney’s office in Nashville — resigned. The Tennessean reported Schrader’s reputation as “one of the best,” and sources told other news outlets reported that Abrego Garcia’s indictment precipitated the resignation.
Attorney Dumaka Shabazz, one of Abrego’s lawyers, argued that the timing of the indictment after the Supreme Court’s ruling should be a red flag for the court.
“We believe that the court should view the government’s evidence through the lens of suspicion and skepticism,” Shabazz said.
Splashing cold water on the stray drug-related allegations, Shabazz pointed to another detail from the video: a police canine, which sniffed Abrego’s car and found nothing. Officers found no firearms in the car either, and Abrego was fully cooperative during the encounter.
Despicable!!!what can we do to help Kilmar Abrego???