Later today, the able USDC Judge Crenshaw will ask the Noemites why they are violating the express commands of his order and opinion of last week — by refusing to even discuss production of Noem / Miller / Rubio / Trump documents about Abrego’s case. [Some of the cases Mr. Abrego Garcia cites reach all the way back to the Bush/Cheney abuses of criminal process shortly after 9/11 — in the KSM and Zakhari renditions / prosecutions. So, the law is clear and well-settled, here.]

In sum, Abrego’s chief lawyer is ripping the government’s bad faith obstruction… to shreds, day by day. Here is that extremely well-reasoned six page response, from Sean Hecker, for Mr. Abrego-Garcia (and a bit):

…More to the point, if these privileges could foreclose discovery in vindictive prosecution cases, they would operate to do so in every case, by definition — the discovery is always into the government’s internal, deliberative process, conducted in anticipation of litigation, that led to criminal charges. See United States v. Adams, 870 F.2d 1140, 1146 (6th Cir. 1989) (ordering discovery into “whether the EEOC, acting on an improper motive, induced the Department of Justice to institute a prosecution that would not otherwise have been undertaken”); United States v. Zakhari, 85 F.4th 367, 383-84 (6th Cir. 2023) (remanding for a “searching inquiry,” and “full development,” into government’s charging decision). The Court noted this precise language from Adams in its order granting discovery in this case. (Dkt. 138 at 11-12). In the ordinary course, the discovery called for in Adams and Zakhari would almost certainly be subject to the deliberative process privilege and the work product doctrine (and potentially other privileges) as a technical matter, but for the Court’s order authorizing discovery of those materials. If the Adams panel thought that such documents would be protected from discovery, it would have said so.

Likewise, in Zakhari, the Sixth Circuit ordered discovery into an allegedly vindictive charging decision — discovery plainly implicating the very same privileges the government seeks to assert here — concluding that the government bore the burden of rebutting the presumption of vindictiveness with objective, on-the-record explanations, subject to defense testing. Zakhari, 85 F.4th at 383-84. The government’s position that it can claim privilege to avoid such disclosures is wholly inconsistent with the holdings of Adams and Zakhari and would require the Court to abdicate any oversight, in favor of deferring to the government’s word. But the law is precisely the opposite: as Judge Kethledge explained in Zakhari, “[t]he prosecution is entitled to no deference on questions of fact. Instead, the prosecution must come forward with evidence — which the district court, in the first instance, can find credible or not.” Zakhari, 85 F.4th at 385….

Ultimately, as the defense explained in its Status Report, to the extent the government maintains its position that it will not produce the relevant discovery, under a claim of privilege or otherwise, the government cannot rebut Mr. Abrego’s demonstrated, prima facie case of vindictiveness, making dismissal of this case the only proper remedy….

Onward to that telephone hearing.

नमस्ते

Surpising no one, Noem et al. is refusing to turn over the clearly extant documentation from her office lawlessly targeting Mr. Abrego Garcia, after he filed habeas to escape a Salvadoran torture prison she had essentially kidnapped him into — even the Supremes said so.

Now, his able counsel seeks to prove the Tennessee felony indictment was “punishment” — for asserting his rights. Here’s the latest, this very morning:

…In accordance with the Court’s Order, Mr. Abrego’s counsel met and conferred with the government on the afternoon of Tuesday, October 7. Because the government would not commit to producing any documents whatsoever, the parties came to no agreement with respect to the scope of discovery.

Notwithstanding the Court finding that Mr. Abrego is entitled to discovery (Dkt. 138 at 1), the government did not commit to producing any documents in response to the Court’s Order and Mr. Abrego’s requests. The parties’ topics of disagreement, therefore, start with whether the government will produce any discovery at all….

The government’s position, as it was communicated to us at the meet and confer, is that even a narrowed version of the requests that the Court described as a “good place to start” (Dkt. 138 at 15) would be a non-starter: the government is not prepared to commit to produce any documents or communications in the possession of any part of DOJ, DHS, or the White House — not even documents in the immediate possession of the United States Attorney’s Office for the Middle District of Tennessee.

Indeed, though Mr. McGuire acknowledged that he has documents and communications in his possession likely relevant to Mr. Abrego’s motion — including communications with at least one attorney in the DAG’s office, and responsive internal communications with Mr. Schrader [the guy who resigned, rather than be forced to prosecute this BS case!] — Mr. McGuire could not commit to producing any of these apparently responsive documents.

With regard to relevant and responsive documents in the possession of other components of the federal government, including DOJ, DHS, and the White House, Mr. McGuire confirmed that he had not communicated with the custodians of relevant documents, inquired as to whether such documents exist, or directed their preservation. . . . [Condor’s editorial comment: all of which is in direct violation of his duties as an officer of the court, and under all ethical canons to which he is subject.]

[Footnote:] As we explained in the meet and confer with the government, Mr. Abrego seeks communications extending through June 6, 2025 because a number of public statements highly relevant to the motion to dismiss were made in conjunction with the announcement of the charges against him that day, such as the statement from Deputy Attorney General Todd Blanche on June 6 that the Court noted in its opinion “could be direct evidence of vindictiveness.” (Dkt. 138 at 7). Internal communications relating to those public statements are likely to provide relevant evidence of the intent of the officials making the statements.

We note that there is ample evidence of vindictiveness — including in numerous public statements from high-level officials—post-dating June 6, but we propose this date limitation to ensure the discovery sought is appropriately tailored to the Court’s Opinion and Order directing narrow discovery on these issues….

Damnation — and hell-fire. This one is gonna’ mightily pique the able Judge Crenshaw. Stay tuned — but I’ll bet there will be no hearing tomorrow now. But likely by Monday, the Noemites will have to reckon with orders from the court — on these clear violations of law, before Judge Crenshaw, in Music City. I may fly down when that hearing is set. [Here is McGuire’s largely irrelevant response, just for a complete record.] Out.

नमस्ते