The Nashville federal District Court docket’s printer in Judge Crenshaw’s chambers has been whirring today, and continues here, as well into the evening — in prep for that November 3 evidentiary hearing on “vindictiveness”.

There is already a pretty good chance that the entire indictment will be dismissed by Judge Crenshaw, as an outcome of that hearing. We shall see.

Here’s the latest memo of law from Mr. Hecker’s team (for Abrego), and a bit:

…In 2019, Mr. Abrego secured an order from an immigration court granting him withholding of removal to El Salvador….

The government never appealed the withholding decision, nor did it seek to remove him to a third country at the time…. Mr. Abrego was [then] released from ICE custody on an order of supervision….

Pursuant to that order of supervision, Mr. Abrego had the government’s “permission to live in Maryland,” and he also received authorization to work in the United States. Id. Mr. Abrego was required to check in periodically at the ICE Baltimore Field Office, and he “remained in compliance with the ICE Supervision Order at the time he was wrongfully deported to El Salvador.” Id.

On March 12, 2025, ICE agents pulled over Mr. Abrego while he was “driving home from work with his young son in the car,” and detained him. Abrego Garcia, 777 F. Supp. 3d at 508. The government has not proffered a basis for that traffic stop. And “[t]he officers had no warrant for his arrest and no lawful basis to take him into custody.” Id. “[T]hey told him only that his status had changed,” id. (quotations omitted), which was untrue. Mr. Abrego’s supervised release had not been revoked through the appropriate channels, see 8 C.F.R. § 241.4(l)(2), and his withholding order remained in place as the government had not commenced proceedings to reopen his case or terminate withholding of removal….

Indeed, in connection with Mr. Abrego’s civil case, the government has acknowledged it had “no legal authority to arrest him” and “no justification to detain him,” Abrego Garcia, 777 F. Supp. 3d at 507, as demonstrated in this exchange between the Court and counsel for the government:

The Court: [W]hat document got this process started? There is no warrant for his arrest by an order of removal. There is no statement of probable cause. There’s no charge. There’s no report that says that anyone saw Mr. Abrego Garcia doing anything illegal or criminal. So what is the actual document that gave these officers the authority to start this process?

Mr. Reuveni: That is not in the record, and the government has not put that into the record. And that’s the best I can do….

[So, after being detained in March 2025,] there was no translator present for this [in-custody] interview, and neither agent spoke Spanish well enough to translate for Mr. Abrego. The agents did not read Mr. Abrego his Miranda rights in Spanish, proceeding instead to ask him several questions in English. On multiple occasions, Mr. Abrego recalls telling the agents that he did not understand what they were saying. On such occasions, one of the agents, who did not speak Spanish well, would attempt to translate what the other agent was saying into Spanish. After the agents asked their questions, he recalls the agents asking him to sign a document… he recalls feeling panicked and pressured to sign, under the mistaken belief that by signing the document, he would be released from custody and be permitted to go home. (Id. ¶ 88). Under no circumstances did Mr. Abrego understand that he was about to be removed from the United States….

As we all know he spent nearly the next three months in a Salvadoran torture prison — the specific circumstance his 2019 still-in-force orders forbid the government from imposing upon him. Damn. Damn. Damn. Out.

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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.

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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.

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