The Justice Department is prosecuting Kilmar Ábrego García to punish him for prevailing.
That is the substantive accusation the appellate brief the Department filed this week in the Sixth Circuit proves, regardless of how many times the filing uses the words “career prosecutors” and “proof beyond a reasonable doubt.” Ábrego García was deported in March 2025 to El Salvador’s Cecot mega-prison — a deportation the government later conceded was wrongful. The Supreme Court ordered him returned in June. Within weeks, a federal grand jury in Nashville indicted him on human-smuggling charges drawn from a 2022 traffic stop — a stop that produced no charges at the time, that the same prosecutors chose not to act on for more than three years. The immigration advocacy group representing him, We Are Casa, called the case what the indictment’s timeline looks like: “nothing more than a political vendetta.” In May, the federal judge presiding over the new case, Waverly David Crenshaw Jr., dismissed the indictment as the product of “presumptive vindictiveness.” The Justice Department has asked the Sixth Circuit to give back the power Crenshaw took away.
The steel-man comes first. The vindictive-prosecution doctrine is demanding. It originated in North Carolina v. Pearce, 395 U.S. 711 (1969), the line of cases recognizing a presumption of vindictiveness where the prosecutor takes an adverse action against a defendant who has exercised a protected right. Blackledge v. Perry, 417 U.S. 21 (1974), extended it specifically to prosecutorial vindictiveness. A defendant who alleges vindictive prosecution must show objective evidence the charging decision was driven by retaliation, not by ordinary re-evaluation of the file. The presumption itself rests on a strong counter-presumption — the regularity traditionally attached to prosecutorial charging decisions. The Department’s brief, filed Monday, leans on that counter-presumption with this: “The decision to seek an indictment against Ábrego García for human smuggling was made by career prosecutors based on the evidence, the law, and their firm belief that there is proof beyond a reasonable doubt.” The indictment was returned by a federal grand jury. The 2022 stop sits within the statute of limitations. Probable cause is the showing the grand jury hears. Read at its weakest, the appeal rests on that familiar separation-of-powers claim — that courts cannot inquire into a prosecutor’s subjective motivations when the underlying charge is otherwise supported by probable cause.
Three-year-old traffic stop. “Career prosecutors.” “Presumption of regularity.” Same file, same facts, different outcome. That is the steel-man of the Department’s case.
The audit, on the record Judge Crenshaw compiled, is where the steel-man fails. Three documented lines of evidence sustained the district court’s finding of “presumptive vindictiveness” when he dismissed the indictment in May.
First, the timing. The 2022 traffic stop sat dormant for nearly three years. The grand jury indicted in 2025 — after Ábrego had been deported to El Salvador’s Cecot mega-prison and after the Supreme Court had ordered the government to facilitate his return. The sequence is not coincidence. Crenshaw found the timing “thoroughly tainted” the case.
Second, the public statements. Within days of the Supreme Court’s order, recently confirmed Attorney General Todd Blanche went public with prosecutorial justifications for what was, at that moment, an indictment the career staff had not yet returned. The defense tells CBS News the Justice Department refused “to call the actual decision makers, including AG Blanche, to testify under oath.” The Department has produced no substitute with authority to bind the office. The contradiction sits at the center of the record the appellate judges will read: the government cites Blanche’s public statements as the articulation of the prosecution’s good-faith rationale, and then shields Blanche from cross-examination on those very statements. The highest-ranking official who publicly justified the indictment refused to defend that justification under oath. That is not a peripheral fact; it is the inference-doctrine anchor — the appellate court will be weighing the credibility of an institutional explanation whose principal architect declined to be questioned about it. A prosecutor whose only motivation is the evidence has no reason to refuse discovery on the official whose statements taint the file. The refusal is the giveaway: the Department prefers the appellate to the truth.
Third, the sustained oversight. Crenshaw found ongoing supervision by senior Justice Department officials — not the normal delegation of charging decisions to the line — had “thoroughly tainted” the prosecution. Career prosecutors do not brief senior political leadership on every routine indictment. This was not a routine indictment.
The doctrinal step the appeal forces is open. Blackledge’s classic fact pattern is the defendant punished for appealing a conviction — a trial-level right. Ábrego’s posture is different: he was not punished for exercising a trial right; he was punished for prevailing in a separate legal proceeding against the executive — the wrongful-deportation challenge the Supreme Court ordered resolved in his favor. Extending the presumption of vindictiveness to a defendant who won a separate legal fight against the government, rather than one who appealed his own conviction, is the doctrinal question the Sixth Circuit will have to face openly. The Department’s brief does not yet name it.
United States v. Goodwin, 457 U.S. 368 (1982), narrowed Pearce but reaffirmed the presumption: it still applies where “the prosecutor’s charging decision is motivated by some factor other than the interest in fair and efficient administration of justice.” That is the finding Crenshaw made, on evidence the Department refused to test.
The appeal the Department filed Monday asks the Sixth Circuit to reverse Judge Crenshaw’s legal conclusion that the indictment was “vindictive in nature,” applying de novo review to the legal question and clear-error review to the factual findings the district court compiled. The appellate panel’s task is not to retry the traffic stop; it is to determine whether the record Judge Crenshaw compiled supports the legal conclusion he drew from it. The vindictive-prosecution doctrine was built for exactly this configuration — a charged sequence in which the executive’s choice to indict coincides with a constitutionally protected act of judicial vindication.
Substitute any other man wrongfully removed to a Salvadoran prison who won the legal fight to come home. The analysis holds. Substitute any other department forced by the courts to undo a wrong, and the structural accusation runs the same way.
The black-letter doctrine cuts the other way. The record the appellate judges will read shows a prosecution that traveled from dormant to active at the precise moment the government was most exposed to public accountability for an unlawful removal. That is what the appeal asks them to bless.
Read Pearce and Blackledge the way Crenshaw did — three elements, sequence evidence, refusal to test the file — and the dismissal stands. Read them the way the Department’s brief reads them — discretion to indict untethered from consequence — and the appellate court hands the executive a power it has never had: deport a man to a Salvadoran torture prison and indict him for surviving the litigation that brought him home.