I am reproducing Michael D Sellers analysis of the recent Abrego Garcis indictment, Substack, May 23, 2026

Judge Dismisses Abrego Garcia Indictment, Finds Case Tainted by Vindictive Prosecution

Michael Sellers

A federal judge in Tennessee has dismissed the criminal indictment against Kilmar Abrego Garcia, ruling that the government failed to overcome the appearance that it prosecuted him because he successfully challenged his wrongful removal to El Salvador.

In a 31-page written ruling, U.S. District Judge Waverly Crenshaw Jr. granted Abrego Garcia’s motion to dismiss the indictment on vindictive-prosecution grounds. The indictment had charged Abrego Garcia with conspiring to transport undocumented immigrants between 2016 and 2025, and with transporting undocumented immigrants during a November 2022 traffic stop in Tennessee.

The ruling does not decide whether Abrego Garcia committed the conduct alleged in the indictment. Nor does it hold that the government lacked evidence. The judge’s concern was different: whether the government brought the criminal case for a constitutionally improper reason after Abrego Garcia’s lawsuit forced the executive branch to confront its obligation to return him to the United States.

A fuirther distinction is central to understanding the ruling. Judge Crenshaw did not find what lawyers call “actual vindictiveness,” which usually requires direct proof that prosecutors acted to punish a defendant for exercising legal rights. Instead, he found that the objective facts created a presumption of vindictiveness — and that the government failed to rebut that presumption.

The opinion turns on a sequence of events. Abrego Garcia was removed to El Salvador in March 2025 because of what the government later described as an “administrative error.” He challenged that removal in federal court. The district court, the Fourth Circuit, and then the Supreme Court all required the executive branch to facilitate his return. Days after the Supreme Court affirmed that obligation, Homeland Security reopened a previously closed investigation into a 2022 Tennessee traffic stop. Within weeks, the Justice Department had built a criminal case and obtained an indictment.

That is the core of the ruling. The judge concluded that, absent Abrego Garcia’s successful lawsuit challenging his removal, the government would not have brought this prosecution. The opinion is therefore not just about the sufficiency of the evidence in a human-smuggling case. It is about whether the government used a criminal indictment to solve the political and legal problem created by an unlawful deportation.

It’s an important ruling. Following is a deeper look at what the judge found, and why, based on a close reading of the full 31 page ruling.

The Timeline Was the Case

Judge Crenshaw opened the opinion with a warning from former Attorney General Robert Jackson about the danger of prosecutors who “pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” Crenshaw then added: “That is the situation here.”

The facts that drove him to that conclusion are mostly chronological.

The underlying traffic stop happened on November 30, 2022. Abrego Garcia was driving a vehicle in Tennessee that was registered to Jose Ramon Hernandez-Reyes, a man in Texas who had previously been convicted of aiding and abetting the illegal transportation of aliens. HSI-Baltimore opened an investigation in December 2022.

Then the case sat.

More than two years later, on March 15, 2025, the government removed Abrego Garcia to El Salvador. On March 24, he challenged that removal in federal court in Maryland. On April 1, HSI-Baltimore closed the investigation into the 2022 traffic stop, stating that investigators had “accomplished all goals for this case” and that “no further investigative efforts” would be attributed to it.

That closure mattered. It showed that, at that point, the government’s posture was: remove Abrego Garcia, do not prosecute him.

Then the courts intervened.

On April 4, Judge Paula Xinis ordered the executive branch to facilitate Abrego Garcia’s return. On April 7, the Fourth Circuit denied a stay. On April 10, the Supreme Court affirmed that the government had to “facilitate” his return. That same day, Judge Xinis clarified that the executive branch had to take “all available steps” to facilitate his return “as soon as possible.” The next day, she found that the government had made “no meaningful effort to comply” and ordered daily reports.

Six days later, on April 17, HSI-Baltimore reopened the closed investigation. The next day, DHS issued a press release about the 2022 traffic stop. Three days later, the Tennessee Star published an article about the stop. Soon after, investigators began interviewing Hernandez-Reyes, who became the government’s key witness against Abrego Garcia. By May 21, Abrego Garcia had been indicted.

The judge did not treat this as coincidence. He viewed the reopening of the closed investigation as the point at which the case became tainted.

That does not mean he found that every later investigative step was fabricated or improper in isolation. His point was more structural. Once the government reopened the case in response to Abrego Garcia’s court victory, evidence gathered through that reopening could not be used to explain away the retaliatory taint. It was the product of the tainted decision.

This is the opinion’s basic logic: the government was under court order to bring Abrego Garcia back; almost immediately, it revived a dormant criminal matter; it then used that revived matter to indict him and bring him back in a posture that recast the story from unlawful deportation to criminal prosecution.

The Government’s “New Evidence” Argument Did Not Solve the Problem

The government’s first major answer was that the reopened investigation produced new evidence. That evidence included witness statements, phone data, license-plate reader data, and corroboration from other sources.

Judge Crenshaw rejected that argument, but not because he thought the evidence was necessarily irrelevant. He rejected it because it did not answer the constitutional question.

Some of the evidence was not new in any meaningful sense. The Tennessee traffic stop happened in 2022. The body-camera video existed in 2022. The Tennessee Highway Patrol report existed in 2022. The fact that the vehicle was registered to Hernandez-Reyes was known at the time. If the government wanted to build a federal human-smuggling case from that stop, the judge reasoned, it could have pursued that evidence long before April 2025.

The more important issue was Hernandez-Reyes.

The government treated Hernandez-Reyes’ cooperation as new evidence that justified the indictment. The judge saw it differently. Hernandez-Reyes became available because the government reopened the investigation after Abrego Garcia’s lawsuit succeeded. By the time then-Acting U.S. Attorney Robert McGuire became involved, HSI had already identified and interviewed Hernandez-Reyes twice, including once under a proffer agreement.

Crenshaw’s sharpest formulation was that McGuire did not discover Hernandez-Reyes; Main Justice official Aakash Singh “delivered him.”

That line matters because it exposes the flaw in the government’s theory. The government was arguing, in effect: we indicted because we found evidence. The judge’s response was: you found the evidence because you reopened the investigation for a retaliatory reason.

Later corroboration did not cure the problem either. McGuire began drafting a charging document on April 29, before HSI-Nashville had even formally opened its own investigation on May 2. Some of the later evidence, including additional witness interviews and license-plate reader data, came after the charging process was already underway.

To Crenshaw, that meant the later evidence confirmed a decision already in motion rather than objectively explaining why the government changed course. The relevant shift was not simply from “less evidence” to “more evidence.” It was from “remove and do not prosecute” to “prosecute and do not remove.” The government never adequately explained that shift.

Main Justice Was Running the Case

The second major government argument was that McGuire independently decided to prosecute Abrego Garcia based on the evidence.

Crenshaw did not accept that.

This is one of the most important parts of the opinion because it moves the case beyond timing alone. The judge found that Main Justice, through Aakash Singh, was closely involved in the prosecution from the beginning.

Singh was an Associate Deputy Attorney General in the Office of the Deputy Attorney General. He reported to Deputy Attorney General Todd Blanche. On April 27, the same day HSI-Nashville first contacted McGuire about the traffic stop, Singh emailed McGuire and other U.S. Attorneys requesting time to discuss Hernandez-Reyes. According to the judge, this was the first time McGuire had heard of Hernandez-Reyes.

The next morning, an HSI official sent the Tennessee Highway Patrol report directly to Singh. McGuire was not copied. Soon after, Singh was asking how close the team was to charging, whether they had a sense of potential charges, and whether they could prepare a draft complaint. McGuire responded by saying the case was his “highest priority” and that he wanted “the high command looped in.”

Those are not the judge’s only data points. On May 17, as the indictment approached, a Justice Department task force official told Singh that the team was on track to present the indictment on May 21 and asked whether anything had changed on that timeline. Singh responded: “Let’s keep close hold until we get clearance.”

The government tried to interpret that narrowly, arguing that any “clearance” related only to whether the indictment would be sealed. Crenshaw rejected that as self-serving. He read the exchange as evidence that Main Justice retained control over the charging process “down to the finish line.”

That finding became even more significant because of Blanche’s public statement. According to the opinion, Blanche said the government began “investigating” Abrego Garcia after a Maryland judge “questioned” the deportation decision. Blanche did not testify at the evidentiary hearing, so that statement went unrebutted.

This is how the judge connected the dots: Blanche’s statement tied the reopened investigation to Abrego Garcia’s successful lawsuit; Singh’s hands-on role tied Main Justice to the indictment; and the indictment then allowed the executive branch to return Abrego Garcia to the United States under criminal process rather than simply comply with Judge Xinis’s order.

The government wanted the court to focus on McGuire’s subjective belief that the evidence supported prosecution. Crenshaw said that was not enough. The legal question was not whether McGuire personally believed Abrego Garcia had committed a crime. It was whether objective facts rebutted the presumption that the case had been brought for a retaliatory reason.

The Internal Warning Was Hard to Ignore

The opinion also places weight on an internal warning from within the U.S. Attorney’s Office.

Ben Schrader, then the Criminal Division Chief in the Middle District of Tennessee, prepared a memorandum recommending against charging Abrego Garcia. He asked that the memo be sent to relevant officials in Washington. McGuire acknowledged that vindictive prosecution concerns were “in the water” and that Schrader had specifically raised them.

McGuire proceeded anyway. Schrader resigned the day of the indictment, effective immediately.

Crenshaw did not hold that Schrader’s warning or resignation alone proved vindictiveness. But he clearly treated the episode as important. It showed that the concern was not merely a litigation strategy developed after the fact by defense lawyers. Someone inside the office saw the problem before indictment and recommended against proceeding.

The government’s post-hearing brief did not meaningfully address Schrader’s recommendation. Crenshaw found that omission telling. In the conclusion of the opinion, he wrote that what the government chose not to address was as important as what it did. It barely addressed Blanche. It mentioned the Supreme Court ruling only once, in a footnote. It framed Singh mostly as a passive recipient of updates. And it did not address Schrader’s recommendation against charging at all.

That failure went to the heart of the ruling. Once the court found a presumption of vindictiveness, the government had the burden to rebut it with objective, nonretaliatory explanations. The judge’s view was that the government largely failed to engage the evidence that created the presumption in the first place.

The Actual Evidence

This ruling is not about the factual evidence. But there is, in fact, substantial factual evidence that is not being widely reported. Most of this evidence was developed by the government after they originall dropped the case.

1. The 2022 traffic-stop materials — the THP report, body-camera video, and registration showing the car was tied to Hernandez-Reyes, a previously convicted trafficker. The judge’s key point was that all of this existed in 2022 and could have been pursued then.
2. Hernandez-Reyes’ cooperation — after the case was reopened in April 2025, HSI-Birmingham interviewed Hernandez-Reyes. He said he knew Abrego Garcia, wanted “a lawyer and some paper” in exchange for helping, and later stated under a proffer that he had hired Abrego to transport undocumented immigrants. According to Hernandez-Reyes, Abrego transported six to eight people per trip, roughly 600 people per year, and was paid $1,300, $1,500, or $1,700 per trip — allegedly totaling $90,000 to $96,000 per year.
3. Corroborating evidence developed after reopening — the government also pointed to phone data, license-plate reader data, additional witnesses, and interviews with another cooperating witness, CC-2, who allegedly corroborated Hernandez-Reyes. But Crenshaw found much of this came after the tainted reopening and, in some cases, after McGuire had already begun drafting charging documents.

What the Ruling Means

The government will appeal the ruling. But whatever happens on appeal, Judge Crenshaw’s opinion is an unusually detailed account of how a criminal prosecution can become constitutionally suspect even when the government has evidence.

It turns on sequence, motive, and institutional power.

The executive branch removed Abrego Garcia. Courts ordered the executive branch to facilitate his return. The government then revived a closed criminal investigation, publicly emphasized the old traffic stop, developed a cooperating witness, involved Main Justice closely in the charging process, pushed past an internal warning, and returned Abrego Garcia only after obtaining an indictment.

Judge Crenshaw’s conclusion was that this was not enough to rebut the appearance that the prosecution was brought because Abrego Garcia had successfully exercised his rights.

Near the end of the opinion, the judge returned to Robert Jackson’s warning about prosecutors who select a person and then search for an offense. “The evidence before this Court sadly reflects an abuse of prosecuting power,” Crenshaw wrote.

That is why this ruling matters beyond Abrego Garcia. The court did not merely find that the government made a litigation mistake. It found that the machinery of criminal prosecution had been used to answer a political and legal embarrassment.

And in a constitutional system, that is supposed to be the line. On appeal, we will see if it holds.

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It’s been awhile since we went deep into the weeds on a legal ruling, but I felt it was warranted in this case as we’ve been following it for more than a year now. The judge’s ruling is a great pleasure to read and absorb — excellent clarity of thought on display. I enjoyed working through it. Thanks for your support to the work — it matters, and I appreciate it.