On Wednesday afternoon, federal Judge Barbara Holmes was ready to release Kilmar Armando Abrego García from the court’s custody when Abrego’s defense attorneys hit pause. The Department of Justice, led by Rob McGuire, acting U.S. Attorney for the Middle District of Tennessee, had portrayed itself to the court as powerless over Abrego’s future in the United States, and all parties acknowledged that his future would likely hinge instead on decisions by Immigration and Customs Enforcement.
Abrego's deportation in March to an El Salvadoran maximum security prison, later deemed an “administrative error” by the Trump administration, already made headlines as a procedural blunder in the president's crackdown on immigrants and a glaring deprivation of due process on American soil. Now facing human smuggling charges filed in May related to a 2022 traffic stop outside Cookeville, Tenn., Abrego is fighting a hastily constructed government case that continues to embarrass the federal government.
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Throughout court proceedings, Holmes repeatedly recognized that Abrego would likely go straight from federal marshals’ hands to ICE detention, where his “withholding of removal” status still allows certain types of deportation. She did not see him as a flight risk or danger to the public, and stated her intent to release him from federal custody, despite arguments from McGuire in a June 13 detention hearing. Removing him from the country again would obviously hinder the progress of Abrego’s Tennessee trial, prompting defense attorneys to plead with the court for a stronger effort to ensure he might see his day in court.
“Only when it comes to Mr. Abrego does the government suddenly feign impotence,” reads a supplemental brief provided by defense attorneys on Thursday. “The government cannot credibly claim that DOJ is powerless to coordinate with DHS to ensure that Mr. Abrego’s case proceeds without jeopardizing his constitutional rights and the fair administration of justice.”
Abrego’s defense team pointed out that DHS has cooperated with the DOJ throughout this case, and that prosecutors should reasonably be able to prevent his sudden deportation — just as they have for cooperating witnesses who provided evidence against Abrego. Critically, both fall under the same executive branch authority.
In court Wednesday, the prosecution continued to demur, prompting the defense to seek a stronger commitment before allowing Abrego’s release.
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“I’m going to try to coordinate with DHS as best I can,” McGuire said Wednesday. “I will coordinate with them, but I can’t tell them what to do.”
Abrego’s lead defense attorney Sean Hecker was not comfortable with that. The court agreed to accept his supplemental brief — which came before noon on Thursday — and anticipates a response from McGuire, due Friday.
Hecker, along with attorneys Jenna Dabbs, David Patton and Rascoe Dean, recently replaced the federal defenders who argued against his detention on June 13. Hecker showed off a bit of flair in his Thursday brief, calling the government’s charges a “trumped up case” and citing a tweet from DHS spokesperson Tricia McLaughlin saying Abrego will “never go free on American soil.” Both point to Abrego’s current legal battle as a politically motivated quest from the Trump administration to save face, something the defense has not stated outright.
