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- [00:01]
Announcer
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Anna Bauer
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Benjamin Wittes
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- [01:23]
Benjamin Wittes
it's Lawfair Live the now. I'm Benjamin Wittes, Editor in Chief of Lawf, 4:30pm Eastern Time, 3:30pm Central Time on February 26, 2026, and I am here with Lawfare Senior Editor Anna Bauer, who is in Nashville, Tennessee performing at the Grand Old Opry. No, she is there to discuss the evidentiary hearing that occurred today in the Kilmar Abrego Garcia criminal case. Anna, remind us what issue is before the court today in what turned out to be a rather long hearing.
- [02:14]
Anna Bauer
Yeah. So the issue before the court today is Abrego Garcia's vindictive prosecution motion, essentially a motion in which you argue that the government is prosecuting you for exercising some right as opposed to, you know, prosecuting you because it has gone through the regular investigative process that it is going after you because you are you and because you did something that it wants to retaliate against, essentially. And a part of that process been within the way that judges have crafted the law in this area is that you can raise a presumption of vindictiveness. So if you make a showing of vindictiveness, then the burden shifts to the government to rebut that presumption, to basically show evidence, to say no, no, no, everything. You know, this was all after you because of because this is a vindictive prosecution. And that's kind of where we're at today because Judge Waverly Crenshaw, who's the judge presiding over this criminal case brought against Kilmar Abrego Garcia, initially found that there was a presumption of vindictiveness that his defense team was able to raise. And so now the question is, can the government rebut that presumption? And that's why we were in court today, is so that the government could bring forward witnesses to kind of make its case as to, you know, why it thought that bringing these charges were appropriate.
- [03:55]
Benjamin Wittes
Right. And so how does the government go about establishing that? Remind us a little bit about what the history of, you know, why the. Why there is this prima facie case, and then how did the government go about rebutting it or trying to.
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Anna Bauer
Yeah, I mean, at this point, it's been. It's been quite a saga in the Kilmar Brago Garcia case, but it has fallen off a little bit, I think, in terms of the national interest in the case. But there was a time when this was one of those cases that was really, you know, making news cycles because Tomara Borrego Garcia is the man who, when the Trump administration invoked the Alien Enemies act and was removing people to El Salvador to a notorious prison there. Kilmar Abrego Garcia is one of the people who was removed, a judge in Maryland, Paula Sini's excuse, excuse me, my Sinis pronunciation, I need to get correct, because now that we know it is Sinis. Paula Sinis ordered the government to facilitate the return of Abrego Garcia because he was erroneously removed as a part of that group of people who had been designated members of Trend Aragua under the Alien Enemies Act. And it ultimately went up to the Supreme Court. And as you will recall, in mid April, the Supreme Court said, yeah, you know, facilitate his removal or, excuse me, his return to the United States. And. And so it, it subsequently, in the course of the next few weeks, it wasn't clear whether the government was going to really make an effort to comply with the Supreme Court's ruling. And about a month after that ruling, a little over a month, there was an indictment in the middle district of Tennessee against Abrego Garcia on human smuggling charges. And it was around that time that he was brought back to the United States under the guise of, oh, you know, even though El Salvador previously said they would never be able to send him back to the US they're now sending him back because he's been criminally indicted. So there was just a bunch of, like, weird circumstances that every. The whole thing just kind of stunk. Right. And then there were also all of these public statements that the government had been making, including Deputy Attorney General Todd Blanch about, you know, alleging gang affiliations, alleging, you know, potential criminal conduct and that kind of thing. And so his team was able to use a bunch of these public statements, all of the facts surrounding the fact of the Supreme Court decision, the timeline of everything, the fact that it wasn't until after the Supreme Court decision that an investigation started again. And because, remember, there was a previous investigation that was closed once he was sent to El Salvador, and then it was reopened after the Supreme Court decision. So all of that was what his team raised to show this presumption of vindictiveness quite convincingly. And then to your other question, Ben, in terms of how does the government then rebut that? Well, the way that it decided to do it was by calling two witnesses who are part of the investigation team. So the. The first person that they called is a woman named Raina Saud. I think that's how you pronounce her name, although Stanley Woodward was pronouncing it a different way. I believe that he said Saud. But regardless, she is an hsi, or previously was. She's retired now. But at the relevant time, was the Special Agent in charge in Nashville at hsi, in charge of, like, a region at hsi, which is the Homeland Security Investigations within dhs, kind of a group of people who kind of do investigations like an FBI agent would. So she is the person who initially kind of initiated, according to the government, this investigation about human smuggling related to Abrego Garcia. They called her. And then the second person that they called was Robert McGuire, who formerly was the acting U.S. attorney in the Middle District of Tennessee, where these charges were brought against Abrego Garcia. And really, is the person who, you know, made the decision, according to the government to bring these charges. And so it was through their testimony that the government tried to rebut this presumption of vindictiveness. I will mention as well, we were supposed to hear from a third witness and Agent Van Wee, who is also at hsi, but for whatever reason, the government decided not to call him today.
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Benjamin Wittes
And what. What did these two people testify to that the government regards as rebutting the now presumption of irregularity? The. The prima facie case that there was something vindictive here? How could an hsi, I mean, did she say, oh, I just discovered this on my own? And it had nothing to do with the fact that Donald Trump and President of El Salvador discussed this case in a public set of public statements in the White House. I mean, how does the testimony of these two people even purport to rebut the prima facie showing?
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Anna Bauer
Yeah. So keep in mind that a lot of the case that the defense has put forward, a lot of that evidence relates to these public statements that high ranking officials are, have made about the Brigo Garcia case. You know, people like Todd Blanch, who is the Deputy Attorney general, people like the president, like Kristi Noemi, various individuals who are really high ranking senior officials. And what the government is trying to do today by putting forward these two witnesses is they're trying to distance the investigatory and prosecutorial side of things from, you know, any decision making by higher ups. So they're trying to say exactly, basically what you said, which is that, you know, Raina Saud, who is the HSI agent she testified to, what she says is how she initiated this case. Was she someone, she couldn't recall who, but someone on April 27, which was a Sunday, keep in mind this is shortly after the Supreme Court has made its decision, which I, I, I'm, I think that was like April 12th or something. Was it? Ben? I, I hope that I'm right about that, but correct me, I don't know
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Benjamin Wittes
the specific date, but it was somewhere in the, in that. Right.
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Anna Bauer
So, so it's mid April, the Supreme Court makes its decision. And on April 27, Raina Saud, the HSI agent, testifies to someone sent her a Tennessee Star article. She could not remember who sent her this article by the Tennessee Star and said that it was on her work phone that she turned in when she retired. So she could not check who it was that sent, sent it to her. She doesn't know if it was a colleague or a friend. But regardless, it's this article that talks about a traffic stop that Abrego Garcia was involved in back in 2022. And that traffic stop ends up being the, the, you know, big subject matter of these human smuggling charges that Abrego is now accused of. And so she sees this Tennessee Star and then subsequently decides to call Robert McGuire, who is, as I said then, the acting U.S. attorney in the Middle District of Tennessee. And the government's case is this is all very normal because this is a high profile case. So it's very normal to keep the U.S. attorney looped in at that point. She sees this article in the Tennessee star, calls Robert McGuire to tell him about it and say, hey, were you aware of this? And the whole kind of idea is that that is how they learned about this case and what got their interest in it is because of this article in the media. And, you know, she said other than the fact that she knew Abrego had been in the news, you know, it wasn't something she was ever directed to investigate. She. She learned of it, according to her organically, through media article. And. And then from there, the investigation, you know, starts in earnest. So when it comes to Maguire's part of the story and his testimony, it's that, you know, he's the acting U.S. attorney. He is aware of who Abrego is, but, you know, he wasn't involved in. In various investigations that were apparently ongoing in other jurisdictions related to Abre. And he gets a call on that Sunday from Raina Sud, who says, I've seen this article. That's the first time he's been alerted to these facts. But according to him, they, you know, are concerning to him. So he. He calls up highway patrol in Tennessee, which are the people who actually did this traffic stop back in 2022, and he learns from them that there's body cam footage. And so he sets up a time to, you know, view this body cam footage that doesn't happen until Tuesday. But this is kind of where things start getting weird, Ben. You know, the story goes that McGuire gets this call on Sunday the 27th, but then for reasons that are really not clear based on the testimony we heard today, later that night, he gets an email from Akash Singh, who is a senior advisor in the Deputy Attorney General's office. That's Todd Blanche's office. And it is asking him to join a call with two other US Attorneys in Alabama and Texas to discuss a case related to a man named Jose Hernandez Reyes. Hernandez Reyes is now co conspirator 1 in Abrego Garcia's indictment. And he is one of the key cooperating witnesses in the case against Abrego. And it's all, you know, entirely unclear to me still, even after everything we heard today, we. Why exactly Akash Singh thought that it would make sense suddenly to loop Maguire in. Why Akash Singh, you know, already knew about Jose Hernandez Reyes. And it's all happening within a matter of hours of this phone call that Maguire learns about these events. And. And then by the time you get to April 30, which is three days later, you have testimony that Akash singh is emailing McGuire asking, like, when could we get, you know, draft charging documents? Like. And that's the day that McGuire watches the body cam footage for the first time. So there's this really fast sequence of like three days of investigation before Maguire says he's pretty certain that they're going to bring charges. And, you know, the government's case is that all of this was on McGuire and that no one was ever directing him to do anything. But what the defense was able to elicit throughout the day is just over and over again, it was made clear that, like, there were all these communications with Akash Singh and with the Deputy Attorney General's office. And so they were able to create this kind of atmosphere of pressure that was on Maguire to bring this case.
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Benjamin Wittes
And, you know, normally you would say there's nothing inappropriate about the Deputy Attorney General's office being involved in a prosecution matter, except, of course, that this is not a routine traffic stop with maybe human trafficking or weapons trafficking or whatever dimensions in a road in Tennessee. This is something that the President individually cares about and is embarrassing to the White House. So what was the defense trying to show here and how effectively were they able to do it?
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Anna Bauer
Yeah, I mean, like I, like I said, I think that they were trying to show that, that there was, because again, keep in mind, like, the defense is truly on defense at this point. They're not, they're not on offense in the sense that they've already won by a little bit. They've, like gotten the first thing they needed to do, which was raise the presumption. So there's already a presumption of vindictiveness. All they need to do is to make sure that the government cannot rebut that presumption. So they were not being super aggressive about, you know, trying to, they didn't call any witnesses. There, There is a pending and in reserve motion regarding whether these, some of these higher level officials should be called to give testimony, people like Akash Singh. But essentially, you know, one of the
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Benjamin Wittes
things they were doing, and just to be clear, the. The government is asserting privilege over those, right?
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Anna Bauer
Yes, the government has asserted privilege. And like a variety of, you know, executive privilege, attorney client privilege, deliberative process, they raise a variety of privilege quality claims. Previously. Ultimately, what happened is Judge Crenshaw said, I don't think I need, like, you've already raised the presumption. I don't think I need to hear from these people unless I don't think I can decide after seeing these other witnesses the government wants to call. So the, the defense wanted to call Blanche and sing. It's, it's the government's burden right now, though. So. So basically, you know, before we get to the point of the defense calling these witnesses, the judge is like, I just want to see what. What I think after seeing the government's witnesses, and if I need to hear from these other people, then I will. So a part of what the defense is doing here is establishing that the people who would know about, you know, where these decisions were being made are people like Akash Singh, and that actually the government's witnesses, to some extent, don't really speak to what was going on at the highest levels. And so people like Raina Saud, you know, she was like, they elicited testimony from her in which she was saying, you know, yeah, I don't have anything to do with the prosecutorial decisions. I don't know who people were talking to at. In HSI at dhs. I don't know if they were being directed. My superiors were being directed to investigate this, that kind of thing. With McGuire, it was, I think, more of, you know, again, creating that atmosphere, fear of pressure on him and showing that there were all these emails in which he's looping in the Deputy Attorney General's office, and there's this kind of atmospheric pressure around him regarding the firings that were happening of people who weren't willing to comply with the administration's, you know, policy goals. So that Bondi memo that came out in the beginning of this administration, that's like, you know, the president's. It. It famously or infamously, I guess, it. It referred to DOJ lawyers as the president's lawyers. So using that as a kind of way to show that Maguire was aware that it was kind of like he was on the chopping block if he did not try to advance the policy goals of the administration, which included, you know, going after Kilmar, Abrego, Garcia. And so I think that that was part of what the defense was trying to do today with some of the lines of questioning that it made, in addition to just, like, really, like home going to that timeline. Because the timeline is what really I think is so damning is it's like all of this is happening over the course of, like, you're going from learning about it to having talking about draft charges in, like, three days.
- [23:54]
Benjamin Wittes
So where did the judge tip his hand at all and where did they leave things?
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Anna Bauer
The judge did not. I. I mean, look, Judge Crenshaw, there were a few times when he asked a few questions, you know, he, for example, wanted to know. At one point, he. There was a line of questioning about the HSI investigations because, like I said, hsi when Abreu Garcia was removed to El Salvador. They had an open case that had been related to an investigation of him that they closed saying, you know, the goals of this pro or this investigation have been satisfied. What, you know, whatever. In. In something to that effect. In the report that was closed on, like, April 1st or late March. It was then reopened on April 17th. This is a separate HCI investigation from the one that ultimately. Ultimately led to Brago Garcia's indictment. But it's all kind of tangled in. And related. Right. And. And so he had some questions about how the timing of all that related to the Supreme Court's decision. And I think that Judge Crenshaw, like everyone who is paying attention to this motion and this litigation, is very focused on the timeline. In a previous order, he'd kind of set out how Akash Singh's emails related to the timeline. And central to that is when the Supreme Court made its decision to facilitate the return of Abrego Garcia. So he had some questions about that, but otherwise he was, you know, pretty much had a poker face and at the end just said, okay, that concludes our evidentiary hearing. I want post hearing briefs within. I think it was 30 days. And he said that. I think he. To my memory, he even indicated we might not even go back for oral argument. It might be that he just decides on the briefs.
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Benjamin Wittes
All right, is there anything else we should know before we wrap?
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Anna Bauer
Abrego Garcia was there. Just to give you some color. Abrego Garcia was there. He is now because of Judge Polissini's order in Maryland in which he was released from immigration custody. And he is not in custody as a result of his. The judge declined to keep him in detention, in criminal detention. So as a result, he's a free man at the moment. And he, you know, was. It was really a remarkable thing to. To see him walk into the courthouse freely, leave freely. Um, I saw him in the hallway eating Jimmy John's with his legal team during the lunch break.
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Benjamin Wittes
Did you say hi?
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Anna Bauer
I actually did not, because I think that I should let the man eat in peace. His Jimmy John sandwich. I also had to quickly run down to the vending machine to grab some chips, but I think that that was remarkable. I also will mention as well that the person who was leading this litigation for the Justice Department today was none other than Stanley Woodward, who lawfare listeners might remember from. I mean, he. He was a criminal defense attorney who did a ton of January 6th prosecution cases defending people who were involved in January 6th, but then also ultimately represented Walt Nada in the classified documents case. He then was at the White House Counsel's office and then now is, as I believe his title is Associate Attorn General and has been involved in some of these high profile cases, including the Fulton county search warrant case, but particularly in this, in the context of this case, has been kind of in charge of litigating some of these privilege issues and the vindictive prosecution issues. And so he was there today and did, did direct examination. And again, it's just fascinating for me as someone who covered the Trump trials, to see these returning characters in these different contexts.
- [28:44]
Benjamin Wittes
Right. All right, folks, we're going to be back tomorrow for Lawfare Live for our usual regular roundup. That will be, as always, at 4pm on Friday Eastern Time, not Central Time, and we will see you then. This podcast is part of Lawfare's live stream series, Lawfare Live. The now subscribe to Lawfare's YouTube or Substack channels to receive an alert the next time we go live. Our audio engineer this episode was Anna Hickey of Lawfare, and still is. Anna Hickey of lawfare. As always, thanks for joining and listening or watching.
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