Put Up or Shut Up Time
A complicated dance is underway in the criminal case of Kilmar Abrego Garcia over his claim of vindictive prosecution by the Trump DOJ, so let me give you the toplines first:
The bad news … We may not get to hear live testimony from three top DOJ officials: Deputy Attorney General Todd Blanche, associate deputy attorney general Aakash Singh, and acting principal associate deputy attorney James McHenry.
The good news … The judge may not need that testimony to go ahead and rule that Abrego Garcia is the victim of a vindictive prosecution and dismiss the case.
That’s the upshot of a new order from U.S. District Judge Waverly D. Crenshaw Jr. of Nashville, in which he scratched the existing Jan. 27 trial date from the calendar and instead scheduled a Jan. 28 evidentiary hearing on the vindictive prosecution claim.
It’s time for the Trump DOJ to put up or shut, though Crenshaw put it more nicely than that.
That’s the simplest way to explain it. Now let me see if I can give you a more thorough version without making your eyes cross.
Crenshaw already ruled in October that there was “a realistic likelihood of vindictiveness” against Abrego Garcia. Most importantly for our purposes, that decision created a presumption in Abrego Garcia’s favor that this is a vindictive prosecution and shifted the burden to the government to now rebut that presumption “with objective, on-the-record explanations” that it had a legitimate basis for charging Abrego Garcia, as Crenshaw explained in yesterday’s order.
If the government succeeds in rebutting the presumption of vindictive prosecution, then the burden shifts back to Abrego Garcia to “prove that the offered justification is pretextual and that actual vindictiveness has occurred,” Crenshaw ruled.
With that as background, here’s the kind of sneaky genius thing that Crenshaw did.
Crenshaw decided to bifurcate the proceedings by holding the Jan. 28 evidentiary hearing only on the initial question of whether the Trump DOJ can rebut the existing presumption in Abrego Garcia’s favor that this is a vindictive prosecution. If the Trump DOJ fails, then that may very well spell the end of the criminal case because dismissal is one remedy for vindictive prosecution.
If the Trump DOJ succeeds, then the burden shifts back to Abrego Garcia to show actual vindictiveness. In that case, Crenshaw would then rule on the outstanding question of whether Blanche and the other DOJ officials must comply with Abrego Garcia’s subpoena for their testimony. At the moment, the Trump DOJ has a motion pending to quash those subpoenas as part of what has been a raging battle over how much discovery into the vindictive prosecution Abrego Garcia is allowed to have.
(Most of that discovery dispute has been under seal, so our visibility into it has been very limited. But in a separate order this week, Crenshaw said he will unseal a crucial order he issued on Dec. 3 — but not until Dec. 30, presumably to give the administration time to ask an appeals court to keep the order sealed.)
The Trump DOJ may try to get the 6th Circuit Court of Appeals to intervene before any of this plays out the way Crenshaw has planned, but by bifurcating the proceedings he has reduced the risk of that happening because he’s pushing off decisions on some of the most sensitive privilege-laden discovery issues.
For his part, Abrego Garcia has been arguing that the evidence the Trump DOJ plans to present to show it’s not a vindictive prosecution — testimony from Homeland Security Investigations Supervisory Special Agent John VanWie of Baltimore, HSI Special Agent Rana Saoud of Nashville, and maybe the testimony of Nashville acting U.S. Attorney Robert McGuire — is insufficient to rebut the presumption and that Crenshaw should just dismiss the case.
While we might savor the chance to see top Trump DOJ officials squirm on the witness stand, Crenshaw is telegraphing quite a bit here about how he sees this case. Sure, there’s good practical reasons for him to punt on ruling on the motion to quash. Why decide something you may not need to decide yet? But the overall thrust of Crenshaw’s two orders this week suggests a judge who after reviewing in his chambers over 3,000 internal government documents in the case is very open to the vindictive prosecution claim and very skeptical of the Trump DOJ’s arguments against it.
BFD
President Trump is blocked from deploying federalized national guards to enforce the law unless regular armed forces are insufficient for the task, the Supreme Court held in a major ruling yesterday.
Mass Deportation Watch
- WaPo: ICE documents reveal plan to hold 80,000 immigrants in warehouses
- Reason: DHS Says Recording or Following Law Enforcement ‘Sure Sounds Like Obstruction of Justice’
Judges Under Threat
As a result of the various threats and intimidation, judges have had to adapt their daily lives, according to NBC News interviews with six sitting judges, as well as former judges and others familiar with the current threat landscape.
One judge moved house. Another had to freeze her credit cards after a security breach.
Other judges have taken actions to adapt to the changing landscape by upgrading home security systems, changing the route they drive to work and ensuring family members limit personal information they post online, according to the current and former judges.
Venezuela Watch
- NYT: U.S. Is Adding to Its Military Buildup in the Caribbean
- WSJ: U.S. Moves Troops and Additional Special Operations Aircraft Into Caribbean
The Corruption: All Day Long Edition
- The Guardian: Thanks to Donald Trump, 2025 was a good year … for white-collar criminals
- WSJ: Lobbyists close to President Trump say their going rate to advocate for a pardon is $1 million, but some pardon-seekers have offered success fees of as much as $6 million.
- NYT: Hundreds of Big Post-Election Donors Have Benefited From Trump’s Return to Office
Good Read
WSJ: How Putin Got His Preferred U.S. Envoy: Come Alone, No CIA
Quote of the Day
Neo-Nazi Terror Group Steps Up US Ops
The Guardian: “In the shifting political climate of the second Trump administration, where the FBI has openly rerouted resources away from investigations of far-right extremists, the Base appears free to organize and prepare for their stated objective of fomenting an armed insurgency against the US government.”
An Eventful Geologic Year
Yesterday marked the one-year anniversary of the current Kilauea eruption, and on cue it resumed overnight with the 39th episode in the sequence of lava effusions. Last night’s lava fountaining reached heights of 1,400 feet before the episode ended after just shy of six hours.
I geek out over this stuff mainly because I’m dazzled by the natural phenomenon, but I also have a deep-seated need to keep time by some measure other than the frenetic pace of modern human life.
While we’ve been obsessing over a white Christian nationalist presidency and the searing path of destruction his impulsivity leaves behind, Kilauea has spent the last year steadily filling the gaping crater that its 2018 summit collapse left behind (this data set does not include last night’s episode):
Outside of the summit crater, wind-blown volcanic fragments have created a new geologic feature on the downwind edge of the crater rim: a 130-foot-tall mound of tephra. The growth of the tephra mound has been dramatic at times. Individual eruptions have added as much as 25 feet in height to the tephra mound in only a few hours.
And, no, this isn’t some clumsy meta-reflection on creation emerging from destruction. In politics, unlike geology, destruction is just destruction.
New Year’s Plans?
Join me for the first Morning Memo live event, on Jan. 29 in D.C. We’ll have a panel discussion on DOJ weaponization, take audience questions, and mingle at a reception afterwards. Tickets are available here. I hope to see you there!
Happy Holidays!
Morning Memo will be on hiatus until Jan. 5.
If news demands it, I might put out intermittent special holiday editions. But the plan is to pick back up when the news does in the new year.
I’m making my first visit back to my home state of Louisiana since 2014. Looking forward to renewing old connections, exploring past haunts, and gorging myself on dearly missed cuisine — all in 70-degree weather.
Wishing you peace and joy this holiday season however you may celebrate it.
Hot tips? Juicy scuttlebutt? Keen insights? Let me know. For sensitive information, use the encrypted methods here.
