Friday Round Up! 6/6/25

The Garcia indictment might hold water, but it's also a convenient out.

When I was a law clerk for a federal appellate judge for the First Circuit Court of Appeals, I remember working on a case involving a money laundering operation at a downtown San Juan restaurant. (Yes, I clerked in Puerto Rico — hey, there’s no better place to read legal briefs than on the beach!) The appeal was from the front register clerk, who had been convicted of conspiracy to commit money laundering because he accepted cash brought in by owners and their associates of the restaurant and put them in the cash register and provided receipts. As I recall, the entire money laundering operation was conducted by English-speaking criminals, and the cash register guy didn’t speak English. There was no evidence that he profited in any way from the enterprise. Although the owners and associates who were bringing in the money often met in the “back room” of the restaurant, there was no evidence that he ever participated in that. I also think he might have only been working there for six months or something (and the enterprise had been going on much longer). But, he had accepted and deposited the cash in the register, and provided the receipts. He had been sentenced to something like a 20-year sentence as part of the conspiracy and at the time his appeal reached the court, had already served four years in federal prison.

I thought of this case when I read the indictment brought against Kilmar Abrego-Garcia, the El Salvadoran national who was sent by the Trump administration due to an “administrative error” and whose return to the U.S. had not been “facilitated” until now as per the Supreme Court’s April decision/order. (For new subscribers to this Substack, more background on that here.) The indictment arises out of a 2022 traffic stop in Tennessee in which Abrego Garcia had eight people in his car with no identification. (Garcia was not ticketed at the time.) The indictment alleges that this stop was part of a larger conspiracy between Abrego Garcia and six other co-consirators to smuggle undocumented persons into the U.S. from various Central and South American countries into Texas, where they were then picked up and transported to other states in the country. The smuggling operation, according to the indictment, occasionally included drugs and guns, involved abuse (allegedly by Garcia) against some women who were being smuggled, and provided cash payments to the people conducting the transport (including Garcia) and to unnamed coconspirators outside the country via wire transfers. The indictment also says that the operation transported members of the El Salvadoran gang, MS-13, and alleges that Garcia was also a “member and associate” of the gang because the other members of MS-13 treated him with respect.

It sounds pretty bad — except that for all of the lures details, Garcia is charged with only two counts: conspiracy to transport aliens, and unlawfully transporting undocumented aliens. Marcy Wheeler has a very helpful explainer on conspiracy law along with a breakdown of the various acts undertaken by the co-conspirators (CC 1-6) in her blog post. As she notes, it doesn’t take much for someone to be liable for a larger conspiracy, even if they don’t have knowledge of the entire operation or participate in all parts of it. And it looks like that’s how the Justice Department is hooking Garcia in here.

Almost all of the information in the indictment that is actually connected to Garcia appears to come from one co-conspirator (CC-1), who was previously arrested, charged, convicted, and deported, and then reentered the country (illegally). In paragraph 10, the government alleges that CC-1 and Garcia agreed to transport undocumented aliens “for profit and financial gain.” Apart from that, the only direct evidence the government seems to have against Garcia is the 2022 traffic stop, in which the government alleges that Garcia lied to the police about where he was coming from (paragraph 30(e)). The other actions, including communicating with smugglers in Central and South America, wiring money, etc. were done by the co-conspirators.

So is that enough to convict Garcia on the two counts with which he’s been charged? On their face, yeah. But there are a few things that are incredibly problematic about these charges and the circumstances surrounding it:

1. The indictment alleges some pretty bad conduct — you might wonder, as I did, why Garcia wasn’t just charged with this in the first place. Well, according to reporting by ABC News, the investigation into this traffic stop didn’t even begin until April, after Garcia had been sent to CECOT (March 15) and litigation had started about his return. (The Supreme Court decision came out April 10, so it may have even been after that.)

2. Around the same time that the charges were filed, the ABC News reporting also states, the former Chief of the Criminal Division of the U.S. Attorney’s Office in Nashville, Ben Schrader, “abruptly resigned” because of concerns that this case was being pursued for political reasons.

3. The reported also appears to identify CC-1 as Jose Ramon Hernandez-Reyes, who is currently serving a 30-month sentence after his prior felony conviction. Hernandez-Reyes is the registered owner of the car Garcia was driving but was not present at the scene of the stop. One imagines that Hernandez-Reyes has a strong incentive not to be sent to CECOT. (Or, depending on his connection to MS-13, to be sent to CECOT if he will get a sweet deal there under Buekele, an important contextual backdrop I wrote about here.)

4. It’s unclear whether the claims made about Garcia in the indictment are even true. Ryan Goodman found this er, rather important discrepancy between the factual claims made in the indictment and the facts from a DHS referral report from 2022, indicating that Garcia clearly told the officers he was traveling from Texas:

Needless to say, all of this makes the indictment more than a little shady.

Of course, if Garcia was transporting undocumented aliens he was in violation of federal law, separate and apart from the conspiracy. But it’s hard not to escape the conclusion that the conspiracy charge and details are alleged in order to retroactively paint a picture of Garcia as someone who “deserved” to be sent to CECOT anyway. After all, this was the initial play after the Trump administration was ordered to bring him back — they claimed he was a criminal and generally unsavory character who would be deported anyway even if he returned to the U.S.

That, of course, misses the point, which is why the initial play backfired in the court of public opinion. The question was never whether Garcia was a great guy, or completely innocent of anything. It was that simply being a not nice guy isn’t grounds for deportation, and that someone who is accused of being a terrorist (as members of MS-13 are now categorized) is entitled to due process where the government presents evidence of that. Interestingly, the government could have done exactly that — brought back Garcia into immigration court, and presented evidence of his membership in MS-13. The burden of proof for the government there would be very low — only a preponderance of the evidence. Instead, it has brought criminal charges which require proof beyond a reasonable doubt. But, under these charges, the government doesn’t have to prove Garcia’s membership in MS-13, just that he was illegal transporting undocumented people.

In short, it sure seems like it’s easier for the government to prove a crime that requires no actual evidence of gang membership than to prove the gang membership itself (ostensibly the reason he should be deported) under a lower standard. Basically, the indictment is enough to substantiate the administration’s original story and provide a way for the Trump administration to save face while complying with the Supreme Court’s order.

Meanwhile, Renato and I discussed all of the things that happened this week before the Garcia indictment — including the Musk/Trump breakup. Check it out:

NEW! ASK ASHA Coming on Legal AF

I’m excited to announce that I will be launching a new series of weekly short videos for the Legal AF YouTube channel to answer your most burning (legal and national security) questions! I’ll put out an APB on Substack for your questions each week, pick a couple, and do some quick answers/explainers. I’m sure it will evolve from there but that is the basic concept. And no worries, I’ll post the videos here on my Substack, as well (probably in each week’s Round Up). Let me know your thoughts, and look out for the first Ask Asha question solicitation!

Upcoming events:

• Wednesday, June 18, 5 p.m. EDT, Freedom Academy Book Club with Professor Zephyr Teachout, author of Corruption in America: From Benjamin Franklin’s Snuff Box to Citizen’s United. Join me and Professor Teachout as we discuss how right she was, and what we can do about it now. The Freedom Academy Book Club discussions are open to all paid subscribers and recordings of the talks are posted after in case you can’t make it live!

• Wine & Fries Happy Hour with Katie Phang, June 29, at 8 p.m. Awwwww yeah. My friend Katie, former host of MSNBC’s The Katie Phang Show and now fellow Contrarian, will be joining us. Katie is irreverent, hilarious, and sooo smart…I can’t wait! A link for this will be sent to Wine & Fries (founding) members three hours before the event, and will not be recorded.

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump and Musk’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. Mark your calendar for the No Kings march/protest next week, on June 14 (Trump’s birthday). Who needs a military parade when you have the power of the people? Check out the No Kings website to find the nearest protest, and exercise corporeal politics!

3. Self care tip of the week: Be near the water. I’ve decided that people are either mountain people or water people. I’m a water person. I love the beach and, depending on how much bug spray I’ll need, a peaceful lake. I am headed up to Quechee, Vermont and going to have some lake time, maybe take out a paddleboard in between finishing my reading for the Freedom Academy Book Club selection. Stay cool, everyone!

‘Rise like Lions after slumber
In unvanquishable number—
Shake your chains to earth like dew
Which in sleep had fallen on you—
Ye are many—they are few.’

— The Masque of Anarchy by Percy Bysshe Shelley, stanza XXXVIII