The Lawfare Machine: A Dubious Opinion on Abrego Garcia Leads to a Bar Complaint Against Todd Blanche

This week, a public interest group filed an ethics complaint against Acting Attorney General Todd Blanche, citing the recent dismissal of a criminal indictment against Kilmar Armando Abrego Garcia. The ethics complaint is the latest example of the left’s self-perpetuating lawfare machine. Liberal media and groups first prime allegations against conservatives, which are then eagerly picked up by media and advocacy groups. It is no accident that this hit job on Blanche called upon the New York courts and bar to deliver the coup de grâce.

The New York bar and courts have long been willing allies on lawfare, including abusive charges against President Donald Trump and bar charges against his allies. This case, however, is particularly illustrative of how this system feeds on itself.

At base, the complaint focused on a dubious decision by District Court Judge Waverly Crenshaw Jr., who dismissed the indictment against Abrego Garcia. The Clinton appointee found in his 32-page order that the prosecution was vindictive. However, Judge Crenshaw spent relatively little time actually addressing the evidence against Abrego Garcia, who was allegedly an associate of the vicious MS-13 gang in years of human trafficking.

Vindictive prosecution claims are notoriously difficult to prove. (I know because I have tried it as a criminal defense attorney). Under cases such as United States v. Goodwin (1982), you must show that the charges “could not be justified as a proper exercise of prosecutorial discretion.”

In both cases of selective and vindictive prosecutions, the Supreme Court has recognized that, as the court explained in 1962, “the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.”

Moreover, in United States v. Armstrong, a case involving alleged selective prosecution, Chief Justice Rehnquist stressed that there is a ‘’presumption of regularity” in criminal cases.

There was ample reason for Abrego Garcia to have been charged entirely separate from any retaliatory or vindictive purpose. According to his indictment, Abrego Garcia was a member of MS-13 and allegedly conspired with six others to “transport and move aliens” illegally into and throughout the country starting in 2016. This included alleged smuggling into the country of known “MS-13 members and associates.”

The government accused him of over 100 such trips in specially outfitted vehicles as well as transporting firearms and narcotics. One witness testified that Garcia had to warn Abrego Garcia against abusing some of the female aliens because it was “bad for business.” (Garcia was also previously charged with spousal abuse).

Judge Crenshaw, however, focused on the decision-making after Abrego Garcia was brought back from a deportation to El Salvador. I was one of those who wrote that he had to be returned in light of prior court orders. However, there were obvious reasons why, after he was returned, prosecutors decided to proceed with charges for his alleged criminal conduct in the United States.

Crenshaw’s decision simply works too hard to find a basis for dismissing the indictment and will now be appealed. In my view, it is likely to be reversed. However, in the interim, the same voices are being heard for the disbarment or punishment of Blanche in New York where a Trump association is treated as far more incriminating than an MS-13 association.

It is fair to note that the Trump Administration has undermined its own position in denouncing lawfare by pursuing past critics, including dubious prosecutions over seashell threats against James Comey.  However, that does not have bearing on the merits of the claim against Blanche or the dismissal of the Abrego Garcia indictment.

The rage in New York has certainly not ebbed. There are ample rage addicts to applaud such claims inside the Bar. However, there are indicators that lawfare no longer holds the same cachet it once did.

Take Rep. Dan Goldman, who is fast becoming the Marie Antoinette of New York politics.  Goldman was elected a few years ago on his pledge to investigate all things Trump and is still running on a “let-them-eat-impeachments” platform. In the meantime, his opponent, Mamdani-endorsed housing advocate Brad Lander, is running on bread-and-butter issues. Lander is reportedly 20 points ahead in the polls.

There is still hope that the New York courts and bar will restore a degree of apolitical, objective integrity to their ranks. The odds are still much greater that Blanche will stay in the bar than that Abrego Garcia will stay in the country. However, it is telling to see which of the two is being cheered on by the left.

Jonathan Turley is a law professor and the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”