Note from Elie 6/27: The Quiet Unraveling of the Kilmar Abrego Garcia Prosecution
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Hey everyone, Eli here, wishing you a happy Friday, a happy pre-holiday week, happy Friday. You know, one of the great things about having this column and this podcast that I really appreciate is sometimes you get a week like this one where there's enormous news happening elsewhere, rightly the central focus of all media coverage. Of course, I'm talking about the military actions and conflict in the Middle East and

That said, there also will be some important legal stories that happen during the week that sometimes there's just no way to give full coverage to. I'm not faulting anyone here. But the beauty of Cafe and this podcast and Vox is that we can bring your attention to those issues. So that's what I'm going to do today. Also, before we get into this week's podcast, I'm going to talk about some of the things

I want to remind everybody, my next book is now up. It is available for presale on Amazon. It's called When You Come at the King, Inside DOJ's Pursuit of the President, From Nixon to Trump. You folks are the target audience here. The people who listen to this podcast and subscribe to Cafe,

You couldn't ask for a book more tailored to this audience. It is an inside look at every case from Watergate to Iran-Contra to Clinton and Starr, all the way through the modern ones that we've covered together. Mueller and Hunter Biden and Joe Biden with the documents. And of course, Jack Smith, Jim Comey with Hillary Clinton. And for each of these cases, I get insider.

I have defense lawyers on the record explaining their strategy and some of the conflicts and the politics around it. I talk to members of the prosecution teams, the defense teams, guys who were actually prosecuted by some of these people, law enforcement officers, politicians, historians, journalists,

you name it. So it's a really fun group of stories. And of course, we weave them together and sort of try to draw broader lessons now that we're in Trump 2.0. So check it out. Please pre-order it if you are so inclined. Those pre-sales mean a lot. The publishers, HarperCollins and the bookstores all look at those to decide how many they're going to print and order. So let's make a showing here, Cafe people. All right, on to this week's piece. As always, love your thoughts, questions, comments. Send them in to letters at cafe.com. ♪♪

Fellow prosecutors, if you ever want to piss off a judge, I highly recommend overstating your case during the earliest phases of the litigation. I might or might not have done this a time or two during my early years. Come out with a self-congratulatory bang. Declare your case overwhelming and an all-but-guaranteed winner. And then enjoy your loss of credibility as it dawns on the judge that she's been hoodwinked.

And if you really want to lose the judge, do your overhyping as ostentatiously as possible, preferably in broad public view. Maybe issue a splashy press release or perhaps convince the U.S. attorney to make a public announcement. Better yet, see if you can get the attorney general of the United States

to stand behind a podium and proclaim your case a surefire conviction. Maybe even poison the public with inflammatory allegations about the defendant that go far beyond the actual charges in the indictment. Sit back and watch as the judge fully turns against you. It never fails.

Witness, for example, the rapid but quiet unraveling of the Justice Department's case against Kilmar Abrego-Garcia. This one slid under the radar, coinciding as it did with the outbreak of military conflict in the Middle East. While Attorney General Pam Bondi's boastful announcement of the charges against Abrego-Garcia garnered live national media coverage, it went largely unnoticed a few weeks later when the defense team stripped the bark off the prosecution's case.

Earlier this week, a federal magistrate judge heard arguments and ruled that Abrego Garcia is entitled to pretrial bail. Now, he won't walk free, of course. The prosecution is appealing the bail ruling. And even if they lose again, Abrego Garcia will likely remain in the custody of immigration officials. But the judge's decision is a sharp rebuke to the prosecution.

Abrego Garcia's criminal defense team, which is handling the case pro bono for free, includes Sean Hecker, David Patton, and Jenna Dabbs. The first two, Hecker and Patton, were SDNY federal defenders, while Dabbs was a colleague of mine at the U.S. Attorney's Office. I've seen all three at work in the courtroom. They're wicked good. And they made a convincing argument that the prosecution's case against Abrego Garcia is a mess. Let's be clear about what the Justice Department has and has not actually charged here. The

The indictment contains two counts, knowingly transporting illegal aliens across state lines and conspiring with others to do the same. Nonetheless, DOJ dropped into its indictment and press statements casual assertions that Abrego Garcia was an MS-13 gang associate, that he transported guns and drugs, that he, quote, abused female passengers and solicited child pornography, and that he took part in a murder.

Tellingly, the Justice Department has chosen not to back up its most sensational allegations with actual criminal charges. All that stuff about guns and drugs and child porn and murder just hangs out there in the public ether, but none of it is actually charged. The magistrate judge who granted bail to Abrego Garcia found that the prosecution's core allegations rest upon multiple layers of hearsay, linguistic contortion, and evidentiary sleight of hand.

For example, prosecutors argued that Abrego Garcia was not entitled to bail because his offense involved a minor victim. An FBI agent testified that during a 2022 traffic stop in Tennessee, one of the people in the car driven by Abrego Garcia was 15 years old. Yet, as the judge noted, that contention rested upon three layers of hearsay. Some unknown person hand-wrote a note about the passenger's purported 2007 birthdate.

Somebody else photographed that note, a local cop saw the photograph of that note, interpreted it, and then relayed his assessment to the FBI agent who actually testified in court. The prosecution curiously chose not to call the local cop as a witness at the hearing when it certainly could have. And as the judge found, it's not even clear whether the handwritten note at issue says 2007 or 2001, which would have meant the passenger was an adult.

Worse yet, the government admitted that it had been unable to identify or locate the purported minor on whom their argument rested. It's just some nameless kid out there, maybe. The defense team also cast doubt on the government's cooperating witnesses. The prosecution's star witness, we've now learned, is the acknowledged ringleader of the human smuggling operation and a twice-convicted felon who has been deported from the United States five times and was released early from a 30-month prison sentence

in exchange for his cooperation against Abrego Garcia. Another cooperating witness is also a felon and a prior deportee. Worse, he's a relative of the first cooperator, which suggests they'd have the opportunity to align their testimony. I'm certainly not queasy, you all know this, about the reality of cooperating witnesses. I routinely called murderers as cooperating witnesses against mob bosses and others, but it's a disastrous idea to call the leader of

of a criminal enterprise to testify down the chain of command against an underling, especially if the boss has major credibility issues. Suddenly, the prosecution of Abrego Garcia looks wobbly. Start with the unavoidable reality that this case was politically supercharged from the moment the Trump administration erroneously deported him to El Salvador, the one place he could not legally be sent.

Some sizable number of potential jurors in Tennessee surely see him as a symbol and perhaps a victim of the Trump administration's inept, overzealous immigration policies. The jury will inevitably include a handful of people who may want to send a political message with a not guilty verdict. The chances of a hung jury loom large.

And as we've seen, the prosecution's evidence appears flimsy. Remember that criminal trials are not about who's got a more believable or more compelling story. They're about whether the prosecution can prove its case beyond a reasonable doubt to the unanimous satisfaction of 12 jurors. He's probably guilty isn't nearly enough. Mark this down for later. The Justice Department has an unusual escape hatch here and just might use it.

If the outlook remains bleak as trial approaches, the government can effectively bail out of the prosecution by completing the immigration process and deporting Abrego Garcia to some country other than El Salvador. DOJ prosecutors could then gravely inform the judge that the defendant has been removed. And in light of that unfortunate circumstance, the Justice Department deems it unnecessary to complete his prosecution. Indeed, DOJ already seems to be setting the stage for this potential bailout.

In a motion filed with the district court judge after the magistrate judge's bail ruling, prosecutors noted that if Abrego Garcia is granted bail on the criminal case, he will certainly be taken into immediate custody by ICE. From there, he might well be deported before trial, the prosecutors noted.

with feigned dismay. This is not, of course, how things ordinarily work. Show me one other case where the government has improperly deported an illegal alien and then brought him back to the United States on a routine criminal charge and then re-deported him before trial. But little about this case is normal. It's prosecution as political cover now. And the Justice Department seemingly has overplayed its hand. Thanks for listening, everyone. Stay safe and stay informed.

Hey, it's Scott Galloway. In today's marketing landscape, if you're not evolving, you're getting left behind. In some ways, it's easier than ever to reach your customers, but cutting through the noise has never been harder. So we're going to talk about it on a special PropG Office Hour series. We'll be answering questions from C-suite execs and business leaders about how to market efficiently and effectively in today's chaotic world. So tune into PropG Office Hour special series brought to you by Adobe Express. You can find it on the PropG feed wherever you get your podcasts.