The wife of Kilmar Abrego Garcia, Jennifer Vasquez Sura, stands with demonstrators as they rally in support of Abrego Garcia outside federal court during a hearing in Greenbelt, Md. (Jim Watson/AFP via Getty)
Abrego Garcia's lawyers noted in Thursday’s filing that after a judge finds a "realistic likelihood" of vindictiveness in a case — as Crenshaw did earlier this month — a rebuttable presumption arises for the government, which then bears the burden of providing "objective, on-the-record explanations" to show the case was not brought for retaliatory purposes.
If the government fails to do so, the indictment should be dismissed completely, his lawyers said, arguing that the Trump administration had stonewalled them by refusing to allow witnesses to testify or hand over relevant discovery information.
It is unclear how, or when, Crenshaw will rule on the motion to dismiss or whether he would opt to cancel next week's hearing in light of the allegedly unclear submissions by the Trump administration.
More information could be revealed Friday afternoon, after lawyers for all parties participate in a counsel-only conference set by the judge.
Still, the request comes as Abrego Garcia's dueling criminal and civil cases have emerged as a major flashpoint in the Trump administration's broader immigration crackdown.
Justice Department officials told another federal judge in Maryland on Monday they have no plans to allow Abrego Garcia to remain in the U.S. to stand trial in Tennessee. Instead, they said they will seek to remove him as quickly as possible to a third country, possibly Liberia.
ABREGO GARCIA REMAINS IN US FOR NOW AS JUDGE TAKES CASE UNDER ADVISEMENT
U.S. Attorney General Pam Bondi speaks alongside President Donald Trump at a White House press briefing in this 2025 photo. Bondi's remarks have at times landed her in hot water and diverged from the administration's own messaging. (Getty Images)
Lawyers for the Justice Department asked Judge Crenshaw earlier this week to review certain categories of evidence privately, or in camera, before deciding what materials the government must turn over to Abrego Garcia’s legal team for consideration next week.
These actions were the basis of Thursday's new motion to dismiss the criminal indictment outright.
"Although the defense bears no burden at the evidentiary hearing while the presumption remains unrebutted — and we believe it will continue to be unrebutted on the limited evidence the government is apparently prepared to offer — the defense is entitled to cross-examine the government’s witnesses, which requires the timely, prehearing production of documents to the defense," Abrego Garcia's lawyers said in their filing.
They also noted the government's ongoing attempt to quash subpoenas from two senior Trump administration officials to testify next week, including the second-highest-ranking Justice Department official, Todd Blanche.
Crenshaw’s ruling earlier this month named Blanche directly on several occasions, which could present a significant hurdle for the Trump administration as it seeks to quash his subpoena.
Still, the road ahead will likely be difficult for both defense attorneys and the Justice Department.
FEDERAL JUDGE TEMPORARILY BARS ABREGO GARCIA FROM DEPORTATION TO UGANDA
U.S. Attorney General Pam Bondi and Secretary of State Marco Rubio look on as President Donald Trump meets with El Salvador President Nayib Bukele in the Oval Office of the White House in April 2025. (Win McNamee/Getty Images)
It is notoriously difficult to have a case dismissed on the grounds of selective or vindictive prosecution, and few attempts have made it to the discovery phase, meaning the outcome in Abrego Garcia’s case is far from clear.
Existing precedent requires a defendant to prove both that prosecutors acted with genuine animus in bringing the case and that prosecutors singled the defendant out because of that animus.
Selective prosecution requires the defense to prove that "similarly situated" persons have not been prosecuted.
Trump officials, for their part, have railed against the "activist" judges whom they argue are blocking their agenda and impinging on the president’s executive branch authorities.
Earlier this week, Judge Crenshaw ordered the Justice Department to provide the court with communications regarding the government's decision to prosecute the criminal case against Abrego Garcia and what "factual circumstances" motivated the change in the government's position.
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He also admonished DHS Secretary Kristi Noem and Attorney General Pam Bondi for failing to limit their comments on Abrego Garcia’s ongoing criminal case in Tennessee, a violation of local court rules, and ordered prosecutors to notify all Justice Department and DHS employees to prevent future public remarks.
"Government employees have made extrajudicial statements that are troubling, especially where many of them are exaggerated if not simply inaccurate," Judge Crenshaw said Monday.
Breanne Deppisch is a national politics reporter for Fox News Digital covering the Trump administration, with a focus on the Justice Department, FBI and other national news. She previously covered national politics at the Washington Examiner and The Washington Post, with additional bylines in Politico Magazine, the Colorado Gazette and others. You can send tips to Breanne at Breanne.Deppisch@fox.com, or follow her on X at @breanne_dep.
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