Attorney General Todd Blanche may have stepped into his new official role barely two weeks ago, but his Justice Department has wasted no time continuing the vindictive prosecutions. This week saw a surprise target, though: Kilmar Abrego Garcia. The Maryland man deported last year by mistake already had his federal indictment on human smuggling charges dismissed over vindictive prosecution, but now, the Justice Department is demanding the indictment be brought back. It requested the 6th Circuit Court of Appeals review a Tennessee judge’s decision to dismiss Abrego Garcia’s case, a prosecution that seemed completely lost. However, Abrego Garcia’s case is markedly different from other recent DOJ appeals, because upon closer inspection of the court filing, federal prosecutors don’t just want to indict the man, they want to fundamentally change how judges are allowed to apply vindictive prosecution in any case. If successful, this would drastically enable the Trump administration’s legal strategy of targeting political adversaries, with similar threats from future administrations to come.

The DOJ’s appeal was filed on Monday and it picks apart U.S. District Court Judge Waverly Crenshaw’s May decision to dismiss an indictment against Abrego Garcia after he found it was a blatantly tainted investigation “with a vindictive motive.” Federal prosecutors dispute everything from how Crenshaw interpreted the acting U.S. attorney’s decision to indict to communications with the attorney general’s office and televised comments Blanche himself made about this case. The most remarkable part of the court filing was how the DOJ argues “presumptive vindictiveness” should not be a classification judges anywhere, for any case, should be allowed to make. Prosecutors conclude that Crenshaw’s ruling “marks a dramatic expansion of the power of courts to dismiss serious criminal charges based on subjective assessments of a prosecutor’s motivations and is an unwarranted intrusion into the Executive’s powers and responsibility to protect the public.”

Abrego Garcia was the poster boy for President Donald Trump’s most aggressive and abusive portions of his immigration agenda, as he was one of about 200 immigrants deported to El Salvador last year in violation of a judge’s order. And during the litigation to bring Abrego Garcia back to the U.S., a federal prosecutor admitted he was deported due to an “administrative error.” His case ended up at the Supreme Court, where the justices ordered the federal government to “facilitate” his return to the U.S., one of the rare occasions the justices actually set a limit to Trump’s deportation powers. While it appeared as though the administration might try to circumvent the Supreme Court’s ruling and spark a true constitutional crisis, the DOJ eventually yielded.

On June 6, 2025, after having spent about three torturous months in El Salvador’s Terrorism Confinement Center—known as CECOT—Abrego Garcia was brought back home. He was immediately detained in Tennessee, though. That’s because acting U.S. Attorney for the Middle District of Tennessee Robert McGuire secured a grand jury indictment against Abrego Garcia for human smuggling charges related to a 2022 traffic stop. A messy legal battle ensued, but nearly one year later, it seemed Abrego Garcia had come out on top. In May, U.S. District Judge Waverly Crenshaw concluded the indictment brought against him was vindictive and dismissed it.

In order to make the argument against that dismissal, federal prosecutors allege that McGuire had no personal stake in the outcome of this case and was not pressured by the Trump administration. This contradicts Judge Crenshaw’s conclusion, as he found that email communications between McGuire and the DOJ suggested there was some level of coordination between the two. In its appeal, the DOJ argues McGuire was simply offering updates about his case to ensure DOJ officials “were on the same page” and prepared for the publicity that was likely to come with such a high-profile case.

Prosecutors also dispute Judge Crenshaw’s decision surrounding comments Blanche made on TV, where he said the DOJ started looking into Abrego Garcia after a judge questioned the Trump administration’s decision to deport him. This should not be viewed as vindictive because “the government was seeking to protect the public and confirm its prior assertions about Abrego’s criminal activity,” prosecutors wrote. Plus, they claim that Blanche was not the one in charge of deciding whether to charge Abrego Garcia; that was solely McGuire’s independent decision.

Prosecutors then turned to Crenshaw’s presumption of vindictiveness: “The ‘typical’ scenario where the presumption might apply is thus when a prosecutor ‘ups the ante’ by charging a more serious offense or more counts after [a] defendant’s exercise of some procedural right relating to the initial charge.” McGuire did not increase charges after initially releasing his indictment or after Abrego Garcia challenged it, and that, the DOJ argues, is why it should “never” be “appropriate to presume vindictiveness in relation to the government’s first and only action.” Essentially, the DOJ is saying it’s simply too early in the judicial process to claim prosecutors have a vindictive motive, and whether it is McGuire or any other prosecutor, judges should simply be banned from ever coming to that conclusion unless a defendant who was charged exercises some legal right and then gets hit with worse charges. This would eliminate an entire category of vindictive prosecutions, specifically ones where the defendants are targeted for political or personal reasons. Unsurprisingly, this is the category Trump’s DOJ is running afoul of repeatedly.

Vindictive prosecution motions are rare, but since Trump’s second term began, several people targeted by his administration have used it— New York Attorney General Letitia James, former FBI Director James Comey, and the Southern Poverty Law Center. The administration has a clear incentive to limit when judges can apply vindictive prosecutions. It’s anyone’s guess, though, how the 6th Circuit will decide on the question. Currently, that appeals court has a 10–6 Republican majority, with seven of those judges appointed by Trump.

Maryland Democratic Sen. Chris Van Hollen, who managed to visit with Abrego Garcia as he was being held in CECOT last year, reacted to the DOJ’s appeal on X: “Let’s call this what it is: Blanche & Trump’s DOJ are continuing their vindictive prosecution of Kilmar Abrego Garcia because, as the judge said, he exercised his constitutional rights,” he wrote. “They go after anyone who challenges them.”

If the 6th Circuit decision—and/or the inevitable Supreme Court ruling—goes the wrong way, then it will give Trump one more frighteningly powerful weapon in his campaign to destroy American rule of law.