What Abrego’s Bail Hearing Revealed About Him—and the Trump Administration

On June 13, U.S. Magistrate Judge Barbara Holmes of the Middle District of Tennessee presided over a bail hearing in the criminal case against Kilmar Armando Abrego Garcia. The Salvadoran man’s mistaken and unlawful removal from the United States on March 15, to endure a stint at a notorious Salvadoran maximum-security prison, had precipitated a federal court order, largely affirmed by the U.S. Supreme Court, requiring the government to facilitate his return. His indictment on human-smuggling charges, unveiled June 6, appeared to offer the Trump administration a face-saving way to comply.

The bail hearing lasted almost six hours, prompting Holmes to observe that it was, with possibly one exception, the longest she could recall in 11 years on the bench. This article dissects what the evidence presented in this hearing says about a vast number of allegations the government has leveled against Abrego since his unlawful removal. (Though Lawfare has previously referred to this individual as Abrego Garcia—the double surname his immigration lawyers used in their filings—his criminal defense lawyers said at the bail hearing that he prefers to go by the single surname Abrego. This article follows that convention.) 

Given Abrego’s extraordinary odyssey, the evidence introduced—and the evidence not introduced—also sheds light on the politicized manner in which the government has handled every aspect of Abrego’s case. The bail hearing, the criminal case it relates to, and the government’s arguments in the civil litigation over Abrego’s wrongful removal have all served a paramount goal that is neither the rule of law nor due process. The overriding goal is always the same: serving the political messaging of the Trump administration.

In one sense, the stakes of the bail hearing for the government were relatively low. Even if Abrego was ordered “released” on bail, the victory would be symbolic; he would remain in custody due to his Immigration and Customs Enforcement (ICE) detainer, relating to the removal proceedings against him. At issue was whether the U.S. Attorney General would be his custodian, under the criminal laws, or the secretary of homeland security, under the immigration laws.

On the other hand, the political stakes were high. Because the Trump administration’s public messaging had portrayed Abrego’s crimes as surpassingly heinous and portrayed Abrego as a violent MS-13 gang member who could never be allowed to walk American streets again, an order of release would sharply undermine both claims.

As it happened, that’s what came to pass. Magistrate Judge Holmes found that Abrego was not even eligible for detention, given the standards of the Bail Reform Act. When the government appealed Holmes’s ruling to U.S. District Judge Waverly Crenshaw, he declined to stay her ruling, though he scheduled a second evidentiary hearing, for July 16, at which the government can try to persuade him to reach a different result. The government may present additional evidence there to shore up its arguments for detaining him. (Abrego remains in criminal custody for now, having asked for, and been granted, a delay of his release order for fear of being taken into immigration custody and immediately deported.) 

The hearing was odd in that the tail often seemed to be wagging the dog. That’s because, as described below, the crimes Abrego is charged with—conspiring to transport and transporting illegal aliens—are not grave enough to automatically trigger eligibility for detention. To keep Abrego detained, the government had to try to prove bad acts that were peripheral—even extraneous—to the offenses. Testimony came to focus, for instance, on such tangential details as whether an “after-market” passenger seat installed in a Chevrolet Suburban that Abrego had been driving in November 2022 had been equipped with seat belts.

The evidence presented at the hearing undermined the government’s political messaging in two surprising ways. First, the proof that Abrego was a member of MS-13—a crucial theme of the administration’s messaging about Abrego—was startlingly weak. Holmes found the government’s proof on this point “simply insufficient,” while Judge Crenshaw wrote that it “did little to confirm, and at times may have undermined, this assertion.” 

Second, the hearing was marked by a puzzling and conspicuous omission—a gargantuan dog that didn’t bark. The most sensational claim of all that the government has leveled at Abrego was one Attorney General Pam Bondi trumpeted at a televised press conference on June 6, when she announced Abrego’s return to the United States and the unveiling of his indictment. There she said that he had “participated in a murder” of a rival gang member’s mother in El Salvador.

Inexplicably, this allegation never came up at the detention hearing. As explained below, convincing proof of that assertion would have been relevant to bail eligibility in several respects and would have been admissible—even if multiple hearsay—under the relaxed evidentiary standards of such hearings. Moreover, the government cannot be saving that evidence for trial, because it would almost certainly be inadmissible there. It would seem to run afoul of Federal Rules of Evidence 404(b) and 403, in that it would be “other crimes” evidence being used to prove bad “character,” and its “probative value” would be “substantially outweighed” by “unfair prejudice.” 

Maybe the government will present its evidence of that claim at the upcoming hearing before Judge Crenshaw on July 16. If not, Attorney General Bondi’s public airing of such accusations seems in tension with Rule 3.6 of the Model Rules of Professional Responsibility, which counsels that lawyers should not make extrajudicial statements that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” 

Background

Abrego, 29, entered the United States without inspection—that is, illegally—in about 2011 or 2012, at age 16 or so.

On March 12, 2025, he was living in Beltsville, Maryland, with his wife (a U.S. citizen) and their three young children. That afternoon, ICE agents pulled him over without a warrant, detained him, transferred him to Texas, and, on March 15, flew him to El Salvador to be imprisoned at CECOT, the Terrorism Confinement Center. Abrego has since alleged that he was tortured there.

The removal was illegal. Although an immigration judge had found Abrego removable in October 2019, he had also barred Abrego’s removal to El Salvador, finding that Abrego had a well-founded fear of persecution there.

On March 24, Abrego’s wife, Jennifer Vasquez Sura, sued on his behalf in the District of Maryland, seeking his return. In its response papers, the government argued that the court lacked jurisdiction, but conceded, in a declaration from an ICE official, that Abrego’s removal had resulted from an “administrative error.”

On April 4, U.S. District Judge Paula Xinis ordered the government to “facilitate and effectuate” Abrego’s return. On April 10, the U.S. Supreme Court upheld her order in part, requiring the government “to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”

Politically, the highly publicized case appeared to embarrass the Trump administration.  First, a deportation in violation of a court order looked like incompetence, at best. More important, it was politically off-message. The administration had been arguing—and still is—that the vast majority of its deportees had criminal convictions, many for violent crimes. Yet Abrego had no criminal record at all—either in the U.S. or in El Salvador. The notion of sending him to an infamous prison for gang members and terrorists was horrifying.

The administration fought back—ferociously. It began issuing a blizzard of vilifying accusations about Abrego. The key one was that he was a member of the violent Salvadoran gang, Mara Salvatrucha, or MS-13, and that, as such, he was a “terrorist.” (On Feb. 20, Secretary of State Marco Rubio designated MS-13 and seven other Latin American criminal gangs as “foreign terrorist organizations.”) ICE had, in fact, presented equivocal evidence of Abrego’s MS-13 membership at an April 2019 immigration bail hearing, relying mainly on ambiguous tattoos and apparel. Lawfare analyzed that evidence on April 25, concluding that it consisted of “double hearsay in a document authored by a later suspended police detective.”

On April 16 and April 30, the Department of Homeland Security released copies of two orders of protection that Abrego’s wife, Vasquez Sura, had sought against Abrego in August 2020 and May 2021 for domestic violence. On April 18, the department released records concerning a traffic stop in Tennessee in November 2022, in which Abrego had been driving a Chevrolet Suburban packed with nine undocumented aliens and no luggage. Circumstantially, the facts bore indicia of the offense of knowingly transporting illegal aliens, known as “human smuggling,” though, at the time, no charges were brought.

None of these accusations negated that Abrego had been wrongfully removed to El Salvador in violation of a court order. But they did advance an obvious political-messaging purpose. They made Abrego appear to be a dangerous or despicable person. In the eyes of people who were not thinking clearly, these allegations might mitigate the horror of Abrego’s wrongful deportation to CECOT.

Eventually, the government did develop a legal argument that might mitigate or even excuse the government’s violation of Abrego’s withholding of removal order. When the government sought an emergency stay of Judge Xinis’s order from the U.S. Court of Appeals for the Fourth Circuit, it included a new claim in its brief. It went like this: Since Secretary Rubio had declared MS-13 to be a “foreign terrorist organization,” and Abrego was allegedly an MS-13 member, he was now allegedly ineligible for the “withholding of removal” to El Salvador that the immigration judge had granted him in 2019. As an equitable matter, then, the government argued, the court should simply disregard the 2019 order: “Given that status [that is, that Abrego was allegedly a terrorist], he has no legal right or basis to be in the United States at all, and … no right to withholding relief under the [Immigration and Nationality Act].” 

Publicly, deputy White House Chief of Staff Stephen Miller went further. He told reporters on April 14 that “[n]o one was mistakenly sent anywhere. ... Withholding orders don’t apply to [foreign terrorist organizations] for obvious reasons.” He also denounced the Department of Justice lawyer who had conceded error at the first hearing in the case as a “Democrat” and “saboteur” who had been relieved of his duties.

The lawyer in question was Erez Reuveni, a 15-year veteran of the department. According to a whistleblower letter his attorneys made public June 24, Reuveni had refused to sign the government’s appellate brief propounding this new “terrorism” argument and, as a consequence, had been placed on administrative leave and fired six days later.

According to the 27-page letter, when Reuveni first learned of Abrego’s mistaken removal in late March, he had assumed the government would follow “the prior practice going back years” and “resolve” the case “without further litigation by correcting the error.” He soon discovered, however, that the Trump administration would be resisting Abrego’s return.

As for the government’s new claim about Abrego’s purported MS-13 membership nullifying his “withholding of removal” order, Reuveni refused to endorse it, according to the letter. He felt, his attorneys wrote, that “the laws governing withholding of removal do not support a theory that declaring someone a member of a terrorist organization retroactively nullifies a grant of withholding relief.” (In a social media post, Deputy Attorney General Todd Blanche termed the Reuveni letter as “utterly false,” dismissing it as “falsehoods purportedly made by a disgruntled former employee.”) 

Though both the appellate court and the Supreme Court seemed to reject the government’s belated “terrorist” argument, substantially affirming Judge Xinis’s order, Miller has continued to insist that Abrego was “correctly deported to his home nation”—as recently as June.  

In any event, in mid-April, Judge Xinis ordered the government to submit to discovery. She wanted to learn what it was doing to comply with her order and to “determin[e] whether contempt proceedings are warranted.”

Xinis’s orders were met with strident, public pronouncements at the highest levels of government that asymptotically approached contempt. On April 16, for instance, Attorney General Bondi averred that Abrego was “not coming back to our country. ... There was no situation ever where he was going to stay in this country. None, none.”

On April 23, as the case seemed to be careening toward constitutional crisis, the government filed a cryptic motion under seal before Judge Xinis. It asked for a week’s stay of discovery to permit “[d]efendants’ efforts to resolve this litigation.” Xinis granted it.

On May 6, ABC News broke the story that the government was investigating Abrego’s 2022 traffic stop in Tennessee with an apparent eye to bringing charges. On June 6, when Abrego was returned to the United States and the indictment was unsealed, Bondi hailed both developments at a televised press conference. Abrego was charged with two counts: knowingly “transport[ing]” illegal aliens “within the United States” for “private personal gain” and conspiring to do so (under 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (B)(i) and 1324(a)(1)(A)(v) and (B)(i), respectively).

That day, ABC News also reported that on May 21—the day the indictment had been handed down under seal—the head of the criminal division of the U.S. Attorney’s Office in Nashville had resigned. His resignation had been “prompted by concerns that the case was being pursued for political reasons,” it added. 

The indictment was chock full of allegations of bad acts that were unnecessary to prove either charge. Most of these, for reasons previously noted, will face steep admissibility challenges at trial. The 10-page document mentions MS-13 eight times, for instance. It also asserts that Abrego “transported narcotics for distribution and resale[,]” “transported firearms illegally purchased in Texas for distribution and resale in Maryland[,]” “transported aliens in an unsafe manner[,]” transported “children on the floorboards” of the vehicles he drove, and “abused some of the female undocumented aliens” he transported.

At her press conference, Attorney General Bondi highlighted, in addition to these allegations, two others, which were contained in a detention memorandum filed that day. According to that filing, “the defendant [had] solicited nude photographs and videos of a minor.” In addition, it said, “[a]ccording to a co-conspirator, the defendant stated that he participated in the murder of a rival gang member’s mother in El Salvador” and that that was how he “got into MS-13.”

The Bail Hearing

Lawfare has already detailed the legal showings the government had to make in order to keep Abrego detained. As explained there,

The pretrial detention statute’s “default position” is that a criminal defendant should be “released pending trial.” To overcome that default and seek detention in a typical case, the government must clear two hurdles. First, it has to establish a legal basis for having a detention hearing in the first place. If successful at that step, the government must then persuade the judge that “no condition or combination of conditions will reasonably assure” the defendant’s appearance in the criminal proceedings and “the safety of any other person and the community.”

Notwithstanding the theoretical two-step framework, in practice magistrate judges often go ahead and hold a bail hearing to help them decide both steps. If the government fails to show an entitlement to a hearing—as proved to be the case here—the magistrate judge so rules retrospectively.  

Although some alleged crimes automatically satisfy the first step—crimes of violence, for instance; capital crimes; crimes carrying potential life sentences—the Justice Department hadn’t charged Abrego with such crimes. Accordingly, to show that the government was entitled to a detention hearing—or, putting it another way, to show that Abrego was even eligible for detention—the prosecution had to show at least one of the following: 

• Abrego was charged with a “felony ... that involves a minor victim” (under 18 U.S.C. § 3142(f)(1)(E)).

• There was “a serious risk” that Abrego would “flee” (under 18 U.S.C. § 3142(f)(2)(A)).

• There was “a serious risk” that Abrego would “obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror” (under 18 U.S.C. § 3142(f)(2)(B)).

Assuming the government could prove one of those circumstances, it would then try to overcome a second hurdle: establishing that no conditions of release could “reasonably assure the appearance of the person as required and the safety of any other person and the community,” taking into account a list of factors enumerated in 18 U.S.C. § 3142(g). 

The government, represented by U.S. Attorney Robert McGuire, called one witness: Peter Joseph, a special agent for Homeland Security Investigations. Joseph testified that he’d been assigned to investigate the case on April 28. McGuire had Joseph recount what certain witnesses or cooperators had told him; or had told grand juries, according to transcripts; or had told others in Joseph’s presence; or had related to others who had orally related those oral accounts to Joseph. Hearsay is admissible at bail hearings, as Magistrate Judge Holmes later explained in her ruling, where most rules of evidence do not apply and “reliability” and “accuracy” are the only touchstones. Still, multiple layers of hearsay tends to reduce the “reliability” of proof.

This article discusses the evidence here not in the order in which it was introduced but rather as it relates to the various discrete topics that McGuire was trying to prove. It starts with evidence of the criminal counts, beginning with the traffic stop, and then proceeds to evidence that the crime involved “a minor victim[,]” evidence that Abrego posed a “serious risk” of fleeing, and evidence that he posed a “serious risk” of obstructing justice.

The Traffic Stop

McGuire introduced, through Joseph, strong evidence that Abrego had, indeed, been knowingly transporting undocumented aliens on Nov. 30, 2022.

On that day, a Tennessee Highway Patrol trooper pulled over a Chevrolet Suburban that was going 70 miles-per-hour in a 65 mile-per-hour zone, according to Joseph. The incident occurred on Interstate 41 not far from Cookeville, Tennessee.

That trooper, who was not identified at the hearing, was wearing a body-worn camera at the time. That footage was introduced into evidence as Exhibit 1. Joseph testified about what it showed and periodically played portions. 

Abrego had been driving the Suburban. His driver’s license had expired. Behind Abrego, seated in three rows of seats, were nine passengers. The third passenger row, which was very close to the back window, Joseph testified, was an “after-market” seat, that is, one installed after purchase.

Abrego told the trooper that he was driving from St. Louis to Maryland and that he had spent the previous two weeks in St. Louis on a construction crew. There were no construction tools in the car, however, nor any luggage. Troopers found an envelope containing $1,400 cash in Abrego’s pocket, according to Joseph.

More troopers soon arrived on the scene, the footage showed. One of them was Douglas Foster—whom Joseph interviewed, he testified. Foster can be heard on the body-cam footage telling other officers that Abrego appeared to be engaged in human smuggling.

At some point—it’s unclear from Joseph’s testimony exactly when—investigators discovered that the car was registered to Jose Ramon Hernandez-Reyes, who had been previously convicted of knowingly transporting illegal aliens. (Hernandez-Reyes pleaded guilty to that offense in 2020.)

Troopers on the scene ran Abrego’s name through law enforcement databases and “registered a hit.”  The troopers contacted the Federal Bureau of Investigation’s Terrorist Operations Center and had a phone conversation, but no federal law enforcement followed up.

One trooper, who spoke Spanish, handed the passengers a legal pad. He asked them to pass it back through the vehicle, writing down their names, dates of birth, residences, and destinations. This “roster” was introduced into evidence, as was a photograph of a portion of it.

Eventually, investigators were able to determine, according to Joseph, that at least six of the nine passengers had recently entered or reentered the United States unlawfully. They came from Mexico, Honduras, and El Salvador. The three other passengers have not been located, Joseph testified. 

Investigators also later determined that Abrego’s story, about himself and the others having worked on a construction crew in St. Louis, did not check out. The route Abrego was traveling, I-41, was out of the way if he was headed from St. Louis to Baltimore. License plate reader data showed that none of St. Louis’s approximately 400 license-reading cameras had detected the Suburban’s plate during the past year. In contrast, that plate had been detected in Spring, Texas, near Houston, 12 days earlier, as well as near the Louisiana-Texas border, and in Georgia and Arkansas.

On cross-examination, federal public defender Richard Tennent made only minor inroads into shaking Joseph’s incriminating narrative as to this traffic stop. But he did elicit at least one concerning anomaly. That related to what Trooper Foster had told Agent Joseph regarding the “passports” of Abrego’s passengers.  Foster was “almost 100 percent certain” that he had examined their passports and that they’d shown “no U.S. ports of entry,” Joseph testified. Foster also told Joseph that he’d taken photographs of those passports, though he had been unable to find those. (The indictment alleges that none of the passengers were carrying identification, which seems inconsistent with Foster’s account.) As described below, this testimony would take on importance when the question turned to whether Abrego’s crime involved “minor victims.”

The Conspiracy

To nail down that the November 2022 traffic stop did involve knowing transportation of undocumented aliens and to prove the conspiracy count, Agent Joseph related evidence sourced to five other individuals. Four of those potential witnesses appear to be co-conspirators mentioned in the indictment.

The indictment references six co-conspirators, identified there as CC-1 through CC-6. CC-1 through CC-3 appear to be the key witnesses that the government anticipates will directly implicate Abrego. CC-4 and CC-5 provide information about the conspiracy’s finances. CC-6 is described as the main “supplier” of humans from abroad. It is unclear from the indictment if CC-4 through CC-6 have met Abrego, but that is not required in a conspiracy. While CC-1 through CC-5 are Salvadorans, CC-6 is Guatemalan, according to the indictment.

At the hearing, U.S. Attorney McGuire and Agent Joseph avoided using the same nomenclature as the indictment in an apparent effort to make it harder for observers to identify witnesses. Accordingly, they spoke of the “first male cooperator”; the “second male cooperator”; two “female cooperators,” who were co-conspirators; and a female U.S. citizen referred to as “N.V.,” who was not a co-conspirator.

However, due to slip-ups at the hearing, it emerged that the “first male cooperator” was “CC-1” in the indictment and that he was the man to whom the Suburban had been registered: Hernandez-Reyes.

Federal public defender Tennent also stated during cross-examination that the “second cooperator” was the indictment’s “CC-3,” an assertion that Agent Joseph acquiesced in. (“If you say so,” Joseph testified.) Nevertheless, the second cooperator’s information also sounded similar at points to what the indictment alleges CC-2 will say, so he might be CC-2. Since the second female cooperator provided mainly financial information, she might be CC-4 or CC-5.

The first cooperator (Hernandez-Reyes) owned the illegal “transportation business” that allegedly employed Abrego as one of its drivers, according to Joseph. This co-conspirator had told Joseph that he’d met Abrego in 2016 and had used him as a driver in the business since then. He estimated that Abrego would make two round-trip runs from Maryland to Texas per week. Abrego would be paid between $1,000 and $1,500 in cash each time, according to this individual—a sum that was consistent with the envelope of $1,400 cash found on Abrego on Nov. 30, 2022.

The second cooperator was one of the first cooperator’s drivers, but also “ran the business” for a period, according to Joseph, who had read his grand jury testimony. (The indictment alleges that CC-2 ran the organization for a period, when CC-1 was incarcerated.) This person had testified that Abrego was one of about six drivers for the business. He estimated that Abrego would make two or three roundtrips, from Maryland to Houston, each week, according to Joseph.

It emerged during the hearing that at least four of the five potential witnesses whose accounts Joseph summarized had incentives to shade their testimony to please the government.

The most dramatic example was Hernandez-Reyes, the first cooperator. At the hearing, Agent Joseph admitted that the first cooperator had been deported five times and had been convicted of two felonies. Although this person had been serving a 30-month sentence when Joseph commenced his investigation, he had already been granted early release to a halfway house and was expected to be granted work authorization soon, all in exchange for his cooperation. On top of that, the government had granted this individual “deferred action” on his removal proceedings, per Joseph, and his immigration status would be revisited in a year. In other words, deportation was a sword of Damocles hanging over this cooperator’s head, and his testimony in Abrego’s case might well impact whether he would be permitted to remain in this country.

Those benefits would be extraordinary in themselves, given that Hernandez-Reyes was, by his own admission, a far more culpable figure in the conspiracy than Abrego. He was the head of it. It was his business.

Yet the information at the hearing actually understated the leniency that the government had shown to Hernandez-Reyes. Perhaps due to the celerity with which the probe was conducted, neither Agent Joseph nor U.S. Attorney McGuire nor any of the three defense lawyers at the hearing seemed aware that Hernandez-Reyes actually had been convicted of three felonies, not two. The third was a state charge for “deadly conduct” involving “illegal discharge of a firearm.” That charge had been discussed at Hernandez-Reyes’s most recent sentencing hearing, in May 2024, and was fleshed out by the Washington Post in an article that ran after the hearing. 

(In fact, a second significant mistake of this ilk was made at the hearing, which later found its way into Magistrate Judge Holmes’s ruling. Hernandez-Reyes had not been serving 30 months for transporting aliens, as the defense lawyers—without correction by McGuire—inaccurately informed Holmes. His conviction for transporting aliens, in 2020, had resulted in a sentence of only 18 months. His 30-month term, imposed in 2024, was for “illegal reentry after an aggravated felony” under 8 U.S.C. § 1326(b)(2). And the “aggravating felony” was that state “deadly conduct” conviction—the one nobody mentioned at the hearing. A phone call seeking comment from the Federal Public Defender’s Office in Nashville was answered by a woman who said the office does not take reporters’ inquiries. An email inquiry to a spokesperson for the U.S. Attorney’s Office in Nashville was not returned.) 

The second male cooperator was also seeking benefits, Agent Joseph acknowledged. He was currently in custody in a different district on an illegal reentry charge. He, also, had a previous conviction for transporting aliens and at least one previous deportation. He was also seeking deferred action from immigration authorities.

The female U.S. citizen source, N.V., had served as a paid informant for the government in the past, Agent Joseph admitted. So she, too, might be hoping to benefit from her cooperation.

What’s more, the “first female cooperator” was hoping to be granted “deferred action” in her deportation proceedings, Agent Joseph testified.

A further complicating factor to be weighed in assessing the accounts of the four cooperating witnesses was that they were all related to one another. The second male cooperator was a “close relative” of the first. The first female cooperator had at one point “lived with” the first male cooperator in El Salvador, though they were now estranged. The second female cooperator also had some sort of “relation” to both male cooperators, according to Joseph.

As mentioned, all of the government’s proof described so far, if credited, would be insufficient to keep Abrego detained, because it didn’t make out any of the criteria laid out in 18 U.S.C. § 3142(f). That brings us to the additional allegations that the government argued would make Abrego eligible for pretrial detention. 

“A Felony ... That Involves a Minor Victim”

The government offered evidence of four accusations that, it claimed, showed that Abrego had committed a “felony ... that involves a minor victim” under 18 U.S.C. § 3142(f)(1)(E):

1. It alleged that one of the passengers in the November 2022 traffic stop was a minor, and that he was transported in an unsafe manner.

2. It alleged that Abrego once transported Ecuadoran minors on a trip.

3. It alleged that Abrego had been “inappropriate” with minor female passengers he was transporting.

4. It alleged that Abrego used to take his own children on smuggling trips and then, on the return legs, require them to sit on the floorboards to make room for the paying passengers.

Assessing these claims was not an easy task for the magistrate judge because the law is unclear about what the word “involves” means in the phrase “a felony ... that involves a minor victim.” For instance, a very narrow reading might be that the elements of the crime charged must include the harming of a minor.  If so, none of these scenarios would suffice.

The government argued that the meaning of “involves” was much broader. In the end, Magistrate Judge Holmes adopted the view that “involves” means “more than ‘related to’ and something less than ‘necessarily entails.’”

Applying that standard was still not simple, though. While the first three scenarios concern minor aliens who were allegedly being illegally transported—in that sense, part of the offense—the last scenario didn’t. That scenario, while disturbing—and we’ll discuss it more below—involved something Abrego allegedly did with his own children, who were U.S. citizens. So they were neither aliens nor being unlawfully transported. Did these allegations suffice to render Abrego’s alleged crimes “felon[ies] ... involving a minor victim”?

The government focused most of its effort on the first scenario: that there had been a minor passenger in the Suburban on Nov. 30, 2022. But even that claim proved to be a rickety, speculation-plagued proposition.  

The evidence that there was a minor in the vehicle consisted—in its entirety—of this handwritten “date of birth” notation that one of the passengers had written down on the legal-pad “roster.”

The government said that the passenger had rendered the year of his birth “2007,” meaning that, if he was telling the truth, he would have been about 15 at the time of the 2022 stop. (Defense counsel elicited from Agent Joseph that illegal aliens have incentives to understate their age, to qualify for the Deferred Action for Childhood Arrivals program, or DACA.) 

But the digit “7” appeared to have been written over by someone, as if possibly to change the date from 2001 to 2007. If the person had been born in 2001, he was an adult. 

Furthermore, since none of the troopers testified at the hearing, no one could say whether any of the passengers looked like a minor. Agent Joseph offered no hearsay recollections from the troopers on that score.

Remember also that Trooper Foster had told Agent Joseph that Foster was “almost 100 percent certain” that the passengers carried passports that day. Foster had told Joseph that he’d taken photographs of those passports, though he’d been unable to find them. The defense argued that photos of the passports, if they existed, would have been far better evidence than the handwritten roster.

“I Would Bet ... an Ice Cold Beer”

There was yet another layer of confusion looming over this first scenario—and, indeed, all other “minor victim” scenarios. What does “victim” mean in this context? Does the minor have to be injured? Merely placed at risk? There was no evidence that the putative minor passenger of Nov. 30, 2022, suffered any injury.

The government argued first that illegally transporting a minor was so inherently dangerous as to “victimize” any minor alien transported. But in case more concrete proof was needed, U.S. Attorney McGuire argued that the putative minor in the Suburban had been exposed to risk of harm, in that he had not been wearing a seat belt.

How did McGuire know that? That’s where the after-market passenger seat comes in. McGuire argued that since the putative minor’s signature was the last name on the legal-pad “roster,” he must have been sitting in the last seat—the after-market seat. McGuire invited that inference from the fact that the body-cam footage showed an officer handing the legal pad to aliens in the first passenger row, who then passed it back toward the rear.

Next, McGuire reasoned that it was highly unlikely that the last row had been equipped with seat belts. This led to one of the stranger exchanges of a strange hearing:

MR. MCGUIRE: Your Honor, there would not be seatbelts back there. There would be no way for them to be. And so we’re talking about—

THE COURT: What evidence do I have of that, Mr. McGuire?

MR. MCGUIRE: Your Honor, I would submit, Your Honor, just kind of walking-around sense. It’s an after-market Chevy Suburban row. I mean, seatbelts -- the Court can take judicial notice that seatbelts have to be anchored to the frame of the vehicle. Like, I don’t think that’s much debate. We have, like, dozens, if not hundreds of federal safety standards related --

THE COURT: I don’t disagree with you about the safety standards, but I know nothing about this Suburban other than there was an extra row added. But even though I don’t know about the ways in which additional seating can be added to a vehicle, what all that involves, whether you just take a row of seats out of one Suburban and you put it in the back of another Suburban, or if there is a way to after-market modify a Suburban to make it a more passenger available vehicle which would involve some frame modifications as well. So I’ll accept your statement and also give it the weight that it warrants about there maybe were no seatbelts in the after-market row.

MR. MCGUIRE: Your Honor, my arguments, as you know from hearing me talk a lot, which I’m sympathetic to, that my arguments are routinely grounded in common sense. I would bet everybody in this courthouse an ice cold beer that there are not seatbelts in that back row because of basically the way everybody knows how a car works and that’s the argument. And I think it makes the most sense based on the assembled facts that we all have that are visible on the body cam. And the Court can reject it, and I understand it. But I’m just saying that I think a common-sense application of the facts is always welcome, and that makes -- frankly, just makes the most sense based on everything else, and I think you can make logical inferences as part of your determination, just as we ask jurors to do routinely.

THE COURT: And you know that I, too, Mr. McGuire, tend to -- to be one to apply common sense as well when common sense is appropriate. I have also learned, though, that I do not presume that I know things about things that I don’t know enough about. And one of those things is I don’t know enough about automobile modifications to -- to necessarily be able to say with certainty or not with certainty about what would be involved in adding a third row to a Chevy Suburban. But we’ve spent enough time talking about that particular issue.

McGuire’s second “minor victim” scenario—the allegation that Abrego transported some Ecuadorian minors at some point—never acquired more specificity than that. The “second male cooperator” had made that assertion. Agent Joseph could offer no clarity as to their ages, circumstances, when this occurred, or why they should be seen as “victims.” 

The third scenario was that Abrego had evinced “inappropriate” conduct toward adult and minor female passengers during the human smuggling trips. Per Agent Joseph, both male cooperators said they’d received complaints to that effect from unidentified co-conspirators, who feared that whatever Abrego was doing was bad for business. But there was no evidence of what Abrego’s alleged misconduct was or how many layers of hearsay this allegation had percolated through. 

Considerable space was devoted to the fourth scenario: Abrego’s alleged transportation of his own U.S. citizen children on his trips, along with his wife, and his allegedly having had his children sit on the floorboards during the return trip.

This was certainly a troubling accusation. According to Agent Joseph, both male cooperators maintained that Abrego “typically” did this on his trips. One female cooperator said, more vaguely, that he “often” traveled with his wife and children on his smuggling trips.

Nevertheless, as defense counsel showed on cross-examination, it was a hard scenario to picture, especially when one took into account that all of Abrego’s children have special needs, and two of them have autism. (Their current ages are 10, 9, and 5.) The male cooperators’ accounts were made less plausible by their allegations that Abrego would make the roundtrip to Houston twice a week (per the first cooperator) or even three times per week (per the second).

Federal public defender Tennent cross-examined Agent Joseph about these accusations.

Q. Do you have children, Agent Joseph? ...

A. Yes, sir, I do.

Q. Have you ever been on a road trip with your children?

A. Too many times.

Q. Okay. How do they start to act after three hours on the road?

A. They of course get a little antsy.

Q. What about after six hours on the road?

A. I don’t think I’ve done one quite that long yet. Maybe one. We’ll see. A lot of breaks built in there.

Q. Have you ever done a 24-hour?

A. No, sir.

Q. Have you ever done a 24-hour outbound, then made them sit on the floor for 24 hours while they’re in a packed van with ten other men?

A. Of course not.

Q. ... [S]o let’s start on a Monday. He would spend all of Monday driving to Texas. He would spend all of Tuesday with his children sitting on the floorboards, his two children sitting on the floorboards. Wednesday, they would all drive back. Thursday, they’d finish Trip Number 2. Friday, they would all drive back. And Saturday, after 144 hours on the road, he would finally stop driving around with his children sitting on the floorboards. That’s what he told you?

A. That’s the statements. 

Was Abrego a “Serious Risk” to Flee?

The government’s second argument for why Abrego was eligible for detention under 18 U.S.C. § 1342(f) was that he was a “serious risk” to flee. These arguments were more inferential than factual: that Abrego had reason to fear a long sentence, for instance, or deportation. Since this article is focused on the factual evidence against Abrego, we largely skip over this argument, except to observe that Magistrate Judge Holmes rejected it. She found that, according to Sentencing Commission data, the average sentence for transporting aliens was about 15 months, which was not remarkably severe. And since Abrego was under an immigration detainer, he was not going anywhere unless the executive branch, in its discretion, chose to try to deport him.  

Was There a “Serious Risk” That Abrego Would “Obstruct Justice”?

The government’s final theory for why Abrego was eligible for detention was that he was a “serious risk” to “obstruct justice” or “intimidate” witnesses or jurors. This gave the government a golden opportunity to showcase the linchpin of its political messaging: that Abrego was a violent MS-13 gang member. To the extent such evidence existed, it would support the claim that, if released, Abrego might intimidate witnesses or solicit fellow gang members to do so (under 18 U.S.C. § 3142(f)(2)(B)). Such proof might also, if the government reached step two of the analysis, show that there were no “conditions of release” that could “reasonably assure” the “safety of ... the community” (under 18 U.S.C. § 3142(g)).

The government’s evidence proved shockingly weak. The first cooperator (Hernandez-Reyes), a Salvadoran who had known and worked with Abrego for nearly a decade, offered only the most indirect winks and nods that Abrego might be a gang member, according to Agent Joseph’s testimony.

Q. Now, during this first interview with the first cooperator, did you ask about ... whether the defendant was affiliated with MS-13?

A. Briefly.

Q. And what did he say?

A. He said he hadn’t seen anything that would indicate that as far as physically, but that asking those types of questions can be dangerous.

The first cooperator also suggested, according to Joseph, that when gang members were among the aliens being transported, Abrego “had a different correspondence or greeting with them” than the cooperator himself did.

On cross-examination, defense lawyer Tennent elicited that the first cooperator had actually sharply contradicted many of the Trump administration’s past claims about Abrego, including that his tattoos or apparel identified him as an MS-13 member. 

Q. And he told you that he did not observe any signs or markings that indicated that Mr. Abrego was an MS-13 member? A. That’s correct.

Q. Okay. So in ten years of knowing him, he didn’t see any indicia that he was a member of MS-13?

A. I reported what he told me.

So the key witness against Abrego, despite all the benefits he had received in exchange for cooperation, did not identify Abrego as an MS-13 member. 

The second male cooperator’s grand jury testimony on this issue was, at best, oblique. He said that Abrego was “familial” with gang members during trips, as Joseph recounted it. This individual also maintained that as many as “30 percent” of the aliens that were transported by the business were gang members of some kind.

On cross-examination, defense lawyer Tennent asked Joseph whether “gang members” in this context included members of gangs other than MS-13, including its arch-rival Salvadoran gang, Barrio 18?  “I would think so,” Joseph responded.

The examination continued:

Q. So whether they were MS-13 on one side, Barrio 18 on the other side, he was familial with gangsters?

A.   Generally speaking, I believe that to be true.

The only other evidence of Abrego’s alleged MS-13 membership came from N.V., the female U.S. citizen and sometime paid informant. According to Joseph, N.V. “believed” Abrego was a member of MS-13. But Joseph could offer no insight into why she believed that.

As noted, the most puzzling aspect of the government’s presentation regarding MS-13 was its deafening omission: the absence of any evidence that Abrego had “participated in a murder” to win membership in MS-13. Perhaps we will hear more about that on July 16, when U.S. District Judge Crenshaw holds a new bail hearing.

Proof of Dangerousness

There was overlap between the proof the government offered to meet the first step of its burden—showing that Abrego was even eligible for detention—and the proof it offered to meet the second step, in case it reached that stage. The second step involved persuading the judge that no “condition of release” could adequately protect the community from Abrego because of his dangerousness. 

The main new allegation here related to U.S. citizen N.V. She claimed, according to Joseph, that about five years ago, when Abrego was about 24 and N.V. was about 15, he asked her to upload for him, using a messaging app, a nude picture of herself. She declined.

Beyond that claim, McGuire presented the potpourri of other aspersions the government has sprayed at Abrego over the past several months. The most reliable were the allegations of domestic violence and threats contained in two applications for civil orders of protection that Abrego’s wife, Vasquez Sura, had sought against him in 2020 and 2021.  

The remaining allegations were vague and uncorroborated. The first male cooperator said he had once given “one or two guns to the defendant” in Houston, which he assumed Abrego would likely resell in Maryland. The second male cooperator said, per Agent Joseph, that “on three occasions” he saw Abrego purchase guns, and that Abrego purchased “five guns” on each occasion. That second cooperator also said he saw Abrego “trafficking drugs on one occasion.”

On cross-examination, defense counsel Tennent elicited that a K-9 sniffer dog on the scene of the 2022 Tennessee traffic stop had not alerted for either narcotics or firearms. 

Magistrate Judge Holmes’s Ruling

On June 22, Magistrate Judge Holmes found that the government had failed to demonstrate that Abrego was even eligible for detention. And even if the government had made such a showing, she continued, she would have still denied detention as a discretionary matter.  

The claim that Abrego was transporting a minor on Nov. 30, 2022, foundered due to the unreliability of the handwritten—and overwritten—“roster” evidence. Aside from the many other issues, Holmes wrote, “there is a question about whether the 7, even if not edited, is a number seven (7) or a number one (1). ... The number one (1) and the number seven (7) are among the letters, symbols, and numbers sometimes described as visually ambiguous characters because they can be indistinguishable in many types of print and especially in handwriting,” she continued, citing a text entitled “Misidentification of Alphanumeric Symbols.” “The Court cannot find that the photograph [of the handwritten “2007” or “2001”] is sufficiently reliable to satisfy the government’s burden ... without some other corroboration such as the missing photograph of the individual’s passport.”  

As for the cooperators’ claims about Abrego’s children riding on the floorboards, she first discounted the reliability of the cooperators to begin with, in light of the benefits they had received or were seeking in exchange for cooperation. Beyond that, she wrote, their statements to the effect that Abrego was driving the “2,900-mile” round-trip to Texas multiple times per week “defy common sense” and “approach physical impossibility.”  

Holmes also discounted the accusations about Abrego having been “inappropriate” with minor female passengers.

Although the second male cooperator testified before the grand jury, the original complaints apparently came from someone else, which makes the testimony at least three, if not four or more, levels of hearsay. That the level of hearsay cannot even be determined renders the evidence patently unreliable. ... Nor were any details provided about the specifics of the complaints, including what happened, when it happened, where it happened, or any other context.

In Holmes’s eyes, the evidence of MS-13 membership fell short for similar reasons. “The government’s evidence that Abrego is a member of MS-13 consists of general statements, all double hearsay, from two cooperating witnesses: the second male cooperator and N.V.,” she wrote. “Those statements are, however, directly inconsistent with statements by the first cooperator.”

Holmes appeared to be concerned about the allegations of domestic violence contained in the orders of protection obtained by Abrego’s wife, Vasquez Sura. Nevertheless, she observed that each order “was dismissed within one month of issuance” and that Abrego’s wife appeared “fully supportive” of Abrego now. “The Court simply cannot find that ex parte temporary orders of protection from more than four years ago ... rise to the level of ‘serious’ risk of intimidation,” she wrote.

Finally, Holmes regarded the allegations about Abrego unsuccessfully soliciting a nude photo from N.V. five years ago too “attenuated” to require detention. “To the extent the safety of N.V. is a continuing concern, which is not apparent from the evidence, the court can restrict Abrego from any contact with her,” Holmes wrote.

On July 16, the government will get a do-over before Judge Crenshaw. Crenshaw may interpret the law differently; the government may choose to call additional witnesses; and Agent Joseph’s investigation may have unearthed new evidence by then.

But in any case, we can be confident of one thing: The Trump administration will do all within its power to achieve a result that is more in line with the needs of its political messaging.