Following the cancellation of his human smuggling trial in Tennessee, Kilmar Abrego Garcia is pressing the Department of Justice to release two crucial types of information. This development comes as an important evidentiary hearing approaches, which has the potential to dismiss the case on the grounds of vindictive prosecution. Abrego Garcia alleges that the Trump administration has failed to provide these materials as initially promised.

The legal team of the wrongly deported Salvadoran man argues that the DOJ’s reversal on disclosing witness details and a privilege log of documents reviewed by U.S. District Judge Waverly Crenshaw suggests the government’s inability to counter the presumption of vindictiveness. They claim this behavior reinforces their argument that the prosecution is unjust.

Abrego Garcia has criticized what he describes as an ongoing effort by the Trump administration to obstruct a fair investigation into the motives for his prosecution. He states that the administration has ignored repeated requests from the defense regarding the production of the privilege log.

In support of his motion, an email dated November 17 from Associate Attorney General Stanley Woodward was submitted. Woodward previously criticized the defense’s attempts to delve into the DOJ’s internal processes and warned of seeking “extraordinary” appellate measures if Judge Crenshaw compelled Deputy Attorney General Todd Blanche to testify about the case’s origins.

Woodward expressed indignation over Abrego Garcia’s insinuations of bad faith against the United States, even though the judge had acknowledged that the overall circumstances provide an adequate basis to suspect vindictiveness, thus granting Abrego the right to discovery and necessitating an evidentiary hearing.

At the end of the letter, however, Woodward stated, “without waiving any objections,” that the government “will provide a privilege log that includes a brief description of each document produced to the court for in camera review and, where applicable, the privilege asserted.”

In December, the judge in Abrego Garcia’s habeas corpus case found he was held by ICE “without lawful authority” for months following his return to the U.S. from a prison notorious for torture in El Salvador.

U.S. District Judge Paula Xinis, a Barack Obama appointee, ordered Abrego Garcia’s release, also finding the Trump administration “affirmatively” misled the court on the facts.

The criminal defendant has claimed that the human smuggling charges amounted to retaliation for embarrassing the government in civil litigation.

On that score, Abrego Garcia says more of the same is afoot into the present day, claiming that the DOJ is “playing fast and loose” with Crenshaw, also an Obama appointee.

“It is clear that relevant, discoverable documents exist—some were produced to the Court—and the government should not be permitted to change positions now to prevent the defense from obtaining them,” the motion said, encouraging the judge to take this “stonewalling” as more evidence of the “stunningly vindictive nature of this prosecution.”

“The government’s about-face amounts to ‘playing fast and loose with the courts,’ and ‘changing positions ‘to suit an exigency of the moment,’” the defense added.

The evidentiary hearing is scheduled for Jan. 28, and on Thursday, Crenshaw ordered the DOJ to respond to Abrego Garcia’s motion to compel, at the latest, by Jan. 21, one week before the key proceedings.

Previously, Crenshaw canceled a January trial date to hold the one-day evidentiary hearing to see whether the DOJ can provide “objective, on-the-record explanations” for the human smuggling charges that rebut the defendant’s “prima facie showing of vindictiveness.”

The judge also explained why the hearing is so “critical.”

“Whether the government can produce such evidence is critical, for ‘[i]f the government fails to present evidence sufficient to rebut the presumption, the presumption stands and the court must find that the prosecutor acted vindictively,’ leading to ‘dismissal of the charges or other appropriate remedies,” Crenshaw wrote. “However, ‘[i]f the government produces evidence to rebut the presumption, the defendant must prove that the offered justification is pretextual and that actual vindictiveness has occurred.’”

In short, if the DOJ fails at the hearing the case will be tossed, but if the DOJ does enough to turn the tables, the burden will “shift back” to Abrego Garcia to show the “government’s rationale for prosecuting him is pretextual and that his prosecution is actually vindictive.”