In sum, Abrego's chief lawyer is ripping the government's bad faith obstruction. . . to shreds, day by day. Here is that extremely well-reasoned six page response, from Sean Hecker, for Mr. Abrego-Garcia (and a bit):
. . .More to the point, if these privileges could foreclose discovery in vindictive prosecution cases, they would operate to do so in every case, by definition -- the discovery is always into the government’s internal, deliberative process, conducted in anticipation of litigation, that led to criminal charges. See United States v. Adams, 870 F.2d 1140, 1146 (6th Cir. 1989) (ordering discovery into “whether the EEOC, acting on an improper motive, induced the Department of Justice to institute a prosecution that would not otherwise have been undertaken”); United States v. Zakhari, 85 F.4th 367, 383-84 (6th Cir. 2023) (remanding for a “searching inquiry,” and “full development,” into government’s charging decision). The Court noted this precise language from Adams in its order granting discovery in this case. (Dkt. 138 at 11-12). In the ordinary course, the discovery called for in Adams and Zakhari would almost certainly be subject to the deliberative process privilege and the work product doctrine (and potentially other privileges) as a technical matter, but for the Court’s order authorizing discovery of those materials. If the Adams panel thought that such documents would be protected from discovery, it would have said so.
Likewise, in Zakhari, the Sixth Circuit ordered discovery into an allegedly vindictive charging decision -- discovery plainly implicating the very same privileges the government seeks to assert here -- concluding that the government bore the burden of rebutting the presumption of vindictiveness with objective, on-the-record explanations, subject to defense testing. Zakhari, 85 F.4th at 383-84. The government’s position that it can claim privilege to avoid such disclosures is wholly inconsistent with the holdings of Adams and Zakhari and would require the Court to abdicate any oversight, in favor of deferring to the government’s word. But the law is precisely the opposite: as Judge Kethledge explained in Zakhari, “[t]he prosecution is entitled to no deference on questions of fact. Instead, the prosecution must come forward with evidence -- which the district court, in the first instance, can find credible or not.” Zakhari, 85 F.4th at 385. . . .
Ultimately, as the defense explained in its Status Report, to the extent the government maintains its position that it will not produce the relevant discovery, under a claim of privilege or otherwise, the government cannot rebut Mr. Abrego’s demonstrated, prima facie case of vindictiveness, making dismissal of this case the only proper remedy. . . .
Onward to that telephone hearing.
नमस्ते
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