Assistant U.S. Attorney Robert E. McGuire told the court in a status update submitted on Thursday that the Department of Justice (DOJ) is willing to meet several of the discovery requests by Kilmar Abrego Garcia, but wrote in the filing, submitted one day before the Friday hearing set to determine terms of discovery ahead of an upcoming evidentiary hearing, that there is no such communication from the Department of Homeland Security (DHS), or other any other federal agency, which would demonstrate his claims of vindictive prosecution.
According to McGuire, much of the materials Abrego Garcia requested were already sent, including the investigative reports which led the DOJ to seek charges against Abrego Garcia. The prosecutor argued that other materials should remain privileged, including the communications between McGuire’s office and the DOJ, DHS, and U.S. State Department.
McGuire wrote that, after meeting with Abrego Garcia’s criminal defense attorneys on Tuesday, the parties specifically remained conflicted on whether Abrego Garcia should be granted access to the emails, text messages, and other correspondence between the DOJ and DHS.
Noting the judge twice insisted that any discovery granted should be “narrow in scope” during his October 3 order, McGuire suggested the judge could mandate the production of communications, such as those where DHS Secretary Kristi Noem ordered him to prosecute Abrego Garcia or face consequences. Except McGuire said that such instructions were never sent.
“Such communication, however – whether written, electronic, or oral – does not exist,” wrote the prosecutor.
While insistent that such a proposed communication does not exist, and that the majority of those between DHS and the DOJ are subject to privilege, McGuire nonetheless told the court that prosecutors were willing to turn over the resignation letter submitted by Ben Schrader, the former head of the Criminal Division who reportedly resigned over concerns with the case against Abrego Garcia.
Noting that it was not previously provided as part of the standard discovery process, McGuire wrote, “information not subject to work privilege will be provided.”
He confirmed later in the submission that the DOJ considers, “The resignation email and resignation from letter from Ben Schrader regarding his resignation from the U.S. Attorney’s Office for the Middle District of Tennessee on May 21, 2025,” information which it is prepared to produce.
Both Abrego Garcia’s criminal defense attorneys and U.S. District Court Judge Waverly Crenshaw, an appointee of former President Barack Obama, have referenced Schrader’s resignation in court submissions regarding evidence of potential vindictiveness.
The case against Abrego Garcia stems from his November 30, 2022 traffic stop by Tennessee Highway Patrol (THP), who told The Tennessee Star they were instructed to release the alleged human smuggler by the “Biden-era FBI.” A DHS document released this year showed the troopers suspected human trafficking.
He has pleaded not guilty to the human smuggling and conspiracy charges. The case against Abrego Garcia is currently scheduled to reach trial in January 2026.
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Tom Pappert is the lead reporter for The Tennessee Star, and also reports for The Pennsylvania Daily Star and The Arizona Sun Times. Follow Tom on X/Twitter. Email tips to [email protected].
