The Electronic Communications Privacy Act turns 40 this year, and it's showing its age.

On Friday, March 6th, Lawfare and Georgetown Law are bringing together leading scholars,

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in person and online. Visit lawfaremedia.org slash ECPA event. That's lawfaremedia.org

slash ECPA event for details and to register. It's Lawfare Live the now. I'm Benjamin Wittes, editor-in-chief of Lawfare. It is 4.30 p.m. Eastern Time,

3.30 p.m. Central time on February 26, 2020. And I am here with Lawfare Senior Editor Anna Bauer, who is in Nashville, Tennessee, performing at the grand old opera.

No, she is there to discuss the evidentiary hearing that occurred today in the Kilmar-Abrego-Garcia criminal case.

Anna, remind us what issue is before the court today in what turned out to be a rather long hearing?

Yeah, so the issue before the court today is Abraigo-Garcia's vindictive prosecution motion,

essentially a motion in which you argue that the government is prosecuting you for exercising

some right as opposed to, you know, prosecuting you because it has gone through the regular investigative

process, that it is going after you because you are you and because you did something that

it wants to retaliate against, essentially. And a part of that process been within the way that judges have crafted the law in this area is that you can raise a presumption of vindictiveness. So if you make a showing of vindictiveness, then the burden shifts to the government to rebut that presumption, to basically

show evidence to say, no, no, no, everything, you know, this was all after you, because of, because

this is a vindictive prosecution. And that's kind of where we're at today, because Judge Waverly Crenshaw, who is the judge presiding over this criminal case brought against Kilmar, Brago Garcia, initially found that there was a presumption of vindictiveness that his defense team was able to raise.

And so now the question is, can the government rebut that presumption? And that's why we were in

court today is so that the government could bring forward witnesses to kind of make its case as to

you know, why it thought that bringing these charges were appropriate. Right. And so how does the government go about establishing that remind us a little bit about

what the history of, you know, why there is this prima facie case? And then how did the government

go about rebutting it or trying to?

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