DOJ lawyers state that DHS Sec. Kristi Noem made decision not to return March 15 flights
Also Tuesday, ACLU lawyers name Emil Bove, now a federal judge, as a possible witness in Boasberg's contempt inquiry over the flights. And, for paid subscribers: Closing my tabs.
Lawyers from the ACLU who have been challenging the Trump administration’s extreme immigration enforcement on Tuesday afternoon suggested that Emil Bove, now a federal appeals court judge, should potentially be called as a witness in Chief Judge James Boasberg’s contempt inquiry over the administration’s actions regarding deportation flights that left the U.S. on March 15.
Later Tuesday evening, Justice Department lawyers — while still maintaining that further contempt-related proceedings are not appropriate — responded by stating that Homeland Security Secretary Kristi Noem ultimately made the decision not to return the flights, after Deputy Attorney General Todd Blanche and Bove “provided DHS with legal advice” about the flights and DHS’s acting counsel conveyed that advice, “as well as his own legal advice,“ to her.
“After receiving that legal advice, Secretary Noem directed that the AEA detainees who had been removed from the United States before the Court’s order could be transferred to the custody of El Salvador,“ DOJ lawyers stated in the Tuesday night filing — more than eight months after the flights sent the people to El Salvador’s notorious CECOT prison.
The filings came as Boasberg moves forward — after a seven-month delay — in his contempt inquiry regarding the two flights carrying individuals who were being deported under President Donald Trump’s Alien Enemies Act proclamation, flights that went to El Salvador even after he ordered the administration to temporarily stop with AEA-based deportations on March 15.
Bove, a former personal criminal lawyer to Trump, was initially given a senior role in the Justice Department — a common occurrence in the second Trump administration. He is unique, however, in that he has since been confirmed to a seat on the U.S. Court of Appeals for the Third Circuit.
Bove also stands out because, before Senate Republicans confirmed him to the Third Circuit on a 50-49 vote*, he was involved in several ethically questionable actions from the Justice Department in the first months of the second Trump administration — including those relating to the Eric Adams case and the administration’s preparations for Trump’s Alien Enemies Act proclamation and the litigation against it. There has since also been reporting that Bove, while at DOJ, was supportive of the boat-strike murders that the administration has been engaged in in recent months.
After much delay due to the administration’s earlier appeal of Boasberg’s first order in the contempt inquiry, Boasberg on Monday ordered the parties — the ACLU representing the plaintiffs and DOJ representing the government — to provide “proposals” for how to proceed with the court’s “inquiry regarding a potential contempt referral,” including the “names of possible witnesses.“
In its responsive filing, the ACLU lawyers propose that DOJ be ordered to identify “all individuals involved in the decision not to halt the transfer of class members out of U.S. physical custody on March 15 and 16, 2025 … as well as all those with knowledge of the decision-making process.”
Then, relying on the names identified in fired DOJ attorney Erez Reuveni’s whistleblower disclosure, the plaintiffs’ lawyers put forward nine names as potential witnesses:
In addition to Bove and Reuveni himself — who, it was announced Tuesday, has been hired by Democracy Forward, an organization that previously was (but no longer is) involved as co-counsel in the case — the “potential witnesses” include Drew Ensign, the lawyer who appeared before Boasberg in court on March 15. Boasberg, at a hearing last week, had named Reuveni and Ensign as people he thought likely to be witnesses.
Additionally, the plaintiffs’ statement names August Flentje, who was Reuveni’s supervisor at the time of the Abrego Garcia hearing that led to Reuveni’s firing, as a potential witness, along with three other senior DOJ officials (James McHenry, Paul Perkins, and Yaakov Roth) and two senior Homeland Security officials (James Percival and Mazzara, the person who DOJ stated conveyed the legal advice to Noem on March 15).
The plaintiffs’ lawyers noted that this is not an exhaustive list and that several other people unnamed in the Reuveni disclosure — within DOJ, DHS, and the State Department — also “may possess relevant information.”
In DOJ’s response, lawyers acknowledged that Boasberg’s March 15 order issued in court included the requirement that people covered by the lawsuit “be returned to the United States.”
Laying out what happened next, DOJ’s lawyers named multiple people included in the ACLU’s list, including Ensign, Bove, and Mazzara. Through DOJ’s timeline, they also added Blanche and Noem to the list:
DOJ then raised privilege questions:
The Justice Department then proceeded to spend four paragraphs quoting from and relying on Judge Gregory Katsas’s concurring opinion (only for himself) at the U.S. Court of Appeals for the D.C. Circuit to provide additional argumentation that “no further proceedings are warranted or appropriate“ — an argument that DOJ had been at last week’s hearing and was rejected by Boasberg. Such argumentation was also not requested in Boasberg’s Monday order.
As a last point, DOJ objected to the “involvement” of the ACLU lawyers in the contempt proceedings altogether, arguing that, as a criminal contempt matter, “Plaintiffs … lack standing to participate as anything other than fact witnesses.“
Finally, Tuesday’s filing was signed by four DOJ lawyers — Assistant Attorney General Brett Shumate, the head of the Civil Division; Ensign; Tiberius Davis, Counsel to the Assistant Attorney General; and Anthony Nicastro, the acting director of the Office of Immigration Litigation. In a second filing DOJ submitted in the case Tuesday, however, one more name was on it: Flentje — Reuveni’s former supervisor and another name on the ACLU’s list.
Now, Boasberg will decide how to proceed.
* = Sens. Susan Collins and Lisa Murkowski voted against Bove’s confirmation. Sen. Bill Hagerty did not vote.
This report was updated to include information about the Justice Department’s filing once it was submitted. The final update was at 12:20 a.m. November 26.
Closing my tabs
For those who don’t what this is, it’s my effort to give a little thank you to paid subscribers. “Closing my tabs” is, literally, me looking through the stories and cases open — the tabs open — on my computer and sharing with you all some of those I was unable to cover during the week but that I nonetheless want to let you know that I have on my radar. Oftentimes, they are issues that will eventually find their way back into the newsletter as a case discussed moves forward or something new happens that provides me with a reason to cover the story more in depth.
This Tuesday, these are the tabs I am closing:
