A lot has been flying around today in some of the key mass deportation/rule of law cases, but I want to tee up for you another major clash that is brewing:
The Trump administration today has gone to the D.C. Circuit Court of Appeals to try to block Judge Boasberg’s contempt of court inquiry in the original Alien Enemies Act case. In so doing, it is trying to shut down the entire contempt inquiry for good, thus ending the only chance of accountability for an executive branch that ran roughshod over the judicial branch in what is an ongoing constitutional clash.
Boasberg had ordered testimony across two days next week, starting Monday morning with former DOJ lawyer-turned-whistleblower Erez Reuveni and continuing Tuesday afternoon with deputy assistant attorney general Drew Ensign. Both lawyers were deeply involved in the emergency litigation over the weekend in mid-March when the AEA deportations to CECOT in El Salvador were underway. Boasberg wants to use their testimony to shed light on whether the failure to abide by his order to stop the deportations and turn the planes around was willful, a key element of a contempt of court finding.
At the same time that it asked the DC Circuit to stop Boasberg in his tracks, the administration asked him to pause the inquiry until the DC Circuit weighs in. As of now, Boasberg hasn’t ruled yet on the motion to stay, but he has been steadily moving his inquiry forward (when the appeals court wasn’t needlessly slowing him down), with an eye toward whether there are sufficient grounds to make a referral for criminal contempt of court.
All of this potentially sets the stage for a weekend flurry of filings at the district and appeals courts — and puts the evidentiary hearings next week at some risk of being blocked or at a minimum postponed.
But the larger takeaway is that the Trump administration is desperate to keep the contempt of court inquiry from advancing.
It would take a dissertation to unpack all the misleading elements of this one sentence in the administration’s petition for mandamus filed a short time ago: “This long-running saga never should have begun; should not have continued at all after this Court’s last intervention; and certainly should not be allowed to escalate into the unseemly and unnecessary interbranch conflict that it now imminently portends.”
Boasberg must feel like he’s being gaslighted. It’s of a piece with the administration’s conduct throughout this case.
DOJ has been balking in filings all week that Boasberg either can’t or shouldn’t pursue his fact-finding inquiry any further. In the last week, it has filed what Boasberg has called “cursory declarations” from Trump administration officials that concede little and offer no detail or specificity. It attempted to use those declarations — including one from former Trump DOJ official Emil Bove, who is now a judge on the Third Circuit Court of Appeals — as a substitute for live testimony. When Boasberg ordered live testimony anyway, it asked him to reconsider.
In its appeal for intervention from the DC Circuit, the administration also asks it to remove Boasberg from the case entirely, in a rawly political attack on his integrity: “The Court should also order the case to be reassigned given the strong appearance that the district judge is engaged in a pattern of retaliation and harassment, and has developed too strong a bias to preside over this matter impartially.”
The administration’s fierce pushback against Boasberg seems designed not just to spare DOJ and DHS officials from potential criminal liability, but to protect the White House. The administration has improbably declared that DHS Secretary Kristi Noem was the final decider when the decision was made to continue with the AEA deportations despite Boasberg’s order. Think of Noem as a firewall between Boasberg and the White House. I suspect the more evidence that Boasberg is able to unearth about who did what over that weekend in March, the claim that the buck really stopped with Noem will become harder to sustain.
With the help of the DC Circuit, the administration already succeeded once in delaying the contempt inquiry, all the way from April to November. When the DC Circuit finally kicked the contempt inquiry back to Boasberg, it was a muddled mess. But the appeals court did seem to leave a path for Boasberg to proceed. Now, the Trump DOJ is focused on closing off that avenue for Boasberg and keeping the contempt of court inquiry from ever picking up speed.
Update 1 (3:01 p.m. ET): Shortly after I published this post, Boasberg denied the administration’s motion to reconsider holding next week’s hearings. In a terse three-page order, Boasberg rejected virtually every contention made by the administration, but he started with a reminder of the stakes:
To begin, this inquiry is not some academic exercise. Approximately 137 men were spirited out of this country without a hearing and placed in a high-security prison in El Salvador, where many suffered abuse and possible torture, despite this Court’s order that they should not be disembarked.
Boasberg reasserted that the D.C. Circuit had given him running room to proceed with the contempt inquiry. He again dismissed as insufficient the sworn declarations from administration officials in lieu of live testimony. But Boasberg also offered some new commentary that doesn’t bode well for the government:
- He called Reuveni’s whistleblower complaint “significant new information.”
- He drew special attention to the March 14 meeting about the imminent AEA deportations that Reuveni previously described, the one where Bove allegedly told DOJ lawyers they would have to consider telling the court’s “fuck you”:
What occurred at the March 14 meeting with Department of Justice attorneys (including Emil Bove, Erez Reuveni, and Drew Ensign), for example, may well help to illuminate officials’ decisions the next day and their mental states. Nor would everything said at such meeting necessarily be covered by the attorney-client privilege…
- He largely rejected DOJ claims that attorney-client privilege would preclude much of the testimony Boasberg is seeking. “[T]o the extent that future contempt was being considered, the crime-fraud exception would vitiate any privilege,” wrote Boasberg, who seemed receptive to the privilege arguments from attorneys representing the AEA deportees. “Plaintiffs have pointed out numerous reasons why the privilege might well not apply.”
As a housekeeping matter, Boasberg also denied the administration’s motion to pause next week’s hearings until the appeals court weighs in.
Update 2 (4:28 p.m. ET): The Trump DOJ filings are becoming increasingly shrill as we approach the close of the Friday business day on the East Coast, with the contempt hearing still scheduled for Monday morning. The administration has notified the D.C. Circuit Court of Appeals that Judge Boasberg denied its motions for reconsideration and for a stay, using strident language about Boasberg and his decision, such as:
- “unreasoned minute order”
- “flawed legal analysis in the face of Judge Katsas’s comprehensive destruction”
- “his own criminal inquisition”
- “this judge has personally invested himself to a degree that is irreconcilable with serving as a neutral adjudicator”
- “a revisionist account”
The latest filing ends with the alarmist conclusion: “At this point, it could hardly be clearer that both a stay and reassignment are necessary. This proceeding must be halted before the situation deteriorates further.”
The desperation is showing.
Update 3, (4:39 pm ET): While we’re waiting to see what, if anything, the D.C. Circuit does with this case, here’s the Dec. 11 letter that whistleblower Erez Reuveni’s lawyer sent to Judge Boasberg asking him to issue an order for Reuveni to testify on Monday, in order to protect Reuveni from accusations of violating client confidences or attorney-client privilege. Reuveni’s attorney is Michael R. Bromwich, who served as DOJ inspector general in the ’90s.
