A whistleblower’s documents provided to Congress implicate Emil Bove in the administration’s violation of a court order that prohibited the transfer of more than 100 Venezuelans to El Salvador’s CECOT prison. Bove is President Donald Trump’s nominee to serve as a judge on the Third Circuit Court of Appeals, and the Senate Judiciary Committee is scheduled to vote on his nomination on July 17.
In April, Chief Judge James Boasberg held there is probable cause that administration officials engaged in criminal contempt by having “willfully disobeyed a binding judicial decree.” Bove is identified in the whistleblower’s documents as having played a central role in the conduct of concern. The documents also provide evidence that Bove has seriously misled Congress about his conduct.
The whistleblower is Erez Reuveni, who was a career Department of Justice (DOJ) attorney for nearly 15 years until he was dismissed in April of this year. The documents he has produced to the Senate Judiciary Committee, including emails and text messages, concern the Trump administration’s controversial decision to transfer Venezuelan nationals to El Salvador on Mar. 15 under the purported authority of the Alien Enemies Act (AEA). The cache of documents, which was first reported by Politico, is important for the following four reasons.
First, newly released text messages confirm Reuveni’s previous allegation that Bove told others in the DOJ that the administration should consider telling the courts “fuck you” should judges seek to enjoin the deportations. Newly released text messages between Reuveni and his colleagues, including his direct supervisor, August Flentje, show them apparently referencing Bove’s suggestion.
Second, an email released by Reuveni directly implicates Bove in the administration’s decision to defy the court order demanding that the AEA deportees be returned to U.S. soil.
Third, the documents also implicate Bove in the violation of due process rights of the migrants deported under the purported authority of the AEA.
Fourth, the new documents raise serious concerns about the veracity of Bove’s testimony during his Senate confirmation hearing.
New Evidence of Bove’s Role in Wilfully Defying a Court Order
On Saturday, Mar. 15, President Donald Trump released a public proclamation purporting to invoke the 1798 AEA as the basis for removing from the United States alleged members of a Venezuelan gang known as Tren de Aragua. According to the White House, the administration flew 137 Venezuelan nationals to El Salvador that day under the purported authority of the AEA.
Over twelve hours before those flights departed the United States, the ACLU and Democracy Forward, had sued the Trump administration challenging the removal of their Venezuelan clients. Chief Judge Boasberg, of the U.S. District Court for the District of Columbia, issued a temporary restraining order (TRO) that evening barring the administration from removing anyone under the AEA.
Boasberg was crystal clear that his Mar. 15 ruling meant that the Trump administration must return the Venezuelans to U.S. soil, even if the planes carrying the deportees landed in El Salvador. Boasberg explained in no uncertain terms that the individuals should not be deplaned or disembark even if they reached El Salvador:
[Y]ou shall inform your clients of this immediately, and that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States, but those people need to be returned to the United States. However that’s accomplished, whether turning around a plane or not [dis]embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately (Tr. 43).
I would assume that means that they are either not on the planes or that they will not be removed from the planes and will be brought back once the planes land in El Salvador. Is that fair? (Tr. 5; see also Tr. 44)
In a newly released Mar. 16th email from Yaakov Roth, the acting head of the DOJ’s Civil Division, to Reuveni and other DOJ officials, Roth wrote:
I have been told by ODAG that the principal associate deputy attorney general advised DHS last night that the deplaning of the flights that had departed US airspace prior to the court’s minute order was permissible under the law and the court’s order.
The principal associate deputy attorney general was Bove. As Politico explained, it is “that interpretation of his orders” that Boasberg rejected and found probable cause to initiate contempt proceedings.
The email would presumably implicate Bove in the “contumacious conduct” as identified by Chief Judge Boasberg.
Indeed, as Boasberg’s verbal order made clear, the court’s ruling was precisely the opposite of what Bove advised the Department of Homeland Security (DHS), as stated in Roth’s email. That is, “deplaning of the flights that had departed US airspace prior [to] the court’s minute order was” not “permissible under the law and the court’s order.” The court specifically stated that the deportees were not to disembark or be removed from the planes.
Reuveni’s contemporaneous emails make it clear that the DOJ attorneys well understood Boasberg’s order – and that Bove’s advice plainly contradicted their understanding.
In an email sent at 6:44 p.m. on Mar. 15, Reuveni inquired as to the location of the people deported under the AEA and whether they had disembarked:
Reuveni followed up two minutes later, stating that the class certified by the court included “all noncitizens in US custody subject to the AEA,” and asking for details “ASAP” concerning “removals not yet effectuated, including those involving folks in the air.”
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At 6:48 p.m., Reuveni wrote that Boasberg had “specifically ordered us to not remove anyone in the class, and to return anyone in the air.”
At 7:04 p.m., Reuveni wrote: “No one subjected to AEA in our custody can be removed. And anyone in the air should be returned, unless they have a title 8 final order.”
At 7:18 p.m., Reuveni specifically raised concerns about being held in contempt if they deplaned the AEA deportees when they landed.
The next morning, Sunday, Mar. 16 at 8:07 a.m., Reuveni wrote, “our advice here on injunction compliance was to not deplane anyone from these planes who is subject to an AEA removal” – precisely the opposite of the advice Bove apparently provided to DHS.
As the series of Reuveni’s emails make clear: The DOJ attorneys fully understood that Boasberg had ordered the return of all AEA deportees and that they should not be deplaned in El Salvador.
Notably, on Sunday, Mar. 16, Axios published an article entitled, “Exclusive: How the White House ignored a judge’s order to turn back deportation flights.” Axios posted the article on social media at 3:49 p.m. Sixteen minutes later, Reuveni texted Flentje a link to an Axios article. Flentje replied, “We are likely saved for today by the fact that Boasberg is on vacation.”
Judge Boasberg’s Finding of Criminal Contempt
On Apr. 16, Boasberg ruled that there was probable cause to hold Trump administration officials in criminal contempt for violating his TRO. “The Court ultimately determines that the Government’s actions on that day [Mar. 15] demonstrate a willful disregard for its Order, sufficient for the Court to conclude that probable cause exists to find the Government in criminal contempt,” Boasberg wrote. “The Court does not reach such conclusion lightly or hastily; indeed, it has given Defendants ample opportunity to rectify or explain their actions. None of their responses has been satisfactory.”
The Trump administration did not even dispute the key fact in Boasberg’s ruling – namely, that the government transferred the Venezuelans to Salvadoran custody after his written TRO was issued. The government “does not dispute that after this written TRO issued, it temporarily landed two planeloads of class members in Honduras, flew them to El Salvador, deplaned them there, and then — critically — transferred them from U.S. to Salvadoran custody,” Boasberg wrote.
Boasberg set forth a two-step process that would follow. “First, before initiating any criminal-contempt proceedings, courts typically allow the contumacious party an opportunity to purge its contempt,” the judge wrote. “The most obvious way for Defendants to do so here is by asserting custody of the individuals who were removed in violation of the Court’s classwide TRO so that they might avail themselves of their right to challenge their removability through a habeas proceeding.”
Should the Trump administration choose not to purge its contempt, Boasberg explained, then “the Court will proceed to identify the individual(s) responsible for the contumacious conduct by determining whose ‘specific act or omission’ caused the noncompliance.” After determining the responsible individual(s), the court (citing Fed. R. Crim. P. 42(a)(2)) would then “request that the contempt be prosecuted by an attorney for the government.” Should the government decline, then “the interest of justice requires,” the Court will “appoint another attorney to prosecute the contempt.”
Before Boasberg got that process under way, the government appealed his decision, and the Court of Appeals granted an administrative stay while the issue is on appeal.
The email released to the public on Thursday surely will be relevant for the district court’s criminal contempt proceedings if those are permitted to continue. And the email would presumably implicate Bove in the “contumacious conduct” as identified by Chief Judge Boasberg.
Bove’s Role in the Trump Administration’s Violation of Due Process Rights
Separate from the issue of contempt of court orders is Bove’s role in a clear violation of the due process rights of the men who are now in CECOT prison. The Trump administration appealed Boasberg’s Mar. 15 TRO, and the case was brought before the Supreme Court. On Apr. 7, the Court ruled that the plaintiffs’ challenge should have been brought as a habeas petition in Texas, where the Venezuelans were held prior to being removed, as opposed to Washington, D.C. As a result, the Court vacated Boasberg’s TROs.
Still, the Court emphasized that its “order and per curiam confirm that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal.” Citing prior precedent, the Court wrote: “‘It is well established that the Fifth Amendment entitles aliens to due process of law’ in the context of removal proceedings.” The justices added that “AEA detainees must receive notice…that they are subject to removal under the Act” and “must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
The 137 Venezuelans deported under the AEA on Mar. 15 were afforded no such due process, including the ability to seek habeas relief. Indeed, as Marty Lederman has pointed out, individuals who received a written notice at the time were told: “You are not entitled to a hearing, appeal, or judicial review of this notice and warrant of apprehension and removal.”
The newly released email indicates that Bove was a key decision maker in the administration’s violation of this basic constitutional right.
Bove’s Testimony Before the Senate Judiciary Committee: Potential False Statements in Nomination Hearing/Misleading Congress
Finally, the whistleblower’s documents corroborate the claim that Bove made false statements in his nomination hearing. Either the whistleblower’s allegations or Bove’s denials are true–but not both–when it comes to what Bove said in a Friday, Mar. 14 DOJ meeting. At that meeting, the Department was apparently preparing for the President’s Mar. 15 public invocation of the AEA and the prospect of court orders stopping the transfer of detainees to El Salvador.
In Bove’s judicial nomination hearing, one of his most important exchanges on what he said at the Mar. 14 meeting was with Senator Adam Schiff (D-CA).
Sen. Schiff: “Did you suggest, as Mr Reuveni wrote, that DOJ would need to consider telling the courts ‘fuck you’ and ignore any such cort order.”
Bove: “I did not suggest that there would be any need to consider ignoring court orders.”
In stark contrast to this testimony, Reuveni’s whistleblower disclosure states:
“Bove then made a remark concerning the possibility that a court order would enjoin those removals before they could be effectuated. Bove stated that DOJ would need to consider telling the courts ‘fuck you’ and ignore any such court order.”
Notably, Bove also said in his testimony, “I will reiterate, I did not advise any Justice Department attorney to violate court orders. The Deputy Attorney General, as you made clear in your opening remarks, Chairman, has confirmed that the account in that whistleblower complaint is not accurate,” and proceeded to discuss the Mar. 14 meeting.
First, several of the whistleblower’s documents provide strong corroboration that Bove did suggest in the Mar. 14 meeting saying “fuck you” to a court that issued an injunction. That evidence directly contradicts Bove’s testimony, “I did not suggest that there would be any need to consider ignoring court orders.”
During the Saturday, Mar. 15 hearing before Judge Boasberg, Reuveni exchanged text messages with a colleague that appears to allude to the “fuck you” comment by Bove.
At 6:44 p.m., Reuveni notified his colleagues in real time of Boasberg’s TRO ruling. He then immediately texted his supervisor, Flentje, with an apparent reference to the “fuck you” statement by Bove.
Later that evening, at 8:16 pm., after Reuveni says he reviewed public information showing two flights had landed in Honduras, he texted a colleague with another reference to the “fuck you” comment.
Finally, after Reuveni was placed on administrative leave, he exchanged text messages with Flentje that appear to corroborate that Flentje was at the Mar. 14 meeting where they pushed back against Bove’s suggestion of violating court orders.
Finally, documentary proof that Bove did indeed go through with disobeying the court order on Mar. 15 strongly implies his testimony was false when he denied having suggested the day before that DOJ attorneys consider ignoring such a court order. As explained above, the emails and texts provided by the whistleblower show that Bove played a central role in ignoring Boasberg’s orders. What happened here is not a close case.
