DOJ dares Judge Boasberg to hold Trump officials in contempt

The Justice Department told Judge James Boasberg it has provided the information it is willing and able to share about the controversial deportation flights to El Salvador in March and said if that’s not good enough, then he should move ahead with the criminal contempt proceedings he has been threatening.

In filings Friday evening Homeland Security Secretary Kristi Noem said under oath that she gave the order to finish the flights, despite what Judge Boasberg believes were clear instructions to turn the planes around.

Two other senior lawyers, one from her department and one from the Justice Department, said they provided her legal advice but declined to say more.

Tiberius Davis, a Justice Department lawyer, said they continue to believe the orders weren’t clear and Ms. Noem wasn’t intentionally defying the judge.

But, he said, if Judge Boasberg disagrees, he should move ahead with his plan to refer government officials for a criminal contempt proceeding rather than forcing Ms. Noem or others to testify in person.

“Accordingly, if the court continues to believe its order was sufficiently clear in imposing an obligation to halt the transfer of custody for detainees who had already been removed from the United States, the court should proceed promptly with a referral,” Mr. Davis wrote.

He said compelling Ms. Noem to testify would trample on the separation of powers between the branches of government.

And besides, he said, the time for a defendant to testify would be at trial.

“It would be prejudicial and constitutionally improper to compel testimony in advance of a referral for prosecution, particularly when all of the facts that are necessary for a potential referral are already known and have been presented under oath,” Mr. Davis wrote.

At issue are the flights of Venezuelan migrants the government said were members of Tren de Aragua, as well as some Salvadorans, who were flown to El Salvador on three flights on March 15. The Venezuelans were deported under the Alien Enemies Act, a shortcut to the usual immigration law.

Among the deportees was Kilmar Abrego Garcia.

Judge Boasberg, in a hearing that day, had ordered the planes to be grounded.

The government says two of the planes were already in the air, and so those migrants had already technically been removed from the U.S. The third flight departed after the judge’s orders, but the Justice Department says everybody on that plane was being deported under the normal immigration law, and so it wasn’t covered by the judge’s ruling, which dealt with the Alien Enemies Act.

The Supreme Court later ruled that Judge Boasberg didn’t have jurisdiction over the flights.

But he has determined that doesn’t cancel out his concern about his belief that his orders were intentionally defied.

Fueling that belief is the claims by Erez Reuveni, a now-fired Justice Department lawyer, who said he was part of a meeting where senior officials strategized about ignoring any judge who would try to ground the flights.

Mr. Reuveni has specifically fingered Emil Bove, a one-time personal lawyer to President Trump who, at the time, was serving in a senior role in the Justice Department and has since been appointed to a seat on the 3rd U.S. Circuit Court of Appeals.

The lawyers for the migrants had said they wanted Judge Bove to be forced to testify. They also have said Mr. Reuveni should offer testimony about what he saw and heard.

Judge Boasberg, during a hearing last month, said he is pondering whether to demand in-person testimony or to accept written declarations as sufficient.

He said he would start with declarations from anyone “involved in the decision.”

Mr. Davis, the Justice Department lawyer, said they interpreted that to mean the final decision-maker — Ms. Noem — and the lawyers who advised her.

Since Judge Bove is no longer with the administration no declaration from him was forthcoming. Deputy Attorney General Todd Blanche and Homeland Security General Counsel Joseph N. Mazzara filed declarations saying they gave legal advice but declining to say what it was.

Mr. Davis said that advice is protected by attorney-client privilege.

Judge Boasberg has emerged as a controversial figure. Articles of impeachment have been filed against him in the House, and some in Congress have called for him to be sidelined while those articles are pending.