The nomination of Emil Bove III to a federal appeals court suggests that President Trump has a new prototype and a new agenda when it comes to the law: Out with the eggheads and in with the street fighters. His first-term judicial appointments transformed constitutional law on a range of subjects, like abortion and affirmative action. In his first term, he served the conservative movement; this time, the movement must serve him.
The president has staffed the top leadership of the Justice Department with individuals whose chief qualification appears to be that they represented Mr. Trump as private lawyers. Pam Bondi, the attorney general, was one of Mr. Trump’s defense lawyers at his first impeachment trial. (Previously, she was the attorney general of Florida.) Todd Blanche, the deputy attorney general, represented Mr. Trump at his criminal trial in Manhattan. D. John Sauer, the solicitor general, was the lead counsel for Mr. Trump at the Supreme Court when he challenged his prosecution in Trump v. United States. Mr. Bove, who is now Mr. Blanche’s principal deputy in the Justice Department, was his partner in the defense of Mr. Trump in Manhattan. Just as Mr. Trump has put his onetime advocates at the pinnacle of American law enforcement, the nomination of Mr. Bove signals the president’s desire to embed his loyalists in the judicial branch.
With a devoted executive branch and a compliant Congress, Mr. Trump has faced real resistance only from the judiciary, and the nomination of Mr. Bove marks the beginning of his counterattack. His prominence at the Justice Department raises the question of why the president would sideline Mr. Bove to fill a seat on the United States Court of Appeals for the Third Circuit, an important lifetime position reviewing federal cases in Pennsylvania, New Jersey and Delaware but one well removed from carrying out the Trump agenda from day to day.
The answer, which seemed apparent if unspoken at Mr. Bove’s confirmation hearing last month before the Senate Judiciary Committee, is that the president is grooming Mr. Bove for bigger things — possibly a seat on the Supreme Court.
Even the harshest critic of Mr. Trump’s three nominees to the Supreme Court in his first term would have to acknowledge that they possessed judicial temperaments. Neil Gorsuch and Brett Kavanaugh had won broad respect as experienced federal appeals court judges who had written dozens of opinions; Amy Coney Barrett had only recently become a judge, but she had long been an accomplished and thoughtful law professor. Mr. Bove could scarcely differ more.
At the age of 44, Mr. Bove has never written anything of consequence or even, apparently, expressed any views on the central issues of constitutional law. That in itself is not unprecedented for a lower court nominee, but what does distinguish Mr. Bove is his record of hard-edge advocacy and loyalty to Mr. Trump.
Mr. Bove spent most of his legal career, about a decade, as an assistant U.S. attorney for the Southern District of New York, a highly regarded office based in Manhattan. Mr. Bove focused on terrorism cases and participated in some important prosecutions, including the conviction of Ahmad Khan Rahimi, known as the Chelsea bomber, who detonated a series of explosives in New York City and elsewhere in 2016. Unusually for a line prosecutor, Mr. Bove also drew the wrong kind of attention.
In 2018 a defense lawyer, speaking on behalf of a group of colleagues, including several former prosecutors, wrote to a supervisor in the U.S. attorney’s office complaining about Mr. Bove’s “unprofessional and unethical” behavior. One former assistant U.S. attorney quoted in the email said that Mr. Bove was “a prosecutor version of a drunken driver — completely out of control” and that Mr. Bove was “quick to bully and threaten.” Still another said that he “seems totally hung up on a power trip.”
That complaint was followed by an incident that appeared to vindicate these warnings, when a federal judge dismissed a prosecution supervised by Mr. Bove after a request from the U.S. attorney’s office. In the case, which involved charges that the defendant had evaded sanctions imposed on Iran, the judge found that prosecutors had attempted to bury exculpatory evidence and then lied to the court about the matter. The misconduct was so severe that the U.S. attorney’s office, even after a jury verdict in its favor, chose instead to end the prosecution.
Then a group of his colleagues complained that Mr. Bove showed uncontrolled anger and was abusive toward subordinates, and they asked that he be demoted from a supervisory role. Mr. Bove was not demoted, but he decided to leave the U.S. attorney’s office shortly after that, in 2021.
Unlike many of his colleagues in the Southern District, Mr. Bove found a soft landing not at a major New York law firm but at a midsize firm in suburban New Jersey. In short order, though, Mr. Blanche asked Mr. Bove to join him in a new venture: a tiny law firm devoted to the criminal defense of Mr. Trump.
At his confirmation hearing, Mr. Bove portrayed his decision to defend Mr. Trump as an act of courage. “All manner of evil and negative consequences were sort of foisted and thrown at Todd and I regularly as we had to make a decision, and many others didn’t have the courage to make to stand up for what was right,” he said. He added, “That was a decision to fight for what was right and fight for the rule of law.” Mr. Blanche and Mr. Bove lost Mr. Trump’s criminal case in Manhattan, but as far as their career fortunes were concerned, they won big, securing themselves their next jobs.
For the first several months of the new Trump administration, before Ms. Bondi and Mr. Blanche were confirmed by the Senate, Mr. Bove operated as the Justice Department’s de facto leader. He quickly demonstrated that this Justice Department would be very different from the one in Mr. Trump’s first term.
Mr. Bove fired about two dozen federal prosecutors in Washington who had brought cases against Jan. 6 rioters, and he endorsed the view that these prosecutions were a “grave national injustice.” Asked at his hearing whether Joe Biden won the 2020 election, Mr. Bove conceded only that Mr. Biden was “certified” as the victor.
On Feb. 10, Mr. Bove ordered his former colleagues in the Southern District to dismiss the corruption indictment of Mayor Eric Adams of New York because Mr. Trump wanted the mayor’s assistance with his immigration agenda. Danielle Sassoon, the acting U.S. attorney, resigned rather than follow Mr. Bove’s directive, as did several other colleagues, including Hagan Scotten, a former clerk to Chief Justice John Roberts, who wrote to Mr. Bove that “any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way.” Mr. Bove ultimately filed the motion to dismiss the case, which the trial judge granted.
The best clue about what kind of judge Mr. Bove would be came from a whistle-blower report from Erez Reuveni, a career Justice Department prosecutor who had been fired by Mr. Bove and his subordinates. Mr. Reuveni was responsible for appearing in court to execute one of Mr. Trump’s top priorities, the deportation of undocumented immigrants who had been accused or convicted of crimes. According to Mr. Reuveni, when that strategy ran into resistance from federal judges, Mr. Bove said that the Department of Justice “would need to consider telling the courts ‘fuck you’ and ignore any such court order.”
There is, of course, no more sacred principle in American law than that judges, not the executive branch, have the last word in determining what the government can and cannot do. Asked at his confirmation hearing about his advocacy for defiance of the courts, Mr. Bove said he couldn’t recall using a vulgar phrase — an answer that seems improbable at best, especially since contemporaneous texts made reference to his statement. In any event, Mr. Bove’s hard line in favor of Mr. Trump’s deportation directives, even in the face of judicial opposition, is clearly a major reason the president wants him on the bench.
In his second term, Mr. Trump has made clear that he will evaluate incumbent and prospective judges solely on whether they will endorse his agenda, especially when it comes to tests of his authority on issues like immigration. In a social media post announcing the nomination, the president said Mr. Bove would “do anything else that is necessary to, MAKE AMERICA GREAT AGAIN.”
When this year Justice Barrett issued a handful of preliminary votes against Mr. Trump’s positions on these issues, he was apparently outraged. When at the end of the court’s most recent term she embraced the Trump administration’s position and wrote the opinion limiting federal trial courts from issuing nationwide injunctions, he said it was “brilliantly written.”
This year Mr. Trump denounced the Federalist Society and its former leader Leonard Leo, who provided extensive guidance on judicial selections in his first term, including the three to the Supreme Court. The president’s remarks came shortly after the justices, including the Trump appointees, ruled against his administration on a preliminary matter related to immigration but before Justice Barrett’s opinion on nationwide injunctions. His remarkable change of heart about the Federalist Society raises the question of whether Mr. Trump’s second-term judicial nominees will prize loyalty to him over the ideological priorities that meant so much to his supporters in his first term.
That, implicitly, was what Senators Mike Lee and Josh Hawley, two of the most committed constitutional conservatives, wanted to know from Mr. Bove during his confirmation hearing. Both senators asked him a series of questions about whether he agreed with the turn the Supreme Court has taken since the addition of the three Trump appointees. Proving that he knew the right-wing catechism, Mr. Bove told Mr. Lee that he believed the laws and Constitution should be interpreted according to their “original public understanding,” and the nominee assured Mr. Hawley that he was a “textualist.”
Senators of the president’s party traditionally ratify his nominations to the lower courts, and there’s every reason to believe the Republican majority will confirm Mr. Bove to the Third Circuit. The Supreme Court may be another story. In 2005, President George W. Bush nominated Harriet Miers, his White House counsel, who lacked any judicial experience, to succeed Sandra Day O’Connor on the Supreme Court. Republicans in the Senate forced her to withdraw because they believed she was more loyal to Mr. Bush than to conservative constitutional doctrine. If Mr. Trump nominates Mr. Bove to the Supreme Court, he will, in theory, be open to the same kind of attack from Republican senators.
But two decades later, the Republican Party, including its senators, is much more in thrall to Mr. Trump than it was to Mr. Bush. To date, at least, whatever Mr. Trump wants from his party, he gets. On the bench, as at his Justice Department, Mr. Trump wants his people calling the shots. And Mr. Bove has proved, above all, that he belongs to the president.
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Jeffrey Toobin is a former assistant U.S. attorney who writes about the intersection of law and politics. He is the author of “The Nine: Inside the Secret World of the Supreme Court,” “The Pardon: The Politics of Presidential Mercy” and other books.
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