Homeland Security Secretary Kristi L. Noem saidin a federal court filing Friday evening that she was the one who decided Venezuelan detainees aboard two airplanes bound for El Salvador in March would be handed over to that country despite a judge’s order temporarily barring their removal.
Noem’s declaration came as a federal judge in D.C. resumes a long-stalled inquiry into whether she or any other official should be referred for a potential contempt prosecution for disobeying the order.
Chief U.S. District Judge James E. Boasberg of the District of Columbia is looking into whether a criminal contempt referral is warranted after the Trump administration, justifying their action under the little-used Alien Enemies Act, continued to fly two planeloads of mostly Venezuelan migrants to El Salvador to be held in the country’s notorious Terrorism Confinement Center, or CECOT.
The resumption of Boasberg’s probe after a seven-month delay as appeals were heard and Noem’s reply revives a momentous clash between President Donald Trump’s administration and the judiciary. In March, Trump took to social media to call Boasberg a “Radical Left Lunatic of a Judge, a troublemaker and agitator.” The president’s demand to impeach Boasberg drew a rare rebuke from Supreme Court Chief Justice John G. Roberts Jr.
Boasberg was nominated by President George W. Bush to serve on the D.C. Superior Court in 2002. President Barack Obama tapped him for the U.S. District Court in 2011, and he was confirmed by the Senate in a 96-0 vote.
Noem’s declaration Friday came in response to an order from Boasberg that officials involved in the decision to continue the flights provide written statements that “detail their roles in such decision.” The lack of details in Noem’s declarations, as well as those from from two other Trump administration officials Friday, may prompt Boasberg, who has said he intends to learn why his order was not followed, to seek testimony from them in court.
Justice Department attorneys remained defiant in the face of that possibility, suggesting that Boasberg proceed.
“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,” a filing that accompanied Noem’s declaration said.
Justice Department lawyers have argued that Boasberg’s order not to remove more than 100 detainees to El Salvador under the Alien Enemies Act was ambiguous and said officials did not intentionally defy it. But a former Justice Department attorney-turned-whistleblower, Erez Reuveni, has accused officials in the department of planning to knowingly defy court orders. In a report filed to Congress in June, Reuveni accused Emil Bove — a former top department official who previously served as a Trump defense attorney — of telling lawyers handling the case that “the planes need to take off no matter what.”
At a meeting the day before Boasberg’s order, according to Reuveni’s report to Congress, Bove stated the Justice Department would need to consider defying the courts and ignore an order barring the migrants’ removal.
Bove has denied Reuveni’s account. Trump nominated him in May to be a federal appeals court judge, and he was confirmed in July.
Noem’s declaration said that, after receiving legal advice from Bove and others, she decided detainees who already had left U.S. airspace could be handed over to the Salvador government.
Reuveni made his allegations as Boasberg’s inquiry over a potential contempt referral remained on hold during appeal. Boasberg restarted the inquiry last month after a three-judge panel for the U.S. Court of Appeals for the D.C. Circuit in August agreed they lacked appellate jurisdiction. In a 2-1 decision, the panel vacated an order from Boasberg that probable cause existed to find the administration in contempt.
But the panel’s decision did not prevent his fact-finding proceedings from moving forward or shut the door on an eventual contempt referral. Last month, the full appeals court declined a request from lawyers for the migrants to reconsider the panel’s decision, effectively sending the case back to Boasberg.
Boasberg issued his original order on March 15, just after he was assigned a lawsuit against the Trump administration challenging its use of the national-security statute to deport alleged gang members without the customary immigration proceedings. He quickly scheduled a hearing via Zoom and ordered the administration to immediately return to the United States any planes already in flight.
Boasberg’s oral order came as the two flights with migrants were already in the air, with the judge instructing a Justice Department lawyer 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.”
Administration officials did not return the planes to the United States and instead handed the migrants over to the Salvadoran government, which held them in a notorious megaprison. Months later, the Venezuelan detainees were transferred to Venezuela as part of a prisoner exchange.
Boasberg has said he intends to get witness statements from Reuveni, as well as officials involved in the decision to continue the flights. They include Drew Ensign, a Justice Department attorney whom Reuveni has accused of misleading the court about the migrant flights.
The Supreme Court ultimately voided Boasberg’s order barring the removals, saying he lacked jurisdiction. But Boasberg has said a contempt inquiry remains warranted because officials defied his order before the Supreme Court’s ruling, and “such disobedience is punishable as contempt, notwithstanding any later-revealed deficiencies.”
Boasberg has said if he were to refer the matter for prosecution and the Justice Department declined the case he could appoint another lawyer to handle it.
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