WASHINGTON (CN) - The Justice Department on Friday urged the D.C. Circuit to halt contempt proceedings scheduled for next week regarding the feds' apparent disregard for court orders requiring the return of 137 immigrants from El Salvador.
Chief U.S. District Judge James Boasberg, a Barack Obama appointee, ordered the Justice Department to produce two attorneys for live testimony starting on Monday, Dec. 15. Those attorneys will answer questions surrounding a March 15 emergency hearing, in which the government refused to turn around two deportation flights by arguing Boasberg's oral orders were not binding.
Erez Reuveni, a former Justice Department attorney turned whistleblower, admitted in court that Kilmar Abrego Garcia's deportation on the March 15 flights was an "administrative error," since an immigration judge held in 2019 he would face persecution if sent to El Salvador. He is currently scheduled to testify on Monday.
Drew Ensign, deputy assistant attorney general and the Justice Department's lead attorney in immigration matters, is set to testify on Tuesday. Ensign represented the government at the March 15 hearing.
In a 38-page brief, the Justice Department characterizes Boasberg's inquiry as unconstitutional, "idiosyncratic and misguided."
"This latest order portends a circus that threatens the separation of powers and the attorney-client privilege alike," the Justice Department argues.
"Since March 2025, defendants have consistently explained that the district court's [temporary restraining order] only prohibited 'removal' and thus did not require the government to return alien enemies who had been physically removed from the United States before the order," DOJ lawyers write. "While the judge had made some oral statements at an earlier hearing that suggested he wanted the government to 'turn planes around,' those statements were inconsistent, tentative and ultimately superseded by a written order."
The government further argues that neither Reuveni nor Ensign has the necessary personal knowledge to speak on the March 15 decision to continue the deportation flights.
Boasberg found probable cause for criminal contempt on April 16, saying the government's actions "demonstrate a willful disregard for its order." He gave the administration an out if officials could assert custody over the 137 migrants removed to El Salvador under the Alien Enemies Act.
His contempt inquiry was paused by the DC Circuit until Nov. 14, when an appellate panel declined to reinstate Boasberg's initial probable cause finding. Nonetheless, the panel left the door open for a fact-finding inquiry to "identify the decision makers who directed the potentially contemptuous actions" and consider next steps.
"Absent this court's intervention, the district judge plans to compel wide-ranging testimony from government lawyers starting on Monday, with cross-examination by opposing counsel who have a partisan interest in attacking the government and its officials," DOJ lawyers wrote.
Following the Justice Department's appeal, Boasberg denied a separate motion for reconsideration to either block the contempt inquiry or greatly restrict the testimony.
"This inquiry is not some academic exercise," Boasberg wrote. "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 said Reuveni's testimony is central to his inquiry. He highlighted Reuveni's June 24 whistleblower complaint, in which Reuveni claimed Emil Bove, a former Trump attorney and now a U.S. Circuit Judge for the Third Circuit, had said the Justice Department may have to tell Boasberg "fuck you" and ignore his orders to return the deportation flights.
Boasberg further rejected the government's attorney-client concerns, noting that the crime-fraud exception - which allows a judge to override attorney-client privilege when it is used to further a crime or fraud - may invalidate that defense.
Attorney General Pam Bondi slammed Boasberg's contempt inquiry on social media.
"His latest order threatens attorney-client privilege and the separation of powers underpinning our government - all because this administration dared to remove Venezuelan Tren de Aragua terrorists from this country," Bondi wrote. "This radical, retaliatory, unconstitutional campaign against the Trump administration will not stand."
The Justice Department further urged the D.C. Circuit to reassign the case, citing what it called "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."
Source: Courthouse News Service
