Plaintiffs in the Alien Enemies Act Contempt Proceedings File a Blistering Response

The government wants to block testimony from a DOJ lawyer and whistleblower Erez Reuveni next week because they’re trying to protect Emil Bove. The plaintiffs respond.

It’s a long and sordid saga that has led to Thursday’s late night filing by the plaintiffs in the J.G.G. case on Judge Boasberg’s docket. As you know, last March, the DOJ and DHS defied an order given by Judge Boasberg to turn the planes around that had been sent to El Salvador in the middle of the night under the Alien Enemies Act.

Judge Boasberg found probable cause of criminal contempt, which the government appealed to the DC Circuit Court of Appeals. A three-judge panel - two Trump judges and one Biden judge - vacated that contempt finding, with the dissenting judge pointing out that while the two Trump judges agreed to vacate, they did not agree on the reason.

The plaintiffs appealed en banc (to the full panel of the DC Circuit), which left Boasberg’s criminal contempt finding vacated, but mooted the three-judge panel’s finding because of the conflicting reasoning. That returned the issue to Judge Boasberg, who revived contempt proceedings by ordering DOJ to submit declarations from all individuals involved in the decision to defy his order to turn the planes around.

Despite there having been multiple people involved, DOJ submitted three spartan declarations - from Kristi Noem, Acting General Counsel for DHS Joseph Mazzara, and Todd Blanche - that raised more questions than they answered. Judge Boasberg said that they didn’t contain enough information for him to make a determination about whether to refer anyone to DOJ for criminal contempt, and ordered testimony from Deputy Assistant Attorney General Drew Ensign and whistleblower/former DOJ attorney Erez Reuveni. (You’ll recall Reuveni was the guy who was in the meeting when Emil Bove told DOJ/OIL lawyers to tell the court to “fuck off.” He also provided insights into the Eric Adams quid pro quo, and the Abrego case.)

As you can imagine, DOJ really doesn’t want sworn testimony from Erez Reuveni or Drew Ensign because that could expose Emil Bove as having lied to congress when he denied telling DOJ lawyers to tell the court to “fuck off.” Here’s a link to that testimony:

Drew Ensign was the one they sent to Boasberg’s courtroom back in March when the order was given to turn the planes around, so he could also expose Bove - who is now a judge on the 3rd Circuit Court of Appeals.

So the DOJ filed a motion for Judge Boasberg to reconsider his order for testimony from Reuveni and Ensign, and in it they argue that Boasberg already made a probable cause determination for contempt, and that he has everything he needs and should just make his criminal referral to DOJ if that’s what he wants to do. Of course DOJ wants Boasberg to refer the DOJ to the DOJ. Pam Bondi won’t investigate or charge contempt. They want to cover this whole thing up.

There is a power courts have to appoint their own special prosecutors for contempt, but based on a recent Supreme Court ruling in Donziger, it’s pretty apparent a majority of the justices would find that rule unconstitutional. DOJ knows that as well, so they’re not afraid of criminal contempt prosecution. They’re afraid of discovery in the process to determine probable cause that contempt occurred, because Boasberg conducts that inquiry - not the DOJ or special prosecutors under rules disfavored by the Supreme Court.

In their motion for reconsideration, DOJ argued that criminal contempt is for the DOJ to prosecute, not for the courts to determine. DOJ claims the judge has all the information he needs to make a referral to DOJ for criminal contempt, and he doesn’t need to determine intent or willfulness. And besides, an inquiry into the basis for the decision to let the planes continue to El Salvador would implicate the attorney-client privilege.

That brings us to the response filed tonight by the plaintiffs, and I know it’s late, but this is a really important response in an undeniably important proceeding - and I promise I will get some sleep. Please forgive any typos!

The plaintiff’s response hinges on the fact that the higher courts did vacate Boesberg’s initial probable cause determination, but the en banc court also ruled the three-judge panel’s split decision wasn’t a majority. According to the plaintiffs, that returned the contempt proceeding back to boasberg to start anew. And as Boasberg said, the scant declarations filed by Noem, Mazaara, and Blanche aren’t enough for him to make a probable cause determination.

So the DOJ asking Boasberg to cancel testimony and just make the DOJ referral is ridiculous. The court has the power to get to the bottom of what happened so it has the requisite information to make a referral in the first place. That’s why testimony, additional declarations as determined by the court, and an inquiry into willfulness and state of mind are necessary.

The declarations by the government didn’t answer any of the basic questions needed to make a probable cause determination. And as far as the privileges invoked go: they’re pierced by the government declaring it would use an advice of counsel defense at trial. Further, a party waives privilege by “plac[ing] otherwise privileged matters in controversy.”

Additionally, there’s the crime/fraud exception, and the fact that DOJ lawyers are entitled to disclose client confidences to respond to charges of wrongdoing against them (the self defense exception.)

Further, attorney-client privilege doesn’t preclude government lawyers from disclosing information related to possible criminal wrongdoing. In fact, they’re duty-bound to report it because DOJ lawyers’ clients are The People. In fact, that they tried to invoke it shows a gross misunderstanding of the role of government attorneys.

The government also actually disclosed some of the legal advice in a November 25th filing: “email from then-Acting Assistant Attorney General Yaakov Roth that Mr. Bove had advised DHS 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.” By revealing some of that legal advice, they effectively waived attorney-client privilege

Besides, attorney-client privilege doesn’t prevent a witness from taking the stand. To do it properly, they’d have to take the stand and assert the privilege to each individual question.

And anyhow, the court can impose a broad range of sanctions besides criminal contempt referrals, and it has the authority to investigate bad faith conduct. For example, DOJ argues that Boasberg can only make a criminal contempt referral because civil contempt is no longer available since SCOTUS vacated his initial TRO to turn the planes around. But the government ignores that civil compensatory contempt may be sought where an order has lapsed but was not beyond the Court’s authority - which is true in this case.

For all these reasons, I think the plaintiffs make a good argument to continue the contempt proceedings and for Judge Boasberg to deny the government’s motion for reconsideration and move ahead with testimony from Ensign and Reuveni.

The government asked the court to rule on their motion to reconsider by December 12th, so we’ll see if Boasberg does what I think he’ll do and deny their motion. You can read the plaintiffs’ full response here, along with all the questions they believe need to be resolved in these proceedings.

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~AG