Judge expands criminal contempt probe over deportation flights, saying Kristi Noem failed to provide answers
Days after Homeland Security Secretary Kristi Noem provided little information about her actions in a high-stakes deportation case, a federal judge on Monday expanded his criminal contempt probe into the matter, ordering a top Justice Department attorney to testify under oath about the episode.
US District Judge James Boasberg ordered Drew Ensign, a top DOJ lawyer involved in immigration litigation, to testify next week about decisions made by administration officials in mid-March that resulted in the deportation of migrants to El Salvador under the Alien Enemies Act, despite the judge’s order for flights carrying the migrants to turn around pending a legal challenge to Trump’s use of the act.
Boasberg also said he wanted to hear from Erez Reuveni, an ex-Justice Department lawyer who alleged in a whistleblower complaint earlier this year that a then-top DOJ official told his colleagues in March that the administration intended to ignore court orders as part of the President Donald Trump’s aggressive deportation effort.
The judge said the live testimony was necessary because Noem, who made the decision to allow the migrants to continue to be transferred to El Salvador, provided little information about the affair to the court in a sworn statement last week.
“As this declaration does not provide enough information for the Court to determine whether her decision was a willful violation of the Court’s Order, the Court cannot at this juncture find probable cause that her actions constituted criminal contempt,” Boasberg wrote in a brief order Monday.
“The Court thus believes that it is necessary to hear witness testimony to better understand the bases of the decision to transfer the deportees out of United States custody,” added, Boasberg, an appointee of former President Barack Obama.
Ensign was involved in the court proceedings around the deportation flights on March 15, and the department previously acknowledged that he “promptly conveyed” Boasberg’s orders that day to DHS and DOJ leadership.
Reuveni, meanwhile, has long been of interest to Boasberg, who said last month that the former DOJ lawyer’s whistleblower complaint was just one part of the “significant developments” that have occurred while his contempt proceedings were on hold for much of this year.
The flights carrying the migrants deported under the sweeping 18th century wartime authority continued to El Salvador even after Boasberg’s orders, and the migrants were held at a notorious mega-prison there for several months before being released this summer as part of a prisoner swap with Venezuela.
In a blockbuster decision issued in April, Boasberg said “probable cause exists to find the Government in criminal contempt.” But before he could move forward with finding out who was responsible for defying his orders, the proceedings were put on ice by the DC US Circuit Court of Appeals. Last month, that court paved the way for him to restart his inquiry.
“I certainly intend to find out what happened on that day,” Boasberg said during a hearing last month. “This has been sitting for a long time and I believe that justice requires me to move promptly on this.”
Lee Gelernt, an American Civil Liberties Union attorney representing the migrants at the center of the case, said on Monday that “given the overwhelming evidence that already exists indicating the administration deliberately violated the court’s order, Judge Boasberg has understandably chosen to seek direct testimony from those with direct knowledge.”
“The stakes could not be higher if high level officials of the United States chose to thumb their nose at a federal court, especially where the consequence was sending people to torture in a horrific Salvadoran prison with zero due process,” Gelernt said in a statement.
