Homeland Security Secretary Kristi Noem decided to continue deportation flights taking migrants to a mega-prison in El Salvador despite a federal judge’s order to divert the planes, the Justice Department said in a new court filing Tuesday.
The DOJ acknowledged in the filing that it was Noem who made the call in March to hold the planes headed to the CECOT prison — U.S. District Judge James Boasberg last week reopened his criminal contempt investigation to find out which Trump administration officials were responsible for violating his orders.
The high-risk immigration case involves President Donald Trump’s use of the Alien Enemy Act to expedite the deportation of alleged Venezuelan gang members. It marked a major political and legal hurdle for the Trump White House in its efforts to wage a historic deportation campaign, and Noem’s decision ultimately led to migrants spending months in El Salvador’s notorious prison, where human rights groups have claimed they faced torture and other abuses.
“Deputy Attorney General Todd Blanch and Principal Associate Deputy Attorney General Emile Bowe provided legal advice to DHS in connection with the Court order regarding flights that had left the United States before the order was issued,” the government wrote in the filing. “After receiving that legal advice, Secretary Noem directed that AEA detainees removed from the United States prior to court order may be transferred to the custody of El Salvador.”
“That decision was lawful and consistent with a reasonable interpretation of the Court’s order,” the Justice Department argued in the filing.
“Although the substance of the legal advice given to DHS and Secretary Noem is privileged, the government has repeatedly explained… why its actions did not violate a court order, much less contempt,” the government wrote. “In particular, the Court’s written order did not require the return of detainees who had already been removed, and the earlier oral direction was not a binding injunction, especially after the written order.”
Politico was first to report on the new filing.
Boasberg, appointed by former President Barack Obama, ordered the administration in mid-March to turn back planes carrying migrants being deported under the AEA, a sweeping wartime authority dating back to the 18th century.
Yet the flights continued, and migrants were jailed for several months before being released this summer as part of a prisoner swap with Venezuela.
“I certainly intend to find out what happened that day,” Boasberg said at a hearing last week.
In a blockbuster ruling issued in April, Boasberg, the chief judge of the federal trial-level court in Washington, D.C., said “probable cause exists to find the government in criminal contempt.”
But before he could proceed to find out who was responsible for disobeying his orders, the DC US Circuit Court of Appeals halted the proceedings. That court, earlier this month, paved the way for Boasberg to reopen his investigation.
Boasberg had suggested that part of his interrogation might include declassifying administration officials, or pulling officials into his courtroom to testify under oath. He said, this hearing can start from December 1.
Those they are interested in hearing from include an ex-Justice Department lawyer who alleged in a whistleblower complaint earlier this year that a then-top DOJ official told colleagues in March that the administration intended to ignore court orders as part of the government’s aggressive deportation effort.
Boasberg’s decisions in the case drew the ire of Trump, who earlier this year called for the judge’s impeachment, prompting a rare rebuke from Chief Justice John Roberts. The chief said the appropriate way to respond to an unpleasant court decision is to appeal.
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