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Homeland Security Secretary Kristi Noem in March greenlit the Trump administration’s decision to proceed with deporting more than 200 Venezuelan migrants to El Salvador despite an emergency court order, the Justice Department said Tuesday — news that injects fresh friction into a high-profile, politically fraught immigration fight.
Noem’s role in the Alien Enemies Act removals was detailed publicly for the first time in a disclosure Tuesday night to U.S. District Judge James Boasberg, as part of a newly revived contempt inquiry.
According to the declaration, senior Justice Department officials relayed the emergency court order, and a subsequent oral order to Noem, who decided that the migrants that had already been removed from the U.S. could be transferred to the custody of El Salvador.
Boasberg said last week he plans to move quickly in determining whether Trump officials willfully defied his March 15 emergency order, which sought to block the Trump administration from immediately using the 18th-century Alien Enemies Act to deport Venezuelan nationals. The flights proceeded, however, and the migrants arrived in El Salvador hours later.
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The Justice Department’s newly submitted declaration provides new insight into the government’s actions nine months earlier, including Noem’s involvement, and several other administration officials named in the document.
It could be used by plaintiffs in a request to compel witness testimony, though the administration is all but certain to try to head off those efforts
According to the new filing, two senior Justice Department officials — Todd Blanche and Emil Bove — provided DHS with legal advice that evening regarding the deportation flights that had already left the U.S. when Boasberg issued his emergency order. They also relayed Judge Boasberg’s oral order that all flights be “immediately” returned to U.S. soil, according to the filing.
“After receiving that legal advice, Secretary Noem directed that the AEA detainees who had been removed from the United States before the Court’s order could be transferred to the custody of El Salvador,” the Justice Department said.
“That decision was lawful and was consistent with a reasonable interpretation of the Court’s order,” they added.
The Justice Department also argued that Boasberg’s subsequent oral order in March, requiring all flights “immediately” be returned to the U.S., was nonbinding.
“Accordingly, the government maintains that its actions did not violate the Court’s order — certainly not with the clarity required for criminal contempt — and no further proceedings are warranted or appropriate,” they wrote.
TRUMP FOE BOASBERG ORDERS DOJ TO DETAIL STATUS OF CECOT MIGRANTS SENT TO VENEZUELA
Hours earlier, lawyers representing the class of deported Venezuelan migrants urged Boasberg to order testimony from nine senior Trump officials who are alleged to have been involved in the decision-making process.
The list includes then-Justice Department officials Emil Bove, who has since been confirmed as a federal judge for the Third Circuit U.S. Court of Appeals, and Erez Reuveni, a longtime DOJ attorney and whistleblower, who said this year that Bove had suggested that Justice Department officials ignore any court orders that tried to block the Alien Enemies Act flights from taking off. Bove has denied the allegation.
It is unclear how the new information will be used by plaintiffs or to what degree the revelations could complicate next steps in the contempt proceedings.
Any efforts to compel Noem or Blanche to testify would almost certainly spark fierce objection from senior Trump officials, who have made clear they do not believe the court should be considering the issue at all.
Boasberg, for his part, appeared unfazed. He said at a motions hearing last week that he plans to move quickly on the contempt inquiry and ordered parties to submit proposed witness lists and deadlines to consider the issue.
“I intend to proceed just like I did in April, seven months ago,” Boasberg said Wednesday.
Boasberg said last week he hopes to include witness testimony from Erez Reuveni, and from Drew Ensign, the Justice Department deputy assistant attorney general.
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The fresh action on the contempt issue is almost certain to spark the ire of some Republicans in Congress and from Trump himself, who has repeatedly excoriated Boasberg as an “activist judge” for his role in the Alien Enemies Act case and resulting inquiry.
Republicans in Congress have taken umbrage at Boasberg’s approval of certain subpoena requests from Jack Smith during his special counsel investigation, and comments he made during a closed-door conference of judges earlier this year, which prompted the Trump administration to file a complaint to the superior court judge.
Plaintiffs on Tuesday floated the notion of beginning live witness testimony in the first week of December, in a nod to Boasberg’s stated intention to move expeditiously on the contempt question.
“This has been sitting for a long time,” Boasberg said last week, “and I believe justice requires me to move promptly on this.”
In response to the stated objections from the Justice Department lawyer, Tiberius Davis, Boasberg said that he “certainly intends to determine what happened” when the Venezuelan migrants were flown into Salvadoran custody.
The government, he added, “can assist me to whatever degree it wishes.”
The Justice Department declined to respond to Fox News’s request for comment on the witness list submitted by plaintiffs, and what steps the administration might take to head off their testimonies.
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