Kristi Noem made final call on deportation flights after judge ordered planes to turn back, DOJ says

The Justice Department on Tuesday said Homeland Security Secretary Kristi Noem was the Trump administration official behind the decision not to comply with a federal judge’s order to halt the deportation of alleged Venezuelan gang members to El Salvador under the Alien Enemies Act.

In a court filing, the Justice Department said that administration officials conveyed Judge James Boasberg’s March 15 oral order to return to the U.S. alleged Venezuelan members of the Tren de Aragua gang, and the subsequent written order from the same day that blocked the federal government from removing members subject to the Alien Enemies Act under President Donald Trump’s invocation of the 18th century law.

The filing said DOJ officials relayed the order and provided legal advice to the acting general counsel for DHS, who then conveyed that advice, as well as his own, to Noem. Noem then decided that AEA detainees removed from the U.S. prior to the court’s order could be transferred to El Salvador.

A DHS spokesperson did not immediately respond to a request for comment Tuesday night on the Justice Department’s court filing.

The filing, which came 255 days after 261 people were loaded onto three planes in the U.S. bound for El Salvador, reveals for the first time who in the Trump administration was responsible for making the final decision. It comes as Boasberg said he wanted to revive criminal contempt proceedings against administration officials who authorized the deportation flights.

The DOJ’s disclosure is an attempt to provide Boasberg with information he has requested for months in an effort to avoid high-ranking officials being ordered to publicly testify about their actions that day.

Boasberg barred the administration from deporting alleged Tren de Aragua members using the wartime Alien Enemies Act in March, saying the deportees likely did not receive due process. The administration executed flights carrying deportees under the AEA anyway.

The Justice Department has argued that Boasberg’s written injunction, halting the deportations, had no bearing on those already removed from the country. In the filing Tuesday, the administration maintained that its decision was “lawful” and “consistent with a reasonable interpretation of the court’s order.”

The decision to authorize the flights came amid the administration’s early showdown with judges who ruled against some of the president’s policies and tactics.

In April, the Supreme Court threw out Boasberg’s decision, while still saying detainees must receive due process. That approach to due process has continued in other courts.

A whistleblower in June alleged that former Principal Deputy Attorney General Emil Bove — who on Tuesday the court said was one of the DOJ officials that provided DHS with legal advice — had told subordinates they would need to consider ignoring court orders. Bove denied the accusations during Senate confirmation hearings for his nomination to the U.S. Court of Appeals for the Third Circuit. “I have never advised a Department of Justice attorney to violate a court order,” he said.

That whistleblower is one of the people Boasberg indicated was someone he intends to receive testimony from in any contempt proceedings.

The Trump administration is now seeking a final ruling from Boasberg on the issue, and possible appeals after that. But Boasberg is pushing to get to the bottom of what happened on March 15 and why his orders weren’t followed. An appeals court allowed him to continue with contempt proceedings earlier this month.

Plaintiffs in the case want to put at least nine past or present Trump administration officials on the witness stand for a contempt hearing.

The list of potential witnesses includes Bove, a Third Circuit Court of Appeals judge; whistleblower Erez Reuveni, formerly acting deputy director of the Justice Department’s Office of Immigration Litigation; and Deputy Assistant Attorney General Drew Ensign, whom the DOJ filing pointed to Tuesday as having conveyed Boasberg’s oral and written orders to DHS.