Bove Can’t Use Judgeship to Duck Testimony On Removal Flights

Judge Emil Bove’s new role in the judiciary doesn’t prevent him from being asked about his role in the Trump administration’s decision to not turn around March deportation flights despite a court order, legal experts said.

Bove, a Third Circuit judge who was recently a top official in the Trump Justice Department, is on the lists submitted in court of people who could be witnesses in Chief Judge James “Jeb” Boasberg’s inquiry of whether to make a contempt referral over officials’ failure to turn around flights of alleged Venezuelan gang members to El Salvador after he ordered them to do so.

The legal fight puts Boasberg in the unusual position of potentially calling on a judicial colleague to talk about his role in a high-profile legal fight that involves allegations that Bove suggested that court orders should be defied. Bove has denied those claims.

Bove didn’t immediately return a request for comment.

“I think most judges would feel some discomfort about requiring another judge to testify, especially one from a higher court,” said Dmitry Bam, a professor with the University of Maine School of Law. “But if Judge Bove is the best source of essential facts, or perhaps the only person who can provide them, Judge Boasberg could seek to compel his testimony.”

That doesn’t guarantee that Bove will wind up physically in Boasberg’s court. He could provide testimony through an affidavit or other means.

“In practice, many judges will try to avoid compelling testimony from a fellow judge if there is a reasonable alternative, and they will often look for the least intrusive way to obtain the necessary information,” Bam said in an email.

‘Legal Advice’

James Sample, a law professor at Hofstra University, said in an email that because the conduct dates to before Bove’s time as a judge, he can’t use his current role to avoid testifying in the case.

He said “any attempt by Bove to use his robe as an immunity shield in matters pertaining to his non-judicial role should fail as a matter of law.”

The Justice Department said in a Nov. 25 filing that Bove, as well as Deputy Attorney General Todd Blanche “provided DHS with legal advice regarding the Court’s order as to flights that had left the United States before the order issued” through the Department of Homeland Security’s acting general counsel.

The filing said Homeland Security Secretary Kristi Noem was ultimately responsible for the decision to transfer custody of detainees who were already removed from the United States to El Salvador, after Boasberg’s order against the removal of any persons under the Alien Enemies Act.

DOJ has maintained that the administration didn’t defy Boasberg’s order and that no contempt proceedings are necessary.

The ACLU said in its own Nov. 25 filing that it was identifying Bove as a live witness because he was named in a whistleblower complaint by Erez Reuveni, a former longtime lawyer with the DOJ’s Office of Immigration Litigation.

Reuveni alleged that Bove said at a meeting ahead of the removals under the wartime law that the government “would need to consider telling the courts ‘fuck you’ and ignore any such court order.” Bove denied those allegations at his confirmation hearing for the Third Circuit seat, held one day after the whistleblower complaint was made public.

The ACLU said that after the Trump administration provided the names of all people involved in the decision to keep the flights going to El Salvador, then “the Court will be in a position to decide which individuals should provide testimony, as well as the sequence and manner of that testimony.”

Bam pointed to the Supreme Court’s 1980 ruling in Dennis v. Sparks, in which the justices found that judicial immunity didn’t apply to all parties in an alleged conspiracy involving a Texas state court judge.

“Neither are we aware of any rule generally exempting a judge from the normal obligation to respond as a witness when he has information material to a criminal or civil proceeding,” Justice Byron White wrote for a unanimous court.

‘Critical Figure’

Bam said that Bove could still raise other privileges, like attorney-client or the work-product doctrine, in declining to answer certain questions.

Claire Finkelstein, founder of the Center for Ethics and the Rule of Law at the University of Pennsylvania, also pointed to the Supreme Court’s ruling that then-President Bill Clinton had to testify in a civil lawsuit over his conduct pre-dating his presidency. She said that in extending the logic from that ruling, it wouldn’t make sense to shield Bove from having to discuss his pre-judicial work in this case.

Finkelstein said that to the extent there’s an image issue with Bove, a sitting judge, discussing allegations of defying court orders, it’s “an image problem of his own making.”

Based on reporting and whistleblower complaints about the events, Finkelstein said “there’s no going around Bove” and his testimony in determining exactly what happened after Boasberg’s court order.

“I’m not saying the buck would stop with him, but he would at least be a critical figure in the chain of individuals defying the court order,” Finkelstein said.