The Justice Department told U.S. District Judge James Boasberg it has provided all the information it is willing to share about the deportation flights to El Salvador in March and said that if he finds the response insufficient, he should move ahead with the criminal contempt proceedings he has threatened.
Two senior lawyers, one from Homeland Security and one from the Justice Department, said they offered her legal advice but declined to disclose the details.
Tiberius Davis, a Justice Department attorney, said they continue to believe the judge’s orders were not clear and that Noem did not intentionally defy the court. He said that if Judge Boasberg disagrees, he should proceed with a referral for criminal contempt rather than compel testimony from Noem or other officials, the Times reported.
“Accordingly, if the court continues to believe its order was sufficiently clear in imposing an obligation to halt the transfer of custody for detainees who had already been removed from the United States, the court should proceed promptly with a referral,” Davis wrote.
He argued that requiring Noem to testify would violate separation-of-powers principles, adding that the appropriate time for a defendant to testify would be at trial.
“It would be prejudicial and constitutionally improper to compel testimony in advance of a referral for prosecution, particularly when all of the facts that are necessary for a potential referral are already known and have been presented under oath,” Davis wrote.
The dispute centers on the flights of Venezuelan migrants the government said were members of Tren de Aragua, along with Salvadorans, who were transported to El Salvador on three flights on March 15.
The Venezuelans were removed under the Alien Enemies Act, which allowed the government to bypass standard immigration procedures. One of the migrants was Kilmar Abrego Garcia, a repeat offender who had a previous immigration order of removal signed by judges.
Boasberg had ordered the planes grounded during a hearing that day without any thought regarding the logistical challenges or the fact that the planes were already in international airspace, according to the administration.
The government argued that two planes were already airborne and the migrants on board had technically been removed from the country before the order was issued.
A third plane departed after the judge’s directive, but the Justice Department said everyone on that flight was being deported under standard immigration law and was not covered by the judge’s ruling.
The Supreme Court later determined Boasberg did not have jurisdiction over the flights.
Boasberg has said that ruling does not erase his concerns about whether his orders were intentionally ignored. Those concerns were heightened by claims from Erez Reuveni, a former Justice Department lawyer who said he joined a meeting where senior officials discussed disregarding any judge who tried to stop the flights.
Reuveni specifically accused Emil Bove, a former personal attorney to President Donald Trump who served in a senior Justice Department role at the time and has since been appointed to the 3rd U.S. Circuit Court of Appeals.
Lawyers for the migrants said they want Judge Bove to be compelled to testify.
They also said Reuveni should testify about what he witnessed.
Judge Boasberg said during a hearing last month that he is weighing whether to require in-person testimony or accept written declarations.
He said he would begin by seeking declarations from those “involved in the decision.”
Davis said they understood that to refer to the final decision-maker, Noem, as well as the lawyers who advised her.
