A few weeks ago, I outlined my concerns about Emil Bove’s nomination to the Third Circuit. I have had nothing to say about the nomination since then. In part that’s because there had been no further evidence that would substantiate or dispel my concerns about Bove’s character and integrity. In part it’s because I figured the stakes are small: If my concerns are unsound, Bove would probably be a decent or even good appellate judge. If my concerns are sound, it’s arguably better to have him out of DOJ and in a position where he would have little opportunity or incentive to act on his worst impulses.
But now there’s some new evidence.
Consider this new New York Times article, “Justice Dept. Leader Suggested Violating Court Orders, Whistle-Blower Says,” as well as this letter from the lawyers for whistleblower Erez Reuveni, who was selected by the Trump administration to be acting deputy director of DOJ’s Office of Immigration Litigation.
Here are excerpts from the article (emphasis added):
A senior Justice Department official, Emil Bove III, told subordinates he was willing to ignore court orders in order to fulfill the president’s aggressive deportation campaign, according to a whistle-blower complaint by a department lawyer who has since been fired….
A pivotal meeting occurred on March 14, when Mr. Bove, a senior official in the deputy attorney general’s office, spoke bluntly about the administration’s plans. He informed his subordinates that Mr. Trump would soon invoke the Alien Enemies Act in order to rapidly fly a group of immigrants out of the country that weekend. Two other officials in that office, James McHenry and Paul Perkins, were in attendance, as well as Mr. Reuveni’s supervisors, Drew Ensign and August Flentje, according to the whistle-blower document.
Mr. Bove “stressed to all in attendance that the planes needed to take off no matter what,” according to Mr. Reuveni’s account. Mr. Bove then broached “the possibility that a court order would enjoin those removals before they could be effectuated.”
“Bove stated that D.O.J. would need to consider telling the courts ‘fuck you’ and ignore any such order,” according to the account. “Mr. Reuveni perceived that others in the room looked stunned, and he observed awkward, nervous glances among people in the room. Silence overtook the room.” …
And this:
According to an email Mr. Reuveni received from Yaakov Roth, the acting assistant attorney general, “Bove had advised D.H.S. that under the court order it was permissible to deplane individuals on the flights that departed U.S. airspace” before Judge Boasberg’s written order appeared on the court docket.
On March 17, Judge Boasberg instructed the government to explain when the planes departed. After that order, Mr. Reuveni was told by his superiors “that leadership at D.O.J. were reporting ‘down the chain’ that the government was not going to answer the court’s questions about anything that happened before 7:26 p.m. on March 15, and so not to provide information about when the flights took off.”
I also find this passage (emphasis added) from the whistleblower letter intriguing:
For the next few hours on the night of March 15, Mr. Reuveni exchanged emails with Flentje and engaged in multiple phone calls with Ensign. He was concerned about two things: 1) that deplaning any passengers would violate the court’s orders, and 2) the need to notify the court of the government’s compliance with those orders, or its interpretation of the orders. Sometime around midnight, Ensign informed Mr. Reuveni that DOJ would be filing a notice with the court, signed by Bove, explaining its interpretation of the court order, including that no violation of the court order had occurred because the two planes left U.S. airspace before the court’s written minute order. Ensign directed Mr. Reuveni to prepare Bove’s notice of appearance. While Mr. Reuveni disagreed with the interpretation that there was no violation of a court order, the fact that Bove, a senior DOJ official, was willing to enter an appearance in the case and make this representation to the court somewhat lessened his concerns because he believed he and his staff would not be put in the untenable position of defending this argument.
That quickly changed. On Sunday, March 16, 2025, at 12:23 a.m. Ensign informed Mr. Reuveni by phone that Bove would no longer be filing either a notice of appearance or a notice to the court explaining the government’s interpretation of the court’s orders.
Hmmm, what might have led Bove to change his mind on personally advancing this position? Well, in his Senate questionnaire response on his nomination, Bove reveals that it was in “approximately mid-March 2025” that the White House counsel’s office first asked him if he would be interested in a Third Circuit seat. Might Bove, touted as oh-so-fearless by his supporters, have suddenly realized that he shouldn’t do anything public that might hurt his nomination?
I emphasize that the whistleblower’s allegations might or might not be accurate. But if they are accurate, it sure seems to me that they bear on Bove’s fitness to be a federal judge. And I’d hope that one or more Senate Republicans at his confirmation hearing tomorrow will display some genuine interest in exploring them.