Two-and-a-half weeks ago, lawyers for Department of Justice whistleblower Erez Reuveni presented his charges against Third Circuit nominee and other senior DOJ officials in a 27-page letter. I summarized Reuveni’s charges and expressed my doubts about Deputy Attorney General Todd Blanche’s claim that the charges “are utterly false.”
There have been some significant developments since then: (1) Bove’s testimony at his June 25 confirmation hearing, (2) Bove’s responses to post-hearing written questions, and, just yesterday, (3) the public release of a batch of text messages, emails, and phone records that Reuveni has submitted in support of his charges; (4) a New York Times interview with Reuveni; and (5) this tweet by Attorney General Pam Bondi in direct response to the NYT reporter’s tweet of the interview:
We support legitimate whistleblowers, but this disgruntled employee is not a whistleblower — he’s a leaker asserting false claims seeking five minutes of fame, conveniently timed just before a confirmation hearing and a committee vote. As Mr. Bove testified and as the Department has made clear, there was no court order to defy, as we successfully argued to the DC Circuit when seeking a stay, when they stayed Judge Boasberg’s lawless order. And no one was ever asked to defy a court order. This is another instance of misinformation being spread to serve a narrative that does not align with the facts. This “whistleblower” signed 3 briefs defending DOJ’s position in this matter and his subsequent revisionist account arose only after he was fired because he violated his ethical duties to the department.
In this post, I’m going to do my best to sort through the issues as concisely as I can. I encourage readers who are not familiar with this matter to read through the links above.
1. On March 14, DOJ lawyers met to discuss the Trump administration’s plan to use one or more airplanes to deport individuals subject to President Trump’s Alien Enemies Act proclamation. Reuveni charges that Emil Bove stated at the March 14 meeting that if a court were to order that the planes should not take off, “DOJ would need to consider telling the courts ‘f*** you’ and ignore any such court order.”
Let’s consider the evidence that supports the charge. Reuveni’s charge is specific and detailed. By his account, there were a dozen or so other DOJ attorneys at the meeting. If his charge were false, it would have been easy for DOJ leadership to provide sworn declarations or other statements by those attorneys that Bove made no such statement.
The supplemental batch of materials submitted by Reuveni has evidence that seems to support his charge. Specifically, when Judge Boasberg on the evening of March 15 ordered that planes not take off or that they be returned to the United States, Reuveni texted his supervisor August Flentje (who he says was also present at the March 14 meeting) “guess its find out time on the ‘f*** you.’” Flentje texted back: “Yup. It was good working with you.”
Bove himself doesn’t actually deny making the ‘f*** you’ statement. He testified merely that he has “no recollection of saying anything of that kind,” and in his written responses he likewise stated only that he does “not recall making the statement alleged.”
The only person who seems to deny that Bove made the statement is Deputy AG Blanche. As we’ve seen, Blanche claimed in a tweet that he “was at the meeting described in the [June 24 NYT] article and at no time did anyone suggest a court order should not be followed.” Blanche is obviously implying that he was present for the entire meeting, for how else could he attest that Bove did not make the statement?
Reuveni’s whistleblower letter does not identify Blanche as one of the participants in the meeting, and my initial suspicion that Blanche didn’t actually attend the meeting appears to have been correct. Bove himself wouldn’t attest that Blanche attended the meeting. When directly asked “Was Mr. Blanche at that [March 14] meeting?,” Bove curiously responded only that “Mr. Blanche has stated publicly that he was at the meeting.” (He gave the same answer to three written questions.) And Reuveni in his recent NYT interview recalls that Blanche “briefly entered the conference room during the March 14 meeting, but only to speak privately with Mr. Bove” and “then left and did not participate in the meeting.” (I’m quoting NYT’s paraphrase.)
2. Reuveni charges that Emil Bove advised DHS that planes that left U.S. airspace after Judge Boasberg orally ordered the planes to return but before his written order was docketed were not subject to Boasberg’s order and that the deportees could therefore be removed from the planes in El Salvador.
Reuveni has provided an email from acting Civil Division head Yaakov Roth that states: “I have been told by ODAG [Office of the Deputy Attorney General] that the principal associate attorney general [Bove] advised DHS last night that the deplaning of the flights that had departed US airspace prior [to] the court’s minute order was permissible under law and the court’s order.”
Bove conceded in his testimony that he “participated” in this decision but declined to “get into the contents of legal advice.” He refused to answer written questions on the matter.
In what I take to be a defense of Bove’s advice to DHS, Attorney General Bondi states in her tweet that “there was no court order to defy, as we successfully argued to the DC Circuit when seeking a stay, when they stayed Judge Boasberg’s lawless order” and that “no one was ever asked to defy a court order.”
There seems to me to be a lot of confusion here. On a minor point that cuts in her favor, Bondi is, I think, confusing the D.C. Circuit (which denied DOJ’s motion for a stay) with the Supreme Court (where DOJ indeed was successful). [Addendum: Someone tells me that Bondi might be referring to a separate contempt proceeding.]
Much more importantly, it’s well established that the subsequent invalidation (or vacatur) of an order doesn’t excuse a party from complying with the order while it is in effect. So as of the evening of March 15, there was, contra Bondi, a “court order to defy.” One relevant question is whether Bove’s advice to DHS amounted to bad-faith defiance. I’d be interested in the legal authority for the proposition that you don’t have to comply with an oral order from a judge. [Addendum: Someone whose judgment I trust tells me that there is considerable case law supporting the proposition that oral orders aren’t enforceable. That question may well be distinct from the ethical obligations that a lawyer—especially a DOJ lawyer—has.]
3. Like Deputy AG Blanche, AG Bondi tries to discredit Reuveni as a “disgruntled employee,” “a leaker asserting false claims seeking five minutes of fame, conveniently timed just before a confirmation hearing and a committee vote.”
This attack strikes me as ridiculous. The Trump administration promoted Reuveni into his position of acting deputy director of DOJ’s Office of Immigration Litigation. The evidence is compelling that he became “disgruntled” by the very conduct that he is complaining of. I don’t see how Bondi can purport to “support legitimate whistleblowers” when she brazenly labels Reuveni as “a leaker asserting false claims seeking five minutes of fame.”
It’s not as if Reuveni is suddenly surfacing a claim about some long-ago event that only he was witness to. It’s hardly surprising that it took him and his lawyers two months from the time of his termination to compile his whistleblower charges. Nor is there anything discrediting about his ensuring that the Judiciary Committee is aware of his charges before it acts on Bove’s nomination. Indeed, if Reuveni’s charges are accurate, he is performing an important public service.