WASHINGTON – The Justice Department said in a court filing Tuesday that Gov. Kristi Noem authorized transferring more than 200 Venezuelan migrants to El Salvador in March after U.S. District Judge James Boasberg issued an emergency order aimed at pausing certain deportations, according to a Fox News report.
The department disclosed Noem’s role in a declaration submitted in U.S. District Court in Washington as part of a renewed contempt inquiry. The filing says senior Justice Department lawyers advised the Department of Homeland Security that evening and relayed an oral direction from the judge that flights return to U.S. soil.
Boasberg signaled he would move quickly to determine whether administration officials willfully disobeyed his March 15 emergency order, which sought to stop the immediate use of the 1798 Alien Enemies Act to remove Venezuelan nationals. The transfers nevertheless proceeded and the migrants arrived in El Salvador hours after the court’s emergency action.
Background
The dispute centers on the rare use of the 1798 Alien Enemies Act, a law from the late 18th century that gives the executive branch certain authorities over nationals of enemy countries during wartime. Plaintiffs challenged the government’s invocation of the statute in this context and sought a court order to pause removals while the matter was litigated.
The case raises questions about the pace at which operational immigration actions can be halted by emergency judicial orders and how government lawyers and operators should respond when court directives are issued during ongoing transport operations. Those topics fall under the broader remit of border policy and oversight, which we track in our Border Coverage.
The Justice Department’s declaration was filed amid a renewed effort by the plaintiffs to compel testimony from senior officials about decisions made the night the flights departed. The filing asserts the government’s actions did not satisfy the legal standard for criminal contempt.
Details From Officials and Records
The filing identifies two senior Justice Department lawyers who advised Department of Homeland Security officials on the night in question. According to the declaration:
- Todd Blanche and Emil Bove provided legal advice to DHS and relayed what the filing describes as the judge’s oral order that flights be “immediately” returned to the United States.
- After receiving that legal advice, the filing says Gov. Noem directed that detainees who had been removed before the court’s order could be transferred to the custody of El Salvador.
- The Justice Department argued the decision was lawful and represented a reasonable reading of the court’s emergency order, and it characterized the judge’s subsequent oral directive as legally nonbinding with respect to completed removals.
The declaration contends the government did not violate the court’s order in a way that would support criminal contempt proceedings and asks the court to reject calls for further punishment. It also opposes broad compulsory testimony that plaintiffs seek from senior officials.
Plaintiffs asked the court to compel testimony from nine senior officials involved in the decision that night, including Emil Bove and Erez Reuveni. The filings describe Reuveni as a Justice Department attorney who has alleged that Bove suggested ignoring any court orders seeking to block the flights; Bove has denied that allegation, the filings say.
Reactions and Next Steps
At a recent hearing, Judge Boasberg told lawyers he intends to proceed expeditiously on the contempt inquiry and ordered parties to submit proposed witness lists and deadlines. He said he hopes to include testimony from Erez Reuveni and from Drew Ensign, a Justice Department deputy assistant attorney general.
Lawyers for the class of deported Venezuelan migrants urged the court to order testimony from the listed officials and suggested live witness sessions could begin in the first week of December. The plaintiffs say testimony is necessary to determine who made operational decisions and whether those decisions complied with the court’s emergency direction.
The prospect of compelled testimony is likely to prompt vigorous objections from senior administration officials, who in filings argue the court should not be considering criminal contempt here and that some testimonial demands intrude on separation of powers or on executive confidentiality. The government said it will contest efforts it considers inappropriate or overly broad.
The Justice Department declined to comment on the witness list submitted by plaintiffs.
Analysis
The DOJ disclosure places a prominent political figure at the center of a legal dispute with implications for governance and border enforcement. At stake is whether a rapid chain of legal advice and subsequent operational decisions met the requirements of a court’s emergency order, or whether those actions amounted to willful noncompliance that could justify contempt proceedings.
The case highlights tensions between urgent operational priorities at the border and the judiciary’s ability to impose immediate, enforceable restraints on executive action. Courts often must balance the need to preserve rights and the integrity of judicial review against the practical realities of ongoing flights, transports and diplomatic arrangements.
Procedurally, a finding of criminal contempt requires proof that officials knowingly and willfully violated a clear court order. Civil contempt remedies are broader and can include fines or coercive measures to secure compliance. How the court frames the inquiry and what evidence it allows will shape the scope of accountability and the degree to which senior officials may be required to testify publicly.
The dispute could also affect interagency decision making and institutional norms within the Justice Department and the Department of Homeland Security. If the court compels detailed testimony or finds willful disobedience, agencies may face pressure to adopt clearer protocols for responding to emergency judicial orders, to document legal advice more narrowly, and to manage operational actions in ways that reduce the risk of overlapping legal exposures.
Beyond procedural outcomes, the episode will feed broader policy debates over executive discretion in immigration enforcement, the diplomatic consequences of removals to foreign partners, and congressional oversight of border operations. For officials charged with managing removals, the case underscores that rapid operational decisions can carry significant legal and political consequences when courts are asked to intervene.
