DOJ acknowledges Kristi Noem made decision to continue deportation flights to El Salvador despite judge’s order

By Mary Kay Mallonee, CNN

(CNN) — The Justice Department said in a new court filing Tuesday that Homeland Security Secretary Kristi Noem made the decision to continue with deportation flights carrying migrants to a mega-prison in El Salvador, despite a federal judge’s order to turn the planes around.

DOJ acknowledged in the filing that it was Noem who made the call in March to keep the planes headed to CECOT prison — after US District Judge James Boasberg last week resumed his criminal contempt inquiry to find out which Trump administration officials were responsible for flouting his orders.

The high-stakes immigration case involves President Donald Trump’s use of the Alien Enemies Act to speed up deportations of alleged members of a Venezuelan gang. It has marked a major political and legal flashpoint for the Trump White House in its efforts to carry out a historic deportation campaign, and Noem’s decision ultimately led to the migrants spending months in the notorious prison in El Salvador, where human rights groups have claimed they were subjected to torture and other abuses.

“Deputy Attorney General Todd Blanche and Principal Associate Deputy Attorney General Emil Bove provided DHS with legal advice regarding the Court’s order as to flights that had left the United States before the order issued,” the government wrote in the filing. “After receiving that legal advice, Secretary Noem directed that the AEA detainees who had been removed from the United States before the Court’s order could be transferred to the custody of El Salvador.”

The Justice Department argued in the filing,“that decision was lawful and was consistent with a reasonable interpretation of the Court’s order.”

“Although the substance of the legal advice given to DHS and Secretary Noem is privileged, the Government has repeatedly explained … why its actions did not violate the Court’s order, much less constitute contempt,” the government wrote. “Specifically, the Court’s written order did not purport to require the return of detainees who had already been removed, and the earlier oral directive was not a binding injunction, especially after the written order.”

Politico was first to report on the new filing.

Boasberg, an appointee of former President Barack Obama, had ordered the administration in mid-March to turn around the planes carrying migrants being deported under the AEA, a sweeping 18th-century wartime authority.

Yet the flights continued, and the migrants were held at the prison for several months before being released this summer as part of a prisoner swap with Venezuela.

“I certainly intend to find out what happened on that day,” Boasberg said in a hearing last week.

In a blockbuster decision issued in April, Boasberg – the chief judge of the federal trial-level court in Washington, DC – said “probable cause exists to find the Government in criminal contempt.”

But before he could move forward with finding out who was responsible for defying his orders, the proceedings were put on hold by the DC US Circuit Court of Appeals. That court, earlier this month, paved the way for Boasberg to restart his inquiry.

Boasberg had suggested that part of his inquiry could involve declarations from administration officials, or hauling officials into his courtroom to provide testimony under oath. Those hearings, he said, could begin as soon as December 1.

Among those he’s interested in hearing from is an ex-Justice Department lawyer who alleged in a whistleblower complaint earlier this year that a then-top DOJ official told his colleagues in March that the administration intended to ignore court orders as part of the government’s aggressive deportation effort.

Boasberg’s decisions this year in the case drew the ire of Trump, who earlier this year called for the judge’s impeachment, prompting a rare rebuke from Chief Justice John Roberts. The chief said the proper ways to respond to a disagreeable court ruling is to appeal it.

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