A Tale of Two Jurists in the Trump Era

Last month, James Boasberg, a seasoned federal judge, and Emil Bove III, a Justice Department lawyer, became foils in a parable about the rule of law during Donald Trump’s second term. On July 28th, the Department of Justice announced a misconduct complaint against Boasberg, whom it accused of harboring a personal bias against the President. The next day, Bove, whom Trump had nominated to a judgeship on the Third Circuit Court of Appeals, was confirmed by Republicans in the Senate. Boasberg had “undermined the integrity of the judiciary, and we will not stand for that,” Pam Bondi, Trump’s Attorney General, wrote on X. By contrast, Bove, she said, “will be an outstanding judge.”

Beyond the fact that they’re both former prosecutors, and bald, the two men would appear to have very little in common. Boasberg, who is in his early sixties, was appointed to judgeships by George W. Bush and Barack Obama. The Senate confirmed him to his current post by a vote of ninety-six to zero. In 2014, John Roberts, the Chief Justice of the Supreme Court, named Boasberg to a seven-year term on the Foreign Intelligence Surveillance Court, giving him high-level security clearance. “You knew when you went into court with him, that he was going to follow the rules,” a former Justice Department lawyer told CNN. “He was very predictable, because he followed the law.”

Bove, who is forty-four, worked as an Assistant U.S. Attorney in the Southern District of New York from 2012 to 2021, but his principal credential came two years later: after Donald Trump faced thirty-four counts of falsifying business records in Manhattan, Bove joined his criminal-defense team. (Trump was convicted on all counts and has appealed the result.) When Trump reëntered the White House, Bove was rewarded with a top job at the Justice Department, where he immediately distinguished himself as an enforcer. This past winter, when three prosecutors in the Southern District of New York resigned over the Administration’s ultimately successful push to dismiss a corruption case against Mayor Eric Adams, Bove was at the center of the controversy. The Justice Department had ordered prosecutors to drop the charges, evidently so that Adams would be able to enforce the Administration’s immigration policies. According to one of the prosecutors, Bove chastised them for taking notes at a key meeting, at the end of which he “directed the collection of those notes.” (Bove denies any quid-pro-quo deal, claiming that he ended Adams’s prosecution because it was politically motivated—Adams maintains that he engaged in no wrongdoing—and that he restricted note-taking to prevent leaks.)

The high contrast in which Boasberg and Bove currently stand is the direct result of a case that, by an accident of timing and circumstance, bound their political fates together. On Friday, March 14th, Trump signed a proclamation invoking the Alien Enemies Act of 1798 to authorize the removal, in secret, of more than two hundred Venezuelan men to a maximum-security prison in El Salvador. As a matter of federal policy, this was a radical move. With shoddy evidence, none of which the men were allowed to contest, the government accused them of belonging to a Venezuelan gang called Tren de Aragua. Based on what Immigration and Customs Enforcement officials had reportedly told them during their detention, the men thought that they were being deported to Venezuela. The majority of them hadn’t committed any crimes, and some actually had legal status in the U.S. Among those who didn’t, many had pending cases before immigration judges.

Shortly before Trump signed the proclamation, a group of D.O.J. lawyers met to discuss what would happen if a judge issued an order to halt the removals. One of them was Bove. Another was Erez Reuveni, a veteran government litigator freshly promoted to the job of acting deputy director of the Office of Immigration Litigation. According to Reuveni, who later filed a whistle-blower complaint, Bove told the lawyers that, once Trump signed the proclamation, one or more airplanes would set off for El Salvador that weekend “no matter what,” and he went on to say that if a judge tried to enjoin the flights, the department would “need to consider telling the courts ‘fuck you.’ ” (Bove denies this.)

Within hours of the proclamation, the American Civil Liberties Union filed a lawsuit on behalf of five Venezuelan men in federal immigration custody, to block removal flights conducted under the Alien Enemies Act. On the morning of March 15th, at around eight, Boasberg learned that he’d been assigned the case at random. When he first “reached out to locate Government counsel,” Boasberg wrote, in a subsequent opinion, he didn’t receive a response. In the meantime, the plaintiffs’ lawyers reported that at least one of their clients was sitting in an airplane that could take off at any moment. Boasberg issued a temporary restraining order, just before 10 A.M. He said he had to “freeze in place the status quo until a hearing could be held.”

The hearing began at five o’clock that evening, a little more than an hour after Trump’s proclamation was posted publicly. The government’s lawyers were adamant that Boasberg should not certify a broader class—beyond the five plaintiffs—for protection against removal under the Alien Enemies Act. When Boasberg asked whether any flights might leave “in the next twenty-four or forty-eight hours,” Drew Ensign, the government lawyer, replied, “I don’t know the answer to that question.” According to Reuveni, however, Ensign had attended the meeting the previous day at which Bove had said that removal flights would be departing over the weekend.

Eventually, Boasberg called a forty-minute adjournment and instructed Ensign to get more information from the Department of Homeland Security. During that time, two planes, each carrying about eighty detainees, left Texas for Honduras. They were in transit when the hearing reconvened, but Ensign said that he had learned nothing further. At around six-forty-five, Boasberg issued a verbal order blocking the government from removing anyone under the auspices of the Alien Enemies Act. “This is something that you need to make sure is complied with immediately,” he said.

Reuveni had been listening to the live feed of the hearing. He immediately sent several e-mails to officials at the Departments of Homeland Security and State laying out, explicitly, what Boasberg had said. “Sorry for all the emails,” he wrote in one, at 6:48 P.M. “The judge specifically ordered us not to remove anyone in the class, and to return anyone in the air.” Reuveni was ignored, as was Boasberg. At 7:36 P.M., a third plane left Texas for Honduras. Between eleven-thirty-nine and twelve-thirty-nine that night, all three flights then flew from Honduras to El Salvador, carrying more than two-hundred Venezuelans, a group of Salvadorans, and one Nicaraguan.

On March 28th, the Trump Administration filed an emergency application to the Supreme Court, asking it to lift Boasberg’s injunction. Ten days later, by a vote of 5–4, the Justices ruled that the plaintiffs in the case, known as J.G.G. v. Trump, had chosen both the wrong venue and the wrong principle on which to file suit. Rather than claim a breach in administrative procedure before a district court in Washington, as the plaintiffs had done, the Court found that they should have filed petitions for habeas corpus in Texas, where the men were held prior to their removal. Nevertheless, the ruling was unequivocal on one point: anyone detained under the Alien Enemies Act had to be given notice before they were removed and an opportunity to contest their deportation.

The outcome effectively undid Boasberg’s injunction against the removals on March 15th, but it reinforced certain aspects of his ruling. “The Court effectively said that the Constitution flatly prohibits the Government from doing exactly what it did that Saturday, when it secretly loaded people onto planes, kept many of them in the dark about their destination, and raced to spirit them away before they could invoke their due-process rights,” Boasberg wrote in an opinion that he issued on April 16th. In that opinion, he also found that there is “probable cause” to believe that the Trump Administration could be held in contempt of court for having disregarded his initial order.

By that time, the government had arranged for two more planes to transport detainees to the same Salvadoran prison. The Trump Administration was no longer invoking the Alien Enemies Act, but it didn’t share the detainees’ names; there was no official record. On March 31st, the State Department announced that it had sent seventeen more migrants to the prison. Ten were Salvadorans, the rest Venezuelans. Two weeks later, Marco Rubio, the Secretary of State, posted on X, “Last night, another 10 criminals from the MS-13 and Tren de Aragua Foreign Terrorist Organizations arrived in El Salvador.”

When Boasberg wrote that there was “probable cause” to believe the government had ignored his orders, he was, in effect, initiating a more sustained investigation into what had happened on March 15th. But this wasn’t the only case in which Bove seemed to be at odds with a judge’s instructions. The Department of Homeland Security was planning to deport people apprehended on U.S. soil to third countries, often without adequate procedures or legal justifications. Several such cases prompted a separate lawsuit before a different judge about whether the government, in accordance with the Convention Against Torture, had properly determined that the migrants would not be tortured after their removal. After that judge temporarily blocked those removals, Reuveni raised questions within the Justice Department about whether the Administration was, once again, ignoring a judge’s injunction. On April 1st, according to Reuveni, he received a call from an acting Assistant Attorney General who told him that “Bove was very unhappy that Mr. Reuveni had contacted counsel at various agencies to ascertain whether DOJ had violated a court order.” Reuveni was instructed to stop sending e-mails and to restrict his future communications to phone calls.