A federal judge investigating whether Homeland Security Secretary Kristi Noem faces contempt charges over a flight that transported migrants to El Salvador said Monday he wants to hear from whistleblowers and top Justice Department officials.
U.S. District Judge James Boasberg in Washington ordered the government to have Deputy Assistant Attorney General Drew Ensign testify on Dec. 16. Boasberg wants to hear testimony from fired Justice Department lawyer Erez Reuveni a day early.
The order to testify heightened an extraordinary conflict between the judicial and executive branches.
In March, Boasberg ordered the Republican administration to divert two planes carrying Venezuelan migrants.
Instead, the planes landed in El Salvador hours later, triggering a contempt investigation. Boasberg is trying to determine whether the government willfully ignored his orders and should be held in contempt of court.
Reuveney has filed a whistleblower complaint alleging that Justice Department officials suggested the Trump administration might have to ignore court orders as it prepares to deport Venezuelan immigrants accused of being gang members. The government says the accusations are false.
The Justice Department said the lieutenant relayed Boasberg’s verbal orders and subsequent written orders to the Department of Homeland Security.
Noem said in a written statement filed with the court on Friday that she decided not to return the plane to the United States after receiving “privileged legal advice” from the Department of Homeland Security’s acting general counsel and “senior leadership at the Department of Justice through him.”
Boasberg, who was nominated to the federal bench by Democratic President Barack Obama, called Noem’s statement “reckless.”
“Because this statement does not provide the court with sufficient information to determine whether her decision intentionally violated the court’s order, the court is unable to find probable cause that her conduct constitutes contempt of court,” the judge wrote in Monday’s order.
The government said it did not violate Boasberg’s order. Government lawyers said in a November court filing that the judge’s order to return the plane was made orally in court but was not included in his written order.
They said the order prohibits the government from “removing any plaintiff from the United States within 14 days” but makes no mention of flights that have already taken off.
Justice Department lawyers said in court documents that the two planes had already left U.S. territory and airspace, so the immigrants on board had been “removed” and therefore fell outside the scope of the court order.
Justice Department lawyers objected to any “live testimony” in a court filing Friday and urged Boasberg to “immediately proceed” with criminal contempt referrals if he believes his order “sufficiently sets out the obligation to halt the transfer of custody of detainees who have been deported from the United States.”
