A federal judge investigating whether Homeland Security Secretary Kristi Noem should face contempt charges over flights carrying migrants to El Salvador said Monday he wants to hear from a whistleblower and a senior Justice Department official.
US District Judge James Boasberg in Washington ordered the government to make Deputy Assistant Attorney General Drew Ensign available to testify on December 16. Boasberg wants to hear a day before the lawyer of the Department of Justice was fired Erez Reuveni.
The order for witnesses raises the extraordinary conflict between the judicial and executive branches.
In March, Boasberg ordered the Republican administration to turn over two planes carrying Venezuelan migrants.
Instead, the planes landed in El Salvador hours later, hitting the contempt probe. Boasberg is trying to determine whether the administration willfully ignored his order and should be referred for prosecution on contempt charges.
Reuveni filed a whistleblower complaint alleging that a Justice Department official suggested the Trump administration might have to ignore court orders as it prepared to deport Venezuelan migrants it accused of being gang members. The administration said that the allegations are not true.
The Justice Department said Ensign forwarded Boasberg’s oral order and a subsequent written order to the Department of Homeland Security.
In a written statement submitted to the court on Friday, Noem said she made the decision not to return the planes to the United States after receiving “privileged legal advice” from the acting attorney general of the Department of Homeland Security and “through him from senior leadership at the Department of Justice.”
Boasberg, who was nominated to the federal bench by President Barack Obama, a Democrat, called Noem’s statement “cursor”.
“Since this statement does not provide enough information for the Court to determine if her decision was a voluntary violation of the Court’s Order, the Court cannot at this moment find probable cause that her actions constituted criminal contempt,” the judge wrote in Monday’s order.
The administration said it did not violate Boasberg’s order. The judge’s directive to return the planes was made verbally in court but not included in his written order, government lawyers said in a court filing in November.
That order blocked the administration from removing “any of the individual Plaintiffs from the United States for 14 days,” but said nothing about flights already in the air, they said.
The two planes had already left US territory and airspace, so the migrants on board had already been “removed” and therefore fell outside the court order, Justice Department lawyers said in court filings.
Justice Department attorneys in a court filing Friday objected to any “live testimony,” urging Boasberg instead to “proceed promptly” with a criminal contempt citation if he believed his order was “sufficiently clear in imposing an obligation to halt the transfer of custody to detainees who had already been removed from the United States.”