(WASHINGTON) — Department of Justice officials, citing privilege, did not disclose details on the legal advice given to Department of Homeland Security Secretary Kristi Noem about the decision to continue the deportation of more than 100 Venezuelans to El Salvador in March.
The declarations filed in court Friday are a response to a contempt inquiry initiated by U.S. District Court Judge James Boasberg, who is determining whether Noem or anyone else should be referred for potential contempt prosecution.
The court filings Friday were submitted after DOJ lawyers said in a filing last week that Noem directed the deportation flights to continue despite Boasberg’s order to return the planes to the U.S. as he heard a legal challenge to the administration’s use of the Alien Enemies Act (AEA) to deport the Venezuelans, whom the Trump administration accused of being gang members.
In her declaration, Noem confirmed she made the decision to continue the transfer of the detainees after receiving legal advice from DOJ leadership and from Joseph Mazarra, the acting general counsel of DHS.
In the filings Friday, Deputy Attorney General Todd Blanche and Emil Bove, a DOJ official in March who is now a U.S. circuit judge, declined to provide details on the “privileged” legal advice they gave to Noem.
“DOJ has not authorized me to disclose privileged information in this declaration,” Bove said.
Mazarra, in his declaration, said that he analyzed Judge Boasberg’s order that sought to block the deportations and then provided Noem with legal advice.
“DHS had removed these terrorists from the U.S. before this Court issued any order (or oral statement regarding their removal),” Mazarra wrote in the filing Friday.
In a separate filing, DOJ attorneys said it would be “prejudicial and constitutionally improper” to compel testimony from the officials who submitted declarations in advance of a referral for prosecution.
“[The] Court has all the information it needs to make a referral if it believes one to be justified, and further factual inquiry by the Court would raise constitutional and privilege concerns,” the DOJ attorneys stated.
In response to the declarations, Lee Gelernt, the lead attorney for the American Civil Liberties Union, which has challenged the AEA deportations in court, told ABC News “the Trump administration is again refusing to cooperate with a federal court.”
In March, the Trump administration invoked the AEA — an 18th-century wartime authority used to remove noncitizens with little-to-no due process — to deport two planeloads of alleged migrant gang members to the CECOT mega-prison in El Salvador by arguing that the Venezuelan gang Tren de Aragua is a “hybrid criminal state” that is invading the United States.
In a March 15 court hearing, Boasberg issued a temporary restraining order and ordered that the planes carrying the detainees be turned around, but Justice Department attorneys have said his oral instructions directing the flight to be returned were defective, and the deportations proceeded as planned.
Boasberg’s earlier finding that the Trump administration likely acted in contempt was halted for months after an appeals court issued an emergency stay. A federal appeals court last month declined to reinstate Boasberg’s original order, but the ruling allowed him to move forward with his fact-finding inquiry.
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