The Bove Nomination

Unfit for the federal bench

President Trump has nominated Emil Bove for a seat on the U.S. Court of Appeals for the Third Circuit. Bove previously served as one of Trump’s criminal defense attorneys in the New York, Florida, and D.C. Trump prosecutions. After Trump took office, he made Bove acting Deputy Attorney General. When Todd Blanche, another of Trump’s defense attorneys, was confirmed as Deputy Attorney General, Bove became his principal associate deputy, a position that does not require Senate confirmation.

Now Trump wants Bove to have a lifetime seat as a federal appellate judge. The Senate Judiciary Committee is set to vote this week on whether to advance his nomination to the full Senate.

Bove doesn’t belong anywhere near the federal bench. His previously-known actions in his first months at the Justice Department alone should be disqualifying. But now new allegations from a DOJ whistleblower detail Bove’s leading role in the Trump administration’s defiance of federal court orders in furtherance of Trump’s immigration agenda.

Bove’s primary qualification, in Trump’s eyes, is his unwavering loyalty to Donald Trump. But someone with so little regard for the rule of law has no business being a federal judge.

Emil Bove at his judicial confirmation hearing

Bove’s Actions Related to January 6

In the early days of this Trump administration, as acting Deputy Attorney General, Bove was instrumental in the firing of prosecutors who worked on cases against the January 6, 2021 Capitol rioters. These attorneys were told they could not be trusted to carry out “President Trump’s agenda,” based on their work on those cases.

Bove also ordered the firing of a half-dozen senior FBI officials who had been involved in the January 6 prosecutions. He claimed the FBI had participated in a “grave national injustice” perpetrated on the American people by pursuing cases against those involved in the Capitol riot.

Bove also has admitted advising Trump on one of his most outrageous early actions as president: the pardoning of all January 6 defendants, including those who assaulted law enforcement officers and those who were found guilty of seditious conspiracy.

The January 6 Pardons

The firings of prosecutors and others who worked on the January 6 prosecutions have continued. Along with the pardons, these personnel actions are part of an effort to rewrite the history of January 6 by suggesting these professionals engaged in misconduct and that the rioters were the true victims. In reality, these convictions were upheld by multiple federal judges — including Trump appointees — and through the verdicts of scores of juries. These were righteous prosecutions of individuals guilty of a grave assault on our democracy.

Bove led a politically-motivated purge of law enforcement professionals who were simply doing their jobs on behalf of the nation, and doing them very well. This willingness to retaliate on Trump’s behalf against honorable employees of his own Justice Department and to whitewash what happened on January 6 should be disqualifying.

Bove’s Role in the Thursday Afternoon Massacre

Bove also played a key role in the administration’s decision to dismiss the corruption prosecution of New York mayor Eric Adams. In early February, in a remarkable memo to New York prosecutors, Bove instructed them to drop the case. He said dismissal was warranted because the prosecution was interfering with Adams’s ability to help the Trump administration implement its immigration agenda and that the timing of the indictment suggested it had been politically motivated.

This order led to a sequence of events I’ve dubbed the “Thursday Afternoon Massacre.” The acting U.S. Attorney for the Southern District of New York resigned rather than carry out what she considered to be an improper order. She noted in her resignation that the dismissal appeared to be an improper quid pro quo in exchange for Adams’s agreement to help with the administration’s immigration enforcement plans in New York. About a half-dozen other prosecutors at the Justice Department’s Public Integrity Section and the Southern District of New York also subsequently resigned rather than follow the corrupt order to drop the case.

The Thursday Afternoon Massacre

Bove then reportedly assembled the remaining members of the Public Integrity Section and threatened that if one of them didn’t agree to sign the motion to dismiss the case they all would face disciplinary action, including possible firing. One career attorney who was near retirement ultimately agreed to sign the motion in order to save his colleagues.

At the subsequent hearing on the motion before federal judge Dale Ho, Bove appeared alone to argue the case — something unheard of for a Deputy Attorney General and suggesting that no one else was willing to make the argument. Judge Ho ultimately dismissed the case, noting that he could not force the government to prosecute. But he dismissed it with prejudice — meaning the charges cannot be refiled — rather than without prejudice as the government had requested, which would have allowed the administration to continue to hold the charges over Adams’s head. In his blistering opinion, Ho said he agreed the dismissal appeared to be part of a corrupt deal between Adams and the administration. He also found, contrary to Bove’s representations, there was absolutely no evidence prosecutors had done anything improper by bringing the case.

Bove demonstrated total disregard for the rule of law and the role of the Justice Department by dropping a criminal case for political reasons. He also tried to coerce DOJ attorneys to make arguments they considered false and unethical, compelling a number of them to resign in protest. Once again, these actions should disqualify him from a federal judgeship.

Bove to the Courts: “Fuck You”

In any normal political time, these actions alone would be enough to sink Bove’s nomination for a lifetime appointment to the federal bench. But new revelations from a DOJ whistleblower also outline Bove’s leading role in the Trump administration’s deliberate defiance of the very federal judiciary that Bove now wishes to join.

The whistleblower is Erez Reuveni, a 15-year veteran DOJ prosecutor. He was recently fired for committing the sin of telling a federal judge the truth: that Kilmar Abrego Garcia was deported to El Salvador’s CECOT prison by mistake. Garcia was one of more than 200 Venezuelan immigrants the administration shipped off to the notorious prison. But pursuant to a 2019 court order, Garcia had the right to stay in the United States. During a court hearing, Reuveni candidly, and properly, told the court that Garcia should not have been among those deported. He then resisted demands from his superiors that he describe Garcia as a terrorist, saying there was no evidence to support that claim. He was fired a short time later.

Reuveni’s whistleblower complaint contains a great deal of damaging information about the administration’s deportation of those immigrants and defiance of the courts — and about Bove’s leadership of those efforts. The complaint discusses a meeting at DOJ in mid-March, after the administration decided to rely upon the Alien Enemies Act to deport the Venezuelan immigrants. At that meeting, Reuveni reports, Bove said the deportations were a “highest priority” for the president and that the planes with the Venezuelans would be taking off in the next 24-48 hours “no matter what.” Then, in the biggest bombshell in his complaint, Reuveni reports that Bove said if they were confronted with a court order to halt the deportations, they would need to consider telling the court, “Fuck you,” and continuing anyway.

As it turned out, that’s exactly what happened. During an emergency hearing as the flights were about to take off, Chief Judge Boasberg of the U.S. District Court for the District of Columbia ordered that the deportations be halted and that any planes already on their way be ordered to turn back. The government defied that order, the planes landed, and the immigrants were sent to the supermax prison. (In response to the judge’s order, the president of El Salvador posted on X, “Oopsie - too late,” with a laughing emoji. That post was re-tweeted by U.S. Secretary of State Marco Rubio.)

The Trump administration has sought to discredit Reuveni’s allegations, portraying him as a disgruntled former employee and falsely claiming he is a Democrat (he in fact is not registered with any political party). But Reuveni had previously defended unpopular Trump immigration policies, including the “Muslim ban” during Trump’s first term. The Trump administration itself had given him commendations and promoted him only weeks before firing him. He’s not some liberal squish or deep-state plant. He was a career prosecutor in the best traditions of DOJ: making good-faith arguments on behalf of the policies of both Republican and Democratic administrations over a career that spanned both. But until the current Trump administration, he says, he had never been asked to lie in court or defy a court order.

In response to the administration’s denials, Democratic Senator Dick Durbin released a trove of emails and text messages Reuveni had supplied in support of his complaint. They include text messages between Reuveni and a colleague while they are listening to a hearing before Judge Boasberg where Reuveni’s supervisor, Drew Ensign, tells Boasberg he does not know whether the flights to El Salvador are planned that weekend. They text in real time about how Ensign appears to be lying, noting that this may mean they are indeed about to say “Fuck you” to the judge (Reuveni is in blue):

Later in the evening, after the planes had landed in El Salvador and offloaded the immigrants in defiance of the judge’s order, Reuveni recognized what was at stake:

These references in the text messages between Reuveni and his colleague would make no sense if the earlier meeting, where saying “Fuck you” to a judge was discussed, had never taken place. Saying you are reaching a “decision point” on the question indicates there was an earlier time where that question was discussed.

The released documents also show that the directive to disregard the judge’s order to turn the planes around reportedly came from Bove himself. Yaakov Roth, acting head of the Civil Division, wrote in an email that Bove had told Homeland Security the night of the hearing that “the deplaning of the flights that had departed US airspace prior the court’s minute order was permissible under the law and the court's order.”

(For a good breakdown of the text messages and other evidence and how they relate to the timing of the hearing before Boasberg and events surrounding the flights, see this post from Chris Geidner at Law Dork.)

In short, there is compelling evidence to back up Reuveni’s allegations. These actions render Bove completely unfit for a seat on the federal court of appeals. The rule of law in this country depends on an executive branch that recognizes the authority of the federal courts. The courts have no way physically to enforce their orders. If the executive branch is willing to ignore the courts and act however it sees fit, then our constitutional system has truly broken down and we are in an authoritarian state. Bove, it appears, is not only untroubled by that prospect but is happy to help bring it about.

A Convenient Lapse of Memory

At Bove’s confirmation hearing, Senator Adam Schiff asked him if he had ever said the Justice Department should consider telling the courts “Fuck you” if ordered to halt the deportations. Bove replied that he did not recall.

As Schiff pointed out, if you are a sworn DOJ official and member of the bar who suggested that federal prosecutors should consider saying “fuck you” to the federal courts, that seems like something you’d remember. Any senior DOJ official should be able emphatically to deny that they would ever suggest willful defiance of a court order. Saying “I don’t recall” is a dodge that is as good as an admission.

The administration has tried to argue it technically did not violate the court’s orders because the planes had already left U.S. airspace, or because it was initially only a verbal order, not written. In response to Reuveni’s allegations, Attorney General Pam Bondi also has claimed that “no one was ever asked to defy a court order.” Bove himself testified at his confirmation hearing that he “did not advise any Justice Department attorney to violate court orders.”

But that’s too cute by half. Reuveni’s complaint never says there actually was such a direct order. He says there was a meeting where Bove suggested they might need to go that route — a suggestion that was met with stunned silence by the others in the meeting. And the evidence indicates that when the time came, Bove took action to defy the order himself by falsely telling Homeland Security they were clear to proceed. Perhaps Bove feared another mass resignation event if he ordered others to do his dirty work again.

For his part, Judge Boasberg doesn’t appear to have much doubt. He says there is cause to believe the administration intentionally violated his order and could be held in contempt. He issued an order to show cause, which for now has been stayed by the D.C. Circuit.

Bove was a leader in the decision to defy the court’s order by allowing the planes to land and deliver the prisoners. If he is confirmed, there is a very real possibility that the newest judge on the Third Circuit will end up as a defendant in a contempt of court proceeding in the District of Columbia.

A Silver Lining - Sort Of

For all these reasons, it should be obvious that Bove has no business being a federal judge. The Senate should resoundingly reject his nomination. Regardless of party, everyone should recognize that an individual who has shown such contempt for the rule of law and the proper functioning of the justice system should not be honored with a lifetime seat on a federal court of appeals.

But all that being said, it’s probably too much to expect that the same Senate that confirmed Pete Hegseth for Secretary of Defense, Kristi Noem for Secretary of Homeland Security, and many other woefully unqualified nominees, will suddenly develop a collective spine and defy Trump when it comes to Bove. By all means, call your Senators and let them know how you feel. But we have to be clear-eyed about the prospects for success.

The only small consolation is that as an appellate judge, Bove’s ability to cause harm will be fairly limited. He will usually be one of a panel of three judges, unable to act on his own. In any case where he takes a truly outrageous position, he would have to convince at least one other colleague to go along. And a judge can’t decide what policies or issues to pursue; he can only rule on the cases that come before him. In some ways Bove would even be more powerful as a district court judge, who at least can act alone in resolving cases with potentially nationwide implications. As a single appellate judge, he can do almost nothing by himself.

As he’s already shown, Bove can do far more harm in his current senior position at the Justice Department, where he can help set and implement Trump policies affecting the administration of justice nationwide.

So one way to look at the Third Circuit appointment is that it pushes Bove off to the sidelines. He will most likely serve out the next couple of decades as an appellate judge in relative obscurity, issuing the occasional absurd dissenting opinion to punctuate his tenure. And his appointment will get a truly odious person out of the DOJ leadership.

The primary concern, of course, is that Trump sees this appointment as a stepping stone for a future Bove nomination to the Supreme Court. As absurd as it sounds, that could indeed happen. If it does, then the stakes over that nomination fight will be much higher.

Don’t get me wrong. I don’t think Bove belongs on the federal bench OR in the Department of Justice. Confirming him to the Third Circuit would tacitly endorse his conduct and suggest there are no consequences for flouting federal court orders or for politicizing the Justice Department. And if he is promoted to the bench, he could potentially be replaced at DOJ by someone equally bad or even worse.

But if we assume this Senate will continue to do anything Trump wants — which means these are the only two choices — I’d frankly rather have Bove as a lone judge on the Third Circuit crying into the wilderness than have him helping set and implement nationwide policy in multiple areas at DOJ.

Maybe that’s what passes for a silver lining these days.