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A federal judge investigating whether Homeland Security Secretary Kristi Noem should face a contempt charge over flights carrying migrants to El Salvador said Monday he wants to hear from a whistleblower and top Justice Department official.
U.S. District Judge James Boasberg in Washington ordered the government to make Deputy Assistant Attorney General Drew Ensign available for testimony on Dec. 16. Boasberg wants to hear a day earlier from fired Justice Department attorney Erez Reuveni.
The order for testimony ratchets up the extraordinary clash between the judicial and executive branches.
In March, Boasberg ordered the Republican administration to turn around two planes carrying Venezuelan migrants.
Instead, the planes landed in El Salvador hours later, touching off the contempt probe. Boasberg is trying to determine whether the administration willfully ignored his order and should be referred for prosecution on a contempt charge.
Reuveni has filed a whistleblower complaint alleging 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 has said the allegations are untrue.
The Justice Department has said Ensign conveyed Boasberg’s oral order and a subsequent written order to the Department of Homeland Security.
In a written declaration submitted to the court Friday, Noem said she made the decision not to return the planes to the U.S. after receiving “privileged legal advice” from the Homeland Security Department’s acting general counsel and “through him from the senior leadership of the Department of Justice.”
Boasberg, who was nominated to the federal bench by President Barack Obama, a Democrat, called Noem’s declaration “cursory.”
“As this declaration does not provide enough information for the Court to determine whether her decision was a willful violation of the Court’s Order, the Court cannot at this juncture find probable cause that her actions constituted criminal contempt,” the judge wrote in Monday’s order.
The administration has 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 attorneys 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 the flights already airborne, they said.
The two planes had already departed U.S. territory and airspace, so the migrants aboard them had already been “removed” and therefore fell outside of the court’s order, Justice Department lawyers said in the court filing.
Justice Department attorneys in a court filing Friday objected to any “live testimony,” urging Boasberg instead to “proceed promptly” with a criminal contempt referral if he believed his order was “sufficiently clear in imposing an obligation to halt the transfer of custody for detainees who had already been removed from the United States.”
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