How One Appeals Court Has Miserably Failed to Defend the Rule of Law

INSIDE: James Boasberg ... Pete Hegseth ... Pam Bondi

(Photo by Kevin Dietsch/Getty Images)

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

The Dark Ironies of the Emil Bove Nomination

The D.C. Circuit Court of Appeals has slow-rolled a contempt of court inquiry into the Trump administration for so long that the alleged culprit for the contemptuous conduct has been nominated to an appeals court seat, had his confirmation hearing, and is now on the verge of being confirmed.

Emil Bove — the Trump personal lawyer turned Trump Justice Department official — has emerged as the key figure who allegedly issued the orders in the original Alien Enemies Act (AEA) case that led U.S. District Judge James Boasberg to find probable cause for contempt of court. It was Bove who allegedly said that DOJ may have to consider pushing forward with the AEA deportations by telling the courts “Fuck you.” Bove’s nomination to a lifetime seat on the bench is set for a vote Thursday morning before the Senate Judiciary Committee.

The DC appeals court — a three-judge panel composed of Trump appointees Gregory Katsas and Neomi Rao and Obama appointee Cornelia Pillard (who opposed the move) — placed an administrative stay on Boasberg’s contempt proceedings way back on April 18. What is usually supposed to be a short-term pause in the case has now dragged on for nearly three months.

In that time, former DOJ career lawyer Erez Reuveni has revealed bombshell internal DOJ emails and texts. Those documents show that Bove, in his role as principal associate deputy attorney general, gave the green light for continuing with the March 15 removals of Venezuelan nationals to CECOT in El Salvador under the Alien Enemies Act in spite of Boasberg’s order blocking the deportations and directing the planes carrying the detainees to turn around. (For his part, Bove denies violating any court orders, and the Justice Department has made the preposterous argument that Boasberg’s written order didn’t include the direction to turn the planes around and that trumped his oral demand that they do so.)

In slow-rolling the contempt inquiry, the DC appeals court hasn’t just enabled Bove (who has engaged in other egregious conduct at DOJ). It has hung Boasberg out to dry, done nothing to staunch the Trump administration’s blatant defiance of court orders in other cases, and has left the judicial branch more exposed to a rogue executive determined to expand his power at the expense of the judiciary.

District courts have done a lot of hard work in trying to rein in Trump’s lawless rampage, but they have been failed repeatedly by higher courts. Few examples stand out as starkly as what the D.C. appeals court has done to hamstring Boasberg and the rule of law in the Alien Enemies Act case.

Profiles in Courage

The Justice Department’s Federal Programs Branch — which defends legal challenges to administration policies — has lost nearly two-thirds of its staff under President Trump, Reuters reports: “The seven lawyers who spoke with Reuters cited a punishing workload and the need to defend policies that some felt were not legally justifiable among the key reasons for the wave of departures.”

100% Not Normal

The federal judges in the Northern District of New York have declined to extend the appointment of interim U.S. Attorney John A. Sarcone III, who has emerged among the many Trump interim U.S. attorneys as a particularly ridiculous figure. Sarcone failed to win appointment by the judges after he previously announced, apparently falsely, that the judge had extended his appointment. District judges can appoint U.S. attorneys in some circumstances under the Vacancy Reform Act.

TPM Journalism Fund Drive Kicks Off Today!

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Mass Deportation Alert: Sweeping New Detention Policy

The Trump administration has abruptly changed policy and exposed million of undocumented immigrants to prolonged detention as they fight deportation, a process that usually takes months or years.

The policy change of now deeming migrants who came to the country illegally as ineligible for a bond hearing to secure their release while their cases care heard came in a July 8 memo obtained by the WaPo:

Since the memos were issued last week, the American Immigration Lawyers Association said members had reported that immigrants were being denied bond hearings in more than a dozen immigration courts across the United States, including in New York, Virginia, Oregon, North Carolina, Ohio and Georgia. The Department of Justice oversees the immigration courts.

The new policy dramatically widens the pool of undocumented immigrants subject to detention no matter how long they have lived in this country.

Another Devastating Supreme Court Decision

The Supreme Court cleared the way for the Trump administration to use mass layoffs to dismantle the Department of Education. The decision came without explanation on the court’s emergency docket. Of the 17 emergency applications to the high court from the Trump administration, it has ruled on 15 – and all 15 rulings have been in Trump’s favor, Georgetown law professor Steve Vladeck notes.

The three liberal justices joined in a powerful dissent by Justice Sonia Sotomayor:

When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it. Two lower courts rose to the occasion, preliminarily enjoining the mass firings while the litigation remains ongoing. Rather than maintain the status quo, however, this Court now intervenes, lifting the injunction and permitting the Government to proceed with dismantling the Department. That decision is indefensible. It hands the Executive the power to repeal statutes by firing all those necessary to carry them out. The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution’s separation of powers is grave. Unable to join in this misuse of our emergency docket, I respectfully dissent.

In related news, 24 states and DC have sued the administration to try to unfreeze nearly $7 billion in education funding that they were due to receive on July 1. The funding freeze is already adversely impacting school and provider budgets that relied on the federal monies.

The Purges: Crippling Gov’t Capacity Edition

• CNN: Thousands of HHS employees across its numerous agencies were terminated by email Monday afternoon in a planned purge that had been held up for some by court rulings adverse to the Trump adminsitration.

• Nature: In an unprecedented move, NIH is disinviting dozens of scientists who were nominated during the Biden administration from taking their positions on advisory councils that make final decisions on grant applications for the agency.

• NBC News: Veteran diplomats baffled by the mass layoffs of more than 1,300 State Department employees, about 15% of its domestic workforce.

Hegseth Probes Zero In On His Aide And Lawyer

Two separate internal Pentagon probes of the Defense Secretary Pete Hegseth’s use of Signal group chats and handling of classified material has focused on his senior aide, Ricky Buria, and his personal attorney, Tim Parlatore, Politico reports.

Quote Of The Day

“Bondi is in a great headspace.”–an unnamed DOJ official speaking about the attorney general’s feelings on the Jeffrey Epstein memo controversy

Correction: An item in yesterday’s Morning Memo incorrectly reported that the three-judge panel of the DC Circuit that stayed the contempt proceedings in the Alien Enemies Act case were all Trump appointees. The panel included one Obama appointee who would not have granted the stay.

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