Justice Department lawyer shocks appeals judges by using Kristi Noem as ‘sacrificial lamb’ to stop judge’s contempt investigation once and for all

A Justice Department lawyer surprised judges at the full Washington, D.C., appeals court by making former Homeland Security Secretary Kristi Noem the “sacrificial lamb” in a judge’s contempt investigation with “no reason to believe that she, in particular,” willfully violated a court order.

The Justice Department’s Brett Shumate took the lead in the much-anticipated en banc proceedings before the United States Court of Appeals for the District of Columbia Circuit on Tuesday morning.

Several judges suggested that the government, without a “clear and indisputable right” to relief, was no closer to obtaining an “extraordinary” writ of mandamus that would force Chief U.S. District Judge James Boasberg to end an “unlawful, unnecessary and futile” investigation into the “mental state of senior officials” who defied a March 15, 2025 Temporary Retraining Order (TRO) blocking deportations under the Alien Enemies Act. Act (AEA).

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After all, a previous en banc panel had already allowed the district judge to “require the government to identify the decision-makers who directed the potentially contemptuous actions” – the landing of AEA deportees in El Salvador.

At issue is judge-ordered testimony from fired DOJ attorney Erez Reuveni and Deputy Assistant Attorney General Drew Ensign in the investigation.

Reuveni was placed on leave and later fired after nearly 15 years at the DOJ in April 2025 after he said he “refused instructions from his superiors to file a brief statement” of the facts about Kilmar Abrego Garcia, a Maryland man and Salvadoran national who courts found to have been wrongly deported and vindictively prosecuted.

Reuveni alleged that Ensign was there the day before Boasberg issued the removal order that the government flouted, when former Principal Deputy Assistant Attorney General Emil Bove — President Donald Trump’s former personal attorney — had suggested in a meeting that the government would give a “f— you” to the courts if the government was prevented from carrying out mass expulsions from the AEA.

At the time, Bove’s nomination to serve as a judge on the 3rd United States Court of Appeals was pending. He was later confirmed to be among current or former DOJ officials who submitted a “superficial” statement about his role advising Noem.

In peppering the DOJ with questions on the matter, U.S. Circuit Judge Patricia Millett indicated that she believed the “f-you” episode merited further investigation.

“I think the district court described Secretary Noem as the purported decision-maker, but as Judge Childs just mentioned, the district court is not required to accept that as the only relevant decision-maker,” she said. “I suppose you would agree that the ultimate decision maker is not the only one who has committed contempt of court.”

“For example, because it’s clear from the statements that she was receiving legal advice from a number of people within the Department of Justice. Now, if a lawyer providing legal advice to the secretary said to the secretary, ‘You have the legal authority to expletive court order on this and go ahead and unload the people. Would it be true that this lawyer would be just as guilty of contempt of court as the secretary potentially? » Millett asked.

“I think that’s an interesting question that a prosecutor might want to explore further –” the DOJ lawyer began to respond.

“I’m not asking you what prosecutors can investigate,” Millett cut in to Shumate. “I’m asking you if contempt of court could potentially be committed for the court to invest in for the court to decide whether I need to find justification or find cause regarding additional people. Could that include a lawyer who advised someone to expletive to the court, and go ahead according to the order of the court, and go ahead, and unload the people? Could this constitute contempt of court in the eyes of the United States? »

“I think it depends on the facts, Your Honor,” Shumate responded.

“Well, I think the district court needs to ask more questions,” summarized the lawyer appointed by Barack Obama.

Shortly after, U.S. Circuit Judge Florence Pan, a Joe Biden appointee, referred to Millett’s questions and directly referenced the Bove incident without naming him.

“It seems to me that you are trying to restrict his discretion to conduct this case – this is an inquiry into whether he should refer this case for contempt, and the colloquium that you are having with Judge Rao seems to ignore the fact that there is evidence in the record that, as Judge Millett pointed out, there was a government official who said we should say ‘if you’ to the courts and not obey court orders.”

U.S. Circuit Judge Neomi Rao, a Trump appointee, intervened before Shumate could respond.

“I don’t think the district court here has suggested that it’s looking for other contempt offenders,” Rao said, prompting Chief U.S. Circuit Judge Sri Srinivasan to tell Shumate to answer Pan’s question.

Shumate reiterated that Boasberg can “identify a specific person, then issue the reference,” and that’s it.

“You agree that the notice must include the person and the essential facts?” Pan went on to point out that the reason Boasberg ordered additional testimony was the “extremely limited” nature of the government’s representations.

“The Noem statement contained maybe two sentences,” she observed.

Justice Department counsel looked into the matter, and U.S. Circuit Judge Cornelia Pillard, another Obama appointee, took advantage of the U.S. government’s “remarkable position” to essentially throw a cabinet secretary under the bus without any further investigation into her state of mind.

“Part of the reason I say this is a really remarkable position is that you are suggesting that the district court should commit for criminal prosecution a secretary, a secretary of Homeland Security, without any reason to believe that she, in particular, was willful,” Pillard said.

“I do not take lightly the fact that making a criminal referral is a serious step, but the district court in this case has indicated that it is prepared to do so and has all the information to do so,” the DOJ lawyer reiterated, noting that the U.S. Supreme Court ultimately overturned Boasberg’s TRO.

Like several of his colleagues, Pillard indicated that Boasberg does not have “all the information” he needs, because for there to be a contempt referral, “there must be knowledge of the order and its violation.”

In a similar vein, U.S. Circuit Judge J. Michelle Childs, a Biden appointee once championed by the late Lindsey Graham, commented on the potential injustice of making Noem the “sacrificial lamb.”

“To continue to suggest here, ‘district court, take my word for it, this is the person,’ is also unfair to this alleged outrager who could be a sacrificial lamb,” she said.

Justice Department lawyer shocks appeals judges by using Kristi Noem as ‘sacrificial lamb’ to stop judge’s contempt probe once and for all appeared first on Law & Crime.