Comment: Justice Department’s Bove unfit for appellate court

By Barbara McQuade / Bloomberg Opinion

Senior Justice Department official Emil Bove was always a dangerous pick for the federal bench. The alarm is now flashing red.

Earlier this month, President Trump nominated Bove, the principal associate deputy attorney general, to serve as a judge on the U.S. Court of Appeals for the 3rd Circuit. Bove is scheduled to appear for a confirmation hearing before the Senate Judiciary Committee on Wednesday.

The Court of Appeals is the intermediate appellate court that reviews cases arising out of federal district courts. Most Supreme Court nominees also come from these courts.

On Tuesday, the New York Times reported that Bove had advocated for Justice Department lawyers to defy court orders in order to advance Trump’s aggressive immigrant deportation agenda. If true, that act should disqualify him from being confirmed as a judge.

Bove was one of Trump’s top criminal defense attorneys in his federal election interference and classified documents cases; both of which were dismissed following Trump’s election in November.

When Trump took office in January, he appointed Bove to serve as his head henchman at the Department of Justice, where Bove quickly cleaned house. He ordered the dismissal of eight FBI supervisors because he did not believe leadership could “trust these FBI employees to assist in implementing the President’s agenda faithfully.” He demanded the names of all FBI personnel who worked on cases relating to the Jan. 6, 2021, attack on the Capitol, and later ordered the firing of dozens of prosecutors in the U.S. Attorney’s office in D.C. who had been hired to work on the cases. And he directed “legal action” against state and local officials who impede federal immigration efforts.

Until now, perhaps the most concerning incident involving Bove was his role in the dismissal of bribery charges against New York Mayor Eric Adams. In January, Bove directed Danielle Sassoon, the interim U.S. attorney for the Southern District of New York, to dismiss the case. Sassoon, who had been hand-picked for the job by Trump, resigned over what she called “an improper offer of immigration enforcement assistance in exchange for a dismissal of his case,” describing it as “what amounted to a quid pro quo.” In legal parlance, a quid pro quo is an exchange of a thing of value for the performance of an official act. Ironically, the case itself was centered on bribery. Not only did Bove want Sassoon to dismiss the case, but demanded it be done without prejudice, meaning it could be refiled at will, giving the Trump administration leverage over Adams. The judge presiding over the case ruled that he was powerless to override the Justice Department’s charging decision, but could not abide dismissal without prejudice because it would leave the charges “hanging like the proverbial Sword of Damocles over the Mayor.”

The new reporting from the Times is perhaps even more troubling. According to a whistleblower complaint, Erez Reuveni, a 15-year DOJ veteran, was fired in April for refusing to sign a brief containing what he says was a false claim.

Reuveni was one of the lawyers representing the government in the civil case challenging the removal of planeloads of immigrants to El Salvador in March. According to Reuveni’s complaint, he “became aware of the plans of DOJ leadership to resist court orders that would impede potentially illegal efforts to deport noncitizens…” Reuveni alleges that he was in a meeting in which “Bove stated that DOJ would need to consider telling the courts “f*** you” and “ignore any such order.” According to Reuveni’s complaint, Bove advised Department of Homeland Security officials that it was permissible to proceed with the deportation of immigrants despite Judge James Boasberg’s verbal order to the contrary; so long as they did so before his written order appeared on the docket. It was a breathtaking ethical lapse.

Reuveni was also representing the government in the civil case filed by Kilmar Abrego Garcia, the Maryland man who was erroneously removed from the U.S. to a prison in El Salvador in March. Reuveni says he was fired for refusing an order from his supervisor, August Flentje, to sign a brief falsely accusing Abrego Garcia of being a terrorist. The government later brought Abrego Garcia back to the United States to face a criminal indictment charging him with unlawful transportation of undocumented immigrants.

Deputy Attorney General Todd Blanche has denied Reuveni’s allegations about Bove. Of course, such claims, if true, are indefensible. In our constitutional system of three co-equal branches of government, courts interpret the law. Members of the legislative and executive branch, all of whom have sworn to uphold the Constitution, are legally bound to obey them. Deliberately violating a court order is a contemptuous, lawless act; no matter how much a government official might disagree with it. The proper remedy for disagreeing with a court order is an appeal, not defiance.

The stakes of granting someone like Bove a lifetime appointment as a federal judge could not be higher. In addition to the irony that someone who allegedly disregards court orders wants to be a judge, Bove poses a threat to the American legal system. If confirmed for the 3rd Circuit — which oversees Pennsylvania, New Jersey, Delaware and the Virgin Islands — he would instantly become a contender for the Supreme Court. Should one of the Court’s senior conservative justices, such as Clarence Thomas or Samuel Alito retire, Trump could nominate Bove to the nation’s highest court.

At just 44 years old, Bove would be in a position to shape the nation’s legal doctrine for another 40 years or more. The Senate Judiciary Committee must vigorously investigate Reuveni’s allegations before giving Bove the immense power of a federal appellate judge; just one step away from the Supreme Court.

Barbara McQuade is a professor at the University of Michigan Law school, a former U.S. attorney and author of “Attack from Within: How Disinformation Is Sabotaging America.”