DOJ does not detail legal advice to Noem on El Salvador deportations, citing privilege

The Department of Justice is facing scrutiny for withholding details on the legal advice given to Department of Homeland Security Secretary Kristi Noem regarding the deportation of more than 100 Venezuelans to El Salvador. This decision has sparked a contempt inquiry initiated by U.S. District Court Judge James Boasberg, who is investigating whether Noem or others should be held in contempt for defying his order to halt the deportation flights.

Court filings submitted on Friday revealed that Noem directed the deportation flights to continue despite the court order. Noem confirmed in her declaration that she made the decision to proceed with the deportation after receiving legal advice from DOJ leadership and Joseph Mazarra, the acting general counsel of DHS.

However, Deputy Attorney General Todd Blanche and DOJ official Emil Bove declined to provide specific details on the privileged legal advice they gave to Noem. Bove stated that he was not authorized by the DOJ to disclose privileged information in his declaration.

Mazarra, in his declaration, mentioned that he analyzed Judge Boasberg’s order to block the deportations and provided legal advice to Noem based on his analysis. He argued that the individuals being deported were considered terrorists and had been removed from the U.S. before the court issued any orders regarding their removal.

DOJ attorneys also argued in a separate filing that compelling testimony from the officials who submitted declarations would be prejudicial and constitutionally improper. They emphasized the need to protect privileged information and maintain the integrity of legal advice provided to government officials.

The decision to continue the deportation of Venezuelans to El Salvador has raised concerns about due process and the use of the Alien Enemies Act to justify deportations. The ongoing legal battle between the government and the judiciary highlights the complexities and challenges of immigration enforcement and national security policies. The Trump administration recently deported 238 alleged members of Venezuelan criminal organizations, including the notorious ‘Tren De Aragua’ and Mara Salvatrucha. Out of the total deportees, only 23 were confirmed to be members of the Mara Salvatrucha gang.

The deportation was carried out under the authority of the Alien Enemies Act (AEA), an 18th-century wartime law that allows for the swift removal of noncitizens with limited due process. The administration argued that the Venezuelan gang Tren de Aragua posed a significant threat to the United States and needed to be removed promptly.

However, the deportation faced legal challenges, with the ACLU leading the charge against the use of the AEA in this case. The lead attorney for the ACLU, Lee Gelernt, criticized the Trump administration for not cooperating with the federal court and for bypassing due process in the deportation of alleged gang members.

In a court hearing in March, a temporary restraining order was issued by Judge Boasberg to stop the deportation of the alleged gang members. Despite this order, the Justice Department proceeded with the deportations, citing defects in the oral instructions given by the judge.

Judge Boasberg had previously found the Trump administration likely in contempt for proceeding with the deportations against his orders. However, an appeals court issued an emergency stay on the contempt finding, delaying any further action. Last month, the appeals court declined to reinstate Boasberg’s original order but allowed him to continue with his fact-finding inquiry.

The deportation of alleged gang members under the AEA has raised concerns about due process and the rights of noncitizens. The legal battle surrounding this case continues, as advocates push for transparency and fair treatment of individuals facing deportation.