Judge Boasberg should appoint a special counsel to investigate Bondi and her DOJ

The Hill

2 days ago

Two recent revelations — a memorandum from El Salvador to the United Nations about its detention of migrants from the U.S., and a fired Justice Department attorney's whistle-blower report — cry out for the appointment of a special counsel to investigate and prosecute criminal contempt violations against the top three officials in the Department of Justice.
There is sufficient evidence that these leaders — Attorney General Pam Bondi, Deputy Attorney General Todd Blanche and Principal Associate Deputy Attorney General Emil Bove — committed criminal contempt. They acted in an apparently concerted effort to stonewall the court in the civil case brought against the government by Venezuelan migrants who, as described by the Supreme Court, were sent to El Salvador in violation of their due process rights.
Chief Judge James E. Boasberg, the federal district court judge presiding over that case, has the power to initiate such an investigation and prosecution with the appointment of a private attorney to act as special counsel.
Such a judicial appointment is not unprecedented. In 1987, the Supreme Court — in a case called Young v. U.S. ex rel. Vuitton et Fils, now codified in Rule 42 of the federal criminal rules — empowers federal district courts, based on probable cause, to appoint a private attorney as special counsel to investigate and prosecute criminal contempt.
The newly revealed evidence overwhelmingly supports Judge Boasberg in appointing a special counsel. Indeed, at the time that Archibald Cox was appointed Watergate Special Prosecutor, there was far less evidence known about the criminal activity of President Richard Nixon's two former attorneys general, John Mitchell and Richard Kleindienst. After a thorough investigation, both were later convicted of serious federal crimes.
Bondi, Blanche and Bove appear to have directly supervised the Justice Department's defense of this case from the start. On Mar. 19, all three signed the government's motion to stay Boasberg's request to detail 'the movements of aircraft' that transported Venezuelans to El Salvador after the judge had famously ordered planes to be turned around so they could be brought back to the U.S. Normally, documents filed with a court are only signed by the line attorneys and their direct supervisors.
On Apr. 16, Bondi responded to the Justice Department's admission that Kilmar Abrego Garcia had been sent to El Salvador as a result of an 'administrative error.' She stated in an interview that the government would only fly him back if Salvadoran President Nayib Bukele wanted to return him. Bondi emphasized that 'President Bukele said he was not sending him back. That's the end of the story.'
Bondi's statement was consistent with those of others in the administration, including President Trump, who claimed that the government lacked the authority to return Abrego Garcia, a Salvadoran national. Justice Department line attorneys also argued Bondi's position to Boasberg, that 'both 'detention' and 'ultimate disposition'' of the Venezuelan migrants 'are matters within the legal authority of El Salvador.'
But Bondi's statement is contradicted by a newly released document, dated March 26, provided by El Salvador to the U.N. in response to an inquiry into the deportations. El Salvador admitted that 'the jurisdiction and legal responsibility for these persons lie exclusively with the competent foreign [i.e., American] authorities, by virtue of' their agreements with the Trump administration. The memorandum reflects that the U.S. government received a copy of this document.
Bondi's credibility is further undermined by the Justice Department's miraculous return of Abrego Garcia to the U.S. to stand trial on criminal charges based on what a Tennessee magistrate judge found was the unreliable testimony of two cooperating witnesses in his case.
The truth of the Salvadoran document is additionally supported by the $6 million the U.S. reportedly paid to El Salvador for imprisoning the Venezuelans.
This astonishing document is compounded by the recent whistle-blower revelations by a fired Justice Department attorney named Erez Reuveni, who recounted a meeting of Justice Department attorneys on March 14. Bove presided over the meeting and 'stressed to all in attendance that the plane [with Venezuelan migrants] needed to take off no matter what.' Addressing a 'possibility that a court order would enjoin these removals,' Bove stated that the Justice Department 'would need to consider telling the courts 'f— you' and ignore any such court order.'
Reuveni's statements are corroborated by his release of internal Justice Department communications among various lawyers who were at the March 14 meeting and other lawyers at the Department of Homeland Security.
Blanche denied Reuveni's account, as reported by The New York Times, 'asserting he was at the same meeting and never heard Mr. Bove suggest the department disregard court orders.' Reuveni countered that Blanche only 'briefly entered the conference room' during the meeting 'to speak privately to Bove.' Blanche 'did not participate in the meeting,' he claimed, and it was immediately after Blanche left that Bove spoke to the other Justice lawyers about ignoring court orders.
In contravention of Boasberg's order, on the next day, March 15, the planes did take off and did not return the Venezuelan migrants to the U.S.
Before these two startling revelations, Judge Boasberg fo u nd on June 4 that 'while it is a close question, the current record does not support Plaintiffs' [the Venezuelans'] assertion that they are in the constructive custody' of the U.S., meaning that the government had the authority to order them returned to America. Boasberg held that the Venezuelans 'failed to overcome a sworn declaration from a knowledgeable government official attesting' that the 'ongoing detention' of the Venezuelans 'is a question of Salvadoran law.'
But El Salvador's document to the U.N. puts the lie to that official's claims.
Based on the Salvadoran government's document and the whistle-blower's revelations, there is more than adequate probable cause for Judge Boasberg to appoint a special counsel to investigate the top leadership of Trump's Justice Department for criminal contempt. A grand jury investigation could clarify who knew what and when and identify those at the Justice Department who knowingly were part of an effort to obstruct the court's orders.
Nick Akerman, a former assistant special Watergate prosecutor and a former assistant U.S. attorney in the Southern District of New York, is an attorney in New York City.