A Justice Department attorney caught members of a full federal appeals court off guard on Tuesday when he appeared willing to let former Homeland Security Secretary Kristi Noem stand alone as the target of a contempt investigation, even though, as one judge put it, there was no particular reason to believe she personally acted in defiance of a court order.
Brett Shumate argued for the government during the closely watched en banc session at the U.S. Court of Appeals for the District of Columbia Circuit. The hearing centered on whether Chief U.S. District Judge James Boasberg should be blocked from continuing what the administration calls an unlawful and pointless inquiry into whether senior officials knowingly defied his March 15, 2025, temporary restraining order halting deportations under the Alien Enemies Act.
Several judges pushed back on the idea that the government had shown the kind of clear-cut entitlement needed to win the extraordinary mandamus relief it was seeking, which would have shut down Boasberg’s probe into what the judge described as the mental state of officials who allowed deportees to be removed to El Salvador despite his order. The judges noted that a previous en banc panel had already permitted Boasberg to press the government for the names of decision-makers behind those deportation flights.
Central to the dispute is whether fired DOJ attorney Erez Reuveni and Deputy Assistant Attorney General Drew Ensign will be required to testify as part of that inquiry. Reuveni, who spent nearly 15 years at the department, was placed on leave and then dismissed in April 2025 after saying he would not follow orders from superiors to file a brief he believed misrepresented facts in the case of Kilmar Abrego Garcia, the Maryland man and Salvadoran national whom courts have found was wrongfully deported and then vindictively prosecuted.
According to Reuveni, Ensign was present the day before Boasberg’s restraining order came down, at a meeting where former Principal Associate Deputy Attorney General Emil Bove — once Donald Trump’s personal lawyer — reportedly floated telling the courts to essentially ignore any ruling that stood in the way of mass deportations under the Alien Enemies Act. Bove’s nomination to a seat on the 3rd U.S. Circuit Court of Appeals was still pending at the time; he was later confirmed and was among several current and former officials who submitted what critics called a thin declaration regarding his role in advising Noem.
U.S. Circuit Judge Patricia Millett pressed Shumate hard on that episode, signaling she believes it deserves closer scrutiny. “I think the district court described Secretary Noem as the purported decision-maker, but as Judge Childs just mentioned, the district court doesn’t have to accept that as the only relevant decision-maker,” she said, adding that the person with final authority isn’t necessarily the only one who could be held in contempt.
She pointed out that Noem had been receiving legal advice from Justice Department officials, and asked whether a lawyer who told her she had authority to disregard the court’s order and proceed with the removals could be just as exposed to a contempt finding as Noem herself. When Shumate started to answer that such a question might be one for prosecutors to explore, Millett cut him off, clarifying she wasn’t asking about prosecutorial discretion but whether contempt could extend to an official who advised defying the order. Shumate said it would depend on the facts. “Well, then I think the district court needs to ask some more questions,” Millett said.
Shortly after, U.S. Circuit Judge Florence Pan, an appointee of President Biden, picked up the thread and referenced the Bove episode without naming him directly, telling Shumate that his argument seemed to ignore evidence in the record that a government official had proposed defying court orders outright. U.S. Circuit Judge Neomi Rao, a Trump appointee, interjected that she didn’t believe Boasberg was hunting for additional people to hold in contempt, prompting Chief Judge Sri Srinivasan to redirect Shumate back to Pan’s question.
Shumate maintained that Boasberg’s authority extends only to identifying one specific person and making a referral. Pan pushed further, asking whether any such notice must include the person’s name along with the relevant facts, and noted that Boasberg sought additional testimony precisely because the government’s earlier explanations were so sparse. “The Noem declaration had maybe two sentences in it,” she said.
As Shumate held his position, U.S. Circuit Judge Cornelia Pillard zeroed in on what she called a remarkable stance by the government — effectively singling out a Cabinet secretary for possible criminal referral without establishing that she personally acted willfully. “You’re suggesting the district court should refer for criminal prosecution a secretary, a secretary of homeland security, without any reason to think that she, in particular, was willful,” Pillard said. Shumate responded that a criminal referral is a serious step but insisted Boasberg already has what he needs, noting that the Supreme Court ultimately vacated the underlying restraining order. Pillard countered that contempt requires proof someone knew of the order and violated it anyway, suggesting Boasberg doesn’t yet have that.
U.S. Circuit Judge J. Michelle Childs, another Biden appointee, echoed the concern, saying it would be unfair to ask the district court to simply accept the government’s word that Noem is the responsible party. “That’s also unfair to that alleged contemner who might be a sacrificial lamb,” she said.
