DOJ declines to share legal advice given to Noem over El Salvador deportations, citing privilege

DOJ shielded Kristi Noem’s deportation counsel, as officials refused to share advice citing executive privilege, while Judge Boasberg weighed contempt
The DOJ cited executive privilege when it refused to detail the legal advice that was given to Kristi Noem regarding controversial deportation flights (Getty Images)
The DOJ cited executive privilege when it refused to detail the legal advice that was given to Kristi Noem regarding controversial deportation flights (Getty Images)

WASHINGTON, DC: The Department of Justice declined to disclose the specific legal advice given to Homeland Security Secretary Kristi Noem regarding the deportation of Venezuelan nationals on Friday, December 5.

In court declarations filed in response to a federal inquiry, DOJ officials cited executive privilege as the reason for withholding details from US District Court Judge James Boasberg.

Boasberg is currently determining whether Noem or other officials should be referred for potential contempt prosecution.

The inquiry stems from a March incident where the administration continued deportation flights for more than 100 Venezuelans to El Salvador despite a court order to return the planes.

HOUSTON, TEXAS - MAY 27: South Dakota Gov. Kristi Noem speaks during the National Rifle Association
Secretary Kristi Noem confirmed that she proceeded with deportation flights after receiving counsel from DOJ leadership (Getty Images)

Officials cite privilege in court filings

In her declaration, Secretary Noem confirmed that her decision to continue the transfer of detainees was made after receiving legal counsel.

She cited advice from both DOJ leadership and Joseph Mazzara, the acting general counsel of the Department of Homeland Security.    

However, Deputy Attorney General Todd Blanche and former DOJ official Emil Bove, who is now a US circuit judge, declined to elaborate on that counsel in their Friday filings.

"DOJ has not authorized me to disclose privileged information in this declaration," Bove stated in his filing.

DOJ building (Getty Images)
DOJ officials argued that compelling testimony regarding privileged advice would be 'constitutionally improper' (Getty Images)

Mazarra stated in his declaration that he analyzed Judge Boasberg's order at the time and provided guidance to Noem based on that analysis.

"DHS had removed these t********s from the US before this Court issued any order (or oral statement regarding their removal)," Mazarra wrote.

Battle over the Alien Enemies Act

The legal clash centers on the Trump administration's use of the Alien Enemies Act (AEA), an 18th-century wartime authority.

The White House invoked the act to deport alleged members of the Venezuelan gang Tren de Aragua, arguing the group allegedly functions as a "hybrid criminal state" invading the US.

SAN VICENTE, EL SALVADOR - FEBRUARY 02: A prison security agent walks past a cell in the Terrorism C
The administration deported alleged gang members to the CECOT mega-prison in El Salvador using wartime authorities (Getty Images)

During a March 15 hearing, Judge Boasberg issued a temporary restraining order and orally instructed that the planes be turned around.

Justice Department attorneys have since argued that these oral instructions were legally defective and that the deportations proceeded lawfully.

In a separate filing on Friday, DOJ attorneys argued it would be "prejudicial and constitutionally improper" to compel further testimony from the officials.

"[The] Court has all the information it needs to make a referral if it believes one to be justified," the attorneys stated.

Homeland Security Secretary Kristi Noem speaks at the Conservative Political Action Conference, CPAC, on May 27, 2025 in Rzeszów, Poland. (Photo by Alex Brandon-Pool/Getty Images)
Homeland Security Secretary Kristi Noem speaks at the Conservative Political Action Conference, CPAC, on May 27, 2025, in Rzeszów, Poland (Alex Brandon-Pool/Getty Images)

ACLU accuses administration of non-cooperation

The American Civil Liberties Union (ACLU), which challenged the deportations, blasted the filings.

Lee Gelernt, the lead attorney for the ACLU, told ABC News that "the Trump administration is again refusing to cooperate with a federal court."

Judge James Boasberg ruled demanding Rep Scott Perry to turn over teh text messages to the investigators (dcd.uscourts.gov)
Judge James Boasberg is weighing whether to refer administration officials for contempt prosecution (dcd.uscourts.gov)

Boasberg had previously found that the administration likely acted in contempt, but that finding was halted for months by an appeals court stay.

While the appeals court declined to reinstate Boasberg's original order to return the migrants, it allowed him to proceed with the fact-finding inquiry into the administration's conduct.

NEW YORK, NEW YORK - JUNE 20: Federal agents patrol the halls of immigration court at the Jacob K. Javitz Federal Building on June 20, 2025 in New York City. Federal agents are arresting immigrants during mandatory check-ins, as ICE ramps up enforcement following immigration court hearings. The Trump administration has ordered officials to increase detentions to 3,000 migrants per day. (Photo by Spencer Platt/Getty Images)
The legal dispute focuses on whether the administration willfully ignored a court order to turn deportation flights around (Spencer Platt/Getty Images)

The administration maintains that its actions were necessary to remove dangerous individuals from American soil.

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