'Mortal threat': Trump DOJ targets Obama-appointed judge over explosive court probe

WASHINGTON, DC: The Justice Department accused Chief US District Judge James Boasberg of posing a “mortal threat” to attorney-client privilege as it fights his investigation into potential criminal contempt by department lawyers. Boasberg was appointed to the DC District Court by former President Barack Obama.

The case centers on Boasberg’s order requiring two Justice Department lawyers to testify under oath about deportation flights carrying Venezuelan men to El Salvador.

The department filed its latest arguments on Friday, September 11, with the full DC Circuit, which is set to hear the dispute September 29.

DOJ says judge improperly assumed investigative role

In its reply brief, the Justice Department argued Boasberg’s planned questioning of department lawyers would expose confidential legal advice and cross-examination by opposing counsel, as per a RAW Story report.

“But Plaintiffs fail to identify any precedent for such an anomalous proceeding, which poses a mortal threat to the attorney-client privilege,” the department wrote. 

“Yet the judge intends to put them on the stand and to allow opposing counsel to cross-examine them. That is grossly improper,” it added.

Fired Justice Department attorney Erez Reuveni and Deputy Assistant Attorney General Drew Ensign were ordered to testify about the flights. Lawyers for the deported migrants named Ensign and Emil Bove as possible witnesses.

The department also accused Boasberg of abandoning the judicial role by conducting what it called a criminal investigation into the state of mind of senior executive branch officials.

“Plaintiffs' brief underscores the error of the district court's freewheeling criminal investigation into the mens rea of senior Executive Branch officers,” the brief said. 

The department described the inquiry as “unconstitutional, intrusive, and rapidly metastasizing.”

DOJ says contempt inquiry cannot produce charges

The department is asking the full appeals court to shut down Boasberg’s inquiry entirely, arguing that no crime is possible because of its interpretation of his underlying order.

Its position is that “removing” applied only to taking people out of US territory, not to transferring custody of people already outside the country. 

Three DC Circuit judges, Gregory Katsas, Neomi Rao, and Justin Walker, have already endorsed that reading, the department said.

“In short, given the considered views of three members of this Court, as well as the text and context of the TRO (temporary restraining order), no reasonable prosecutor would seek criminal-contempt charges in these circumstances, and no court could plausibly sustain them,” the brief said.

The department also argues the order was void from the start because the Supreme Court threw it out for lack of jurisdiction.

Dispute began with deportation flights

Boasberg ordered the government from the bench in March 2025 to turn around planes carrying Venezuelan men to a prison in El Salvador, according to a report. The flights continued.

His written order later barred future removals without expressly spelling out a duty to bring back planes already in the air. 

The TRO covered 137 Venezuelans removed under the Alien Enemies Act.

Boasberg found probable cause in April 2025 to believe the government committed criminal contempt, as per the report. 

Appeals panels later blocked discovery, while the full circuit ultimately wiped out an earlier ruling on June 22.

More than 200 former federal and state judges have opposed the department’s position, calling Boasberg’s investigative authority “uncontroversial.”

The department has also asked that, if the appeals court rules against it, the case be frozen for 14 days so the solicitor general can seek Supreme Court review.