DOJ lawyer shocks appellate judges by using Kristi Noem as 'sacrificial lamb' to stop judge's contempt inquiry once and for all

A DOJ lawyer surprised judges on the full appeals court in Washington, D.C., by making former Homeland Security Secretary Kristi Noem the "sacrificial lamb" of a judge's contempt inquiry without "any reason to think that she, in particular" willfully violated a court order.

The DOJ's Brett Shumate took the lead for the government at the much-anticipated en banc proceeding at the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday morning.

Several judges suggested that the government, without a "clear and indisputable right" to relief, was not close to securing an "extraordinary" writ of mandamus that would force Chief U.S. District Judge James Boasberg to shut down an "unlawful, unnecessary, and futile" probe into the "mental state of senior government officials" who defied a March 15, 2025, temporary retraining order (TRO) blocking Alien Enemies Act (AEA) deportations.

After all, a previous en banc panel already allowed the district judge to "require the government to identify the decision makers who directed the potentially contemptuous actions" — the disembarking of AEA deportees in El Salvador.

At stake is the judge-ordered testimony of fired DOJ attorney Erez Reuveni and Deputy Assistant Attorney General Drew Ensign as part of the inquiry.

Reuveni was placed on leave and then fired after nearly 15 years at the DOJ in April 2025 after he said he "refused directions from his superiors to file a brief misrepresenting" facts about Kilmar Abrego Garcia, a Maryland man and Salvadoran national whom courts have deemed to have been wrongly deported and vindictively prosecuted.

Reuveni alleged that Ensign was there the day before Boasberg issued the restraining order the government flouted, when former Principal Associate Deputy Attorney General Emil Bove — President Donald Trump's ex-personal attorney — had suggested during a meeting that the government give the courts a "f— you" if the government was blocked from carrying out mass AEA deportations.

At the time, Bove's nomination for a judgeship at the 3rd U.S. Circuit Court of Appeals was pending. He went on to be confirmed, and was among the current or former DOJ officials who submitted a "cursory" declaration about his role in advising Noem.

In peppering the DOJ with questions about this, U.S. Circuit Judge Patricia Millett indicated that she thinks the "f— you" episode warrants some more inquiry.

"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. "I assume you would agree that the ultimate decision-maker is not the only one who could have been in contempt of court."

"For example, because it is clear from the declarations that she was receiving legal advice from a number of people within the Justice Department. Now, if an attorney providing legal advice to the secretary were to tell the secretary, 'You have the legal authority to expletive the court order on this and go ahead and disembark people. Might it be accurate that that attorney would just as well be in contempt of court as the secretary potentially?" Millett asked.

"I think that's an interesting question that a prosecutor may wish to probe — " the DOJ lawyer began to respond.

"I'm not asking you what prosecutors can look into," Millett cut Shumate off. "I'm asking you whether contempt of court could be committed potentially for court to invest for court to decide whether I need to find show cause as to or find cause as to additional people. Could it include an attorney who advised somebody to expletive the court, and go ahead in the court's order, and go ahead, and disembark people? Would that potentially be contempt of court in the view of the United States?"

"I think it depends on the facts, your honor," Shumate replied.

"Well, then I think the district court needs to ask some more questions," the Barack Obama-appointed jurist summed up.

A short time later, U.S. Circuit Judge Florence Pan, a Joe Biden appointee, referred to Millett's line of questioning and directly referenced the Bove incident without naming him.

"It sounds to me that like you're trying to constrain his discretion to conduct this — it's an investigation as to whether he should refer this case for contempt, and the colloquy that you're having with Judge Rao seems to ignore the fact that there's evidence in the record that, as Judge Millett pointed out, there was a government official who said that we should say 'f you' to the courts and not obey court orders."

U.S. Circuit Judge Neomi Rao, a Trump appointee, jumped in before Shumate could answer.

"I don't think the district court here has suggested he is searching for additional contemners," Rao said, prompting Chief U.S. Circuit Judge Sri Srinivasan to tell Shumate to answer Pan's question.

Shumate repeated that Boasberg can "identify a specific person, and then issue the referral," and that's it.

"You agree that the notice has to include the person and the essential facts?" Pan followed up, pointing out that the reason Boasberg ordered additional testimony was the "extremely limited" nature of the government's representations.

"The Noem declaration had maybe two sentences in it," she observed.

The DOJ attorney dug in, and U.S. Circuit Judge Cornelia Pillard, another Obama appointee, seized on the U.S. government's "remarkable position" to essentially throw a cabinet secretary under the bus without any additional fact-finding about her state of mind.

"Part of why I say this is this is really a remarkable position is because 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.

"I don't take lightly the fact that making a criminal referral is a serious step, but the district court in this case has indicated he's willing to do that and he has all the information to do that," the DOJ attorney repeated, emphasizing that the U.S. Supreme Court eventually vacated Boasberg's TRO.

Like several of her colleagues, Pillard indicated that Boasberg doesn't have "all the information" he needs because in order for there to be a contempt referral "it's the requirement is that there be a knowledge of the order and violation of it."

In the same vein, U.S. Circuit Judge J. Michelle Childs, a Biden appointee once championed by the late Lindsey Graham, commented on the potential unfairness of making Noem the "sacrificial lamb."

"Continuing to suggest here, 'district court, just take my word at it that this is the person,' That's also unfair to that alleged contemner who might be a sacrificial lamb," she said.