Then-former President Donald Trump sits in a courtroom between his lawyers Emil Bove, left, and Todd Blanche, right, before the start of the day's proceedings in the Manhattan Criminal court, Tuesday, May 21, 2024, in New York. (Dave Sanders/The New York Times via AP, Pool).
As Mahmoud Khalil asked the full 3rd U.S. Circuit Court of Appeals to reconsider a ruling that forced him to fight deportation on the Trump administration's turf, the student activist's attorneys said one of the judges should play no part in deciding what comes next.
The 15-page motion cited U.S. Circuit Judge Emil Bove's own promise to the U.S. Senate that he would step aside, should the former criminal defense lawyer for President Donald Trump's time in the DOJ as acting deputy attorney general and principal associate deputy attorney general "give rise to actual or potential conflicts[.]"
"My current position at the United States Department of Justice could give rise to actual or potential conflicts arising from the fact that I am overseeing criminal and civil matters across the country, including in the Third Circuit," he said in a questionnaire answer. "I would recuse myself in cases that I was personally involved in should any such matter come before the court."
Bove went on to be confirmed as a federal appellate judge for life despite whistleblower allegations, which he denied, that he suggested defying courts if they blocked the Trump administration from carrying out Alien Enemies Act deportations.
Rather than maintaining distance between himself and the president from then on, Bove made the decision to attend a Trump rally in December, which led to a misconduct complaint.
"Just here as a citizen coming to watch the president speak," Bove explained.
Khalil now says that, beyond that general background, Bove's actions specific to him require disqualification.
Claiming evidence that Bove had "direct involvement" in launching the DOJ's post-Oct. 7 investigations of "terrorism, antisemitic civil rights violations, and other federal crimes committed by Hamas supporters in the United States, including on college campuses" like Columbia University and the group Columbia University Apartheid Divestment, Khalil said it should be obvious to the judge himself what he must do.
"Public reporting demonstrates the existence, or at least the appearance of, a conflict of interest due to Judge Bove's prior positions at the U.S. Department of Justice and involvement in the investigation of student protestors, including at Columbia University where Respondents perceived Mr. Khalil to be a leader," the motion said. "Judge Bove held high-level leadership and supervisory positions at DOJ from the initiation of Mr. Khalil's detention and the subsequent filing of his habeas challenge through the filing of the Respondents' appeal in this case."
"Consistent with recusal standards and Judge Bove's statements to the Senate Judiciary Committee, Petitioner's counsel understands that he would himself decide to recuse in matters that could give rise to either an actual conflict of interest or a potential or apparent conflict of interest of which he was aware. Nevertheless, respectfully and in an abundance of caution, counsel are compelled to bring this motion because the facts […] could reasonably give rise to an appearance of partiality in this high-profile and important case," the filing went on.
In short, Khalil stated that Bove is linked, either in fact or by perception, to his March 2025 arrest and everything that followed, including more than three months of detainment, his release, and now an attempted redo of a 3rd Circuit decision that went against him in January.
The 2-1 court ruled that Khalil's challenge of ongoing efforts by Secretary of State Marco Rubio to remove him from the country to Algeria or Syria on foreign policy grounds had to run its course in the executive branch's immigration courts first, where the odds are stacked against him.
In seeking a rehearing by the full — en banc — court of that decision, Khalil insisted that Bove must formally recuse himself from casting a vote.
"[G]iven Judge Bove's high level position, portfolio, and reported involvement in investigating Columbia student protestors in contemplation of immigration enforcement so close in time to Mr. Khalil's arrest, a reasonable member of the public could fairly infer that Judge Bove did work on Mr. Khalil's case," the filing concluded.
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