The Situation: The Case of Erez Reuveni

The Situation on Wednesday predicted that the so-called investigation of John Brennan and James Comey will prove to be a ghost—not a real investigation at all, but one launched solely so that it could be announced.

Today let’s talk about Erez Reuveni, whose case should produce a real investigation but at least in the short-term almost certainly won’t.

A lot of people have been talking about Reuveni of late. He’s been denounced on national television by the attorney general and the White House deputy chief of staff. He’s been cited by Democratic members of the Senate as Exhibit A in why Justice Department official Emil Bove III should not be confirmed as an appeals court judge. He’s been interviewed by the New York Times and the New Yorker.

His story by now fits an increasingly common trope: an official—generally career but occasionally political—perfectly willing to defend or implement Trump administration policy is not willing to lie or cheat by way of doing so. So he or she runs afoul of the powers that be, often but not always in the form of that human embodiment of Trumpian Jacobinism, Principal Associate Deputy Attorney General Bove.

The details of the story are always different. Sometimes they involve Bove saying that the Justice Department might need to say “fuck you” to a court order. Sometimes they involve the corrupt dropping of a corruption case and a prosecutor promising in his resignation letter that “it was never going to be me” who filed the motion dropping the case. Sometimes they don’t even involve specific cases, just politically untrustworthy officials like Jan. 6 prosecutors, folks who worked for the special counsel’s office, or FBI special agents who have the wrong friends.

The themes, however, are always the same: the insistence that the administration can do whatever it wants irrespective or rules, laws, or court orders; the demand that career officials are all in or must get the heck out; the willingness to obfuscate or just lie about what the administration has done, is doing, or means to do—both internally and in litigation—and the indignant rejection of any checks or mechanisms of accountability because they have a mandate from voters and Trump is deweaponizing the Justice Department and because there’s a unitary executive.  

What’s different about Reuveni is that he has brought a remarkable collection of receipts to the conversation. It’s not just the 27-page whistleblower complaint, which details in carefully crafted prose three separate incidents of the administration behaving—and demanding that he behave—unethically or illegally over a remarkably short period of time. It’s not just the 150 pages of supporting documentation, which includes multiple text exchanges, emails, and phone records supporting Reuveni’s claims. It’s the way all of this material intersects with an already-vibrant public record in the three cases at issue: The JGG case on Alien Enemy Act deportations to El Salvador, the Kilmar Abrego Garcia case, and the DVD case on deportations to third countries.

One can say, I suppose, that the public here has only one side of the story—a document dump from Reuveni and nothing from Bove or the other officials he accuses. But that’s not quite true. In all three of these cases, the government has had ample opportunity to explain its position before the courts, and in all three, the government has made its position very clear: It’s a big middle finger.

What’s more, Bove has been asked about Reuveni’s allegations specifically and under oath that he said the Justice Department might have to tell the courts, “fuck you” if they tried to stop Alien Enemies Act removals that had to proceed “no matter what.” He responded that he did not recall saying that but pointedly did not deny doing so.

Drew Ensign, an official Reuveni accuses of actively misleading the court, actually had an opportunity before Judge James Boasberg to clear up the matter Reuveni described, which took place on March 15 when the ACLU and Judge Boasberg were trying to make sure that Alien Enemy Act deportations were not happening illegally and were trying to determine whether planes were, in fact, currently deporting people or imminently going to do so.

Reuveni states that:

At this hearing, Judge Boasberg said that “the plaintiffs ... expected planes to be departing within the last couple of hours,” and asked Ensign “if any of the named plaintiffs are, in fact, on any plane that has departed?” Ensign assured the court that none of the named plaintiffs would be removed during the pendency of the TRO. When Judge Boasberg asked if that meant the plaintiffs “are either not on the planes or that they will not be removed from the planes and will be brought back once the planes land in El Salvador,” Ensign asserted, “I don’t know the status of the planes. If there are removal flights, the five would not be on them.” When Judge Boasberg asked whether any deportations or removals were imminent, as “in the next 24 or 48 hours,” Ensign answered, “I don’t know the answer to that question.”

Mr. Reuveni reasonably believes Ensign’s statement to the court that he did not know whether AEA removals would take place “in the next 24 or 48 hours” was false. Ensign had been present in the previous day’s meeting when Emil Bove stated clearly that one or more planes containing individuals subject to the AEA would be taking off over the weekend no matter what.

When Ensign could not tell him what was going on, Judge Boasberg stopped the hearing to give him a chance to figure out from his clients what was going on:

At that point, Judge Boasberg adjourned the hearing until 6:00 p.m. to “let Mr. Ensign do some digging.” The court specified, “Mr. Ensign, I will want to know, have planes, in fact -- is deportation of people under the proclamation pursuant to the AEA in motion now and will it be for the next 48 hours.” Ensign responded, “We can do that, Your Honor.”

The adjournment began at 5:22 p.m. Mr. Reuveni was not included in Ensign’s conversation with DHS, DOS, or DOJ leadership during this period. However, prior to 5:24 p.m., DOJ attorneys, including Ensign and Mr. Reuveni, received an email from plaintiffs’ attorney citing public reporting of flight information and stating that they had reason to believe that people were on planes for imminent deportation. According to public reports and various websites that track the whereabouts of airplanes in real-time, at least two planes took off from Texas after the start of the hearing: the first at 5:26 p.m. and the second at 5:45 p.m. en route to what online sources speculated was a final destination of El Salvador.

Yet, at 6:00 p.m., following the 38-minute adjournment, DAAG Ensign provided Judge Boasberg with no information regarding flight departures. Specifically, Ensign told the court, “I don’t have many details to share,” explaining that his “clients” said that the “operational details ... raised potential national security issues, particularly ones if discussed with a public line.” 

Two weeks after this exchange, in an episode that does not appear in Reuveni’s account, Ensign again appeared before Judge Boasberg and was asked specifically about what he knew during this period of the adjournment. Boasberg asked him: “So what I want to know here, as an officer of the court, you are telling me that you had no knowledge whatsoever between 5:00 and 6:00 p.m. on that day that planes were in the air or shortly would be in the air? You had no knowledge whatsoever of that?” In response, Ensign doubled down: “Your Honor, I had no knowledge from my client that that was the case. I had knowledge from plaintiffs' submissions to the Court that that might have been occurring. I can also assure you, as an officer of the Court, I diligently tried to obtain that information but was not able to do so.”

But this, at least if you believe Reuveni’s account, was not true either: If it wasn’t true—as Reuveni alleges—when Ensign told Judge Boasberg on March 15 that “that he did not know whether AEA removals would take place ‘in the next 24 or 48 hours,’” then it also wasn’t true when Ensign told Boasberg on April 3 “as an officer of the court” that he had no knowledge between 5:00 pm and 6:00 pm of that day of any imminent flights. 

In other words, if the administration—not to mention the individuals Reuveni criticizes—has not cleared things up, has not taken factual issue with Reuveni’s claims, and has not explained good faith mistakes, it’s not for lack of opportunities to do any of these things. Rather, it has passed up all such opportunities. 

And this brings me to another common theme of all of these cases: the sadly open question of whether anyone who matters cares. Of course, the district judges care. But the appellate courts so far seem more concerned about whether district courts are exceeding their jurisdictional reach in policing executive branch compliance with court orders and contemptumaceous lies than in the underlying executive conduct itself. Right now, in fact, it is unclear whether any contempt proceedings in any of the three cases will take place.

The Senate, of course, could send a message by rejecting Bove’s nomination. But that would require four Republican senators to rise from their torpor, and anyone with any common sense has long-since stopped hoping for that.

There’s no evidence that either the department’s Office of Professional Responsibility (which polices the conduct of lawyers within the Justice Department) or its inspector general (which polices misconduct other than lawyer misconduct) is even breathing right now. 

So as I asked the other day with respect to Dan Bongino’s obviously illegal conduct towards former FBI Special Agent Michael Feinberg, what is the mechanism of accountability here?

Reuveni has filed an appeal with the Merit Systems Protection Board, but that approach promises only a partial solution at best. It might answer the question of whether his dismissal was unlawful (answer: duh!), but it won’t answer the question of whether Bove behaved in a fashion antithetical to the rule of law, whether Homeland Security Officials defied court orders, and whether Ensign misled the courts.

Checks and balances don’t check or balance if human beings are unwilling to wield them.

For which reason, I’m afraid, that the Situation continues tomorrow.