← Bulwark Takes
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- [00:00]
A
Hey, guys. Sam Stein, managing editor at the Bulwark, joined by my pal Kyle Cheney of Politico. Kyle, thanks for doing this. Really appreciate it. No, there's, like always 100 different legal issues going on at any given time. So even getting 10 minutes of your time is impressive. We're going to talk about the story you and Josh have up. Josh Gerstein, your, your collaborator have up this morning about. It's kind of gone under the radar for our audience a little bit, but it's a big deal. And it matters both for the Justice Department and I think for the courts, because one of the protagonists here is Nam nominated for a key judgeship. Let's talk about Emel Bovey. This is a top DOJ official. He's nominated for incredible federal judgeship. His nomination is before the judiciary. And there's a whole host of dramatic subplots going on here, including a whistleblower report that says he Bovey was suggesting that the Trump administration just simply defy court orders and doing it in a crude manner. Luckily, we're on YouTube so we can swear, just an FYI. So if you want to drop some F bombs, we're allowed to do it. But, Kyle, just impact the situation for us and then I'm going to pepper you with questions.
- [01:08]
B
Sure. I mean, and just to set it up, I mean, Emil Bovey is a controversial figure. Even prior to this whistleblower disclosure, he represented Trump in his criminal trial and actually all of his criminal cases pretty much. And then when he had a reputation as sort of this hard charging, kind of abrasive guy who sort of steamrolled people at the Justice Department in his first tenure there, when he was at SDNY prior to the Trump legal effort. And then when he came in, he helped unravel the prosecution of Eric Adams in New York. And that led to resignations and controversy. And he also spearheaded the firing of the January 6th prosecutors and endorsed that whole effort. And he sparked a lot of triggered a lot of fear that other people were going to be targeted at the FBI for their role in those cases. So that's the backdrop before we even get.
- [02:01]
A
And that's not even the whistleblower, Right? Exactly.
- [02:04]
B
So he comes in with this sort of reputation and then the whistleblower errors. Rouvainy is longtime attorney at what's called oil or the Office of Immigration Litigation, which has been pretty busy in the Trump era. He has been at the center Rouvainy of some of the most controversial cases. So it's the Alien Enemies act case where they hurriedly deported people to El Salvador by declaring. Right. When Trump declared that they were members of a gang. And even though a judge sort of ordered that operation halted, they still ended up sending about 130 people there and deplaning them in El Salvador. And then there was the Kilmara Brago Garcia deportation, which a judge, which was first of all erroneous and illegal, and then was ordered to return him. And again, each of these, Bovey played a role that we didn't know much about until this whistleblower disclosure.
- [03:00]
A
Right. So let's talk about the whistleblower disclosure, because that has to do primarily, though not exclusively, with the deportation that was initially stopped. But there was a sort of period in between in which the Justice. And correct me if I'm wrong here, just tell me I'm wrong. But I believe the Justice Department was basically saying, well, the judge had issued an oral order, not a written order, and therefore the plane that was in the air could potentially land and they weren't going to turn around. But what the whistleblower alleges that Bovey was pretty explicit. Just defy the order. So this was you.
- [03:32]
B
It's close. I mean, it's elements of that throughout. But I think this is actually a conversation prior to the judge's order where they said, we might get an order here telling us to stop this. And apparently what Bovey told a room of DOJ people was, then we might have to tell the court you. And that is the central allegation. That's the explosive allegation, partly because of the profanity that Rouvainy made in his disclosure, and that everyone was sort of stunned that a senior DOJ person would even suggest defying the court like that.
- [04:03]
A
What's the big deal? It's a huge deal. I'm just joking.
- [04:07]
B
Well, and as I said, you know, this preceded the court's order. So when the judge actually did issue that order and say, hey, this operation may be underway, but you've got to. What. Whatever's not done already.
- [04:20]
A
And let's back up. Because it was under the Alien Enemies act, they were applying the Alien Enemies Act. It was this incredibly controversial application of incredibly old law. The question was, did they have the legal statutory authority under this act to do these deportations?
- [04:35]
B
Right.
- [04:36]
A
The judge says no, but he doesn't write it down. I mean, it's so. It's trying to play cute and loyally with it.
- [04:42]
B
It's sort of bizarre because no one. And clearly from these disclosures, some of these disclosures came Out a few weeks ago, he made it. He issued a letter. He explained these. What we saw in the new disclosures was the actual documents, the actual text messages and emails that were being sent in real time while this was happening and the sort of chaotic moment of that. The order is issued. Rouvainy, who's been, again, a veteran DOJ lawyer, is telling people, hey, I'm telling you, the judge just said a second ago, like, we can't do this. We can't get these people off the planes in El Salvador. It's not. He's issued a restraining order.
- [05:15]
A
And Bobby says what.
- [05:17]
B
He sent about maybe six or seven emails saying, the judge just said this. The judge just said this. We can't do this, we can't do that. He's not getting a response. And then later, much later in that evening, after the people essentially have been deplaned in El Salvador, or at least we're well on the way, someone senior above Rouvainy says, actually, the office of the Deputy Attorney General, that's Bovey, told us that it's totally legal to do this because the planes had left US airspace before the order. Because before the written order came down. And the oral order essentially doesn't count.
- [05:49]
A
So then because. And then Judge Boasberg's jurisdiction ends because it's. They're in the air.
- [05:54]
B
Both of those things are highly questionable. Whether his jurisdiction ends over US Government officials just because they've left the US Airspace, and then that the oral order somehow wasn't binding.
- [06:05]
A
Right.
- [06:06]
B
Even though clearly DOJ litigators presumed it to be.
- [06:10]
A
I want to read one of the text messages that was uncovered in this whistleblower. So the whistleblower complaints made. Then Bovey has his hearing. He denies much of this, although he says he can't recall using the. The F word. But so then these documents are produced and one of them is Ravini saying the. The decisions come down and Rooney writes, guess we're going to say you to the court Super. He puts you in single quotation marks. Proof, I suppose, that in fact, Bovi had said, we're going to say you to the courts. Or at least close to proof. And then the colleague responds, well, Pamela, Joe Bondi is not you, as in the Attorney General's gonna have to say it is this. I mean, I suppose there's wiggle room here, but this does seem to substantiate Ravini's point that. That someone at least was saying, we're going to tell the courts to off.
- [07:06]
B
Yeah. And there were a couple other methods to that effect, too, which clearly shows them referencing back to some earlier conversation. And the whole point is to bolster his credibility, because I think after the initial round and Bobby's response and the Justice Department leader's response, there was some question about, well, this is a political hit job, is it? You know, this is not. This is not corroborated. No one's backing this up. I was in that meeting. I didn't hear anything like that.
- [07:28]
A
You know, and contemporaneous records saying, yeah, probably somebody's telling you to fuck off.
- [07:34]
B
Yeah, real time.
- [07:35]
A
So let's. Let's fast forward a little bit. Bovies up. 3rd Circuit Court of Appeals. He's before the Judiciary Committee. It will be. It should be noted. I mean, this is one of the first nominees to the judiciary that Trump has made. Right? I mean, they hasn't made many, and it's a controversial pick, to say the least. The senator who everyone's eyes were on because he sits on the Senate Judiciary Committee, which fields these nominees and then sends them to the full Senate, was. Is Thom Tillis, who is retiring because of substantial pressure from Trump on the, you know, domestic legislation side. And Tillis says he's likely to support the nomination. How do you explain that, considering that Bovey was in fact part of the process to fire all those J6 prosecutors until this has also said he's not going to support anyone who apologizes for J6?
- [08:33]
B
That's a great question. I mean, you know, Tillis is. Is a bit of an enigma. He's a lame duck now. He's not running for reelection. He's. He helped tank the nomination of Ed Martin to be U.S. attorney in D.C. and so it's kind of a, you know, figuring out. His calculus is not clear. He doesn't have. He's not politically beholden anymore. And J6 was such a defining thing for him on the Ed Martin issue because Ed Martin was so central to those cases. Why that doesn't. Isn't enough for him on Bovie? It's not totally clear. And maybe these disclosures will nudge him the other way, but. But it seemed like he was ready to go with whatever the majority wanted.
- [09:12]
A
No. Once the whistleblower report was made, and that didn't bother him, I don't know if these disclosures will. All right, man, I know you gotta run because we just got word of a birthright citizenship ruling, another injunction, although this one, not about this one, looks to be tied towards in a way that Supreme Court won't hold it up. But we'll see. Kyle Cheney, thanks so much, man. Really appreciate it.