DOJ Lawyer Calls Kristi Noem ‘Sacrificial Lamb’ to End Contempt Inquiry

A Justice Department attorney appeared to catch the full U.S. Court of Appeals for the D.C. Circuit off guard by presenting former Homeland Security Secretary Kristi Noem as the “sacrificial lamb” in a contempt inquiry, even though there was no “reason to think that she, in particular” had willfully violated a court order.

Brett Shumate, representing the DOJ, led the government’s arguments Tuesday morning during the closely watched en banc hearing before the Washington, D.C., appeals court.

Several judges indicated that the government appeared far from meeting the demanding standard for an “extraordinary” writ of mandamus. Such an order would compel Chief U.S. District Judge James Boasberg to end what the DOJ has called an “unlawful, unnecessary, and futile” investigation into the “mental state of senior government officials” accused of defying a March 15, 2025, temporary restraining order blocking deportations under the Alien Enemies Act.

The government faces an additional obstacle: A previous en banc panel had already permitted the district court to “require the government to identify the decision makers who directed the potentially contemptuous actions” — namely, the disembarkation of Alien Enemies Act deportees in El Salvador.

The dispute centers on testimony Boasberg ordered from fired DOJ lawyer Erez Reuveni and Deputy Assistant Attorney General Drew Ensign.

Reuveni was placed on leave and later dismissed in April 2025, after nearly 15 years at the Justice Department. He said he “refused directions from his superiors to file a brief misrepresenting” facts involving Kilmar Abrego Garcia, a Maryland man and Salvadoran national whom courts have found was wrongly deported and later prosecuted vindictively.

Reuveni alleged that Ensign was present the day before Boasberg issued the restraining order the government allegedly violated. During that meeting, former Principal Associate Deputy Attorney General Emil Bove — a former personal attorney to President Donald Trump — reportedly suggested that the government tell the courts “f— you” if judges blocked mass deportations under the Alien Enemies Act.

At the time, Bove was awaiting confirmation to a seat on the 3rd U.S. Circuit Court of Appeals. He was later confirmed and became one of the current or former DOJ officials who submitted a “cursory” declaration describing his role in advising Noem.

Questioning Shumate about those events, U.S. Circuit Judge Patricia Millett suggested that the reported “f— you” episode deserved further scrutiny.

“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,” Millett 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 —” Shumate began.

“I’m not asking you what prosecutors can look into,” Millett interrupted. “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 responded.

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“Well, then I think the district court needs to ask some more questions,” Millett, an appointee of former President Barack Obama, concluded.

Soon afterward, U.S. Circuit Judge Florence Pan, appointed by former President Joe Biden, echoed Millett’s concerns and referred directly to the Bove episode without identifying him by name.

“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, interjected before Shumate could respond.

“I don’t think the district court here has suggested he is searching for additional contemners,” Rao said. Chief U.S. Circuit Judge Sri Srinivasan then directed 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.

The post DOJ lawyer shocks appellate judges by using Kristi Noem as ‘sacrificial lamb’ to stop judge’s contempt inquiry once and for all first appeared on Law & Crime.