Trump’s Pick for the Third Circuit Is Clearly Unfit

Emil Bove’s tenure as acting deputy attorney general should disqualify him from serving as a federal judge.

(White House Pool photo by Angela Weiss)

Emil Bove, President Donald Trump’s nominee to serve as a judge on the Third Circuit Court of Appeals, is expected to testify before the Senate Judiciary Committee on Wednesday. Bove was a controversial federal prosecutor who later became Trump’s criminal defense lawyer. He then served as acting deputy attorney general at the Department of Justice during the first months of the second Trump administration, engaging in a series of startling acts. Trump’s nomination of Bove was instantly challenged—and for good reason. Bove’s tenure as a prosecutor and then at the DOJ and his personal fealty to the president make him unfit to serve as a federal judge.

Telling the courts “fuck you”?

On Tuesday, a whistleblower came forward to document yet another episode demonstrating just how unfit Bove is for a federal judgeship. Erez Reuveni, a longtime DOJ lawyer who was dismissed earlier this year, has provided an account of a Mar. 14 meeting during which Bove allegedly advocated that the DOJ ignore court orders. During the meeting, Bove reportedly explained that Trump would invoke the Alien Enemies Act to speed up the deportation of a group of immigrants who had been detained and were set to be flown out of the country. Bove allegedly said the DOJ should consider telling the courts “fuck you” should judges seek to temporarily enjoin the administration’s moves. In Reuveni’s telling, Bove “stressed to all in attendance that the planes needed to take off no matter what.” Bove’s role in these deportations must be scrutinized by the Senate. He should and will be questioned at his hearing about every detail of these events.

But his cavalier attitude toward the courts and the rule of law is unsurprising. It is part of a pattern in which Bove has prioritized his loyalty to Trump above the rule of law. Below, we briefly examine three other controversial decisions Bove made at Trump’s DOJ and suggest questions senators should ask at his confirmation hearing.

The Jan. 6 cases: “A grave national injustice”?

As acting deputy attorney general, Bove reportedly took steps to fire more than two dozen prosecutors who worked on cases stemming from the Jan. 6, 2021, insurrection. In a Jan. 31 memo titled “Terminations,” Bove directed other senior DOJ personnel to fire the prosecutors. Bove approvingly cited Trump’s executive order pardoning or commuting the sentences for all the Jan. 6 convicts and defendants—including those who were convicted of attacking law enforcement at the U.S. Capitol. Bove even endorsed Trump’s description of the prosecutors’ work as “a grave national injustice that has been perpetrated upon the American people over the last four years.”

But while working for the U.S. attorney’s office for the Southern District of New York (SDNY), Bove himself had worked on Jan. 6 cases. Does Bove think the cases he worked on were a “grave national injustice”? Did any of those cases involve defendants who were charged with assaulting law enforcement officers? If so, does Bove think Trump was correct to grant them clemency?

Bove also complained in his memo that the DOJ had “initially hired” the prosecutors as “term employees,” but “converted” them “to permanent status” after Trump was elected, “purportedly” making them assistant U.S. attorneys (AUSAs). Bove claimed this “hindered the ability of Acting U.S. Attorney [Ed] Martin to staff his Office in furtherance of his obligation to faithfully implement the agenda that the American people elected President Trump to execute.”

What about these prosecutors “hindered” the DOJ’s ability to “faithfully implement” Trump’s agenda? Was it purely their work on Jan. 6 cases? (In his memo, Bove did not cite any other reason for terminating them. Senators should not let him wiggle out of a forthright answer.)

Earlier this year, Trump nominated Martin to serve as the top federal prosecutor in Washington, D.C. But Martin’s nomination failed after Republicans found his defenses of Jan. 6 rioters to be disqualifying.

“We have to be very, very clear that what happened on January 6th was wrong,” Sen. Thom Tillis (R-N.C.), who sits on the Senate Judiciary Committee, explained when declining to confirm Martin. “It was not prompted or created by other people to put those people in trouble. They made a stupid decision, and they disgraced the United States by absolutely destroying the Capitol.”

If Tillis examines Bove’s record closely enough, he’ll see that he is compromised in much the same way as Martin. Bove repeated Trump’s claim that the Jan. 6 prosecutions were a “grave national injustice,” fired prosecutors who merely worked on those cases, and even worried that those prosecutors would somehow jeopardize Ed Martin’s mission at DOJ—a mission that Tillis rejected. How could Tillis or other Republicans vote to confirm Bove now?

Claiming the Jan. 6 investigations prove the FBI was “weaponized”

In a second memo dated Jan. 31, Bove ordered the firings of seven FBI officials. Bove again quoted Trump’s executive order declaring the Jan. 6 investigations to be a “grave national injustice.” Bove also approvingly cited Trump’s baseless allegation that the Biden administration had engaged “in a systematic campaign against its perceived political opponents, weaponizing the legal force of numerous Federal law enforcement agencies and the Intelligence Community.” Bove cited the fact that the FBI “actively participated” in Jan. 6 investigations as proof that Trump was right.

This raises additional questions for Bove—and the Republican senators. Do they believe the FBI’s role in investigating Jan. 6 shows the bureau was “weaponized”? Citing another one of Trump’s executive orders, “Ending the Weaponization of The Federal Government,” Bove claimed the “terminations” were “necessary” to restore the DOJ’s “integrity” and “credibility.” Does Tillis believe that is true?

In that same memo, Bove ordered the FBI to compile a list of all FBI personnel who worked on Jan. 6 cases. Out of a justifiable concern that the Trump administration could use the list for retribution, including by leaking the names to the public, a group of FBI and DOJ employees sued to block Bove’s command. A federal judge issued a temporary consent order to prevent such a list from being disseminated. (Disclosure: one of the authors, Eisen, is litigating that case.)

Again, Bove’s actions were motivated by the same upside-down view of Jan. 6 that led Tillis and others to block Ed Martin’s nomination. The same moral clarity dictates that they block Bove’s nomination as well.

A political “bargain” to dismiss corruption charges against New York City Mayor Eric Adams

In a Feb. 10 letter, Bove ordered the SDNY to drop corruption charges against New York City Mayor Eric Adams. Just days later, Danielle Sassoon, the interim U.S. attorney for the Southern District, and five other DOJ officials resigned their posts after they refused to dismiss the case. Sassoon explained in a letter to Attorney General Pam Bondi that she had been directed “to dismiss an indictment returned by a duly constituted grand jury for reasons having nothing to do with the strength of the case.” (Three other AUSAs later resigned in protest as well.)

District Judge Dale Ho did drop the case against Adams at the DOJ’s request in early April. But the judge explained: “Everything here smacks of a bargain, dismissal of the indictment in exchange for immigration policy concessions.”

The judge rejected the DOJ’s request to dismiss the case without prejudice, which would have given them continued leverage if Adams did not follow through on immigration issues. Instead, he dismissed the case with prejudice, removing the Sword of Damocles.

Here, too, questions abound for the nominee and for the senators who will be considering his nomination. Did Bove deal away the prosecution as a quid pro quo to secure Adams’ cooperation on immigration issues? If not, why was Judge Ho asked to dismiss the case without prejudice, which would have given the DOJ continued leverage over Adams? Why did Bove disregard Sassoon, with her impeccable conservative credentials? Is he aware of any other comparable situation in which the DOJ overrode the judgment of local federal prosecutors, leading to the kinds of resignations that we saw here?

Unfit for the Third Circuit

This is Emil Bove’s record as Trump’s acting attorney general: suggesting that the DOJ say “fuck you” to the courts should they rule against the administration’s deportation policies, treating Jan. 6 convicts as victims, firing individuals who investigated the attack on the U.S. Capitol, and dropping corruption charges as part of an apparent political bargain. He did all of this in the service of Donald Trump—not of the rule of law.

For these reasons and many more, Emil Bove is unfit to serve as a federal judge. The Senate must reject his nomination.

Norm Eisen is the publisher of The Contrarian. Tom Joscelyn is a senior fellow at Just Security.

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