The Reuveni Letter and the Bove Nomination
I wrote a Substack post in early April about Erez Reuveni, an experienced, widely praised (as shown by multiple positive performance evaluations and awards) senior attorney in the Justice Department’s Office of Immigration Litigation, who was put on administrative leave, and then fired, by Deputy Attorney General Todd Blanche, for refusing to “follow a directive” from his supervisors and for failing to “zealously advocate” for the government’s position. The New York Times has now reported [gift link] that Reuveni filed a letter to the chair and ranking members of the House and Senate Judiciary Committees, as well as the DOJ Inspector General and the Special Counsel, invoking federal whistleblower protection statutes and reporting misconduct by senior Justice Department officials. (See also this discussion on Chris Geidner’s Law Dork site.)
Predictably, the Administration disparaged Reuveni, with Stephen Miller calling him a “saboteur” and “a Democrat.” But – and this is the most important thing I’ll say in this post – the allegations of misconduct by high-ranking officials in the Justice Department are not mere allegations, but are substantiated by a highly detailed chronology of events, which is itself very likely to be supported by documentary evidence. How do I know there must be supporting evidence? Look at some of the details, including quotes and timestamps from emails (e.g. p. 12). That’s very unlikely to be from memory. As a friend of mine (former DOJ lawyer) said, referring to this letter, “do NOT f--- with DOJ attorneys – we know how to keep receipts.”
Much of the online chatter about the letter centers on an episode connected with the government’s assertion of authority under the Alien Enemies Act to deport a couple of planeloads of Venezuelan immigrants to a torture prison in El Salvador, based only on the government’s say-so that they were members of the Tren de Aragua street gang. The plan was orchestrated by Principal Acting Deputy Attorney General (geez, these government titles) Emil Bove. Bove explained to a meeting of lawyers in the Office of Immigration Litigation that the plan was for the President to sign a proclamation asserting authority under the Alien Enemies Act, whereupon planeloads of immigrants allegedly subject to deportation under the AEA would immediately take off. The obvious intent was to have them beyond U.S. jurisdiction before a district court could enter any kind of remedial order. However, in the event that lawyers for the individuals subject to removal could obtain an injunction in time, Bove had pre-planned a strategy of defiance:
Bove then made a remark concerning the possibility that a court order would enjoin those removals before they could be effectuated. Bove stated that DOJ would need to consider telling the courts "f-- you” and ignore any such court order. Mr. Reuveni perceived that others in the room looked stunned, and he observed awkward, nervous glances among people in the room. Silence overtook the room. Mr. Reuveni and others were quickly ushered out of the room.
(By the way, I don’t know why I’m sanitizing the f-word in this post – I use it all the time – but it seems to be the way this episode is being reported.)
Again, though, please don’t focus only on this detail, as lurid as it may be. Please, please read the detailed chronology, which is supported by citations to the court’s docket, reporting by numerous journalists, and (I believe, for reasons stated above) documents in Reuveni’s possession. There are three separate matters discussed in the letter:
J.G.G. v. Trump – the planes that took off for El Salvador in the middle of the hearing in Judge Boasberg’s court (D.D.C.). This is the case that involved the assertion of presidential authority under the Alien Enemies Act.
D.V.D. v. Dept. of Homeland Security – the attempt to remove individuals to a third country, in this case, South Sudan. This is the plane that ended up diverting to Djibouti, leaving the immigrants and ICE agents sweltering in a shipping container. The case pending in Judge Murphy’s court in the D. Mass. is that one the Supreme Court ruled on a couple of days ago on the shadow docket.
Abrego Garcia v. Noem. Pending in Judge Xinis’s court in the D. Md. This is the case that got Reuveni fired. “Mr. Reuveni initially believed the case could be resolved through a straightforward return of Mr. Abrego Garcia to the United States” (p. 22). He was wrong, because the administration intended to fight this one tooth and nail. The so-called “mistake” that led to Reuveni’s termination was repeating the statement in a declaration by an ICE field office director that Garcia’s removal had been in error (p. 24). That is what the Deputy Attorney General characterized as “failure to zealously advocate on behalf of the United States” (p. 25).
Don’t take my word for it. Read through the letter and, if you’re a lawyer, ask yourself what you would have done. If it helps, get out your rulebook from your Professional Responsibility class and look up the requirements in Rules 1.1, 1.3, 1.4, 3.1, 3.3, 3.4(b)&(c), 4.1, 5.2(b), and also consider procedural rules like Fed. R. Civ. P. 11. Zealousness, in the sense of passionate devote to another person or to a cause, is all well and good, but for zealous advocacy to be an ethical ideal for lawyers, it must respect the limitations on advocacy that are intended to protect the tribunal and the litigation process from abuse. In a party-controlled adversary system, we decentralize the responsibility for the administration of justice to some extent, putting some of the onus on lawyers for the parties to ensure that the positions they take are supported by sufficient factual evidence and legal authority. This is not a “political” issue and contrary to Stephen Miller’s ranting, Reuveni doesn’t become a saboteur or a Democrat by simply doing his job.
Reuveni Did Not Manifest Lack of Zealousness, in Any Sense We Should Care About
I feel like a broken record on the invocation of “zealous advocacy” as some kind of ethical ideal for lawyers. If people who use that expression don’t include the critically important qualifier, “. . . within the bounds of the law,” then I’m going to turn into the angry goose from that meme:
The phrase, which the Hazard & Hodes treatise refers to as “the fundamental principle of the law of lawyering,” is subject to the understandable misinterpretation as requiring unlimited, undivided, or unqualified loyalty to the client’s interests or obedience to the client’s instructions.1 But the principle actually stated by Canon 7 of the ABA Model Code was that “[a] lawyer shall represent a client zealously within the bounds of the law.”
Consider some examples from Reuveni’s letter of respecting the bounds of the law:
In the Alien Enemies Act case, Reuveni communicated clearly and promptly to his client (in this case, two federal agencies – Homeland Security and State) that the district court had entered an injunction, that no one allegedly subject to the AEA could be removed, and that means planes currently in the air need to be turned around (pp. 12, 14), or if the plane had landed, no one subject to the order would be taken off the planes. Reuveni was understandably concerned that he would be deemed by the court to have disobeyed the order, and that the government would be held in contempt, unless he ensured that the agencies complied with it. Instead, Emil Bove apparently determined that the government’s position would be that the order requiring the planes to turn around was not valid until it was issued in writing (pp. 13, 15). Reading between the lines of the letter, it is clear that Reuveni thought this was a crock of shit, and the Supreme Court subsequently noted that an oral ruling is binding on the parties and appealable when issued (see Trump v. J.G.G., slip op. p. 7 n. 3).
In the Massachusetts case involving removal to a third court, the government was in a pickle. If it filed an appeal of the district court’s nationwide TRO, it would be conceding that the order had nationwide application. However, some within the administration wanted to contend that the order applied only to the named parties (pp. 16-18). This led to what would be a comedy of errors if it was at all humorous, with Reuveni trying to communicate the court’s injunction to the relevant agencies, while the officials subject to the order did everything they could to avoid his emails. It quickly became clear to Reuveni that the intention of senior government officials was to ignore the injunction and try to avoid leaving a paper trail (p. 21). (Note to law students: When a supervising lawyer tells you to “stop asking questions” and limit your communications to phone, not email, this is a good moment to seek independent legal advice.)
In Kilmar Abrego Garcia’s case, the government wanted to assert that Abrego was a leader of the MS-13 street gang (p. 22). Reuveni said, in effect, okay, I’ll assert that position if there’s any evidence for it. In response, a field office director for ICE provided a declaration in which he stated that Garcia was removed based on his purported membership in MS-13. Senior lawyers told Reuveni to stop pestering them for supporting evidence and to simply argue that Garcia was a terrorist (pp. 23-24). When Reuveni’s boss, Deputy Assistant Attorney General Drew Ensign, asked him why he did not argue that Garcia was a terrorist and therefore his protection from removal was nullified, Reuveni responded that “1) those were not arguments in the government's briefs, which Ensign had reviewed; 2) there was no evidence in the record to support the arguments; and 3) the laws governing withholding of removal do not support a theory that declaring someone a member of a terrorist organization retroactively nullifies a grant of withholding relief” (p. 24).
These would be good exam questions in a Professional Responsibility class. What should the lawyer do in these circumstances? Cite rules of professional conduct in support. Are there are any gray areas or judgment calls here? Are there “arguable questions of professional duty” here, such that a lawyer in Reuveni’s position should act in accordance with a supervisory lawyer’s “reasonable resolution” of those duties (Rule 5.2(b))? Were the instructions from Ensign, Bove, and other supervisory lawyers reasonable under the circumstances?
Confidentiality and Whistleblowing
The usual reaction of the Trump Administration (and really most administrations) to damning disclosures by whistleblowers is to try to stigmatize the whistleblower, question their motives, or claim that the disclosure was wrongful. For example, Secretary of Defense Pete Hegseth confirmed that a criminal investigation is underway of the leak of the battle damage assessment of the airstrike on Iranian nuclear facilities that concluded the facilities were not “obliterated.” In the case of Reuveni’s letter, I expected more attacks on the propriety of the disclosures. Maybe they are still coming. But I did want to talk briefly about the intersection between disclosures of wrongdoing and the duty of confidentiality, in Rule 1.6 of the rules of professional conduct of all jurisdictions, including the District of Columbia
I wrote a paper that came out in 2017 in what was then called the Hastings Law Journal, called “Government Lawyers in the Trump Administration.” One of the issues addressed in the paper was how whistleblowing by government lawyers would fare under the rule of confidentiality (state versions of Model Rule 1.6). I cited, and critiqued, an argument by whistleblower advocate Jesselyn Radack (Jesselyn Radack, “The Government Attorney-Whistleblower and the Rule of Confidentiality: Compatible at Last,” 17 Geo. J. Legal Ethics 125 (2003)) that, because government lawyers have heightened duties to act in the public interest, there is an implied exception to the rule of confidentiality. There are federal whistleblower-protection statutes, but they line up imperfectly with the express textual exceptions to the rule of confidentiality.
The situation is better for lawyer-whistleblowers in the District of Columbia. (I believe the D.C. Rules provide the applicable law, under D.C. Rule 8.5(b), even though Reuveni is apparently admitted to practice in California.) The D.C. version of Rule 1.6 has some unique features, some of which make it pretty clear that Reuveni’s disclosure was permitted by the rule. Most noteworthy is D.C. Rule 1.6(e)(2)(B), which has no counterpart in the Model Rules or, as far as I know, any other jurisdiction’s rules:
A lawyer may use or reveal client confidences or secrets . . . if a government lawyer, when permitted or authorized by law.
One provision of the Whistleblower Protection Act, 5 U.S.C. § 1213(a), includes an expansive authorization to disclose information relating to a violation of law, rule, or regulation or “gross mismanagement . . . an abuse of authority, or a substantial and specific danger to public health and safety,” as long as that disclosure is not specifically prohibited by law or required to be held secret in the interest of national defense or foreign affairs.
A couple of questions: Does “violation of law, rule, or regulation” include violations of the rules of professional conduct by senior government lawyers? I think so, based on the status of the D.C. Rules as actual, enforceable law, not merely exhortations to ethical conduct. Does the plan escribed in Reuveni’s letter, to circumvent district court orders, constitute an abuse of authority? Again, I think so, but here I would have to defer to someone who knew the landscape of federal whistleblower protection law. But I do think it’s clear that there is no specific prohibition on this disclosure in the law. The D.C. Rules can’t be the specific prohibition, because Rule 1.6 is qualified by the disclosure authorization in subsection (e). The government may try to claim that there is a national defense or foreign affairs interest here – that is their argument in all of these AEA cases (hell, and even in the law firm executive order litigation) – but the statute requires the disclosure to be specifically prohibited, presumably ruling out such a hand-waving assertion of a national security interest.
There are some other potential routes to disclosure in the rules, including Rule 1.6(d)(1):
When a client has used or is using a lawyer’s services to further a crime or fraud, the lawyer may reveal client confidences and secrets, to the extent reasonably necessary . . . to prevent the client from committing the crime or fraud if it is reasonably certain to result in substantial injury to the financial interests or property of another.
There is an interesting question whether “crime or fraud” in this rule would be interpreted as broadly as it sometimes is in the context of the crime-fraud exception to the attorney-client privilege. I am fairly confident that a fraud on the tribunal, such as misrepresenting the factual evidence supporting a claim by a party, would satisfy the rule. There is the additional requirement that the fraud result in substantial injury to the financial interests or property of another. Being deported to a hellhole prison would have a financial detriment on one’s well-being, although it may not be the most immediate concern.
I’m confident in my analysis of this issue, but you don’t have to take it from me:
As an attorney subject to rules of professional conduct, Mr. Reuveni has consulted extensively with ethics counsel, Kathleen Clark and Richard Zitrin , regarding the exercise of his whistleblower rights . Mr. Reuveni's disclosures contained herein are permitted under the DC Bar Rules of Professional Conduct 1.6 and California Rules of Professional Conduct 8.5 .
I know Richard and Kathleen and have a lot of confidence in their judgment. I mention this mostly to underscore a point I often make about this subject. Although it’s often misleadingly referred to as legal ethics, it’s really an area of law, and if you find yourself in a situation like Reuveni did, get legal advice from specialized counsel. Do not improvise your way through this, thinking it’s essentially an issue of ethics in the sense of “what would a decent person do here?”
Trump 1.0 Judges and Trump 2.0 Judges
There has been a lot of reporting about how, as a first-time presidential candidate, Trump won over the conservative legal movement by basically outsourcing his judicial-selection process to the Federalist Society, through his White House Counsel Don McGahn. McGahn, the Federalist Society, and then Senate Majority Leader Mitch McConnell were instrumental in the confirmation of Justice Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, along with many more court of appeals and district court judges. During the second Trump Administration, however, there have been several instances of Trump 1.0 judges enjoining Trump’s exercise of unconstrained, unilateral executive power. Trump took this well . . . no, of course I’m kidding – he referred to former Federalist Society pooh-bah Leonard Leo as “a real sleazebag” and “bad person who, in his own way, probably hates America.” Perhaps forgetting how instrumental the Federalist Society was in security the support of legal conservatives, Trump posted on social media:
“I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations. This is something that cannot be forgotten!”
By now everyone knows that loyalty for Trump runs in only one direction and is essentially transactional. Trump got what he wanted from Leo, McGahn, and the Federalist Society in his first presidency, but now he believes he has the power to go his own way. Which leads to the question, if the archetypal Trump 1.0 judicial nominee was a Federalist Society type, what will the Trump 2.0 nominees look like? Charlie Savage of the New York Times reports:
While Mr. Trump was out of power, a schism emerged between traditional legal conservatives and MAGA-style lawyers. The latter decided that politically appointed executive branch lawyers had constrained Mr. Trump in his first term, and began making plans to appoint a more aggressive breed of lawyer.
His first appellate court nominee, Whitney Hermandorfer, appears to be in the Trump 1.0 mold, having clerked for Justices Alito and Barrett on the Supreme Court and Judge Kavanaugh when he was on the D.C. Circuit, and then practiced at Williams & Connolly.
Bove strikes me as a very different case, and a worrying archetype of a Trump 2.0 judge as a loyalist above all, with insufficient respect for the limitations on official power that are inherent in the concept of the rule of law. Senate Judiciary Committee Chuck Grassley said at Emil Bove’s confirmation hearing that the rhetoric directed against Bove had “crossed the line.” I’m all in favor of avoiding heated rhetoric in favor of a careful examination of the facts. Bove owes an explanation of these events that is equivalently detailed and supported by the evidence. Otherwise, the conduct described in the Reuveni letter – not even considering Bove’s conduct in connection with the Eric Adams prosecution – should be disqualifying for a lifetime judicial appointment.
Here’s a fun (?) diversion: I’m working on a short encyclopedia article on zealous advocacy and got curious about the origins of the idea of zeal or zealousness. One familiar appearance of the word is in the First Commandment (Exodus 34:14): “Do not worship any other god, for the Lord, whose name is Jealous, is a jealous God.” I have on the authority of a serious Biblical hermeneutics discussion board that the Hebrew קַנָּא is variously translated as “jealous” or “zealous,” but in any event is understood as signifying passionate devotion, here God’s devotion to God’s people. While the Hebrew word can also be understood to mean loyalty, George Fletcher, in his 1993 book Loyalty, observes that it expresses a maximal sense of loyalty, which is necessarily non-rational, or at least cannot be grounded in reasons that others share (p. 61). Most commentators agree that the word entered the legal ethics lexicon via the 1887 Alabama Code of Ethics, which drew from University of Pennsylvania law professor George Sharswood’s 1860 treatise, Essay on Professional Ethics. (See, e.g., Paul C. Saunders, “Whatever Happened to Zealous Advocacy?” N.Y.L.J. (Mar. 11, 2011); Russell G. Pearce, “Rediscovering the Republican Origins of the Legal Ethics Codes,” 6 Geo. J. Legal Ethics 241 (1992)) Although the word does not appear in the famous speech, zealous advocacy is often associated with Lord Brougham’s defense of Queen Caroline. (See, e.g., Monroe H. Freedman, “Henry Lord Brougham and Zeal,” 34 Hofstra L. Rev. 1319 (2006)) The pro-zeal crowd, including Saunders and Freedman, are trying to capture the sense of wholehearted or passionate devotion, dedication to the interests of the client, and “the exertion of the lawyer’s utmost learning and ability” (Freedman, p. 1319). I’m all for that. I get why replacing “zealous representation” with “reasonable diligence and promptness” seems to be a weak-tea statement that retreats from an ideal of giving one’s all to the defense of a client. However, it is absolutely essential that the duty (if in fact it is a duty and not merely an exhortation) is understood to be subject to the deontic side constraint provided by the bounds of the law. The formulation from Canon 7 of the 1969 ABA Model Code is the one we should regard as authoritative: “A lawyer shall represent a client zealously within the bounds of the law.”