The Constitution does not give free rein to presidents who want to install their preferred appointees to high-ranking federal offices. The Senate must give its “advice and consent” to those appointments to ensure that nominees meet the minimum qualifications for the job. On Tuesday, 50 Republican senators failed that duty—and, by extension, the country—by voting to confirm Emil Bove to a lifetime seat on the Third Circuit Court of Appeals.
Bove, a 44-year-old lawyer who previously worked on Trump’s personal legal issues, spent the last six months at the Trump Justice Department serving as the acting deputy attorney general, a temporary position that did not require Senate confirmation. His tenure was brief but notorious. He showed no compunction about serving as Trump’s legal hatchet man, no matter the legal or ethical constraints. To that end, he played a central role in two of the Trump administration’s biggest scandals to date: the dismissal of corruption charges against New York City Mayor Eric Adams and the defiance of federal court orders in the Alien Enemies Act cases.
That should have been enough to end his chances of securing a lifetime seat on the federal appellate courts. Other prospective nominees for judgeships have been rejected for far less, even excluding the ideologically driven examples. (One of Reagan’s Supreme Court nominees withdrew from consideration after he admitted to smoking marijuana on “a few occasions” a decade earlier.) In the eyes of Trump and the Republican senators, the scandals appear to have been a qualification all their own. If conservatives think that Bove’s confirmation will be the end of this story, however, they are sorely mistaken.
One of Bove’s first acts as acting deputy attorney general was to end the Adams prosecution. Federal prosecutors had charged Adams last year with corruption-related charges for allegedly receiving a wide range of gifts and services from Turkish officials and businessmen in return for siding with them on local matters. Adams denied any wrongdoing and claimed the Biden administration had singled him out for his approach to immigration policy.
Among the most notable allegations from prosecutors was that Adams allowed a Turkish consulate in New York City to open without proper fire-inspection permits, and that he declined to acknowledge or recognize the Armenian genocide in any way while in office in exchange for gifts and favors. In return for his influence peddling, Adams allegedly received tens of thousands of dollars in illegal campaign contributions, as well as free luxury flights and hotel stays around the world.
Where most people would see corruption and disgrace, Trump apparently saw opportunity. His victory in last November’s election led to a steady stream of supplicants making a pilgrimage to Mar-a-Lago in the hopes of receiving pardons, commutations, or favorable treatment from the president-elect. Among the pilgrims was Adams, who apparently sought an end to the federal prosecution against him. Trump, in turn, wanted Adams’s help as mayor in the upcoming immigration crackdown.
This is not how criminal prosecutions are supposed to work in an honest republic, of course. It would be shamelessly corrupt to drop a legitimate ongoing case in exchange for political favors. Bove apparently disagreed—or didn’t care. He eagerly threw himself into the case and hammered out the terms of the Trump-Adams pact on the president’s behalf, and he purged any Justice Department lawyers who protested or otherwise disagreed with it.
In addition to the obvious ethical problems, Bove also demonstrated his own shortcomings as a lawyer and potential judge. He drafted a memo on the dismissal that only served to further incriminate himself. Bove acknowledged that he had “reached this conclusion without assessing the strength of the evidence or the legal theories on which this case is based,” effectively conceding that the decision was a sham.
Bove then made a contradictory statement about why he did it. In the memo, he claimed that the prosecution had “unduly restricted Mayor Adams’ ability to devote full attention and resources to the illegal immigration and violent crime that escalated under the policies of the prior administration.” But he then insisted, perhaps a little too obviously, that there was actually no quid pro quo here.
In conversations with Adams’s lawyers, Bove stated outright that “the government is not offering to exchange dismissal of a criminal case for Adams’s assistance on immigration enforcement” and had the Justice Department memorialize that statement in a separate memo, apparently to de-incriminate himself. This is about as persuasive as writing “This is not a bribe” on a big sack of cash and handing it to an elected official after they do you a favor.
Republican senators apparently thought that the level of legal writing and reasoning displayed by Bove in this saga belonged on a federal appeals court. Others were unpersuaded. A federal district court judge in New York allowed Bove to dismiss the charges against Adams but modified the Justice Department’s motion. Instead of dismissing the charges without prejudice, meaning that they could be brought again at a later date, he dismissed them with prejudice to prevent the department from using them as leverage against the mayor.
Things only got worse from there. Bove then played a key role in the Justice Department’s litigation tactics during the Alien Enemies Act deportations this spring, where he allegedly demonstrated a personal disdain for the federal judiciary and the rule of law. In March and April, the Trump administration tried to remove prospective deportees from the country without giving them due-process protections like advance notice or the ability to challenge their removals.
After their lawyers found out anyway, federal judges were required to hear motions while the deportees were mid-flight. In a few cases, the executive branch effectively defied federal court orders by refusing to turn around planes in midair, ostensibly because they were out of the judge’s jurisdiction. Bove appears to have played a key role in the Justice Department’s handling of these cases.
Erez Reuveni, a top career Justice Department lawyer, told Congress in a formal whistleblower complaint last month that Bove had suggested in advance that the government would defy the courts if they ruled against the deportations. According to Reuveni, who was fired for admitting the government had deported Kilmar Abrego Garcia to a Salvadoran gulag in error, Bove told him and other lawyers, in an advance meeting about the AEA deportations, that they should be prepared to say “Fuck you” to federal judges and to potentially “ignore” any such order if given.
Americans can have widely different views on the ideal traits of a federal judicial nominee. Some Americans prefer conservatives; others want a liberal mindset on the bench. They want tough-on-crime jurists or reform-oriented ones, originalists or living constitutionalists, disciples of Antonin Scalia or admirers of William Brennan, and so on. At the very minimum, however, is the expectation that federal judges will actually respect the rule of law and abide by judicial orders themselves. If a judge doesn’t, after all, why should anyone else?
Bove denied the allegations and said that he did not answer senators untruthfully when asked about the deportations during his confirmation hearing. Other whistleblowers have since come forward to confirm Reuveni’s account of the meeting. That sounds like it would be a good reason to slow down the nomination and look into things a little more closely. This is, after all, a lifetime federal judgeship. Since the Supreme Court only handles a few dozen cases a year nowadays, courts like the Third Circuit effectively have the final say in the overwhelming majority of federal lawsuits.
Instead, Senate Republicans did not bother to seriously probe the claims and dismissed them as (in their view) yet another Democratic-led attempt to torpedo a conservative judicial nominee. That included Iowa Senator Chuck Grassley, a self-professed ally of whistleblowers, who claimed that he thought Bove would be a “diligent, capable, and fair jurist” and brushed aside Reuveni’s allegations that suggested otherwise.
Fast-tracking Bove’s ascent to the federal appellate courts is not the end of this story, however. Judge James Boasberg, the federal judge who presided over one of the mid-flight AEA cases, is openly weighing whether Justice Department lawyers who allegedly misled and defied the court over deportation flights should be referred to their state bar associations for further discipline. He also already began criminal contempt proceedings into the matter, though those hearings are temporarily on hold by order of the D.C. Circuit.
If Democrats retake one or both chambers of Congress next year, they will also have the opportunity to hold hearings on and issue subpoenas for further information about these scandals. That will necessarily mean reviewing Bove’s actions along the way and considering whether impeachment is appropriate. Some Democrats may be reluctant to scrutinize a sitting federal judge, but the alternative would be worse. Allowing Trump’s hatchet men to escape investigation simply because they were elevated to the federal judiciary would only reward them and validate that strategy in the future. Just because Republican senators have failed the nation by confirming Bove does not mean Democratic senators should follow suit by ignoring him.