'Beyond Unfit': Emil Bove Endorses Trump's 'Unitary Executive' Theory at Confirmation Hearing
The federal judicial nominee supports signing "a blank check for Trump to control every agency," said one government watchdog.
A whistleblower complaint alleging that top Justice Department official Emil Bove pressured government lawyers to ignore court orders was a primary concern for Democratic members of the Senate Judiciary Committee on Wednesday as the panel held Bove's confirmation hearing to be a judge on the U.S. Court of Appeals for the 3rd Circuit—but a government watchdog urged lawmakers not to overlook another key issue that came to light during the hearing.
Bove told the committee that the whistleblower complaint that was filed by ousted former DOJ attorney Erez Reuveni Tuesday addressed "a dispute about the challenges posed by the unelected bureaucracy to the unitary executive and to the people that elected the president and put him in office."
Accountable.US said Bove had inserted a "buzzword" into his testimony: the far-right "unitary executive" theory, which holds that limits on presidential power over the executive branch are unconstitutional—or that the president should hold absolute power over every government agency, unencumbered by members of "the unelected bureaucracy" like Reuveni and anyone else in the federal government who would express disagreement with President Donald Trump's policies or actions.
As Common Dreamsreported Tuesday, Reuveni's whistleblower complaint detailed allegations that just before Trump invoked the Alien Enemies Act (AEA) to swiftly deport more than 200 immigrants to El Salvador—claiming they were gang members who were part of an "invasion" of the U.S.—Bove told DOJ lawyers that deportation flights "needed to take off no matter what" and that the agency should "consider telling the courts 'fuck you' and ignore any such order" that would try to stop the forced removals.
In his testimony Wednesday, Bove took issue with the idea that a career government attorney like Reuveni, who was acting deputy director of the Office of Immigration Litigation, "was in a position or considered himself to be, to bind the department's leadership and other Cabinet officials."
Bove suggested Reuveni, who served in the department for 15 years under Democratic and Republican administrations, should not have been empowered to say in a court hearing that the Trump White House had mistakenly deported Kilmar Abrego Garcia, a Maryland man who was sent to El Salvador's Terrorism Confinement Center, as he did in April—just before he was placed on administrative leave and then fired.
Under the "unitary executive" theory, said Accountable.US, Trump alone would control "the DOJ, the Fed, even election oversight. No president should have that kind of power."
Bove expanded on his views regarding presidential power when Sen. Mike Lee (R-Utah) questioned him about "the contours of the president's authority to appoint and remove" executive branch officials.
"Generally speaking," said Bove, "I think the court used the phrase 'all of it' is committed to the president of the United States."
In a column in February, John Bergmayer, legal director of Public Knowledge, warned that with an executive order purporting to place independent regulatory agencies under Trump's control, the president had embraced the fringe "unitary executive" theory and posed "a grave threat to the rule of law and the separation of powers—cornerstones of our constitutional system."
"That this 'unitary executive' theory has made its way from the fringes of academia to the halls of power, and that it has even been accepted by some credulous judges, does not mean that it is right," wrote Bergmayer. "Many legal observers have pointed out the shoddy scholarship and selective history that underpins it. We are a nation of laws, and we cannot be ruled by executive fiat."
At the hearing, Bove denied the allegations in the whistleblower complaint, saying he "never advised a Department of Justice attorney to violate a court order." He told Rep. Adam Schiff (D-Calif.) under questioning that he "did not recall" whether he made the comments detailed in the complaint.
Accountable compiled a list of numerous concerns about Bove's potential appointment to a lifetime seat on the federal judicial bench as part of its Judicial Nominations Watch project.
In addition to the allegations in the complaint, said the group, Bove:
- Created turmoil and chaos in the Justice Department after dropping corruption charges against New York City Mayor Eric Adams, prompting the resignation of multiple staff attorneys, who left in protest;
- Advanced dubious legal arguments meant to throw out or delay Trump's legal cases when he served as his attorney, including by trying to avoid discovery requirements and petitioning to move Trump's New York state criminal case to federal court; and
- Developed a reputation as a federal prosecutor who belittled subordinates and was the subject of an email from defense attorneys expressing concern about his "professionalism" and "power plays"—a document he pinned to a wall as "a badge of honor."
Lena Zwarensteyn, senior director of the fair courts program and an adviser at the Leadership Conference on Civil and Human Rights, said Bove has been shown to be "beyond unfit to serve in a lifetime judgeship."
"His temperament, subversion of the rule of law, and efforts to seek retaliation while at the Justice Department demonstrate that he would not be fair-minded, independent, or committed to protecting the rights of all people in America," said Zwarensteyn. "As his actions have shown, he would only be loyal to the president—rather than to the Constitution and the law—at the expense of the American people and our democracy."
"With each day there are more and more damaging reports and questions about Bove's tenure at both the Justice Department and in the U.S. attorney's office in the Southern District of New York," she added. "Senators must take their constitutional responsibility seriously. They must reject his nomination for the 3rd Circuit."
