Pro-Palestinian activist Mahmoud Khalil became the face of the Trump administration’s crackdown on campus protest and immigration. At the same time, Emil Bove became the face of the Trump Justice Department’s enforcement before the president appointed him to a federal judgeship.  

The opposing figures, who signify the early days of Trump’s second term, collided this week in a motion from Khalil that seeks Bove’s recusal from considering the activist’s appeal. 

Khalil is challenging a divided three-judge panel ruling from January in a case that his lawyers say raises crucial legal issues nationally as well as for Khalil personally. 

“The Court’s divided opinion decided novel and significant questions of federal immigration and habeas law and, if left intact, would ultimately permit the re-detention of Mr. Khalil, a lawful permanent resident who already spent 104 days in immigration detention and missed the birth of his child based purely on his speech,” Khalil’s lawyers wrote to the U.S. Court of Appeals for the 3rd Circuit. They made that observation in a February filing that requested an extension to file a petition for the full appeals court to consider his case, as well as permission to file a longer-than-usual petition due to the weighty issues involved. The request was granted and his lawyers filed the petition this week.   

They argue in the petition that if the panel ruling is left standing, then that would let the government “detain any noncitizen on retaliatory or punitive grounds, without lawful justification, while insulating this abuse of detention power from any federal court review, for what will likely be years, as it accomplished its unconstitutional end.” Calling the case one of “extraordinary importance,” the petition says that at stake is whether officials “can openly target noncitizens for their speech and seek to censor the marketplace of ideas in the United States by reliance (even if spurious) on the immigration laws.” 

Bove comes into play because, although he wasn’t one of the judges on the panel ruling, he’s one of the remaining judges on the circuit court who would typically weigh in on a request like this.

But in a separate motion filed Wednesday, Khalil’s lawyers say the new judge should sit this one out.

“Public reporting demonstrates the existence, or at least the appearance of, a conflict of interest due to Judge Bove’s prior positions” at DOJ “and involvement in the investigation of student protestors, including at Columbia University where Respondents perceived Mr. Khalil to be a leader,” they wrote in the recusal motion. 

“Judge Bove held high-level leadership and supervisory positions at DOJ from the initiation of Mr. Khalil’s detention and the subsequent filing of his habeas challenge through the filing of the Respondents’ appeal in this case. He supervised departments and personnel that the public is likely to believe were responsible for substantive decisions regarding Mr. Khalil’s high-profile case, which raises novel issues of law,” the motion said.

It went on to argue that, due to Bove’s “high level position, portfolio, and reported involvement in investigating Columbia student protestors in contemplation of immigration enforcement so close in time to Mr. Khalil’s arrest, a reasonable member of the public could fairly infer that Judge Bove did work on Mr. Khalil’s case.”

The motion said the government “sees no basis for recusal but defers to Judge Bove.”

It remains to be seen what the Trump-appointed judge will do and, in any event, whether it will matter to the bottom-line outcome of the case. It could next go to the Supreme Court after the circuit court litigation is complete.

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