Stephen Miller's habeas threat
We break down the White House's flirtation with suspending habeas corpus on the BBC's Newshour program.
Our democracy is on trial now – and it’s up to readers like you to bring evidence that it still has life. Authoritarianism thrives when citizens turn away. Push back by supporting independent journalism today!
Donald Trump’s deputy chief of staff Stephen Miller indicated at a press conference on Friday that the White House was considering suspending the writ that has been a cornerstone of a free society since the time of the Magna Carta: habeas corpus.
Habeas corpus, Latin for “produce the body,” has been the primary bulwark against illegal and unjustified detention since 1215.
Listen to my breakdown on the BBC’s flagship Newshour program on Sunday.
What Miller said
Let’s unpack some of my comments on that segment.
First, here’s what Miller said about the supposed legal justification for such an action.
“Well, the Constitution is clear, and that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended in a time of invasion,” Miller said. “So, I would say that’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.”
Georgetown Law professor
explained on his Substack why this is wrong and “profoundly dangerous.”The Constitution’s Suspension Clause limits the ability to suspend habeas corpus to Congress and then, only “when in Cases of Rebellion or Invasion the public Safety may require it.”
At least three federal judges rejected the notion that alleged members of the Venezuelan gang Tren de Aragua immigrating to the United States amounts to an “invasion,” the claim behind Trump’s invocation of the Alien Enemies Act. Miller’s definition of “invasion” here is, if anything, more amorphous.
Even if there were an invasion, the Constitution confines the ability to suspend habeas corpus to Congress — and then, only during times when the “public Safety may require it,” such as the Civil War. As Vladeck noted, Miller “gives away the game” by describing the suspension of habeas corpus as contingent on whether courts continue ruling against Trump — a “mafia-esque threat.”
Google AI on tyranny
During the BBC interview, I mentioned Google AI’s response to the prompt “suspending habeas corpus is tyrannical and illegal”: The response begins, “Yes.”
Though artificial intelligence gets certain things wrong, it is a helpful barometer of the near-universal consensus in the legal community, as a mechanism for scanning and summarizing vast repositories of precedent, knowledge and opinion. This time, AI got it right.
“The Writ Of Habeas Corpus is THE bulwark of individual liberty against tyranny,” former federal prosecutor Mitchell Epner told All Rise News.
As to whether the White House might try suspending the Great Writ, CNN is reporting that Trump was personally involved in discussions on the topic.
Good synopsis. I think the media needs to underscore the point that talking head Steven Miller has absolutely no legal background at all, yet he constantly prefaces his misstatements with such false absolutes as "the Constitution is clear" (as he did in this case) or stating on Fox News that the Supreme Court unanimously ruled 9-0 that the administration had no obligation or culpability in the Abrego Garcia case when it issued it remand order. He should be called out, and his background as a propagandist underscored more frequently, by the media.