Trump planned to suspend habeas corpus? Inside leaked memo targeting key constitutional protection of individual liberty
Some officials in the Trump administration, led by White House deputy chief of staff Stephen Miller, explored suspending the constitutional right of habeas corpus last
Some officials in the Trump administration, led by White House deputy chief of staff Stephen Miller, explored suspending the constitutional right of habeas corpus last year, according to The New York Times. Last spring, White House staff secretary Will Scharf, a conservative lawyer, drafted a confidential memo expressing concerns about a proposal being considered by Stephen Miller, the key architect of US President Donald Trump’s deportation agenda, The New York Times reported. Also Read | Trump claims Iran behind drone attacks on Indian ships Dated April 29, 2025, and marked “confidential,” the memo carried the subject line: “THE WRIT OF HABEAS CORPUS.” It warned against bypassing established legal protections. Habeas corpus, a centuries-old right enshrined in Article I of the US Constitution, allows individuals to challenge their detention before a judge and requires the government to justify why a person is being held. What was in the memo? According to The New York Times, the proposal to suspend habeas corpus—one of the strongest constitutional protections for individual liberty—aligned with ideas long favoured by Stephen Miller, who sought ways to by pass judicial review in deportation cases. President Trump reportedly took interest in the idea and asked advisers about President Abraham Lincoln’s suspension of habeas rights during the Civil War, the NYT reported. Miller also directed the Justice Department to study the issue. As the internal debate intensified within an administration not known for encouraging dissent, White House staff secretary Will Scharf formally documented his concerns in writing, reflecting growing unease among some aides that the proposal was being seriously considered. Also Read | US civil rights leader and Baptist Reverend Jesse Jackson dies at 84 “The history of habeas corpus dates back to the very dawn of English common law,” he recorded in his memo to Wiles.
“Denial of habeas corpus rights was a key grievance underlying the American Revolution, and the right to apply to the federal courts for habeas review dates to the beginning of the republic," Miller wrote as reported by the NYT. Throughout US history, Scharf wrote, all three branches of government had been loath to interfere with habeas corpus, “doing so only in the direst of circumstances, and typically with respect to very limited categories of individuals.” Here's what US Constitution says Article I, Section 9, Clause 2: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Restrictions on habeas corpus placed in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)16 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) have provided occasion for further analysis of the scope of the Suspension Clause. Courts have generally held that AEDPA's limits on repeated habeas petitions by state prisoners are part of long-established efforts to prevent misuse of the legal process and therefore do not constitute a suspension of habeas corpus under the Constitution's Suspension Clause. Scharf argued against invoking the Insurrection Act In a separate October memo, Will Scharf argued against invoking the Insurrection Act, writing that it “serves as a break-the-glass exception to the traditional, general prohibition on the use of the military in the domestic setting.” He noted that the law was last used during the 1992 Los Angeles riots at the request of California’s governor and warned that using it against immigration protesters would be unprecedented, the NYT reported.
The BriefWire