National emergencies often require extraordinary measures that would be unthinkable in normal times as millions of people ordered to stay at home and shelter in place are now discovering.
Unfortunately with the current administration proving daily that it is prioritizing its own aims over the general health and safety of the American people as a whole, many people are asking themselves whether the emergency powers being requested by the administration as it struggles to make up for the time it lost while Donald Trump was downplaying the seriousness of the coronavirus crisis —despite having been briefed on the oncoming pandemic and the nation’s lack of preparedness for it — may give the president powers that he will twist for his own purposes to further push the nation towards authoritarian rule.
At least part of these types of fears stems from the request for emergency powers that Attorney General William Barr and the remnants of the once-respected Justice Department have been quietly discussing with Congress as the nation faces a crisis unlike any seen in the last century.
According to an article in Politico, Barr and the DOJ are looking for permission to void the constitutional right to a speedy trial by allowing them to request that judges hold people in detention for an indefinite and unlimited amount of time without trial during a declared emergency.
While the quarantine orders in place in much of the country will likely render the normal course of justice nearly impossible to continue as the difficulty of finding jurors to serve in criminal trials in crowded courtrooms that can turn into viral incubators if an unknowingly infected person enters their midst, those who remember the cavalier declaration of a national emergency that Trump made when Congress refused to allocate money to build the border wall that he promised Mexico would pay for realize that granting such powers to Trump’s executive branch of government would bring us halfway to the dictatorship of his dreams.
As Politico writes:
“The move has tapped into a broader fear among civil liberties advocates and Donald Trump’s critics — that the president will use a moment of crisis to push for controversial policy changes. Already, he has cited the pandemic as a reason for heightening border restrictions and restricting asylum claims. He has also pushed for further tax cuts as the economy withers, arguing that it would soften the financial blow to Americans. And even without policy changes, Trump has vast emergency powers that he could legally deploy right now to try and slow the coronavirus outbreak.”
The changes that Barr seeks would devastate the constitutional right of habeas corpus, the mandate that anyone arrested be swiftly brought before a judge and be able to present a plea and petition for their release.
The Justice Department is seeking the ability to keep people in detention “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation” and would apply to “any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings,” as the draft legislative language reviewed by Politico read.
Norman L. Reimer, the executive director of the National Association of Criminal Defense Lawyers explained the problem that this presents to habeas corpus rights.
“Not only would it be a violation of that, but it says ‘affecting pre-arrest,’” Reimer said. “So that means you could be arrested and never brought before a judge until they decide that the emergency or the civil disobedience is over. I find it absolutely terrifying. Especially in a time of emergency, we should be very careful about granting new powers to the government.”
The Justice Department has also asked Congress to extend the statute of limitations for criminal investigations and civil proceedings during national emergencies, “and for one year following the end of the national emergency,” according to the draft legislative text seen by Politico. It has also asked for the ability to let court appearances take place by videoconference without the consent of the defendant, violating the time-honored rights of the accused to confront their accusers face to face.
While it is unlikely that any of the Justice Department’s requests can get past the scrutiny of a Democratic-controlled House of Representatives, the very attempt to try to ram such an outrageous violation of civil liberties through Congress during a pandemic and to have those powers be available anytime the president arbitrarily declares a phony national emergency is indicative of the Trump administration’s totalitarian leanings and its contempt for America’s long tradition of civil liberties.
At least one progressive Democrat, Congresswoman Alexandria Ocasio-Cortez (D-NY), has taken note of the Justice Department’s request and given the request a hard pass.
Absolutely not. https://t.co/buaiiU92Xk
— Alexandria Ocasio-Cortez (@AOC) March 21, 2020
It’s likely that her Democratic colleagues will agree and prevent this particular power grab from taking place, but it shows the need for constant vigilance in the face of the Trump administration’s attempts to suspend parts of the U.S. Constitution that don’t fit its expansive visions of executive power.
One thing to note about the Justice Department’s request that could immediately lead to its withdrawal if pointed out to the president: the pausing of the statute of limitations for criminal investigations and civil proceedings during national emergencies would mean additional time to prosecute Donald Trump once he leaves office and the phony claimed immunity from prosecution that he enjoys as the sitting president.
Hopefully, we can then have a newly trustworthy Justice Department at the ready to reinstate the investigations of Trump’s malfeasance and prosecute him to the fullest extent of the law, and, unless Congress passes the DOJ’s current request, he’ll be able to petition the court for release on bail until his trial. With the wealthy former president posing a serious flight risk, that’s not a step that any intelligent judge would be likely to grant.
Original reporting by Betsy Woodruff Swan at Politico.