Stephen Miller gets response he feared after shock announcement

Stephen Miller gets response he feared after shock announcement

Well, the constitution is clear and that of course is the supreme law of the land that the privilege of the writ of habius corpus can be suspended in a time of invasion. So to 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. At the end of the day, Congress passed a body of law known as the Immigration Nationality Act which stripped Article 3 courts, that’s the judicial branch of jurisdiction over immigration cases. So, Congress actually passed, it’s called jurisdiction stripping legislation. It passed a number of laws that say that the Article 3 courts aren’t even allowed to be involved in immigration cases. Many of you probably don’t know this. I’ll give you a good example. Are you familiar with the term temporary protected status or TPS, right? So by statute, the courts are stripped of jurisdiction from overruling a presidential determination or a secretarial determination on TPS when the secretary of homeland security makes that determination. So when Secretary Gnome terminated TPS for the illegals that Biden flew into the country, when courts stepped in, they were violating explicit language that Congress had enacted saying they have no jurisdiction. So it’s not just the courts aren’t just at war with the executive branch. The courts are at war, these radical rogue judges, with the legislative branch as well too. So all of that will inform the choices the president ultimately makes. Yes, this is democracy watch. Mark, that was Steven Miller, Trump’s adviser, saying that the White House is now looking into suspending habius corpus. So first off, can you explain what habius corpus is and why this is so cataclysmic? Yeah, so habius corpus is referred to as the great writ. And this uh is uh something that goes all the way back to uh to England before the founding of the country. And the idea was that if someone is wrongly held by the state, is in custody and is being wrongly held that there is a way to go to a court uh and be released. And the founders of the country were very very insistent that the writ of habius corpus be incorporated into the constitution and that it would be available to people uh except under the most extraordinary surf circumstances. And so uh when we talk about the suspension of habius corpus we are usually talking about uh the very very very very rare circumstances where the country is has been invaded it is in a full-scale war and without the suspension of uh of habius corpus uh you know you will have a breakdown in public safety. Can you speak about the legality of of their effort and how successful you think that they could be especially given the fact that we are not in the middle of a full-scale war or invasion? You know, it was nice to be able to actually give like a sane legal explanation for a change. It’s almost like Joe Biden is back in the White House, but of course he’s not. So, let’s now join the insanity of what it is that Steven Miller said. Um, number one, the writ of habius corpus can only be suspended when there is a rebellion or invasion. And, and this is the key, Brian, and quote, the public safety may require it. So it is not enough even that there is an invasion or a rebellion. It is an invasion and a rebellion that is so dangerous to public safety that it requires the suspension of habius caucus. Whatever one may think about the woman uh and the other students at TUS and elsewhere who were rounded up and thrown into uh you know into a prison in Louisiana. They pose no risk to public safety, right? I mean, the woman was walking down the street when she was when she was dragged off. Uh, she wasn’t she wasn’t a threat to public safety. So, so there is no basis upon which to suspend the writ of habius corpus. And one more thing, Brian. Oh, and it is Congress that has the right to suspend habius corpus, not the president. So even when you have the suspension of habius corpus, it requires an act of congress because they are the ones who suspend the great writ. The great writ exists to cabin to limit the power of a king. That’s why you had a rid of habius corpus. That’s why the founders wanted the rid of habius corpus to be the default in this country and could only be suspended under very limited circumstances because they had lived under a king and it is the reason why congress not the president suspends habius corpus right that’s the whole point of not having it in the executive branch is because the point of having habius corpus is is to limit the power of the executive or the king uh in the case of great Britain correct since it’s a limitation on the executive branch imprisoning people right Well, you had mentioned that that the two qualifications are that there has to be an invasion and a risk to public safety. But those things in a way are subjective and of course you’ll have Republicans coming out like Steven Miller and saying we are in the midst of an invasion and public safety is at risk and they’ll kind of um concoct a narrative around that conclusion. And so does that give you any concern that there is no mathematical formula that says oh look we we haven’t xyz hasn’t happened and so officially this can’t be uh you know fulfill the qualifications for an invasion or risk to public safety when these people can just say we’re in the midst of an invasion public safety is at risk. Yeah. So I want to be very lawyerly here about this. It is not just that it is a risk of public safety. It is that public sa it is that suspension of the risk is required by public safety. In other words, it’s not like oh there is some theoretical public safety problem that could be advanced by doing away with the writ. It is that that public safety requires the suspension of the rid of habius corpus and we simply don’t have that. I mean we don’t have an invasion. We don’t have a rebellion. But there is people right now, Brian, undoubtedly outside your home, outside your studio, outside where I am, they are walking down the street. They are safe. There are not marauding bands of of of of people who are threatening uh a rebellion to topple the government that that it is not safe to be on the streets. And that is what the exception is. It was intended to be extremely limited. So look, do I worry? Yes, Brian. My job is to worry about everything. Do I think that he will do this? Yes, because kings love suspending the rid of habius corpus. That’s why uh those founders put this in the constitution. Do I think the courts will allow it? Not in a million years will they will they sign off on the suspension of the rid of habius corpus for where we are right now. That doesn’t mean that they’re not going to still try. And so my my question then becomes if they eliminate the rid of habius corpus or suspend the rid of habius corpus um does that go into effect immediately or does it or or is that just an edict that they’ve written on paper and it’s only worth the paper that it’s that it’s printed on but it really takes the court’s determination to be able to allow it to go into effect or not. In other words, can they can they can they do it and it goes into effect immediately or can they do it and that triggers a uh you know a court process where the court is the ultimate arbiter of whether they’re allowed to do it or not? Look, this is the problem we have with the Trump administration because the answer is that him signing a press release with the words habius corpus in it and calling it a executive order doesn’t make it so. Right? However, the attorney general will bow down, right? DHS will bow down. The prison system will bow down. You know, you will have various members of the Republican Congress. They will either say number one, they are unaware that he wrote what he wrote. They’re but they’re they’re reviewing it. They haven’t seen it yet. Number two, they’re concerned, but they’re not going to do anything. But the bulk of them will say, “Good for Donald Trump. We’re, you know, like this is his power.” Right? So, so the problem is that that Donald Trump will break the law. the Supreme Court has said essentially he’s immune from criminal prosecution for breaking the law. So Steven Miller and there’s you know this was part of what he said and we ought to show it is that you know it he’s he’s sort of using this as a tool to threaten the courts. Look a lot of it depends on whether the courts do the right thing or not. The courts aren’t just at war with the executive branch. The courts are at war these radical rogue judges with the legislative branch as well too. So all of that will inform the choices the president ultimately makes. Yes. All right. So, look, there it is. Like, he’s basically saying, “Gee, geez, uh, Chief Justice, it’d be terrible if something happened to your courts, you know. Um, and we will abide by the court’s rulings if they if they rule our way, but if not, we’ll we’ll suspend the rid of habius corpus and and then, you know, like let the then, you know, the courts will have to try to enforce their orders.” I mean this would be the constitutional crisis on steroids because there is nothing more central to why we have the constitution we have than the preservation of the great rit the rid of habius corpus against abuse by an authoritarian dictator like ruler uh as president. Mark, I know that a lot of the focus up to this point has been on uh the Trump administration’s suspension of due process for migrants or immigrants uh uh documented or undocumented. Does the suspension of the rid of habius corpus uh apply only to to migrants or how can that impact actual American citizens? Yeah. So, this is one of the things that I think people really need to pay attention to. The suspension of the rid of habius corpus applies just in the country. Like it’s not like, you know, when Stephen Miller says he’s gonna they’re gonna suspend it for migrants or foreign nationals, like that isn’t really a thing, right? Like like either there is a rid of a corpus or there is not. And if there’s not, then Donald Trump can grab his political opponents off the street and throw them into prison. Like th this is not this is not meant to be a regular tool. Remember the use of the rid of habius corpus has been used against US citizens including by Abraham Lincoln under somewhat questionable circumstances at least at one instance uh uh involving uh uh uh people in uh individual in Maryland during the civil war. Right? The suspect that the invasion or rebellion is foreign. It just contemplates that there is a breakdown of law and order uh of public safety in the United States caused by it and therefore essentially the we need to give this extraordinary power to the executive branch to restore order in the country. And Lord knows Steven Miller may sell this to the American people about some about uh some migrants who have been detained but Donald Trump will quickly pivot to the weaponization of government not just to foreign nationals. And and Brian this is not fanciful. I mean, you and I have talked about this. They have already removed US citizens. Yes. From the US in violation of the law. I mean, I think they sent a couple of toddlers, one of whom was had cancer, uh, and was a US citizen. They they they again, you know, violated the law and sent him out of the country. So, they are trying to normalize the application of these extreme tactics to US citizens. and the the the if if there is one thing that would be the like code red every alarm bell ringing it would be the the suspension of the road of habius corpus and I’m glad you said that this is um an example of them trying to normalize this because I think there is some it is something to be learned by the fact that that we are getting the drip drip drip of this and I think from their perspective they hope that this will just become normalized that they’ll shift the overton window slowly and you know everybody will be in in you know in a huff over the fact that due process is being eliminated for um undocumented immigrants and then and then and then un and then due process is being eliminated for uh legal residents and then due process is being eliminated for um kids that are associated with undocumented immigrants that are US citizens and now this would be the the natural conclusion of that. The reality is that it that it coming 3 months into this administration goes to show that even though it feels like like it’s a slowm moving crisis, we’re a hund we’re just over a 100 days into this administration and already we are talking about and becoming normalized to this this concept of of the full-blown uh recision of due process rights for everybody in this country. Yeah, that’s right. I mean, you know, they could decide that that they think this video itself is aiding a rebellion. They could think this video itself is dangerous. And if they suspend the rid of a corpus, Brian, you may wind up uh in some California prison. I’ll wind up on some prison on the East Coast, so we won’t really be together. But the fact is there won’t be a the ability to go to a federal court immediately and say this US citizen is being held in violation of their right to due process because they are being held for speaking out under first amendment protected speech. The suspension of the rid of Davius Corpus just is a suspension of that. It is intended to give the president in the most extreme circumstances where the country is overridden by a foreign army or in which there is a US civil war that is that is bleeding American u uh soldiers uh you know an extraordinary rate and and there is a risk to the the the capital. I mean these are the kinds of circumstances that we’re talking about and none of that is present here. You know, Stephen Miller is an architect is the architect of Donald Trump’s authoritarian dream. And anyone who thinks it begins and ends with violent migrants, as you say, has not been paying attention the last 100 days. And anyone who thinks it will not end with US citizens and uh Donald Trump’s uh decrees against his political enemies, frankly, has not paid attention to history. And and let’s end with this. Uh once the rid of habius corpus is suspended, does it come back? Well, right. And that of course is the thing that the founders probably worried about the most, right? They wanted to make it really hard for there not to be the rid of habius corpus because you’re giving king-like power to the president of the United States. I mean, you are at that point you are giving them that. And so, right. And so anybody who anybody who’s going to suspend it is also probably not going to be inclined to to to put it back into place. Correct. And of course with a Republican Congress Republican Congress, they’re not going to uh revoke it. So this is very very dangerous stuff. And we cannot you know the the worst advice that we got at the beginning of the Trump administration was to take him seriously but not literally. If Stephen Miller is saying that they are talking about suspending the rid of habius corpus, it has been reported in the media that Donald Trump is in on those discussions. If they are discussing it, it is because they are trying to figure out how to do it, not whether it is to be done. And as you say, we are only in the first 34 months of this administration. They may not figure out how to do it today. They may not figure out how to do it a month from now, but it is going to remain a tool that they are going to want to deploy at some point. And again, it won’t just be against migrants. It will be against anyone who they think is a threat to their power. That includes their political opponents. It could include the media. And and we all need to be really, really attentive to this. Well, I’m Mark Elias. This is Democracy Watch.

Democracy Watch episode 306: Marc Elias discusses Stephen Miller calling for a suspension of the writ of habeas corpus.

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