Former Justice Thomas clerk: 'Zero chance' court would allow suspension of writ of habeas corpus

Top White House adviser Stephen Miller recently suggested President Donald Trump is actively considering suspending the writ of habeas corpus to “take care of the illegal immigration problem.”

"The Constitution is clear … that the privilege of the writ of habeas corpus can be suspended in a time of invasion,” Miller said. “So 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.”

But the Dispatch reports John Yoo, a former clerk to Supreme Court justice Clarence Thomas, said Miller’s argument “wouldn’t apply to a case of immigration at all.”

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The Bush Justice Department lawyer, who drafted several memos in 2002 authorizing the CIA to commit torture at the height of the U.S. war with Iraq, went on to say, “There’s zero chance that that would fly in the courts.”

Yoo is “not in the least embarrassed by the condemnation of his peers” for his expansionist views on presidential powers, including the right of the White House to commit U.S. adversaries to waterboarding. But he remains confident the courts would not bend on this particular expansionist claim.

However, Miller’s statement may also contain a veiled threat to judges: “A lot of it depends on whether the courts do the right thing or not,” Miller said. Later, that statement was followed by the highly publicized arrest of a Milwaukee County Circuit Court judge for allegedly interfering with the collection of an immigrant by ICE forces.

In addition, it is a threat potentially wrapped with the insulating layer of a complicit Congress, writes Dispatch Senior Editor John McCormack.

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Yoo insists Trump suspending habeas corpus would provide “plausible grounds for impeachment” considering Trump would be arguably arrogating “the powers of another branch at a time when the provision doesn’t even apply.” But the Dispatch reports the reaction from Congressional Republican Party members to Miller’s claim is “muted, at best.”

Sen. Rand Paul (R-Ky.) was the only Republican senator to forcefully speak out against Miller’s comments, calling it “a terrible idea.” Other GOP Senators declared, “we’d have to find out more,” like Sen. Lisa Murkowski (R-Alaska), or “I don’t think so,” like Sen. Mike Rounds (R-S.D.).

“A lack of enthusiastic support from congressional Republicans is, of course, far from the kind of threat that might actually deter Trump from an unprecedented assault on civil liberties,” the Dispatch writes. “If Trump doesn’t fear the courts or Congress, might anything else constrain him?”

“It also depends on whether other officers of the government choose to obey the president’s order,” Yoo told The Dispatch. “… [D]oes the president really want to raise doubts about the military’s willingness to follow the commander in chief?”

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Read the full Dispatch report here.