Former federal prosecutor Jeffrey Toobin weighed in on the White House considering suspending habeas corpus, or the right to challenge the legality of detention, amid President Trump’s crackdown on immigration.
In an appearance on CNN Friday evening, Toobin said pausing the legal principle would be “such a wild step,” despite significant losses the Trump administration has faced in court over its efforts to speed up deportations of illegal immigrants.
“Talking about suspending habeas corpus is such a wild step. The only time a president has done it unilaterally without the authorization of Congress was Abraham Lincoln during the Civil War, when Congress wasn’t even in session and couldn’t ratify what he was doing,” Toobin said on CNN’s “AC360.”
He was reacting to remarks by White House deputy chief of staff Stephen Miller earlier Friday, when Trump’s chief immigration policy architect told reporters that the White House is “actively looking at” suspending the principle.
“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 at the time. “So, it’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.”
Toobin said on Friday that habeas corpus “goes back to the Magna Carta in the 13th century. The idea that someone in custody has the right to go to court to challenge their incarceration, that is so basic to Anglo-American law.”
“And that’s one reason why suspending habeas corpus is considered such an extreme, extreme step,” he told host Anderson Cooper the interview, first highlighted by Mediaite. “This is an example of how losses in court is causing this administration to escalate its rhetoric. And we’ll see where it goes.”
The Constitution says the legal principle may not be suspended “unless when in Cases of Rebellion or Invasion the public Safety may require it.”
The principle allows those who are in custody to challenge the legality of being held in custody — helping prevent indefinite and unlawful imprisonment. Habeas corpus has allowed migrants to challenge their forthcoming deportations that the administration has instituted under the Alien Enemies Act, an 18th-century wartime law.
The writ of habeas corpus has been suspended four times: during the Civil War, in eleven South Carolina counties overrun by the Ku Klux Klan during Reconstruction, in two Philippines provinces during a 1905 insurrection and in Hawaii following the bombing of Pearl Harbor, according to the National Constitution Center.
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