WASHINGTON—The GOP Trump administration’s reported threat – in a proposal Attorney General William Barr sent to Congress – to virtually suspend the Constitution in order to fight the coronavirus pandemic has drawn bipartisan political flak and a Justice Department denial.
But it’s still there anyway, as the Brennan Center for Law and Justice points out. All Donald Trump has to do is to “sign a piece of paper” and proclaim a national emergency.
Barr’s proposal got a “Hell no!” tweet from Senate Minority Leader Charles Schumer, D-N.Y., and an “OVER MY DEAD BODY!” tweet from libertarian Sen. Mike Lee, R-Utah.
“More power to the Attorney General? PASS,” tweeted Rep. Hakeem Jeffries, D-N.Y., a member of the Democratic-run U.S. House leadership. And former GOP national chairman Michael Steele, an African American now very independent of his party, personalized it even more:
“NO!! This is NOT a slope we want to get on. Suspending Constitutional Rights!? With this crew?! OH HELL NO!” Steele tweeted.
Barr himself called the articles in Politico and Rolling Stone reporting on his plans “cockamamie nonsense.” He made that statement in a phone interview with pro-Trump Fox News.
His spokeswoman, Kerri Kupec, said what DOJ actually proposed was to let U.S. District Court judges postpone trials and extend detentions because the courts were closed to help prevent community spread of the coronavirus.
But Barr also proposed suspending the statute of limitations for criminal prosecutions for the length of the coronavirus emergency – and one year afterwards. Kupiec didn’t mention that in her long statement.
The powers for the judges alone were enough to alarm the National Lawyers Guild. “We won’t let this happen,” it tweeted.
Its past president, Marjorie Cohn, wrote in Truthout that “In light of the national emergency Donald Trump declared on Friday, March 13, his Department of Justice (DOJ) is asking Congress to allow the Attorney General to indefinitely detain people without trial in violation of the constitutional right of habeas corpus. The DOJ also seeks to hold hearings without the defendant’s consent and exclude anyone with #COVID-19 from eligibility for asylum.”
Still, given the Trump administration’s track record of opposing civil rights and liberties in federal courts, on the U.S.-Mexico border and in other venues – plus the fact that presidential emergency declarations give any Oval Office occupant enormous powers — skeptics of the administration’s motives abound, and not just on Capitol Hill.
Nine months ago, then-CPUSA Chairman John Bachtell, in his address to the party convention in Chicago, laid the blame for the threat to the Constitution and civil liberties right where it belongs: Not on Barr, but on his boss, Trump.
Even though no one could foresee the coronavirus pandemic as the source, Bachtell reported to the conclave that: “The Trump administration is characterized by authoritarianism, lawlessness, daily attacks on democracy, and breaching of constitutional norms, separation of powers, and checks and balances.”
More current skeptics are sounding the alarm against Barr’s comments.
Jay Stanley, senior analyst for the ACLU, said any coronavirus response plans must “protect the health, safety, and civil liberties of all” and be “imposed in a fair and equitable fashion.”
“At the ACLU, we have always recognized that, during a disease outbreak, individual rights must sometimes give way to the greater good. After all, when it comes to disease, we are not just individuals but also one big bio-mass. That is why people can sometimes be deprived of their liberty through quarantine, for example,” he admitted.
“And this is as it should be, provided — and this is a crucial and sometimes violated condition — that the science supports the effectiveness and proportionality of measures such as quarantine. And even if quarantine is imposed, people do not lose their due process rights, which at a minimum require that they be able to challenge their quarantine.”
His group will challenge constitutional rights violations in court, Stanley promised.
Norman Reimer of the National Association of Criminal Defense Lawyers said Barr’s proposed legislation also includes the phrase “affecting pre-arrest.”
“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,” he told Politico.
The constitutional threat isn’t limited to the nation’s capital.
A quick Google search of articles on the subject shows that in late March, on one day’s notice, the California Judicial Council drastically altered speedy trial rights in the Golden State.
And Massachusetts media reported local DAs have varying policies, county by county, on whether to indefinitely detain prisoners pre-trial – because the courts are shut down or reduced to videoconferencing – or let inmates go to prevent widespread coronavirus acceleration in jails.
Arraignments in California will now be seven days, not 48 hours, after arrest. In-custody preliminary hearings on “probable cause” for continuing to hold prisoners will occur in 30 days, not 10. Jury trials for misdemeanors would start 60 days after arrest, not 30. Felony trials would start in 90 days, not 60.
The ACLU’s California affiliate questioned all those restrictions, and more, in a three-page letter.
Finally, there’s the ever-present threat Trump could declare a national emergency, as he did to justify moving money around to fund his Mexican wall and to prevent people seeking asylum from crossing into the U.S. from Mexico.
The Brennan Center for Law and Justice pointed out if he does that, “many of the powers available to the president under the National Emergencies Act give him extremely broad authorities, and the risk the White House will abuse these authorities is ever present.”
“Now, more than ever, we need the vigilance of Congress to ensure that emergency powers are used responsibly and to safeguard the American people from unnecessary infringements on their liberty.
“This disease will test our democracy. But it doesn’t have to undermine it.”
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