The Trump Administration wants emergency powers

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The Justice Department has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies — part of a push for new powers that comes as the coronavirus spreads through the United States.

Documents reviewed by POLITICO detail the department’s requests to lawmakers on a host of topics, including the statute of limitations, asylum and the way court hearings are conducted. POLITICO also reviewed and previously reported on documents seeking the authority to extend deadlines on merger reviews and prosecutions.

In one of the documents, the department proposed that Congress grant the attorney general power to ask the chief judge of any district court to pause court proceedings “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.”

The proposal would also grant those top judges broad authority to pause court proceedings during emergencies. It 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,” according to draft legislative language the department shared with Congress. In making the case for the change, the DOJ document wrote that individual judges can currently pause proceedings during emergencies, but that their proposal would make sure all judges in any particular district could handle emergencies “in a consistent manner.”

The request raised eyebrows because of its potential implications for habeas corpus –– the constitutional right to appear before a judge after arrest and seek release.

“Not only would it be a violation of that, but it says ‘affecting pre-arrest,’” said Norman L. Reimer, the executive director of the National Association of Criminal Defense Lawyers. “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.”

Reimer said the possibility of chief judges suspending all court rules during an emergency without a clear end in sight was deeply disturbing.

“That is something that should not happen in a democracy,” he said.

The department also asked Congress to pause 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.

Another controversial request: The department is looking to change the Federal Rules of Criminal Procedure in some cases to expand the use of videoconference hearings, and to let some of those hearings happen without defendants’ consent, according to the draft legislative text.

Reimer said forcing people to have hearings over video rather than in person would threaten civil liberties.

“If it were with the consent of the accused person it would be fine,” he said. “But if it’s not with the consent of the accused person, it’s a terrible road to go down. We have a right to public trials. People have a right to be present in court.”

The department also wants Congress to change the law to explicitly say that people with Covid-19 –– the illness caused by the novel coronavirus –– are not included among those who may apply for asylum. And the department asked for the same change regarding people who are “subject to a presidential proclamation suspending and limiting the entry of aliens into the United States,” according to the draft legislative language.

Layli Miller-Munro, the CEO of the Tahirih Justice Center, which advocates for women and girls fleeing violence, said the language would block anyone on a presidential travel ban list from seeking asylum in the U.S.

“I think it’s a humanitarian tragedy that fails to recognize that vulnerable people from those countries are among the most persecuted and that protecting them is exactly what the refugee convention was designed to do,” she said.

But he needs those powers to build a clone army to help us with the separatist movement.