• In a series of requests for proposed legislation to address the coronavirus pandemic, the Department of Justice is asking Congress to enact a law that would allow some judges to indefinitely detain a person without the right to trial.
• The DOJ is also asking for Congress to suspend the statute of limitations for arrests and pass a law explicitly saying that migrants cannot apply for asylum if they have COVID-19.
• The requests were met with intense criticism by both Republicans and Democrats, though the DOJ has defended them, saying it worked with Congress and federal courts to develop the measures.

DOJ Requests Emergency Powers

The Department of Justice has asked Congress to grant it certain new emergency powers, including the ability for Attorney General William Barr to ask the chief judge of any district court to pause court proceedings, which could indefinitely detain people without trial.

The details of the requests were originally published by Politico on Saturday and they come as a response to the coronavirus pandemic.

Specifically, the DOJ is asking Congress to allow it the power to ask district courts to indefinitely pause court proceedings “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.”

Further, that proposal 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.”

That request could have serious implications, most notably the suspension of habeas corpus, which is a person’s right to appear in front of a judge after being arrested. 

For its part, the DOJ is justifying this request by saying that, currently, judges can already pause judicial proceedings in an emergency; however, this new legislation would allow them to handle emergencies “in a consistent manner.” 

Nonetheless, in an interview with Politico, executive director of the National Association of Criminal Defense Lawyers, Norman L. Reimer expressed concern.

“Not only would it be a violation of [habeas corpus],” Reimer said, “but it says ‘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.”

According to Politico, Reimer also called the possibility indefinite suspensions of court rules “deeply disturbing.” 

DOJ Makes Several Other Requests

In its draft for proposed legislation, the DOJ also made several additional requests. 

Among those, it asks Congress to suspend the statute of limitations for criminal investigations and civil proceedings during a national emergency and “for one year following the end of the national emergency.”

It’s also asking to change the Federal Rules of Criminal Procedure in some cases to expand the use of video conference hearings. Under current law, if a person consents to it, they can appear at their hearing over a video conference call and have their charges read that way. 

Now, the DOJ is asking Congress to let some of those hearings happen without defendants’ consent.

“If it were with the consent of the accused person it would be fine,” Reimer told Politico. “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.”

Another big request is that the DOJ is asking Congress to pass a law that would explicitly bar asylum seekers from claiming asylum if they have tested positive for COVID-19.

That request comes as the Trump Administration has already announced it will start barring entry to migrants at the southern border. Notably, that already includes asylum seekers there.

DOJ Requests Met with Intense Criticism

While the requests would be unlikely to pass a Democratic-led House of Representatives, the highly controversial draft legislation has largely been met with opposition both by Democrats and Republicans. 

Among notable reactions, Republican Utah Senator Mike Lee—who is currently one of five U.S. Senators self-quarantining—said of the requests, “OVER MY DEAD BODY.”

“@realDonaldTrump, please refute and disavow this immediately,” he said. 

In an interview on CNN with Jake Tapper Sunday morning, Democratic Representative Alexandria Ocasio-Cortez called the requests “abhorrent.

“This is not a time,” she said, “and you know, there is a long history in this country and in other countries of using emergencies as times to really start to encroach upon people’s civil rights. And, in fact, this is the time when we need them the absolute most. We have to keep an eye out for these kind of authoritarian and frankly this expansion, or rather suspension, of rule of law.” 

Former RNC Chair and former Lieutenant Governor of Maryland Michael Steele also blasted the requests, saying on Saturday, “NO!! This is NOT a slope we want to get on. Suspending Constitutional Rights!? With this crew?!  OH HELL NO!”

Richard Painter, the former White House Chief Ethics Lawyer for George W. Bush, called on Barr to resign on Monday. 

DOJ Defends Request

At the same time, the DOJ has defended its requests. Sunday night on Twitter, spokesperson Kerri Kupec tried to clarify the situation by outlining the DOJ’s reasoning.

“There has been some confusion re: reports about DOJ asking Congress for certain “emergency powers,” she said. “This was triggered by Congress asking DOJ for suggested proposals necessary to ensure that federal courts would be able to administer fair and impartial justice during [a] pandemic.”

Kupec then said the draft proposal was “developed in consultation w/ Congress and federal judiciary to help federal judges more consistently manage cases w/in their districts & protect interests of justice during this national emergency.”

“Because of pandemic-related measures, courts are closing and grand juries are not meeting,” she added. That means prosecutors may not be able to indict criminals before a statute of limitations expires, or dangerous criminals who have been arrested may be released because of time limits.”

Because of pandemic-related measures, courts are closing and grand juries are not meeting. That means prosecutors may not be able to indict criminals before a statute of limitations expires, or dangerous criminals who have been arrested may be released because of time limits.3/

— KerriKupecDOJ (@KerriKupecDOJ) March 23, 2020

Kupec said that authority would end once the national emergency was over if a chief justice found that emergency conditions were no longer affecting the federal courts. 

“Bottom line: The proposed legislative text confers powers upon judges.  It does not confer new powers upon the executive branch. These provisions are designed to empower the courts to ensure the fair and effective administration of justice.”

That authority too would end at the earlier of the termination of the COVID-19 national emergency or upon a finding by the Chief Justice (or his designee) that emergency conditions no longer affect the functioning of the federal courts. 10/

— KerriKupecDOJ (@KerriKupecDOJ) March 23, 2020

Bottom line: The proposed legislative text confers powers upon judges. It does not confer new powers upon the executive branch. These provisions are designed to empower the courts to ensure the fair and effective administration of justice.

— KerriKupecDOJ (@KerriKupecDOJ) March 23, 2020

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