WEBVTT - Threats to Habeas Corpus & Sean 'Diddy' Combs Trial 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grosseo from Bloomberg Radio. 0:00:08.800 --> 0:00:12.479 The writ of habeas corpus is a bedrock American legal 0:00:12.560 --> 0:00:16.720 right embedded in the Constitution. Yet White House Deputy Chief 0:00:16.760 --> 0:00:20.960 of Staff Stephen Miller said the administration has been actively 0:00:21.040 --> 0:00:24.520 looking at suspending habeas corpus unilaterally. 0:00:24.720 --> 0:00:26.920 Well, the Constitution is clear, and that, of course is 0:00:26.960 --> 0:00:30.880 the supreme law of the land that the privilege of 0:00:30.880 --> 0:00:33.519 the writ of habeas corpus can be suspended in a 0:00:33.560 --> 0:00:36.280 time of invasion. Sold say, that's an option we're actively 0:00:36.280 --> 0:00:39.160 looking at. Look, A lot of it depends on whether 0:00:39.240 --> 0:00:40.760 the court do the right thing or not. 0:00:41.360 --> 0:00:45.640 Habeas corpus has been suspended only four times in our history, 0:00:45.920 --> 0:00:49.720 basically for reasons of war and insurrection. My guest is 0:00:49.720 --> 0:00:53.600 an expert in constitutional law. Jonathan Adler, a professor at 0:00:53.680 --> 0:00:57.560 Case Western Reserve Law School, tell us about the history 0:00:57.560 --> 0:00:59.200 of the writ of habeas corpus. 0:01:00.200 --> 0:01:03.120 So, the rit of habeas corpus traces its way back 0:01:03.160 --> 0:01:07.560 to the Magna carta. Literally, habeas corpus is a declaration 0:01:07.680 --> 0:01:10.360 that you have the body. The idea is that you're 0:01:10.520 --> 0:01:14.920 challenging the alleged unlawful detention of someone by the government. 0:01:15.120 --> 0:01:15.640 The writ of. 0:01:15.560 --> 0:01:19.000 Habeas corpus has been recognized going back to the seventeenth 0:01:19.000 --> 0:01:22.800 century as a way of challenging in England, at least 0:01:22.840 --> 0:01:26.000 the king's right to incarcerate people, and in the United States, 0:01:26.240 --> 0:01:28.880 the rid of habeas corpus is a way to challenge 0:01:29.000 --> 0:01:32.840 either a conviction or the government's detention of an individual 0:01:33.080 --> 0:01:35.560 on the grounds that it is not consistent with law. 0:01:35.720 --> 0:01:37.920 So in the case of a conviction, we see rits 0:01:37.920 --> 0:01:41.120 of habeas corpus filed by people who have been convicted 0:01:41.160 --> 0:01:44.160 of crimes, often people who have been sentenced to capital punishment, 0:01:44.640 --> 0:01:47.919 challenging the regularity or of the lawfulness of the proceedings 0:01:48.160 --> 0:01:50.080 through which they are convicted. And then the writ of 0:01:50.120 --> 0:01:52.720 habeas corpus can be filed in cases where, for example, 0:01:52.760 --> 0:01:55.600 someone is alleging that the basis upon which they have 0:01:55.680 --> 0:01:59.040 been detained or arrested is unlawful. So we've seen this 0:01:59.080 --> 0:02:02.000 with alleged enemy imbats, and we're seeing it now with 0:02:02.160 --> 0:02:05.120 individuals who are alleged to be unlawfully present in the 0:02:05.160 --> 0:02:07.480 country or potentially subject to deportation. 0:02:08.280 --> 0:02:12.959 The section of the US Constitution that includes the suspension 0:02:12.960 --> 0:02:17.440 of habeas corpus grants its powers to Congress and not 0:02:17.560 --> 0:02:18.280 the President. 0:02:18.720 --> 0:02:21.600 Well, that is the way we've generally interpreted what we 0:02:21.680 --> 0:02:24.840 call the suspension clause. So Article one, section nine, which 0:02:24.960 --> 0:02:29.320 a portion of the Constitution that identifies limits on Congress's power, 0:02:29.960 --> 0:02:33.280 has a clause that we refer to as the suspension clause, 0:02:33.480 --> 0:02:36.040 and it reads, the privilege of the writ of habeas 0:02:36.040 --> 0:02:39.680 corpus shall not be suspended unless, when in cases of 0:02:39.720 --> 0:02:43.680 rebellion or invasion, the public safety may require it. And 0:02:43.720 --> 0:02:46.080 given that it is in Article one, section nine, it 0:02:46.120 --> 0:02:50.040 has always been interpreted as placing limitation on Congress's ability 0:02:50.200 --> 0:02:53.320 to suspend the rit of habeas corpus, and that interpretation 0:02:53.720 --> 0:02:57.280 goes back all the way to eighteen oh seven. Is 0:02:57.320 --> 0:03:00.360 the first time Supreme Court, in an opinion by Chiechoss Marshall, 0:03:00.360 --> 0:03:04.880 indicated the understanding this is Congress's authority to decide that 0:03:04.960 --> 0:03:09.480 habeas corpus can be suspended. And historically, with one exception, 0:03:09.680 --> 0:03:12.679 when the writ of habeas corpus has been suspended, it 0:03:12.720 --> 0:03:16.160 has either been suspended by Congress or Congress has delegated 0:03:16.240 --> 0:03:18.320 to the President the authority to. 0:03:18.280 --> 0:03:23.800 Suspend the writ in specified circumstances that interpretation of the 0:03:23.840 --> 0:03:29.960 habeas corpus clause has been affirmed in Supreme Court opinions 0:03:29.960 --> 0:03:31.240 in modern times. 0:03:31.760 --> 0:03:31.959 Yes. 0:03:32.040 --> 0:03:32.120 So. 0:03:32.400 --> 0:03:35.320 For example, in the case of Hamdi, which was a 0:03:35.320 --> 0:03:39.400 case involving an individual and American citizen who was allegedly 0:03:39.560 --> 0:03:43.200 captured in Afghanistan as a fighter with the Taliban. He 0:03:43.360 --> 0:03:45.920 was brought to the United States and he filed a 0:03:45.920 --> 0:03:48.440 petition for rid of habeas corpus. The question was whether 0:03:48.520 --> 0:03:50.560 or not he could be detained in the United States 0:03:50.600 --> 0:03:53.160 without being subject to trial. And if one goes through 0:03:53.160 --> 0:03:56.400 the opinions in that case, while Justice has disagreed on 0:03:56.440 --> 0:03:59.200 a lot of questions about what sort of process mister 0:03:59.240 --> 0:04:03.560 Hamdy was and what other constitutional protections he deserved, all 0:04:03.600 --> 0:04:06.800 of the opinions operated on the premise that if the 0:04:06.800 --> 0:04:09.640 writ of habeas corpus was to be suspended, it had 0:04:09.680 --> 0:04:12.680 to be done so pursuant to an Act of Congress. 0:04:13.000 --> 0:04:15.560 Subsequent to that in a case called Buma Dien, also 0:04:15.640 --> 0:04:19.160 involving alleged enemy combatants, on the majority opinion of the 0:04:19.200 --> 0:04:22.159 Supreme Court in that case made clear that this is 0:04:22.200 --> 0:04:24.719 a check on executive power, that the rit of heabeas 0:04:24.760 --> 0:04:27.240 Corpus often in this sort of context serves as a 0:04:27.320 --> 0:04:30.040 check on executive power, and it obviously could not serve 0:04:30.080 --> 0:04:34.039 that function if the executive branch could unilaterally just decide 0:04:34.080 --> 0:04:34.800 to suspend it. 0:04:35.640 --> 0:04:40.440 So, if the Trump administration actually did decide to suspend 0:04:40.520 --> 0:04:46.719 habeas corpus unilaterally, would that definitely constitute a constitutional crisis. 0:04:47.640 --> 0:04:49.800 Well, two things. First, I think when one looks at 0:04:49.839 --> 0:04:53.080 Miller's comments, I think he was perhaps being very careful. 0:04:53.120 --> 0:04:57.120 He said they were looking at the option of the 0:04:57.160 --> 0:04:59.680 privilege of the writ of habeas corpus being suspended. He 0:04:59.760 --> 0:05:02.000 did not think whether the executive branch was going to 0:05:02.040 --> 0:05:04.400 try and do that unilaterally, or whether they were going 0:05:04.480 --> 0:05:06.719 to ask Congress to do it. My own view is 0:05:06.720 --> 0:05:09.040 they can look at it all they want, because if 0:05:09.080 --> 0:05:11.159 they do look at it, they'll realize that they do 0:05:11.240 --> 0:05:14.400 not have the authority to do it unilaterally. The one 0:05:14.480 --> 0:05:17.440 time the executive branch did suspend the Writ of habeas 0:05:17.480 --> 0:05:21.760 corpus unilaterally was during the Civil War, when President Lincoln 0:05:21.960 --> 0:05:25.000 suspended the writ in Baltimore out of a concern that 0:05:25.120 --> 0:05:28.120 rail lines to the nation's capital would be severed or 0:05:28.160 --> 0:05:31.680 blocked and that would lead to the fall of Washington, 0:05:31.760 --> 0:05:35.320 d C. To Confederate forces, and even that in such 0:05:35.360 --> 0:05:38.280 an extreme circumstance, when the nation was in civil war, 0:05:38.360 --> 0:05:41.799 when there were hostile troops threatening the nation's capital, even 0:05:41.839 --> 0:05:45.560 that was recognized as an extreme action. It's one that 0:05:45.640 --> 0:05:50.560 Congress later ratified, but most people except was not consistent 0:05:50.680 --> 0:05:55.280 with the constitution structure. So if the administration were to 0:05:55.320 --> 0:05:58.240 try to suspend the Writ of Habeas corpus, I'm not 0:05:58.640 --> 0:06:02.039 particularly doubtful that courts would conclude that that was unlawful, 0:06:02.080 --> 0:06:05.120 that the administration lacks that authority, and I think they 0:06:05.160 --> 0:06:08.080 would primarily do so on the grounds that it's just 0:06:08.160 --> 0:06:12.320 not something the executive branch can do within US territory 0:06:12.400 --> 0:06:16.159 during peacetime, etc. That there's no question that the executive 0:06:16.200 --> 0:06:20.520 branch does not have that sort of unilateral authority. The 0:06:20.520 --> 0:06:25.000 more interesting thought experiment would be what if the administration 0:06:25.160 --> 0:06:29.159 could convince Congress to suspend the writ. And as I 0:06:29.200 --> 0:06:32.920 noted before, the language of the suspension clause refers to 0:06:32.960 --> 0:06:36.440 the reasons why the writ could be suspended. It says 0:06:36.480 --> 0:06:39.000 that it shall not be suspended unless win in cases 0:06:39.040 --> 0:06:43.919 of rebellion or invasion, And so hypothetically, if the administration 0:06:44.000 --> 0:06:49.040 were to convince Congress that illegal immigration is such that 0:06:49.200 --> 0:06:52.520 it constitutes an invasion, and Congress were to suspend the WRIT, 0:06:53.160 --> 0:06:56.280 there is an interesting question about whether or not that 0:06:56.400 --> 0:07:00.279 judgment by Congress would be subject to judicial review. That 0:07:00.360 --> 0:07:04.320 prevailing wisdom is that whether or not Article one, Section 0:07:04.440 --> 0:07:07.080 nine requirements have been met would be a non justiciable 0:07:07.160 --> 0:07:10.800 political question. But that's really just a thought experiment, because 0:07:11.000 --> 0:07:15.400 that would require Congress passing legislation to suspend the WRIT, 0:07:15.480 --> 0:07:17.680 and you know, it's pretty clear with the margins in 0:07:17.720 --> 0:07:21.360 Congress right now, that's not something that is even remotely likely. 0:07:22.000 --> 0:07:26.640 The grounds that they referred to for suspending the WRIT 0:07:27.120 --> 0:07:29.960 are the same grounds basically that they referred to for 0:07:30.080 --> 0:07:34.120 invoking the Alien Enemies Act, and at least four federal 0:07:34.200 --> 0:07:39.000 judges have found that America isn't facing an invasion by 0:07:39.240 --> 0:07:44.280 undocumented migrants. But the Supreme Court did allow the Trump 0:07:44.400 --> 0:07:51.160 administration to continue invoking that Alien Enemies Act as long 0:07:51.200 --> 0:07:54.240 as they gave due process to the immigrants. 0:07:54.800 --> 0:07:57.560 Right, so the Trump administration is being required to allow 0:07:58.240 --> 0:08:01.840 individuals attained to file a petitions for Brits of abas Corpus, 0:08:02.200 --> 0:08:04.960 and I expect that would continue. I mean, in the 0:08:05.000 --> 0:08:08.360 background here, there is this long standing notion that certain 0:08:08.440 --> 0:08:12.080 questions relating to national security, perhaps even some relating to 0:08:12.120 --> 0:08:14.960 the border, are what we refer to as political questions, 0:08:15.040 --> 0:08:19.280 questions that are resolved by the political branches, not by courts. 0:08:19.360 --> 0:08:22.120 And in so far as these questions touch on that, 0:08:22.680 --> 0:08:24.760 the role that courts have played is to make sure 0:08:24.760 --> 0:08:27.560 that the legislature and the executive branch each perform their 0:08:27.560 --> 0:08:32.520 respective functions, but to not second guess their determinations. So, 0:08:32.720 --> 0:08:37.000 if Congress were to conclude that waves of illegal immigration 0:08:37.320 --> 0:08:40.040 are at least potentially in an invasion for purposes of 0:08:40.080 --> 0:08:46.160 the suspension clause, I suspect courts would allow that to stand, 0:08:46.920 --> 0:08:49.600 not because they would be saying Congress is correct, but 0:08:49.679 --> 0:08:52.760 because they would be saying the courts don't get to 0:08:53.160 --> 0:08:56.040 second guess that. Now, having said all that, I don't 0:08:56.040 --> 0:09:00.640 think there is any question as a historical matter, that immigration, 0:09:00.880 --> 0:09:04.199 even at far higher rates than we see now, would 0:09:04.200 --> 0:09:07.920 not constitute an invasion for purposes of that clause. The 0:09:08.120 --> 0:09:11.520 language of the suspension clause is invoking the idea that 0:09:11.520 --> 0:09:14.800 there are certain situations, such as rebellion or an invasion 0:09:14.840 --> 0:09:18.480 by an invading army that create a situation in which, 0:09:18.800 --> 0:09:21.400 in effect, the courts are not open. So the idea 0:09:21.440 --> 0:09:24.280 has been that if martial law, for example, is declared, 0:09:24.800 --> 0:09:29.120 that effectively tells the courts to stop operations. The rid 0:09:29.160 --> 0:09:32.119 of habeas corpus, when it is suspended by the legislature, 0:09:32.200 --> 0:09:35.520 that's typically because it's not safe or possible for the 0:09:35.559 --> 0:09:38.680 courts to engage in their normal functioning. That is the 0:09:38.720 --> 0:09:43.480 sort of invasion that Article one, section nine contemplates, not 0:09:44.080 --> 0:09:47.199 higher numbers of people crossing the border than perhaps Congress 0:09:47.280 --> 0:09:49.760 might like. So I don't think there's any question that 0:09:50.040 --> 0:09:52.440 as a textual matter or as a historical matter, that 0:09:52.520 --> 0:09:55.800 the clause would not be satisfied. But there is this 0:09:55.960 --> 0:09:59.360 question about whether or not it's something that courts can 0:09:59.559 --> 0:10:01.880 properly issue a decision on, as opposed to leaving it 0:10:01.920 --> 0:10:05.280 to the interplay between the executive and the legislature. 0:10:05.440 --> 0:10:10.480 Are the principles of habeas corpus and due process intertwined? 0:10:10.760 --> 0:10:14.200 Yeah, so the rid of baby's corpus is processed that 0:10:14.360 --> 0:10:16.800 someone might be due So when we think about due 0:10:16.800 --> 0:10:19.440 process and the fact that the Constitution, in both the 0:10:19.440 --> 0:10:22.800 fifth and fourteenth Amendments says that people cannot be deprived 0:10:23.360 --> 0:10:26.120 of their life, liberty, or property without due processes of law. 0:10:26.559 --> 0:10:28.720 Is in booking the idea that there is process that 0:10:28.840 --> 0:10:31.600 one is entitled to, the process that one is due 0:10:32.120 --> 0:10:34.959 before the government can subject you to one of these 0:10:34.960 --> 0:10:38.200 sorts of deprivations. And the way that has been understood 0:10:38.520 --> 0:10:41.880 throughout American history is that the degree of process that 0:10:42.080 --> 0:10:44.520 is required, the degree of process that you are due, 0:10:45.040 --> 0:10:48.640 is dependent upon the context, and in particular it's dependent 0:10:48.720 --> 0:10:52.559 upon of what's at risk for you, what the government's 0:10:52.640 --> 0:10:54.960 interest is, you know, the thing the government is trying 0:10:55.000 --> 0:10:58.000 to achieve, and then the extent to which process can 0:10:58.200 --> 0:11:02.640 safeguard against the government making a mistake, so the government 0:11:02.800 --> 0:11:06.440 erroneously concluding that someone's not a citizen, or not entitled 0:11:06.440 --> 0:11:09.800 to remain in the country, or not properly convicted. So 0:11:10.440 --> 0:11:13.400 the rid of habeas corpus is part of the process 0:11:13.520 --> 0:11:16.680 that someone might be due if they are going to 0:11:16.679 --> 0:11:20.040 be deprived of life, liberty, or property. And so the 0:11:20.040 --> 0:11:23.079 Supreme Court has indicated thus far is that it believed, 0:11:23.120 --> 0:11:25.960 even in the context of invoking something like the Alien 0:11:26.040 --> 0:11:30.120 Enemies Act, that even individuals who are not citizens, even 0:11:30.160 --> 0:11:33.439 individuals who may have entered the country unlawfully or may 0:11:33.480 --> 0:11:38.000 have overstated visa. They're still entitled to file a rid 0:11:38.000 --> 0:11:40.560 of habeas corpus as part of the due process that 0:11:40.600 --> 0:11:43.520 they are entitled to before certain things can be done 0:11:43.559 --> 0:11:46.679 to them, such as being detained and forcibly removed from 0:11:46.679 --> 0:11:47.160 the country. 0:11:47.480 --> 0:11:50.480 Coming up next on the Bloomberg Law Show, I'll continue 0:11:50.520 --> 0:11:54.880 this conversation with Professor Jonathan Adler. Was there a veiled 0:11:55.000 --> 0:11:59.839 threat to judges in Stephen Miller's comments? This is Bloomberg. 0:12:03.040 --> 0:12:07.320 The Trump administration has often challenged the decision making of 0:12:07.400 --> 0:12:12.000 federal judges, and White House Deputy Chief of Staff Stephen Miller, 0:12:12.520 --> 0:12:17.000 in discussing the administration possibly suspending the rid of habeas 0:12:17.040 --> 0:12:21.320 corpus unilaterally, said, the decision depends a lot on whether 0:12:21.360 --> 0:12:24.120 the courts quote do the right thing or not. 0:12:24.760 --> 0:12:27.440 If the courts aren't just at war with the executive branch, 0:12:27.920 --> 0:12:30.720 the courts are at war these radical road judges with 0:12:30.800 --> 0:12:33.200 the legislative branch as well too, So all of that 0:12:33.240 --> 0:12:35.560 will inform the choice that the president ultimately makes. 0:12:36.000 --> 0:12:39.920 Habeas corpus has only been suspended four times in our 0:12:40.040 --> 0:12:43.840 nation's history. I've been talking to Professor Jonathan Adler of 0:12:44.000 --> 0:12:49.199 Case Western Reserve Law School. Miller was talking about suspending 0:12:49.320 --> 0:12:55.240 Habeas corpus in the context of undocumented migrants. But could 0:12:55.240 --> 0:12:59.200 the Trump administration, if it decides to try to suspend 0:12:59.240 --> 0:13:04.679 habeas corpse is just suspended for a small segment of 0:13:04.720 --> 0:13:07.520 the population, or would it apply to the whole population, 0:13:08.200 --> 0:13:11.679 so all Americans habeas corpus rights would be suspended. 0:13:12.000 --> 0:13:14.680 Well, it depends. I mean, there have been contacts in 0:13:14.679 --> 0:13:18.280 the past where the WRIT has been suspended in particular areas, 0:13:19.000 --> 0:13:23.920 but not everywhere. So Franklin o' world's are suspended in Hawaii, 0:13:24.000 --> 0:13:29.120 for example, pursuant to a delegation of that authority from Congress. 0:13:29.480 --> 0:13:35.360 So there is historical precedent for confining, certainly geographically, the 0:13:35.400 --> 0:13:38.600 suspension of the WRIT. I'm not aware of a suspension 0:13:38.600 --> 0:13:42.440 of the WRIT that tried to suspend it for categories 0:13:42.480 --> 0:13:45.400 of people. And part of the problem there would be 0:13:45.960 --> 0:13:49.360 is how would you know who you're suspending the WRIT 0:13:49.520 --> 0:13:53.960 for if you're not maintaining a process for them to 0:13:54.040 --> 0:13:56.280 be able to challenge that. This is a similar sort 0:13:56.280 --> 0:13:58.400 of issue that has been coming up in some of 0:13:58.400 --> 0:14:02.000 these deportation cases where the administration has maintained. Steven Miller 0:14:02.040 --> 0:14:06.000 has said, oh, illegal immigrants aren't entitled to due process, 0:14:06.400 --> 0:14:09.280 And the fundamental reason why that's wrong is that someone 0:14:09.280 --> 0:14:12.000 who's alleged to be an illegal immigrant or someone who's 0:14:12.040 --> 0:14:16.400 alleged to be subject to deportation is entitled to due process, 0:14:16.480 --> 0:14:19.600 just as someone who's alleged to be a criminal is 0:14:19.760 --> 0:14:23.800 entitled to do process. To say that someone is an 0:14:23.840 --> 0:14:27.400 illegal immigrant or so it's deportation is to assume that 0:14:27.600 --> 0:14:32.200 which process is guaranteed to determine in the first place. 0:14:32.680 --> 0:14:35.480 And so if the administration, again with or without Congress, 0:14:35.520 --> 0:14:37.760 were to try to suspend the writ of habeas corpus 0:14:37.920 --> 0:14:41.040 just for specified individuals, we would still have this problem 0:14:41.120 --> 0:14:43.520 of how do we know it's being properly applied to 0:14:43.600 --> 0:14:48.200 the right People with geographically based suspensions less less of 0:14:48.240 --> 0:14:52.600 a problem because you're applying that rule or not allowing 0:14:52.640 --> 0:14:55.720 the filing of the writ in a particular area. Those 0:14:55.720 --> 0:14:59.400 boundaries are much easier to determine than knowing whether or 0:14:59.400 --> 0:15:01.800 not the person who been accused of something is in 0:15:01.880 --> 0:15:03.680 fact what they've been accused of. 0:15:04.600 --> 0:15:10.480 In two recent cases where foreign students were held in detention, 0:15:11.120 --> 0:15:14.520 they filed habeas corpus petitions, and two federal judges have 0:15:14.640 --> 0:15:19.240 released them pending more proceedings. But in general, is it 0:15:19.280 --> 0:15:23.080 difficult for defendants to get the relief they want through 0:15:23.080 --> 0:15:24.600 habeas corpus petitions. 0:15:25.080 --> 0:15:28.040 As a general matter, the rid of habeas corpus is 0:15:28.080 --> 0:15:30.400 often a long shot. I mean certainly when we look 0:15:30.400 --> 0:15:34.400 at petitions for habeas corpus filed domestically by individuals who 0:15:34.440 --> 0:15:36.960 have been convicted of crimes in the United States. These 0:15:37.000 --> 0:15:40.280 petitions are typically filed to challenge convictions in state courts 0:15:40.720 --> 0:15:43.400 or to challenge the sentences that state courts have imposed. 0:15:43.520 --> 0:15:46.640 So quite commonly individuals who have been sentenced to death 0:15:46.720 --> 0:15:49.800 file petitions for a rid of habeas corpus, and in 0:15:49.800 --> 0:15:55.800 that context, unless you can identify a very serious procedural irregularity, 0:15:56.240 --> 0:15:59.560 those petitions are are very difficult to prevail. So the 0:15:59.560 --> 0:16:04.240 Supreme Court is usually fairly stingy in granting rits of 0:16:04.280 --> 0:16:08.360 habeas corpus in those contexts. And that's largely because of 0:16:08.480 --> 0:16:11.840 a law enacted during the Clint administration called EDPA, the 0:16:12.040 --> 0:16:15.560 Anti Terrorism and Effective Death Penalty Act, which was designed 0:16:15.640 --> 0:16:20.520 to curtail the use of habeas petitions to challenge convictions 0:16:20.520 --> 0:16:23.000 in state court in these sorts of cases that we're 0:16:23.000 --> 0:16:25.480 seeing now, I think one of the reasons why we're 0:16:25.480 --> 0:16:28.560 seeing some of these petitions be successful is because you 0:16:28.600 --> 0:16:31.640 have individuals who are basically being given no process or 0:16:31.720 --> 0:16:35.280 virtually no process at all. And so whereas when prisoners 0:16:35.320 --> 0:16:39.760 are challenging state court convictions, they're challenging convictions where someone 0:16:39.800 --> 0:16:42.520 has had a trial, where they've had appeals, where something 0:16:42.560 --> 0:16:45.080 has typically gone up to the highest court within that state, 0:16:45.240 --> 0:16:47.840 and so there's been a lot of process and trying 0:16:47.880 --> 0:16:52.600 to identify particular deficiencies in that process really hard to 0:16:52.640 --> 0:16:54.680 do with a pission for a rit of habeas corpus. 0:16:55.080 --> 0:16:57.640 But when you're talking about individuals like Stata Scrat student 0:16:57.680 --> 0:17:01.160 from Tuffs who had been detained, who was given virtually 0:17:01.200 --> 0:17:03.640 no process at all, well, then the argument for a 0:17:03.680 --> 0:17:06.760 petition is much stronger because while we can debate about 0:17:06.800 --> 0:17:09.600 how much process someone should get or what the burdens 0:17:09.600 --> 0:17:12.680 of proof should be, the administration has acted very aggressively 0:17:12.720 --> 0:17:15.040 in some of these cases and tried to deny people 0:17:15.240 --> 0:17:17.920 for really any effective process at all. And so in 0:17:17.960 --> 0:17:21.399 that posture, I think it's easier for courts to grant 0:17:21.560 --> 0:17:22.720 these sorts of petitions. 0:17:23.000 --> 0:17:27.320 Did you hear a subtle threat to judges in Miller's comments? 0:17:27.880 --> 0:17:31.919 He described the judges here as a handful of Marxist 0:17:32.000 --> 0:17:36.440 judges carrying out a judicial coup, and that the administration's 0:17:36.480 --> 0:17:42.440 decision whether or not to suspend habeas corpus unilaterally depends 0:17:42.480 --> 0:17:44.920 a lot on whether the courts do the right thing 0:17:45.040 --> 0:17:45.280 or not. 0:17:46.000 --> 0:17:46.200 Yeah. 0:17:46.240 --> 0:17:48.520 So, I mean, you know, Steve Miller's not a lawyer, 0:17:48.840 --> 0:17:53.280 but he is someone that often speaks about legal issues 0:17:53.359 --> 0:17:57.000 for the administration and often says things that aren't quite 0:17:57.080 --> 0:17:59.920 right as a legal matter. But I think do Act 0:18:00.080 --> 0:18:03.840 goes the message that the administration wants to send, particularly 0:18:03.880 --> 0:18:07.600 to its base. I think in this sort of context, 0:18:08.000 --> 0:18:12.080 there is this implicit threat, or this very adversarial posture 0:18:12.119 --> 0:18:15.080 to the courts, a suggestion that of courts don't cooperate, 0:18:15.160 --> 0:18:18.360 or if the courts obstruct the administration's agenda, the administration 0:18:18.480 --> 0:18:22.560 will look for ways to push back in an extreme way, 0:18:23.040 --> 0:18:25.800 and this certainly could be one of them. Now, I'm 0:18:25.800 --> 0:18:30.800 not entirely sure this is an effective strategy for the administration. 0:18:31.440 --> 0:18:34.920 I mean, certainly, I can't imagine lawyers who work in 0:18:34.960 --> 0:18:38.399 the administration making these sorts of comments publicly, certainly not 0:18:38.640 --> 0:18:41.760 the lawyers that have to themselves appear in court. And 0:18:41.920 --> 0:18:44.119 it's not clear to me that these sorts of comments 0:18:44.560 --> 0:18:48.879 are helpful, and I doubt they do much to change 0:18:48.920 --> 0:18:52.280 the way judges evaluate these sorts of claims. In fact, 0:18:52.359 --> 0:18:56.560 in some cases, they might even undermine the administration's position 0:18:57.359 --> 0:19:00.679 insofar as they suggest the administration is not dotting its 0:19:00.720 --> 0:19:03.199 size and crossing its piece on legal questions. But I 0:19:03.200 --> 0:19:05.639 think it's also possible that Steven Miller is, since he's 0:19:05.680 --> 0:19:10.320 primarily a political advisor, is speaking politically and speaking to 0:19:10.359 --> 0:19:13.440 the base more than he is detailing what the administration's 0:19:13.520 --> 0:19:14.639 actual legal position is. 0:19:15.240 --> 0:19:17.639 Sort of in the category of he's not a lawyer, 0:19:17.680 --> 0:19:19.000 but he plays one on TV. 0:19:19.520 --> 0:19:23.399 Steven Miller can be relied upon to offer pugilistic spin 0:19:23.680 --> 0:19:29.120 on legal questions on the administration's losses in court, and 0:19:29.520 --> 0:19:32.480 he can he presents a very aggressive posture that certainly 0:19:32.480 --> 0:19:36.400 the administration's lawyers would not take in either of their 0:19:36.440 --> 0:19:39.120 filings or in actual arguments. But I think it's also 0:19:39.119 --> 0:19:41.960 important to recognize that he's not speaking as a lawyer. 0:19:42.320 --> 0:19:45.159 Often gets the law wrong, and we can often find 0:19:45.560 --> 0:19:49.840 meaningful differences between the things he says to the television 0:19:49.840 --> 0:19:53.320 cameras or on Twitter and the things that government attorneys 0:19:53.320 --> 0:19:55.160 actually are willing to put into legal filings. 0:19:55.200 --> 0:19:58.199 Well, we'll see if the administration brings this suspension of 0:19:58.280 --> 0:20:02.880 habeas corpus up began, or it's dropped. Thanks so much 0:20:02.920 --> 0:20:05.920 for joining me on the show, Jonathan. That's Professor Jonathan 0:20:06.000 --> 0:20:10.560 Alder of Case Western Reserve Law School. It's day two 0:20:10.600 --> 0:20:14.920 of the trial of Sean Diddy Combs, whose charge with racketeering, conspiracy, 0:20:15.080 --> 0:20:21.200 sex trafficking, and transportation to engage in prostitution. During opening statements, 0:20:21.240 --> 0:20:27.120 prosecutors portrayed Combs as an abusive kingpin who used violence, threats, drugs, 0:20:27.119 --> 0:20:30.800 and money to coerce two women into drug fueled days 0:20:30.840 --> 0:20:34.719 long sex parties with prostitutes, while the defense described him 0:20:34.760 --> 0:20:38.440 as a Harlem born success story with a tumultuous love 0:20:38.480 --> 0:20:41.879 life who could get angry or even violent, but that 0:20:41.960 --> 0:20:45.240 the violent moments didn't amount to the charges the government 0:20:45.280 --> 0:20:49.919 has accused him of. The prosecution's star witness, Combe's former girlfriend, 0:20:49.960 --> 0:20:53.840 Cassie Ventura, took the stand today. My guest is former 0:20:53.880 --> 0:20:57.800 federal prosecutor Robert Mintz. A partner at Macarter and English, 0:20:58.080 --> 0:20:59.760 Bob tell us about the charges. 0:20:59.800 --> 0:21:03.879 He essentially, what the government has a leg here is 0:21:03.920 --> 0:21:07.520 that mister Combs was involved in sex trafficking three women 0:21:07.920 --> 0:21:12.520 and exercising control over their lives through violence, with financial 0:21:12.600 --> 0:21:15.879 payments and by supplying them with drugs. Some of the 0:21:15.920 --> 0:21:20.520 incidents prosecutors specifically referred to or something called freakofs, which 0:21:20.560 --> 0:21:25.639 according to prosecutors, were these elaborate drug fueled sex marathons 0:21:25.720 --> 0:21:28.080 that could last for days, and that was one of 0:21:28.080 --> 0:21:32.440 the means by which, according to prosecutors, he exercised control 0:21:32.800 --> 0:21:36.520 over the women who he was sex trafficking for all 0:21:36.560 --> 0:21:39.760 those years. What's interesting here is that these charges go 0:21:39.880 --> 0:21:44.440 back twenty years. They're saying that mister Combs maintained what's 0:21:44.480 --> 0:21:50.280 called a criminal enterprise. A rico racketeering charge was included 0:21:50.320 --> 0:21:53.840 in these charges in which they say that mister Combs 0:21:53.960 --> 0:21:59.480 used his entourage basically his various employees including security guards, 0:22:00.040 --> 0:22:05.760 personal assistance, household staff and other supervisors to enable him 0:22:06.000 --> 0:22:08.960 with this leg sex trafficking to cover it up. 0:22:09.280 --> 0:22:12.880 The criminal enterprise part of this is that a stretch 0:22:13.080 --> 0:22:16.160 for the prosecution to make this into a criminal enterprise. 0:22:16.960 --> 0:22:19.720 Well, that is interesting here because the government has a 0:22:19.800 --> 0:22:24.240 leg that this criminal enterprise has been conducted over the 0:22:24.280 --> 0:22:26.919 course of twenty years, from two thousand and four to 0:22:27.080 --> 0:22:30.280 twenty twenty four, and that part of the acts that 0:22:30.320 --> 0:22:34.000 were carried out as part of that enterprise included arson, kidnapping, 0:22:34.480 --> 0:22:39.639 forced labor, bribery, obstruction of justice, and drug violations. But 0:22:39.840 --> 0:22:43.720 the RICO laws, this racketeering law, which was created in 0:22:43.760 --> 0:22:47.880 north to battle organized crime, has now more recently been 0:22:48.000 --> 0:22:52.080 used by federal prosecutors to go after popular figures in 0:22:52.119 --> 0:22:55.560 the entertainment industry. One example of that was a case 0:22:55.600 --> 0:22:58.040 in twenty twenty one when there was a federal trial 0:22:58.080 --> 0:23:01.720 against R and B singer RCA. Kelly and mister Kelly 0:23:01.760 --> 0:23:05.119 there was convicted of the sexual exploitation of a child, 0:23:05.400 --> 0:23:10.080 including bribery, racketeering, and sex trafficking involving five victims. So 0:23:10.160 --> 0:23:12.960 that was a case in which a racketeering enterprise was 0:23:13.040 --> 0:23:16.359 also alleged against the celebrity and it was used to 0:23:16.400 --> 0:23:19.639 successfully prosecute him and he is now serving a thirty 0:23:19.640 --> 0:23:22.399 one year sentence in federal prison. So we're seeing this 0:23:22.840 --> 0:23:25.359 more and more, but I think we will see the 0:23:25.400 --> 0:23:29.399 defense hamber away at that because their scheme here is 0:23:29.440 --> 0:23:32.080 that what the government is trying to do is to 0:23:32.320 --> 0:23:37.440 criminalize conduct that was essentially consensual, and they are arguing 0:23:37.480 --> 0:23:40.960 that the government here has overreached, that they have reached 0:23:40.960 --> 0:23:43.920 into the private lives of their client, a client who 0:23:43.960 --> 0:23:48.520 they acknowledged as flawed, whose practices were unorthodox, who had 0:23:48.520 --> 0:23:52.800