This is Bloomberg Law with June Grosseo from Bloomberg Radio.
The writ of habeas corpus is a bedrock American legal right embedded in the Constitution. Yet White House Deputy Chief of Staff Stephen Miller said the administration has been actively looking at suspending habeas corpus unilaterally.
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. Sold say, that's an option we're actively looking at. Look, A lot of it depends on whether the court do the right thing or not.
Habeas corpus has been suspended only four times in our history, basically for reasons of war and insurrection. My guest is an expert in constitutional law. Jonathan Adler, a professor at Case Western Reserve Law School, tell us about the history of the writ of habeas corpus.
So, the rit of habeas corpus traces its way back to the Magna carta. Literally, habeas corpus is a declaration that you have the body. The idea is that you're challenging the alleged unlawful detention of someone by the government.
The writ of.
Habeas corpus has been recognized going back to the seventeenth century as a way of challenging in England, at least the king's right to incarcerate people, and in the United States, the rid of habeas corpus is a way to challenge either a conviction or the government's detention of an individual on the grounds that it is not consistent with law.
So in the case of a conviction, we see rits of habeas corpus filed by people who have been convicted of crimes, often people who have been sentenced to capital punishment, challenging the regularity or of the lawfulness of the proceedings through which they are convicted. And then the writ of habeas corpus can be filed in cases where, for example, someone is alleging that the basis upon which they have
been detained or arrested is unlawful. So we've seen this with alleged enemy imbats, and we're seeing it now with individuals who are alleged to be unlawfully present in the country or potentially subject to deportation.
The section of the US Constitution that includes the suspension of habeas corpus grants its powers to Congress and not the President.
Well, that is the way we've generally interpreted what we call the suspension clause. So Article one, section nine, which a portion of the Constitution that identifies limits on Congress's power, has a clause that we refer to as the suspension clause, and it reads, the privilege of the writ of habeas corpus shall not be suspended unless, when in cases of
rebellion or invasion, the public safety may require it. And given that it is in Article one, section nine, it has always been interpreted as placing limitation on Congress's ability to suspend the rit of habeas corpus, and that interpretation goes back all the way to eighteen oh seven. Is the first time Supreme Court, in an opinion by Chiechoss Marshall, indicated the understanding this is Congress's authority to decide that
habeas corpus can be suspended. And historically, with one exception, when the writ of habeas corpus has been suspended, it has either been suspended by Congress or Congress has delegated to the President the authority to.
Suspend the writ in specified circumstances that interpretation of the habeas corpus clause has been affirmed in Supreme Court opinions in modern times.
Yes.
So.
For example, in the case of Hamdi, which was a case involving an individual and American citizen who was allegedly captured in Afghanistan as a fighter with the Taliban. He was brought to the United States and he filed a petition for rid of habeas corpus. The question was whether or not he could be detained in the United States
without being subject to trial. And if one goes through the opinions in that case, while Justice has disagreed on a lot of questions about what sort of process mister Hamdy was and what other constitutional protections he deserved, all of the opinions operated on the premise that if the writ of habeas corpus was to be suspended, it had to be done so pursuant to an Act of Congress.
Subsequent to that in a case called Buma Dien, also involving alleged enemy combatants, on the majority opinion of the Supreme Court in that case made clear that this is a check on executive power, that the rit of heabeas Corpus often in this sort of context serves as a check on executive power, and it obviously could not serve that function if the executive branch could unilaterally just decide to suspend it.
So, if the Trump administration actually did decide to suspend habeas corpus unilaterally, would that definitely constitute a constitutional crisis.
Well, two things. First, I think when one looks at Miller's comments, I think he was perhaps being very careful. He said they were looking at the option of the privilege of the writ of habeas corpus being suspended. He did not think whether the executive branch was going to try and do that unilaterally, or whether they were going to ask Congress to do it. My own view is they can look at it all they want, because if they do look at it, they'll realize that they do
not have the authority to do it unilaterally. The one time the executive branch did suspend the Writ of habeas corpus unilaterally was during the Civil War, when President Lincoln suspended the writ in Baltimore out of a concern that rail lines to the nation's capital would be severed or blocked and that would lead to the fall of Washington, d C. To Confederate forces, and even that in such an extreme circumstance, when the nation was in civil war,
when there were hostile troops threatening the nation's capital, even that was recognized as an extreme action. It's one that Congress later ratified, but most people except was not consistent
with the constitution structure. So if the administration were to try to suspend the Writ of Habeas corpus, I'm not particularly doubtful that courts would conclude that that was unlawful, that the administration lacks that authority, and I think they would primarily do so on the grounds that it's just not something the executive branch can do within US territory during peacetime, etc. That there's no question that the executive
branch does not have that sort of unilateral authority. The more interesting thought experiment would be what if the administration could convince Congress to suspend the writ. And as I noted before, the language of the suspension clause refers to
the reasons why the writ could be suspended. It says that it shall not be suspended unless win in cases of rebellion or invasion, And so hypothetically, if the administration were to convince Congress that illegal immigration is such that it constitutes an invasion, and Congress were to suspend the WRIT, there is an interesting question about whether or not that
judgment by Congress would be subject to judicial review. That prevailing wisdom is that whether or not Article one, Section nine requirements have been met would be a non justiciable political question. But that's really just a thought experiment, because that would require Congress passing legislation to suspend the WRIT, and you know, it's pretty clear with the margins in Congress right now, that's not something that is even remotely likely.
The grounds that they referred to for suspending the WRIT are the same grounds basically that they referred to for invoking the Alien Enemies Act, and at least four federal judges have found that America isn't facing an invasion by undocumented migrants. But the Supreme Court did allow the Trump administration to continue invoking that Alien Enemies Act as long as they gave due process to the immigrants.
Right, so the Trump administration is being required to allow individuals attained to file a petitions for Brits of abas Corpus, and I expect that would continue. I mean, in the background here, there is this long standing notion that certain questions relating to national security, perhaps even some relating to the border, are what we refer to as political questions, questions that are resolved by the political branches, not by courts.
And in so far as these questions touch on that, the role that courts have played is to make sure that the legislature and the executive branch each perform their
respective functions, but to not second guess their determinations. So, if Congress were to conclude that waves of illegal immigration are at least potentially in an invasion for purposes of the suspension clause, I suspect courts would allow that to stand, not because they would be saying Congress is correct, but because they would be saying the courts don't get to
second guess that. Now, having said all that, I don't think there is any question as a historical matter, that immigration, even at far higher rates than we see now, would not constitute an invasion for purposes of that clause. The language of the suspension clause is invoking the idea that there are certain situations, such as rebellion or an invasion by an invading army that create a situation in which,
in effect, the courts are not open. So the idea has been that if martial law, for example, is declared, that effectively tells the courts to stop operations. The rid of habeas corpus, when it is suspended by the legislature, that's typically because it's not safe or possible for the courts to engage in their normal functioning. That is the sort of invasion that Article one, section nine contemplates, not higher numbers of people crossing the border than perhaps Congress
might like. So I don't think there's any question that as a textual matter or as a historical matter, that the clause would not be satisfied. But there is this question about whether or not it's something that courts can properly issue a decision on, as opposed to leaving it to the interplay between the executive and the legislature.
Are the principles of habeas corpus and due process intertwined?
Yeah, so the rid of baby's corpus is processed that someone might be due So when we think about due process and the fact that the Constitution, in both the fifth and fourteenth Amendments says that people cannot be deprived of their life, liberty, or property without due processes of law. Is in booking the idea that there is process that one is entitled to, the process that one is due before the government can subject you to one of these
sorts of deprivations. And the way that has been understood throughout American history is that the degree of process that is required, the degree of process that you are due, is dependent upon the context, and in particular it's dependent upon of what's at risk for you, what the government's interest is, you know, the thing the government is trying to achieve, and then the extent to which process can safeguard against the government making a mistake, so the government
erroneously concluding that someone's not a citizen, or not entitled to remain in the country, or not properly convicted. So the rid of habeas corpus is part of the process that someone might be due if they are going to
be deprived of life, liberty, or property. And so the Supreme Court has indicated thus far is that it believed, even in the context of invoking something like the Alien Enemies Act, that even individuals who are not citizens, even individuals who may have entered the country unlawfully or may
have overstated visa. They're still entitled to file a rid of habeas corpus as part of the due process that they are entitled to before certain things can be done to them, such as being detained and forcibly removed from the country.
Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Jonathan Adler. Was there a veiled threat to judges in Stephen Miller's comments? This is Bloomberg.
The Trump administration has often challenged the decision making of federal judges, and White House Deputy Chief of Staff Stephen Miller, in discussing the administration possibly suspending the rid of habeas corpus unilaterally, said, the decision depends a lot on whether the courts quote do the right thing or not.
If the courts aren't just at war with the executive branch, the courts are at war these radical road judges with the legislative branch as well too, So all of that will inform the choice that the president ultimately makes.
Habeas corpus has only been suspended four times in our nation's history. I've been talking to Professor Jonathan Adler of Case Western Reserve Law School. Miller was talking about suspending Habeas corpus in the context of undocumented migrants. But could the Trump administration, if it decides to try to suspend habeas corpse is just suspended for a small segment of the population, or would it apply to the whole population, so all Americans habeas corpus rights would be suspended.
Well, it depends. I mean, there have been contacts in the past where the WRIT has been suspended in particular areas, but not everywhere. So Franklin o' world's are suspended in Hawaii, for example, pursuant to a delegation of that authority from Congress. So there is historical precedent for confining, certainly geographically, the suspension of the WRIT. I'm not aware of a suspension of the WRIT that tried to suspend it for categories
of people. And part of the problem there would be is how would you know who you're suspending the WRIT for if you're not maintaining a process for them to be able to challenge that. This is a similar sort of issue that has been coming up in some of
these deportation cases where the administration has maintained. Steven Miller has said, oh, illegal immigrants aren't entitled to due process, And the fundamental reason why that's wrong is that someone who's alleged to be an illegal immigrant or someone who's alleged to be subject to deportation is entitled to due process, just as someone who's alleged to be a criminal is
entitled to do process. To say that someone is an illegal immigrant or so it's deportation is to assume that which process is guaranteed to determine in the first place.
And so if the administration, again with or without Congress, were to try to suspend the writ of habeas corpus just for specified individuals, we would still have this problem of how do we know it's being properly applied to the right People with geographically based suspensions less less of a problem because you're applying that rule or not allowing
the filing of the writ in a particular area. Those boundaries are much easier to determine than knowing whether or not the person who been accused of something is in fact what they've been accused of.
In two recent cases where foreign students were held in detention, they filed habeas corpus petitions, and two federal judges have released them pending more proceedings. But in general, is it difficult for defendants to get the relief they want through habeas corpus petitions.
As a general matter, the rid of habeas corpus is often a long shot. I mean certainly when we look at petitions for habeas corpus filed domestically by individuals who have been convicted of crimes in the United States. These petitions are typically filed to challenge convictions in state courts or to challenge the sentences that state courts have imposed.
So quite commonly individuals who have been sentenced to death file petitions for a rid of habeas corpus, and in that context, unless you can identify a very serious procedural irregularity, those petitions are are very difficult to prevail. So the Supreme Court is usually fairly stingy in granting rits of
habeas corpus in those contexts. And that's largely because of a law enacted during the Clint administration called EDPA, the Anti Terrorism and Effective Death Penalty Act, which was designed to curtail the use of habeas petitions to challenge convictions in state court in these sorts of cases that we're seeing now, I think one of the reasons why we're seeing some of these petitions be successful is because you have individuals who are basically being given no process or
virtually no process at all. And so whereas when prisoners are challenging state court convictions, they're challenging convictions where someone has had a trial, where they've had appeals, where something has typically gone up to the highest court within that state, and so there's been a lot of process and trying to identify particular deficiencies in that process really hard to do with a pission for a rit of habeas corpus.
But when you're talking about individuals like Stata Scrat student from Tuffs who had been detained, who was given virtually no process at all, well, then the argument for a petition is much stronger because while we can debate about how much process someone should get or what the burdens of proof should be, the administration has acted very aggressively in some of these cases and tried to deny people
for really any effective process at all. And so in that posture, I think it's easier for courts to grant these sorts of petitions.
Did you hear a subtle threat to judges in Miller's comments? He described the judges here as a handful of Marxist judges carrying out a judicial coup, and that the administration's decision whether or not to suspend habeas corpus unilaterally depends a lot on whether the courts do the right thing or not.
Yeah.
So, I mean, you know, Steve Miller's not a lawyer, but he is someone that often speaks about legal issues for the administration and often says things that aren't quite right as a legal matter. But I think do Act goes the message that the administration wants to send, particularly
to its base. I think in this sort of context, there is this implicit threat, or this very adversarial posture to the courts, a suggestion that of courts don't cooperate, or if the courts obstruct the administration's agenda, the administration will look for ways to push back in an extreme way, and this certainly could be one of them. Now, I'm not entirely sure this is an effective strategy for the administration.
I mean, certainly, I can't imagine lawyers who work in the administration making these sorts of comments publicly, certainly not the lawyers that have to themselves appear in court. And it's not clear to me that these sorts of comments are helpful, and I doubt they do much to change the way judges evaluate these sorts of claims. In fact, in some cases, they might even undermine the administration's position insofar as they suggest the administration is not dotting its
size and crossing its piece on legal questions. But I think it's also possible that Steven Miller is, since he's primarily a political advisor, is speaking politically and speaking to the base more than he is detailing what the administration's actual legal position is.
Sort of in the category of he's not a lawyer, but he plays one on TV.
Steven Miller can be relied upon to offer pugilistic spin on legal questions on the administration's losses in court, and he can he presents a very aggressive posture that certainly the administration's lawyers would not take in either of their filings or in actual arguments. But I think it's also important to recognize that he's not speaking as a lawyer.
Often gets the law wrong, and we can often find meaningful differences between the things he says to the television cameras or on Twitter and the things that government attorneys actually are willing to put into legal filings.
Well, we'll see if the administration brings this suspension of habeas corpus up began, or it's dropped. Thanks so much for joining me on the show, Jonathan. That's Professor Jonathan Alder of Case Western Reserve Law School. It's day two of the trial of Sean Diddy Combs, whose charge with racketeering, conspiracy,
sex trafficking, and transportation to engage in prostitution. During opening statements, prosecutors portrayed Combs as an abusive kingpin who used violence, threats, drugs, and money to coerce two women into drug fueled days long sex parties with prostitutes, while the defense described him as a Harlem born success story with a tumultuous love life who could get angry or even violent, but that the violent moments didn't amount to the charges the government
has accused him of. The prosecution's star witness, Combe's former girlfriend, Cassie Ventura, took the stand today. My guest is former federal prosecutor Robert Mintz. A partner at Macarter and English, Bob tell us about the charges.
He essentially, what the government has a leg here is that mister Combs was involved in sex trafficking three women and exercising control over their lives through violence, with financial
payments and by supplying them with drugs. Some of the incidents prosecutors specifically referred to or something called freakofs, which according to prosecutors, were these elaborate drug fueled sex marathons that could last for days, and that was one of the means by which, according to prosecutors, he exercised control over the women who he was sex trafficking for all those years. What's interesting here is that these charges go
back twenty years. They're saying that mister Combs maintained what's called a criminal enterprise. A rico racketeering charge was included in these charges in which they say that mister Combs used his entourage basically his various employees including security guards, personal assistance, household staff and other supervisors to enable him with this leg sex trafficking to cover it up.
The criminal enterprise part of this is that a stretch for the prosecution to make this into a criminal enterprise.
Well, that is interesting here because the government has a leg that this criminal enterprise has been conducted over the course of twenty years, from two thousand and four to twenty twenty four, and that part of the acts that were carried out as part of that enterprise included arson, kidnapping,
forced labor, bribery, obstruction of justice, and drug violations. But the RICO laws, this racketeering law, which was created in north to battle organized crime, has now more recently been used by federal prosecutors to go after popular figures in the entertainment industry. One example of that was a case in twenty twenty one when there was a federal trial against R and B singer RCA. Kelly and mister Kelly there was convicted of the sexual exploitation of a child,
including bribery, racketeering, and sex trafficking involving five victims. So that was a case in which a racketeering enterprise was also alleged against the celebrity and it was used to successfully prosecute him and he is now serving a thirty
one year sentence in federal prison. So we're seeing this more and more, but I think we will see the defense hamber away at that because their scheme here is that what the government is trying to do is to criminalize conduct that was essentially consensual, and they are arguing that the government here has overreached, that they have reached into the private lives of their client, a client who they acknowledged as flawed, whose practices were unorthodox, who had
a violent temper, and who they admit committed domestic violence. But in the end they argue that he was not involved with sex trafficking and should not have been charged with these crimes.
That's a hard distinction for a jury to make, you know, he's guilty of domestic violence.
But well, I think this is the case that really comes down to several things, one of which the central theme here is consent versus coercion. And this is where it gets very murky, because the heart of the government's case is the testimony of the women who were allegedly the subject of his violent acts, but who stayed in
relationships with him for many years. And so you have that sort of trapped personality which has now become fairly popular in terms of prosecutions, where women are trapped in these domestic violence situations and they don't leave, and ultimately, the defense is always that they were free to leave and that this relationship, while it may have been an orthodox, was ultimately consensual. The defense here has argued that this case is really about love, jealousy, and infidelity. With the
highly volatile relationship they acknowledge. They acknowledged that they're went over the top and sometimes acted out violently, which was inappropriate. But again they're attacking the government for trying to turn what was a heated sexual relationship that was consensual into a racketuring enterprise.
The prosecution has shown the jury a video that a lot of people probably have already seen where Colmbs is beating up Cassie Ventura at a Los Angeles hotel. That's going to be a key piece of prosecution evidence, even though it doesn't go to the racketeering or trafficking charges.
Yeah, that will be a central piece of evidence for prosecutors. The defense tried to keep that video evidence out of the case, and the judge ruled that it was admissible. And it does go back to this twenty sixteen incident at a hotel in California where mister Colmbs is allegedly seen beating his then girlfriend, Cassie Ventura, dragging her by the hair. Ultimately, several years later, he brought a civil suit against him, using that video as a key piece
of evidence in her civil lawsuits. That case was settled within one day, but prosecutors picked up on the civil lawsuits and ultimately brought these federal criminal charges against him, which mirror to a large extent the allegations in the civil lawsuits filed by Cassie Ventura.
Apparently he took videos of these so called freakouts that are very graphic, and the prosecution is going to introduce them for the jury. How incriminating is just seeing a scene like that?
Well, I think it is difficult for the defense because what they're trying to do is soften his image. They have spent some time already in their opening statements talking about the rags to Rich's story, how Shancomb came from a background where he had no money. He's a self made man. He's become a major figure in the hip hop industry and a major figure generally in the music industry,
responsible for making many people into major music stars. Up until a lot of these allegations came out, he was viewed as somebody who was really very much a role model. But now you've got all of these allegations, and as you say, they also now backed up with this video evidence, which is really difficult for the defense to try to square with the public persona that Seawan Colms has so
carefully cultivated over many, many years. The video is something that is very difficult for the defense to try to explain away. They're going to suggest that there were things that happened before the video started. Typically they're going to say things that happen after the video that is out of context, that you don't get a real clear picture as to exactly what was going on in the relationship.
But those images are the types of things that can be steered into the minds of jurors and difficult for defense Blowder to overcome.
So Cassie Ventura is on the stand and she's visibly pregnant. How do you do a cross examination of someone like Curry if you want to question her motives? For example, why we're in criminal charges brought, why we're just civil charges brought? Why did you stay with him for so long? I mean, how difficult is that kind of cross examination?
Well, it's the situation that defense lawyers deals all the time in crimes that involve rape or other sexual misconduct where the victim takes the stand and the case largely turns, as I think will in this case, on the credibility
of those witnesses. Jurors will be able to look the witnesses in the eye in this case, Cassy Ventura being the central witness and gauge her credibility as she tells these stories, as he explains what was going on in her mind as she felt that he was coerced into performing the sex acts, and how she was the victim of violent and defense lawyers have to tread carefully and trying to discredit her, trying to show that he was doing this consensually, that she could have left the relationship,
that she had a financial motive, that mister Combs was making her career, which he did to some extent. He did get her a lucrative record deal, and she ultimately settled with him in her civil suit for a very large sum of money. I believe it was disclosed as
an eight figure settlement. And they are going to try to suggest that he and the other victims who testify at this trial are really motivated about financial gains, and that they are taking what was a consensual, albeit unorthodox relationship, one which at one point the defense lawyers actually described as mutually violent, trying to suggest that the alleged victims here were as violent towards mister Colmbs as he was to them, and suggest that this is really a private
matter between he and these former girlfriends and something that does not rise to the level of criminal conduct.
If Shawn Combs took the stand, it would be a difficult cross examination. He did take the stand in his trial more than twenty years ago for firing a gun in a Manhattan nightclub, and he was acquitted. Do you think there is a chance that he might take the stand.
Well, there's always a temptation for defendants to want to tell their side of the story because they sit there throughout the trial and listen to their accusers and they
obviously have a very different take on what occurs. But it is a very high risk move on the part of a defense lawyer ever to put their client on the stand, and in this case, we would see prosecutors having an opportunity to essentially retry their entire case through the cross examination of Sean Colms, and no doubt they would take him through that elevator video from twenty sixteen, frame by frame and pointing out every time he committed
an act of violence. And generally speaking, when a defendant tries to take the stand in their own defense, it doesn't end well for the defendant. But anything's possible here, and ultimately it is the decision of the defendant, not the lawyers, as to whether or not he will want
to testify on his own behalf. I think what we're seeing so far, though, signals that the defense does not intend to call him, and that they will build their case largely by attacking the credibility of the alleged victims and portraying the government as having overreached here, having tried to tear down a successful businessman in order to try to make a case against a major celebrity by suggesting that his unorthodox lifestyle is actually a racket sharing enterprise.
The prosecutor who gave the opening statement is a woman. Mark Agnifolo, well known as the defense attorney, but his associate Tenny Garrigos did the opening statement. Introals like this, where the victims are women. Do you think there's an effort to have women attorneys.
I think in this case, we see two competing issues here. There's a racial issue and there's a gender issue. You have a very successful black entrepreneur, somebody who was successful in the black music industry who's being attacked by the government here with the serious allegations that if he is convicted, could likely send him to prison for the rest of
his life. You also have a situation in which the accusers are primarily female, and that's something that you often see defense lawyers try to deal with by using female lawyers so they're not seen as attacking the victims here. But we will see I think both sides try to deal with these two issues, both gender and race, throughout
the trial. And we already did see emotion by the defense to try to strike some of the prosecutions jury decisions, suggesting that they were striking African American jurors without a valid basis. Ultimately, the judge denied that motion, but we've already seen the issue of race being ejected into this trial, and I think we'll see the defense continue to try to do that in subtle ways throughout the course of the trial.
Comb's family is in the courtroom, his six adult children, his mother. Does a jury notice.
That, Yeah, I think they do. I think jurors notice everything going on in the courtroom. You have to remember that a trial really is very much a scripted event. The prosecutors have their case scripted out. They've already spent hours and hours prepping their witness is. They know what they're going to ask them. The prosecution's goal is to have the testimony go in exactly as planned. From the defense side, it is a bit more of a crapshoot.
They try to attack the vulnerability in the witnesses. You don't know what the witnesses are going to stay, and so you have to kind of roll with the punches during the trial. And you see a witness slip up in a certain way, you may then begin a line of questioning that you hadn't anticipated, but you have to try to pick apart the credibility of that witness. But jurors are watching all of that. They're watching the witnesses.
They're watching the reaction of the defendant himself, They're watching the reaction of lawyers on both sides as the witnesses testify, and they're also looking around the courtroom and seeing who's there, and there's no question that the president of Shancomb's family in the courtroom is meant to portray him as somebody who has the support of his family despite these very serious allegations, and to try to convey to yours that his family supports him in what they believe are unfounded
charges against their son, against their father, against their brother.
Thanks so much, Bob. That's former federal prosecutor Robert Mintz, a partner at McCarter and English. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, Slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso, and you're listening to Bloomberg