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Pull up. This show is for you. Bird's Eye View is coming May 16th. Follow the show on YouTube or wherever you listen to your podcast. Hey everyone, Ellie here wishing you a happy Friday. Before we get to this week's brief, I want to talk to you about a couple observations on the Sean Combs trial, the Diddy trial. which is playing out in federal court in the Southern District of New York, of course, where I used to be.
a prosecutor. Two things. I don't think either of these things is going to swing the outcome, but I think it gives you some interesting behind-the-scenes view into the kind of things that prosecutors and defense lawyers think about when you're trying a case to a jury. First of all, there are apparently six Yes, sick. AUSA, six federal prosecutors sitting at the prosecution's table. As you can tell, I'm sure from my tone of voice, that's not...
In all my time at the SDNY, I was never on a prosecution team. I never even heard a contemplation of a team more than three prosecutors at the table. I did a... three defendant, five murder case with three prosecutors total, myself and two others. I did another case involving four gangsters charged with racketeering with three of us. Six is just ridiculous. It doesn't look good. It looks like you're overkilling the case. And in this case, by the way, this may...
sort of jive with a theme that Sean Combs defense is making, which is everyone's trying to get their moment off this guy. Everyone's trying to get paid. Everyone's trying to get some glory. So I think it's a really, really bad idea. I don't know how they got to this.
where they have six prosecutors at the table. And by the way, I've talked to many of my other former Fed friends, including a lot of my CAFE colleagues, all of whom are similarly aghast and confused. I don't think it's going to swing the case. I don't think it's a good idea either. Second of all, there's an interesting sort of back and forth that played out over the fact that Cassie Ventura, the prosecution's key witness, is pregnant and very pregnant into her third Trimester now the defense
asked the judge that rather than have her enter the courtroom the way any witness would, which is you walk down the center aisle, you walk into the well, you walk past the jurors, they can see you as you walk, and then you be seated. The defense said, well, why don't we get her seated first? and then we'll bring the jury in so they can't see so obviously that she's pregnant. I'm sure they're going to see it no matter whether she walks by them or she's already seated.
And the concern, of course, is that the fact that somebody's pregnant might evoke sympathy. I think it's silly of the defense to ask for this. The judge denied it. But it brings to mind a famous story about a colleague of mine at the SDNY. I didn't witness this, but I heard the story many, many times over.
I won't say too much about this person. I'll say she was a unit chief of mine and is now a federal judge. So she was given a closing in a major gangs trial when she was very pregnant, eight months pregnant or so. And she's not a particularly tall woman, so she looked pretty obviously pregnant. This is according to her telling of it. And so when it came time to give her closing, which was going to be maybe an hour or two, she brought with her into a core a little stool.
And she said to the judge, who was one of these old-timey sort of cranky judges, Your Honor, while I'm giving this jury address, I don't intend to sit on the bench, but I may sort of lean on it or just have it there to support a little bit of my weight. And the judge said, No, I will not allow anyone to have a stool or a chair in the middle of my courtroom while they're addressing the jury.
And so this prosecutor, surprise, sort of put her stool over by the side. And then when the judge called on her, he said, you may begin your closing. She went up, grabbed the stool and plunked it down right in front of the jury as if to tell the judge, go ahead.
Stop me right in front of the jury. Let's say you take this stool away from me. Of course, the judge did no such thing. And she was just an awesome prosecutor and is now a great judge. Maybe I said too much. Maybe it's not a scandalous story. If people figure out who it is, I'm sure she'd be proud of it.
Anyway, I thought I'd share those little behind-the-scenes thoughts with you. Okay, on to this week's piece. As always, love to hear your thoughts, questions, comments. Send them into letters at cafe.com. To the Trump administration, there's no such thing as a mere policy problem. Everything, it seems, must be an emergency, an insurrection, an invasion. It's government by feigned panic, rule by performative hyperbole. Want to unilaterally impose whopping across the board tariffs?
No problem. Declare a national emergency and invoke the International Emergency Economic Powers Act of 1977 to address trade deficits, reciprocity, and value-added taxes. You know, real nightmare fuel. Why settle for boring old economic policy making when there's a national emergency to be declared?
In the mood for mass deportations, the administration could choose to do it the old-fashioned due-process-y way and run the deportees through perfunctory proceedings in immigration court before shipping them out. But where's the drama in that? Better to claim that we're under an invasion or a predatory incursion under the Alien Enemies Act, which has been previously invoked only during actual wartime with bullets flying.
Or maybe you've got some unruly legal permanent residents voicing objectionable opinions in college newspapers. They, too, could go through the ordinary process of green card revocation, or, hear me out, the authorities could dust off an obscure law that allows the Secretary of State to deport a non-citizen who poses, quote, a potentially serious adverse foreign policy consequence.
seemingly undeterred by a string of legal setbacks rejecting hysterical invocations of all manner of dire emergencies, the administration is now openly contemplating an even more drastic step. suspension of the writ of habeas corpus based on some trumped-up, no pun intended, claim that we're currently being victimized by, you guessed it, an invasion of illegal migrants.
habeas corpus at its core is the right of any person to challenge his detention the phrase translates roughly to produce the body the corpus meaning the government, as an incarcerating entity, has the obligation to bring the detained person into court and establish the basis for locking him up.
The concept is both foundational and ancient. It predates the United States of America by hundreds of years, dating back to the Magna Carta in the 13th century. We're talking about a core precept of orderly civilization.
Apparently unimpressed by the historical pedigree, White House Deputy Chief of Staff for Policy Stephen Miller stepped before the press late last week and declared that suspension of habeas corpus, quote, is an option that we're actively looking at, end quote, meaning that any person who is in the United States illegally can be removed at the whim of the executive branch with no judicial process
whatsoever. Miller is not a lawyer, by the way, but his cocksure condescending delivery suggests a D-level actor tasked with playing one. Miller is enormously influential in the White House, and subsequent reporting by CNN confirmed that Trump has been, quote, personally involved in internal discussions about the potential suspension of habeas corpus.
Indeed, just weeks ago, the president suggested as much when he said publicly, quote, there is one way used successfully by three presidents, all highly respected, and hopefully we don't have to go that way, but there are ways of mitigating it, meaning illegal immigration. So let's start with the Constitution itself, which Miller turned on its head during his announcement. Here's what he said.
The Constitution does indeed contemplate suspension of habeas corpus, but only as a last resort reserved for the most dire circumstance. The actual constitutional provision begins with this language. The privilege of the writ of habeas corpus shall not be suspended. That's a restriction, not an open invitation. unless when in cases of rebellion or invasion, the public safety may require it.
I've left the strange old-timey capitalization intact here on Rebellion, capital R, and Invasion, capital I, because it makes a point. When the Constitution says rebellion or invasion, it means the real kind. A quick glance at history bears that out. Habeas corpus has been suspended four times by the United States government. I know Trump said three. I guess he was close.
During the Civil War by Abraham Lincoln that was number one second during reconstruction when the Ku Klux Klan forcibly overran certain areas of South Carolina third in 1905 in response to a rebellion in parts of the Philippines, which the U.S. was then involved in governing, and fourth in Hawaii after Pearl Harbor in 1941. This is what the Constitution means by rebellion and invasion, armed, strategic wartime takeovers by organized, hostile forces.
Yet to the Trump administration, the presence of illegal migrants in the United States is on the same level. It's a preposterous claim. I'm fine, on board even, with the notion that we've got a problem. with illegal migration, but it's nothing like the Civil War or Pearl Harbor.
Take comfort in knowing that if the president does try to unilaterally suspend habeas corpus, he'll almost certainly fail. It's quite clear, given history, legal scholarship, and the Constitution itself, that only Congress can properly suspend the writ in three of the four prior instances that i just mentioned congress
Authorized the suspension of habeas corpus. Only Lincoln acted alone, but Congress was in turmoil at the time and ratified the president's action thereafter. No less a conservative luminary than Justice Antonin Scalia. wrote that Congress must authorize any suspension of habeas corpus. And the aforementioned constitutional language delimiting the suspension of habeas corpus appears in Article 1, which creates and confers powers on Congress. The executive branch is Article 2.
This constant wolf crying is a curious tactic by the Trump administration. It has largely failed thus far in the court. Most recently, a Trump-appointed federal judge in Texas, Fernando Rodriguez Jr., rejected the president's contention that the presence of a foreign gang in the United States constituted an invasion under the Alien Enemies Act.
The administration's position, quote, exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute's terms, Judge Rodriguez wrote. Beyond the obvious definitional stretches, you'd think an administration that prides itself on macho gluster wouldn't be so quick to yank the alarm bell and declare that we're under attack and we're all doomed. And the administration's fascination with exotic statutory curiosities is inefficient.
If the executive branch wants to rid the country of illegal migrants, it has plenty of power to do just that. lock down the border, as the administration has largely done, and use our established what we call Title VIII deportation processes to remove those who are in the country illegally. Yes, due process takes time, although immigration processes can be quite perfunctory.
but it's far more efficient to use garden variety immigration laws than to invoke and litigate the Alien Enemies Act and other statutory oddities. The old James Bond trope, memorably parodied in the Austin Powers movies, comes to mind. The evil mastermind inexplicably insists on bizarre, elaborate contraptions. Sharks with frickin' laser beams attached to their heads. That was my Austin Powers.
when far simpler methods would do the trick more reliably. But perhaps, for both the Bond villain and the Trump administration alike, the drama itself is the point. Thanks for listening everyone. Stay safe and stay informed.