The declaration from the White House deputy chief of staff, Stephen Miller, that President Trump is contemplating suspending habeas corpus puts the adviser — who does not have a law degree — at the van of the 47th president’s legal agenda.
Mr. Miller’s primacy within Mr. Trump’s camarilla comes through in a profile of Attorney General Bondi that appeared this week in the Times. The Gray Lady reports that the administration’s agenda for the Department of Justice “has largely been set by Mr. Trump, his adviser Stephen Miller and other officials,” and that “it was clear from the start that Mr. Miller, who is not a lawyer, would exercise control” inside the DOJ.
The DOJ’s former top pardon lawyer, Elizabeth Oyer, who was fired by Deputy Attorney General Todd Blanche and has been vocal about her unhappiness with the new administration, told the Times with respect of Ms. Bondi: “It feels like she is just performing a part. She is like an actor, in a way.” Ms. Oyer reflected that “the decisions are being made at the White House, and then they’re being pushed down to the Department of Justice, which is very, very atypical.”
The influential Mr. Miller, who also serves as Mr. Trump’s homeland security advisor, shared with reporters that the suspension of the Great Writ was “an option we’re actively looking at.” Such a move appears to be motivated by a desire to advance Mr. Trump’s deportations efforts, which have been hampered by some district court judges who believe that illegal aliens should be able to access habeas.
The Constitution ordains: “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.” The Suspension Clause, though, appears in Article I of the parchment, which established the Congress and suggests the Framers reckoned that the clause was a limitation on Congress — not a prerogative of the presidency.
Mr. Miller, the son of a successful California real estate lawyer, may not have a law degree, but he has demonstrated great facility at using the law to advance his objectives. In 2021 he founded a group, America First Legal, that successfully sued the government and other powerful organizations for illegal discrimination. In one major victory, he managed to thwart President Biden’s efforts to give $5 billion in reparations to Black farmers.
Immigration has long been Mr. Miller’s favorite assignment — he is a hardliner — and he ran policy on that front during Mr. Trump’s first term. He was a primary author of the travel ban that was, after several iterations, upheld — in a 5-to-4 ruling — by the Supreme Court as constitutional in the case of Trump v. Hawaii. Mr. Miller also supports ending birthright citizenship. The Nine will hear that issue on Thursday.
The justices will also consider curtailing the issuing by federal judges of nationwide or universal injunctions. Mr. Miller has made the power of district judges to block Mr. Trump’s agenda a focal point. In March he declared that “our objective, one way or another, is to make clear that the district courts of this country do not have the authority to direct the functions of the executive branch.”
That position, which will be argued before the Nine by Solicitor General John Sauer, could prosper. Justices Neil Gorsuch and Clarence Thomas have both expressed skepticism toward universal injunctions, and in 2022 Justice Elena Kagan reflected that “it just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.”
If Mr. Miller is coordinating closely with the DOJ, that would appear to align with Mr. Trump’s desire to more tightly control the department that, under Attorney General Garland and Special Counsel Jack Smith, launched two criminal cases against him. During his first term, Mr. Trump was frustrated when his attorney general, Jeff Sessions, recused himself from the Russia probe and appointed a special counsel. Even Mr. Session’s more accommodating replacement, William Barr, eventually quit under pressure after the 2020 election.
Ms. Bondi, who unlike Messrs. Barr and Garland did not go to an Ivy League college, is a former elected attorney general and, like Secretary Rubio, is a Floridian. She appears to be in lockstep with Mr. Trump and his West Wing advisers. When Ms. Bondi was sworn in she announced a “new DOJ” and vowed to make Mr. Trump “proud.”
Last month, America First Legal, the group Mr. Miller founded, filed a complaint against Attorney General Letitia James with the New York State Unified Court System’s Committee on Professional Standards. The complaint requests a state probe into allegations that Ms. James committed acts of mortgage fraud.
Ms. James is under criminal investigation by the justice department over the mortgage matter. Her broader conduct as an attorney general is also on the radar of Ms. Bondi’s Weaponization Working Group, which vows to probe “Federal cooperation with the weaponization by the Manhattan District Attorney Alvin Bragg, New York Attorney General Letitia James, their respective staffs, and other New York officials to target President Trump, his family, and his businesses.”
The new director of that group is Ed Martin, whose nomination for United States attorney for the District of Columbia the president recently withdrew. Mr. Martin is also taking over Ms. Oyer’s pardon duties.
A former DOJ official, Ed Whelan, a conservative, tells the Times, “I can’t recall an attorney general who seemed willing to be subordinate to White House staffers.” The office of the attorney general was created in 1789, and the DOJ dates to 1870. The Constitution vests all of the “executive power” in the president, meaning that he bears ultimate responsibility for the DOJ.
