The New York Times reports:

Last spring, Will Scharf, an arch-conservative lawyer serving as the White House staff secretary, wrote a secret memo to the chief of staff that reflected growing unease in the West Wing about one of the extreme measures being weighed by Stephen Miller, the powerful adviser driving President Trump’s deportation campaign.

Dated April 29, 2025, and stamped “confidential,” the memo was careful and lawyerly but amounted to a warning against end-running the rule of law. The subject line read: “THE WRIT OF HABEAS CORPUS.”

Habeas corpus — the centuries-old right to force the government to justify, before a judge, why it has locked a person up — is enshrined in Article I of the Constitution. Mr. Scharf’s memo, in its unassuming way, was a blinking red warning light. The second Trump White House was deliberating an explosive new claim of presidential power: the suspension of habeas rights for unauthorized immigrants.

The suspension of habeas corpus has occurred just a handful of times in U.S. history, and always under the most dire circumstances of war or invasion. Yet to a greater degree than previously known, administration officials, encouraged by Mr. Trump, actively weighed taking that step in the early months of his second term — this time to accelerate the mass deportation of immigrants in the country illegally.

Flush with a decisive 2024 election victory, Mr. Trump and some members of his team wanted to test how far the emboldened president’s authority could be pushed, setting off previously unreported internal struggles over where the limits should be.

The man who outlined his concerns in the memo, Mr. Scharf, was no resistance figure. A trim, balding, Harvard-trained lawyer who had run for office in Missouri, he had bemoaned John McCain as too moderate for the 2008 Republican nomination, and believed Mr. Trump had been vindictively prosecuted after his 2020 election loss.

He had helped develop the Trump team’s legal arguments behind the successful effort to get the Mar-a-Lago classified documents indictment thrown out, as well as the arguments behind the presidential immunity case that prevailed at the Supreme Court. He had embraced the most contentious elements of Mr. Trump’s agenda, but was quickly coming up against the limit of what the Constitution, in his reading, could be made to bear.

The Constitution, Mr. Scharf wrote in his memo to Susie Wiles, the White House chief of staff, permits suspension of habeas corpus only in cases of rebellion or invasion. Courts have almost uniformly held that only Congress can do it.

He added: “Even where Congress has explicitly suspended habeas corpus rights, the Supreme Court has held that some alternative process must be provided to defendants, with procedural safeguards akin to a habeas corpus action.”

“It prevents, in effect, governmental actors from detaining, imprisoning or executing individuals arbitrarily,” Mr. Scharf wrote.

Will Scharf, the White House staff secretary, wrote a secret memo to Susie Wiles, the White House chief of staff, outlining his concerns about suspending habeas rights for unauthorized immigrants.

In early April last year, the Supreme Court had allowed the administration to continue its use of the Alien Enemies Act as the basis for deporting Venezuelans who were in the United States illegally. But the justices also ruled that the migrants were entitled to challenge their deportations in court before being expelled. The detainees, the court held, could file lawsuits citing habeas corpus to challenge the basis for their removal, substantially slowing the administration’s deportation drive.

Inside the White House, Mr. Miller, the influential deputy chief of staff, saw an opening for an idea he had raised previously: What if Mr. Trump simply claimed the power to suspend habeas corpus?

Then the locked-up immigrants would be blocked from receiving hearings or even from seeking court orders to prevent their removal from the country. This was an opportunity for Mr. Trump not only to speed up deportations, but also to assert vastly expanded power over a legal system that was getting in his way.

Suspending habeas corpus was one of two radical ideas Mr. Miller had been pushing that alarmed Mr. Scharf. The other was invoking the Insurrection Act to deploy the military to enforce the law on American streets as protests grew against deportation sweeps. [Continue reading…]