Law Enforcement Today has learned through sources that the Department of Justice (DOJ) has asked Congress for a number of new “emergency powers” as the nation deals with the unprecedented fallout from the coronavirus (COVID-19).
As of Sunday morning, the virus had shown nearly 27,000 Americans go ill, with over 340 more succumbing to the outbreak, according to data compiled by Johns Hopkins University.
Among the changes proposed, one would give the attorney general the ability to ask district judges to stop court proceedings “whenever the district court is fully or partially closed by virtue of a natural disaster, civil disobedience, or other emergency situation.”
In addition, judges would also be given the power to stop court proceedings during a national emergency.
This would apply to “any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings,” according to draft language provided by the DOJ to Congress.
The DOJ notes that there is already the ability for individual judges to pause proceedings during emergencies, however their proposal would ensure that all judges in any particular district could handle emergencies “in a consistent manner.”
The new powers that the DOJ is asking for are wide-ranging and should give pause since in some ways, these powers, granted under the auspices of an “emergency” would actually have implications on individuals’ Constitutional rights. It is unknown if these powers would actually stand up to constitutional muster.
Fore example, another proposal would allow the DOJ to ask chief judges to permanently detain an individual without trial during emergencies.
Yet another proposal would waive the statute of limitations for criminal investigations as well as civil trials during an emergency and could last up to “one year following the end of the national emergency.”
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The requests have caused some concern due to habeas corpus concerns—the constitutional right to appear before a judge after arrest and seek release.
“Not only would it be a violation of that, but it says, ‘affecting pre-arrest,’” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers.
“So that means you could be arrested and never brought before a judge until they decide that the emergency or civil disobedience is over. I find it absolutely terrifying. Especially in a time of emergency, we should be very careful about granting new powers to the government.”
Reimer continued that the possibility of chief judges suspending all court rules during an emergency without a clear end in sight was deeply disturbing.
“That is something that should not happen in a Democracy.”
The department is also looking to change the Federal Rules of Criminal Procedure in some cases to expand the use of videoconference hearings and allow some of those hearings to take place without defendants’ consent, according to draft legislation.
“Video teleconferencing may be used to conduct an appearance under this rule,” read a draft proposal of potential new language for Federal Rule of Criminal Procedure 5(f), crossing out the phrase “if the defendant consents.”
“Video teleconferencing may be used to arraign a defendant” read draft text of rule 10(c), again striking out the phrase “if the defendant consents.”
Once again Reimer is concerned that forcing people to have hearings conducted over video rather than in person would threaten civil liberties.
“If it were with the consent of the accused person it would be fine,” he said. “But if it’s not with the consent of the accused person, it’s a terrible road to go down. We have a right to public trials. People have a right to be present in court.”
According to Politico, the DOJ has also asked Congress to permit the extension of deadlines on merger reviews and price-fixing prosecutions due to the pandemic.
The proposal would allow the DOJ, as well as the Federal Trade Commission (FTC) to add 15 days onto merger timelines during emergencies, such as disease outbreaks, natural disasters or government shutdowns.
In addition, prosecutors are asking to stop the clock on price-fixing and bid-rigging cases, which would ensure that the current pandemic crisis doesn’t let companies that fixed prices on generic drugs off the hook.
Current law provides that all mergers valued at more than $94 million require notification to the United States’ two anti-trust agencies, who then have 30 days to decide whether to escalate the request to a more in-depth review. The proposal would bump that to 45 days.
In most of such cases, the companies agree with the specific agency to extend the timeline in order to reach an agreement and avoid a lawsuit. Both agencies, the FTC and DOJ noted this week that they will be asking companies with pending deals for additional time to complete their reviews.
With that said, with markets currently in turmoil, it is believed that companies will be less open to giving the agency(s) extensions over fear that financing for the deal may fall through, according to someone with several pending deals before the agencies.
On Friday, Bridgewater Associates, the world’s largest hedge fund, estimated that U.S. corporate revenues will decline by about $4 trillion due to uncertainty over the virus. Lenders are already pulling back financing out of default concerns.
The request has met with resistance from a couple of camps, specifically civil liberties advocates, as well as critics of President Trump. They fear that the president may use moments of “crisis” to push for policy changes deemed controversial.
The president has already asked for tightening the border (as has been done in numerous countries, by the way) and is restricting asylum claims.
DOJ would ask Congress to change the law to explicitly say that people with COVID-19 are not included among those you may apply for asylum.
The department also asked for the same change regarding people who are “subject to a presidential proclamation suspending and limiting the entry of aliens into the United States,” according to the draft language.
Layli Miller-Munro is the CEO of the Tahirih Justice Center which advocates for women and girls fleeing violence. She says that the language would block anyone on a presidential ban list from seeking asylum in the United States.
“I think it’s a humanitarian tragedy that fails to recognize that vulnerable people from those countries are among the most persecuted and that protecting them is exactly what the refugee convention was designed to do,” she said.
The Trump administration said on Friday that it would begin denying entry to all migrants illegally crossing the U.S. southern border including those seeking asylum.
“I hope we come out of this with a sense of oneness, interconnectedness,” Miller-Munro said of the coronavirus pandemic. “Borders can’t protect us. Viruses do not care.”
The president has also pushed for further tax cuts in order to stimulate a flagging economy, arguing that it would soften the impact of the pandemic on the American people.
It is believed the DOJ requests are unlikely to make it through the Democratic-controlled House.