Policy Summary: On March 21, 2020 the Politico website reported that the U.S. Department of Justice (DOJ) made a request to Congress seeking new emergency powers as a result of the coronavirus COVID-19 pandemic sweeping the world. Specifically, DOJ requested that Congress give the U.S. Attorney General the power to ask the chief judge of any federal district court to pause court proceedings if the district court is closed due to “natural disaster, civil disobedience or other emergency situation.” Additionally, another request sought to grant to federal judges the ability to pause court proceedings in criminal and civil cases on their own initiative due to an emergency. A final request made by DOJ to Congress was the ability to use videoconference court hearings without the consent or presence of the defendant. LEARN MORE

Policy Analysis: A spokesman for the Justice Department has declined to comment on reports of the requests being made to Congress. But as reported the requests has stirred the unease of many civil liberties advocates nationwide. While the coronavirus COVID-19 pandemic has created new challenges in all aspects of American civil, political and social life the requests being made by DOJ to Congress may not be proportional or even necessary to meet the challenges created by this virus. On closer inspection, the requests are more likely an expansion of governmental powers that reach further than need be to ensure the proper operation of court proceedings.

One of the most appealing aspects of the American judiciary system – both at the state and federal level – is that they are an independent judiciary. They answer only to the highest courts in their states (for state judges) or the U.S. Supreme Court (for federal judges). The U.S. Attorney General has no say over what judges do nor can he control their activities or proceedings. Congress passes laws which all courts must follow (mostly procedural and jurisdictional issues) but after that the courts have the power to decide how the rules will operate.

First off the request to Congress to give the Attorney General power to ask the chief judge of a federal district court to pause court proceedings is overreaching based on the standard sought to be used. In the Politico report, the article stated that the Attorney General could ask for a pause if court proceedings are closed to “natural disaster, civil disobedience or other emergency.” While a natural disaster and other emergency – like the COVID-19 pandemic – would certainly be reasonable grounds to close a court temporarily, the term civil disobedience is problematic. That term is one that can be interpreted in a number of different and it could very likely include legitimate acts of protest. Courts at the federal and state level have operated during times of civil disturbances before and so including this term in the legal standard is not required. What the Attorney General intended was probably to lump legitimate acts of civil disobedience in the same category as natural disaster or other life threatening emergency when in fact most acts of protest do not rise to that level at all. This was a subtle attempt to try and suppress acts of legitimate civil disobedience by making them seem more dangerous. The inclusion of the term civil disobedience in the language of the legal standard was not necessary.

Additionally, the other requests are troublesome because of the effect they can have on the conduct and maybe even the outcome of civil and criminal trials. A request for the power to suggest altering or suspending statutes and rules of procedure gives the Attorney General an opportunity to manipulate a chief judge to, quite simply, ignore rules that courts are supposed to abide by when performing their duties. Some of these rules, such as habeus corpus and speedy trial rules, were enacted specifically to give protections to citizens to ensure that they are not detained any longer than necessary and so that they will have a fair process to contest the accusations against them. In one instance, one of the requests made by DOJ to Congress was the ability to have court conferences via videoconference without the consent or presence of the defendant. This would in effect be a court hearing and/or trial without the defendant present. A government that can accuse and try her citizens without the presence of a defendant or their lawyer is simply not what the criminal justice system envisioned in a fair and just criminal proceeding. With the technological tools available today there is no reason to implement rules and procedures that deprives criminal defendants of civil liberties and protections.

Attorney General William Barr wants to implement more control over the judiciary and is trying to use COVID-19 as some kind of excuse to exert more input. With a Democratic majority in Congress his requests are likely not going anywhere. Additionally, there is bi-partisan support in Congress against the DOJ requests. Just as the civil disobedience term was unnecessary, the ability to alter statutes and procedure rules or suspend them indefinitely is not needed. Congress needs to ensure that any requests of this kind from DOJ be properly vetted so as to not make fundamental changes that can deprive criminal defendants of constitutional and legal protections and leave them at a disadvantage when navigating a criminal trial. LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

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