Trump planned to suspend habeas corpus? Inside leaked memo targeting key constitutional protection of individual liberty

Some officials in the Trump administration, led by White House deputy chief of staff Stephen Miller, explored suspending the constitutional right of habeas corpus last year, according to The New York Times.

Last spring, White House staff secretary Will Scharf, a conservative lawyer, drafted a confidential memo expressing concerns about a proposal being considered by Stephen Miller, the key architect of US President Donald Trump’s deportation agenda, The New York Times reported.

Dated April 29, 2025, and marked “confidential,” the memo carried the subject line: “THE WRIT OF HABEAS CORPUS.”

It warned against bypassing established legal protections. Habeas corpus, a centuries-old right enshrined in Article I of the US Constitution, allows individuals to challenge their detention before a judge and requires the government to justify why a person is being held.

What was in the memo?

According to The New York Times, the proposal to suspend habeas corpus—one of the strongest constitutional protections for individual liberty—aligned with ideas long favoured by Stephen Miller, who sought ways to by pass judicial review in deportation cases. President Trump reportedly took interest in the idea and asked advisers about President Abraham Lincoln’s suspension of habeas rights during the Civil War, the NYT reported.

Miller also directed the Justice Department to study the issue. As the internal debate intensified within an administration not known for encouraging dissent, White House staff secretary Will Scharf formally documented his concerns in writing, reflecting growing unease among some aides that the proposal was being seriously considered.

“The history of habeas corpus dates back to the very dawn of English common law,” he recorded in his memo to Wiles.

“Denial of habeas corpus rights was a key grievance underlying the American Revolution, and the right to apply to the federal courts for habeas review dates to the beginning of the republic," Miller wrote as reported by the NYT.

Throughout US history, Scharf wrote, all three branches of government had been loath to interfere with habeas corpus, “doing so only in the direst of circumstances, and typically with respect to very limited categories of individuals.”

Here's what US Constitution says

Article I, Section 9, Clause 2: "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."

Restrictions on habeas corpus placed in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)16 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) have provided occasion for further analysis of the scope of the Suspension Clause. Courts have generally held that AEDPA's limits on repeated habeas petitions by state prisoners are part of long-established efforts to prevent misuse of the legal process and therefore do not constitute a suspension of habeas corpus under the Constitution's Suspension Clause.

Scharf argued against invoking the Insurrection Act

In a separate October memo, Will Scharf argued against invoking the Insurrection Act, writing that it “serves as a break-the-glass exception to the traditional, general prohibition on the use of the military in the domestic setting.”

He noted that the law was last used during the 1992 Los Angeles riots at the request of California’s governor and warned that using it against immigration protesters would be unprecedented, the NYT reported.

After the fatal shooting of Alex Pretti by federal agents in Minnesota in January 2026, administration officials, including Vice President JD Vance and Stephen Miller, reportedly revisited the idea of invoking the Insurrection Act. However, the measure was ultimately not used, and the administration also did not move forward with suspending habeas corpus.

Suspension of Habeas Corpus would mean?

In his memo, Scharf warned that suspending habeas corpus without congressional approval would be highly likely to be ruled unlawful and could trigger a major legal battle that would distract from the administration’s broader agenda, the NYT reported.

The day after Scharf submitted the memo to White House Chief of Staff Susie Wiles, President Donald Trump publicly hinted for the first time that he was considering such a drastic measure.

During a Cabinet meeting, Trump suggested there was a way to bypass court intervention, saying, “There’s one way that’s been used by three very highly respected presidents.”

His remarks came in the context of the case of Kilmar Armando Abrego Garcia, a Salvadoran national who had been living in Maryland and was mistakenly deported to CECOT, a high-security prison in El Salvador known for housing suspected gang members and terrorism-related detainees.

“But we hope we don’t have to go that route,” Trump added, the NYT reported.

After CNN reported that Trump’s Cabinet remarks referred to the possible suspension of habeas corpus and that he was personally involved in the discussions, Stephen Miller responded to questions from reporters outside the West Wing.

“The Constitution is clear, and that of course is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended in a time of invasion,” Miller said.

“So it’s an option we are actively looking at.”

Historical references to the suspension of habeas corpus

During the early years of the American Civil War, former President Abraham Lincoln unilaterally suspended habeas corpus, but faced significant opposition. He later sought and obtained approval from Congress for the move. In the years that followed, three other suspensions of habeas corpus were carried out with varying degrees of explicit congressional authorisation.

When suspension operates, what is suspended?

"In Ex parte Milligan, the Court asserted that the Writ is not suspended but only the privilege, so that the Writ would issue and the issuing court on its return would determine whether the person applying can proceed, thereby passing on the constitutionality of the suspension and whether the petitioner is within the terms of the suspension," the US Constitution says.

Here's what Trump said

When asked about the reports later, Trump appeared to acknowledge that suspending habeas corpus had been discussed, but suggested the idea was not being seriously pursued at the time,

“If you’re going to do that, that’s a big one,” Trump said. Referring to Kilmar Armando Abrego Garcia, he added, “You wouldn’t do it for that particular person.”

(With inputs from NYT)