Secret Memos Reveal Trump White House Weighed Suspending Habeas Corpus

Secret White House memos reveal that the Trump administration actively debated whether to suspend the constitutional right of habeas corpus for undocumented immigrants during the early months of President Trump’s second term, according to a report by The New York Times. The proposal, championed by White House Deputy Chief of Staff Stephen Miller, would have dramatically expanded executive power by blocking detained immigrants from receiving court hearings or seeking judicial orders to prevent their removal.

The Secret Memo

On April 29, 2025, White House Staff Secretary Will Scharf wrote a confidential memo to Chief of Staff Susie Wiles, stamped “confidential,” with the subject line “THE WRIT OF HABEAS CORPUS.” In it, Scharf — a Harvard-trained conservative lawyer who had helped develop the administration’s legal arguments on other contentious issues — warned that suspending habeas corpus rights for undocumented immigrants would be unconstitutional and legally disastrous.

“The history of habeas corpus dates back to the very dawn of English common law,” Scharf wrote. “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.”

Scharf further warned that habeas corpus “prevents, in effect, governmental actors from detaining, imprisoning or executing individuals arbitrarily,” and noted that even when Congress has explicitly suspended the right, the Supreme Court has required that “some alternative process must be provided to defendants.”

The Internal Debate

The proposal to suspend habeas corpus was driven primarily by Stephen Miller, the architect of the administration’s hardline immigration policies. President Trump was personally involved in the discussions and asked advisers about Abraham Lincoln’s suspension of habeas corpus during the Civil War, according to BBC News.

In May 2025, Miller told reporters that the administration was “actively looking at” suspending the writ. “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, adding that the decision would depend on “whether the courts do the right thing or not.”

President Trump himself alluded to the discussions during an April 30, 2025 Cabinet meeting, stating: “There’s one way that’s been used by three very highly respected presidents, but we hope we don’t have to go that route.”

Senior aides, including White House Counsel David Warrington, privately called the idea “insane,” according to sources cited in the NBC News report by David Rohde.

Constitutional and Historical Context

Habeas corpus — Latin for “you should have the body” — is a centuries-old legal right enshrined in Article I of the U.S. Constitution that forces the government to justify before a judge why it has detained a person. The Constitution states that the writ “shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

Legal scholars across the ideological spectrum agree that only Congress has the power to suspend habeas corpus, not the president acting unilaterally. The writ has been formally suspended only four times in American history: during the Civil War under Abraham Lincoln, in Hawaii after Pearl Harbor under Franklin D. Roosevelt, in the Philippines in 1905 under Theodore Roosevelt, and during Reconstruction-era efforts to suppress the Ku Klux Klan.

Georgetown Law Professor Steve Vladeck described Miller’s statements as “factually and legally nuts,” as NBC News reported. Ilya Somin, a law professor at George Mason University and scholar at the Cato Institute, told NBC News: “Habeas corpus can only be suspended under the Constitution in times of invasion or insurrection. None of that is happening now. And it can only be done by Congress, not the president acting on his own.”

The Insurrection Act Debate

The habeas corpus debate was not the only instance of the administration testing constitutional limits. According to the New Republic, the White House also debated invoking the Insurrection Act of 1807 to deploy military forces against immigration protesters.

Vice President JD Vance pushed for this option after federal agents killed Alex Pretti, a Minnesota critical care nurse, during an immigration enforcement operation in January 2026. Scharf wrote a second confidential memo on October 29, 2025, warning against invoking the Insurrection Act, arguing that it “serves as a break-the-glass exception to the traditional, general prohibition on the use of the military in the domestic setting.”

A Bureaucratic End-Run

Although the habeas corpus suspension proposal ultimately “faded from view” after weeks of internal debate, the administration found alternative ways to limit detainees’ access to courts. In July 2025, Immigration and Customs Enforcement changed its interpretation of the law to treat immigrants arrested inside the United States as if they had been stopped at the border, enabling detention without bond hearings — effectively achieving some of what the habeas suspension would have done through bureaucratic means.

CNBC reported that the administration had “chafed at orders by judges blocking efforts to summarily deport immigrants, including alleged gang members, without court proceedings.” Miller referred to judges issuing such rulings as “a handful of Marxist judges” carrying out “a judicial coup.”

Political and Legal Fallout

The revelations, published by Maggie Haberman and Jonathan Swan for their forthcoming book “Regime Change: Inside the Imperial Presidency of Donald Trump” — based on more than 1,000 interviews including with President Trump himself — are expected to intensify congressional scrutiny of the administration’s immigration policies and provide new ammunition for ongoing legal challenges.

Senator Chris Murphy (D-CT) warned of the broader implications: “The one power you cannot give the executive is the power to arbitrarily imprison people who oppose the regime. Today it may be an El Salvadorian immigrant or a foreign student, but tomorrow it is you or me. The slope to despotism can be slippery and quick.”

White House spokeswoman Abigail Jackson defended the administration, stating: “Members of the administration often have conversations about many different lawful options to implement the president’s agenda — with the president always being the ultimate decider.”

What to Watch For

The disclosure of these secret memos raises several critical questions: Were there other radical proposals debated but not yet revealed? What specific legal advice did the Justice Department provide on the habeas corpus question? And how many detainees have been affected by the July 2025 ICE policy change that achieved similar results through bureaucratic channels?

As the 2026 midterm elections approach, the revelations are likely to become a central issue in the national debate over the scope of executive power and the rule of law — testing whether the constitutional guardrails that have held for more than two centuries remain intact.