The DOJ Asks for Scary New Powers Amid Covid-19 Scare

Attorney General Bill Barr

By Max Paderewski

Last weekend, the Department of Justice asked for “new emergency powers” from Congress.  They did so quietly, and did not publicly release the details.  Fortunately, many lawmakers leaked the documents to the press. And from what has been reported, these new powers would restrict due process and vastly expand the reach of the federal government into all federal courts.  This story flew under the radar amid the other Covid-19 stories, but it should be a major concern for civil libertarians.

On its face, the powers make sense for a pandemic.  It would allow the attorney general to pause court proceedings of any federal court in cases of an emergency.  And the AG can pause not just the trials, but the deadlines, statutes of limitations, or rules of procedure in any case, civil or criminal.  

When Could the Attorney General Use These Powers?

As you’d expect, this is defined broadly.  The AG would be able to use these new powers “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation”.  We have not yet seen the term “emergency situation” defined.

Why Does This Matter?

From a libertarian perspective, the judicial branch is far better than the other two.  Instead of creating new laws, judges often clarify how laws can be implemented (to reduce ambiguity), and sometimes, they strike down the law altogether.  Most federal judges in the district courts impartially enforce the law without favoring a side (for fear of being overturned by the appellate court, which does not look good on your judicial record). The judicial system has its own problems (e.g. judicial activism), but when it comes to protecting liberty today, it is significantly better than congress or the executive branch’s regulatory state.

These new powers would allow the executive branch, who is often the prosecutor or Defendant in federal cases, to interfere in the judicial branch as it sees fit.  If the United States government is a party to a lawsuit, the DOJ could adjust court deadlines or requirements to benefit their side.  If a whistleblower is detained and demanding his right to appear in front of a judge (i.e. habeas corpus), the DOJ could keep him confined indefinitely.  If there is an important case that could nullify a federal law or regulation, the DOJ could delay the proceedings indefinitely.

Each federal district court already has these powers to adjust proceedings, and from my experience, they use it very infrequently and seemingly only in cases of emergency for that particular jurisdiction.  The judges I appear in front of were quick to send out letters explaining what changes are happening and what to expect going forward.  I can’t speak for the criminal side, but for civil cases, it appears they are handling it as good as one can. There is no apparent need for top-down changes to civil/criminal procedure, especially from a separate branch of government that has its own interests in certain federal cases.

Max Paderewski is a personal injury lawyer based in Sugar Land, Texas.  He regularly helps victims of car accidents and slip and fall accidents recover what has been lost from the negligence of others.