According to Haberman and Swan, who don't resemble scoop-hungry reporters like Woodward and Bernstein in the least, last spring, Will Scharf, an arch-conservative lawyer serving as the White House staff secretary, wrote a secret memo to the chief of staff that reflected the growing West Wing unease over one of the extreme measures being advocated by Stephen Miller, the nutjob neo-Nazi behind Trump's insane deportation campaign
Dated April 29, 2025, and stamped “confidential,” the memo was careful and lawyerly but amounted to a warning against end-running the rule of law. The subject line read: “THE WRIT OF HABEAS CORPUS.”
Habeas corpus — the centuries-old right to force the government to justify, before a judge, why it has locked a person up — is enshrined in Article I of the Constitution. Scharf’s memo, in its unassuming way, was a blinking red warning light. The second Trump White House was deliberating an explosive new claim of presidential power: the suspension of habeas rights for unauthorized immigrants.
The suspension of habeas corpus has occurred just a handful of times in U.S. history, and always under the most dire circumstances of war or invasion. Yet to a greater degree than previously known, administration officials, encouraged by Trump, actively weighed taking that step in the early months of his second term — this time to accelerate the mass deportation of immigrants in the country illegally.
Flush with a Musk-created 2024 election victory, Trump and his Fabulous Dancing Trumpettes wanted to test how far the emboldened president’s authority could be pushed, setting off previously unreported internal struggles over where the limits should be.
The man who outlined his concerns in the memo, Scharf, was no resistance figure. A trim, balding, Harvard-trained lawyer who had run for office in Missouri, he had bemoaned John McCain as too moderate for the 2008 Republican nomination, and believed Mr. Trump had been vindictively prosecuted after his 2020 election loss.
He had helped develop the Trump team’s legal arguments behind the successful effort to get the Mar-a-Lago classified documents indictment thrown out, as well as the arguments behind the presidential immunity case that prevailed at the Supreme Court. He had embraced the most contentious elements of Mr. Trump’s agenda, but was quickly coming up against the limit of what the Constitution, in his reading, could be made to bear.
The Constitution, Scharf wrote in his memo to Susie Wiles, the White House chief of staff, permits suspension of habeas corpus only in cases of rebellion or invasion. Courts have almost uniformly held that only Congress can do it.
He added: “Even where Congress has explicitly suspended habeas corpus rights, the Supreme Court has held that some alternative process must be provided to defendants, with procedural safeguards akin to a habeas corpus action.”
Don't worry, though: Trump and Miller are still fixated on invoking the Insurrection Act!
