On Friday, the authors of a bombshell tell-all book about the Trump administration revealed just how close President Donald Trump came to suspending the constitutionally enshrined right of habeas corpus, and asserted that the idea is still a “loaded weapon” he’s ready to fire at any time.
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This is according to journalists Maggie Haberman and Jonathan Swan, authors of the hit book Regime Change, which exposed the chaos in the White House over the course of Trump’s second term. The authors joined Lawfare Senior Editor Roger Parloff to discuss the administration, and over the course of their conversation, they detailed how frighteningly close Trump came to suspending habeas corpus, and emphasized that the danger isn’t over.
As Haberman explains, by April 2025, Trump was publicly musing about the idea of suspending habeas corpus after the Supreme Court stymied his ability to send migrants overseas without trial. The president was frustrated and ranted at a Cabinet meeting about how “there’s one thing three presidents have used very strongly,” referring to the Insurrection Act, and CNN reported several days later that he was talking about suspending habeas corpus, but the episode passed quickly.
“But we were really obsessed with it,” Haberman explains, “because habeas corpus is enshrined in the Constitution. It is older than the Magna Carta. It is one of the most fundamental rights of due process, and the idea that a president would think that this was something he could just end … Stephen Miller was openly endorsing this, so we went down this rabbit hole to try to understand it. What we learned was the discussions were extremely serious.”
The idea came from Miller, who pushed it repeatedly. “The president was interested,” and Miller tasked the DOJ with studying the matter, “which was astonishing — that it went that far — and a reflection of how serious it was.”
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From there, confidential memos were prepared by Staff Secretary Will Sharf, who Haberman characterizes as a “very conservative lawyer” and extreme Trump loyalist. Here she notes that unlike during Trump’s first term, when there were officials and staff who were uncomfortable with and opposed the president’s most radical ideas, during the second term, his administration is full of people who will obey his every command. Sharf is one of these, and “he has endorsed almost all of Trump’s most radical and extreme agenda items.” Sharf prepared two memos that laid out the historical context for such an action, ultimately concluding there was little legal justification for it, and forwarded them to Chief of Staff Susie Wiles to bring to Trump.
“They’re very dry these memos,” says Haberman, “but the point is very clear: this is a line the administration should not cross. That kind of a memo is not getting written if this is just some kind of idle talk. It was put back on the shelf, but like all ideas with Trump, you know these are loaded weapons on the shelf.”
The idea was taken back up again in January after ICE agents killed Alex Pretti, when Vice President JD Vance suggested the invocation of the Insurrection Act to quell protests. According to Swan, even Miller pushed back, noting they hadn’t “explored whether the law will stretch to accommodate” it. “They end the meeting in this sort of no man’s land. They basically decide to put it aside.”
“But it wasn’t this definitive decision — We will never do this,” warns Swan. “It’s something that Trump himself has expressed a desire to do many, many times. Stephen Miller clearly has expressed an eagerness to do it. So it’s just waiting there. It’s waiting there for the moment. It is not like they flirted with these things and now it’s the furthest thing from their mind. That’s not the case.”
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