by Charlie Savage
WASHINGTON — Invoking the coronavirus crisis, the Justice Department has asked Congress to let more federal inmates serve their time at home and to steer scarce masks and testing kits to federal prisons ahead of other agencies, according to draft legislation submitted last week to congressional leaders.
The department has also asked Congress to relax speedy trial rules and expand opportunities for law enforcement officials to use video conferencing for certain preliminary federal criminal and detention proceedings, like arraignments for newly arrested people.
“Authorizing the general use of teleconferencing for these preliminary proceedings would ensure that defendants are able to access courts shortly after their arrest,” the Justice Department wrote. “It also would limit any disruptions caused by the coronavirus.”
Those proposals are among a handful that the Trump administration has told congressional leaders that it is making a priority — and that lawmakers of both parties are considering enacting — after both Republicans and Democrats reacted skeptically to more sweeping ideas in the proposal, according to congressional aides.
Those ideas that appear to be dead on arrival included a plan to empower President Trump or his successors to eliminate legal protections for asylum seekers. That would amount to a permanent change to immigration law that would require no finding of any connection to a public health risk.
It is not clear what Congress will do with the proposals, several of which Politico first reported. As the Senate fights over a nearly $2 trillion stimulus package, some of the Justice Department’s ideas could end up attached to it, one congressional aide said, while another said that none of the proposals were likely to be part of the current round of legislation.
But the pandemic is growing worse, and history has shown that Congress can sometimes rush to enact sudden and major expansions of government power during a crisis as lawmakers feel pressure to show they are responding, as when it abruptly passed the USA Patriot Act after the Sept. 11, 2001, attacks.
Another part of the Justice Department’s proposal calls for empowering Chief Justice John G. Roberts Jr. to pause the statute of limitations during a national emergency, and similarly permitting chief judges of district courts to suspend deadlines for “pre-arrest, post-arrest, pretrial, trial and post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings.”
But lawmakers of both parties greeted with skepticism the notion of extended detentions without judicial process even if the court system was disrupted, according to congressional aides briefed on the negotiations.
Still, one aide said, lawmakers are considering easing some of the requirements of the Speedy Trial Act — which generally lets defendants demand a trial within 70 days of arraignment — if the coronavirus pandemic makes it impossible to hold in-person trials for a while, including by sequestering 12 jurors in the same room for deliberations.
Lawmakers are also said to be open to another part of the Justice Department proposal for the Bureau of Prisons. It would give the bureau the power to expand the use of home confinement — now capped at 10 percent of an inmate’s term or six months — and prioritize steering masks and testing kits to federal prisons.
Federal prisons officials are confronting the nationwide shortage of masks and other personal protective equipment for medical personnel, the department wrote, labeling the shortfall a “vulnerability” as it seeks preferential status.
“B.O.P. is currently competing and engaging the same landscape of vendors as all other federal agencies and private entities,” the proposal said.
The Justice Department’s spokeswoman, Kerri Kupec, said on Twitter on Sunday in response to the Politico report that the proposal was prompted by a congressional request for suggestions and that department officials were seeking to empower judges, not the executive branch.
“Bottom line: The proposed legislative text confers powers upon judges,” she wrote. “It does not confer new powers upon the executive branch. These provisions are designed to empower the courts to ensure the fair and effective administration of justice.”
However, two congressional aides said they were unaware of any request from Congress going to the Justice Department, and understood that the department itself had decided on its own to ask all of its components for ideas and sent them over.
Justice Department representatives did not respond to follow-up questions about who asked the department to come up with ideas for new laws because of the pandemic, nor about the justifications for the request to confer new powers on the executive branch over asylum matters, which her statement did not address.
Under that part of the draft legislation — said to be quickly dismissed by lawmakers — presidents could exempt immigrants from eligibility to apply for asylum and from a domestic legal rule forbidding the federal government from sending them home to countries where they are likely to face persecution, which is also a requirement of international law.
The proposal would eliminate those legal protections not only for migrants found to be infected with the coronavirus or other communicable diseases of “public health significance,” but also to any others who are separately “subject to a presidential proclamation suspending and limiting the entry of aliens into the United States.”
The Trump administration has been trying to curb asylum claims at the southwestern border for the past three years, and last week it developed plans to use the pandemic to shut down that process under the president’s existing authority — a move that is certain to face legal challenge.
The proposal to expand Mr. Trump’s powers over asylum law would be a “really dangerous weapon” to put in his hands, placing at greater risk people who come to the United States seeking protection, said Omar Jadwat, the director of the American Civil Liberties Union’s Immigrants’ Rights Project.
“I am glad people are on the ball enough to see the danger here,” he said.
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