Republican presidential candidate Donald Trump points at supporters after speaking at rally at the Verizon Wireless Center in Manchester, N.H., on Feb. 8, 2016.
Photo by Justin Lane/EPA

The problem with Trump pointing to a non-existent ‘invasion’


A gunman murdered 11 people at a Pittsburgh synagogue on Saturday in part because he believed that Jews were sponsoring a caravan of Central American migrants – a development the shooter characterized as an “invasion” of the United States.

With this mind, common sense suggests officials like Donald Trump should probably steer clear of using the word for a while. And yet, there was the president on Fox News last night, characterizing the caravan as an “invasion of our country.” Indifferent to the broader circumstances, he used identical language on Twitter.

The word doesn’t just have a political significance; it carries considerable legal weight. Article I, Section 9 of the U.S. Constitution reads, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion.”

It led CBS News’ Steven Portnoy to ask White House Press Secretary Sarah Huckabee Sanders an excellent question yesterday.

“The president has used the word ‘invasion’ to describe this caravan. That’s the same word that is mentioned in the Constitution three times – ‘invasion’ – with respect to the powers of the federal government to repel invasions.

“So my question is, have there been any discussions here with respect to that about the fact that the Constitution provides for, for example, the suspension of habeas corpus to repel an invasion if the public safety requires it? Is the president talking about potentially ignoring posse comitatus by having the military go down? There’s a provision in the law that allows for a constitutional exemption. Is that in any way under consideration?”

The president’s press secretary replied, “We’re looking at a number of different options.”

Portnoy, to his credit, followed up, “That’s not a ‘no’ to my question. It has not been ruled out? Those are options on the table?”

Again, Sanders was non-committal. “Look,” she added, “I’m not going to get into specific policies that we’re considering. There’s a number of actions that we’re looking at taking.”

It’s worth pausing to appreciate the fact that the Trump White House wouldn’t comment either way on whether the president would suspend habeas, working from the ridiculous assumption that the United States is facing a foreign “invasion.”

And while lawyers can speak to this with more authority than I can, suspending habeas corpus would empower the administration to arrest people without charging them with a crime. Is this what Team Trump has in mind?