Nadler Calls on Barr to Clarify Trump’s Assertion About Emergency Powers Amid Pandemic

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
April 25, 2020Updated: April 26, 2020

House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) has called on the Justice Department to provide more information about emergency powers that President Donald Trump claimed he could use during the CCP virus pandemic.

In a letter on April 24, Nadler and Rep. Steve Cohen (D-Tenn.), chairman of the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties, pressed Attorney General William Barr for more information about recent Trump comments asserting that his administration has authority to take actions to combat the pandemic.

“In recent days and weeks, President Trump has repeatedly suggested he may use unspecified emergency powers in response to the COVID-19 pandemic,” the House Democrats wrote in their letter. “When challenged about his claims, President Trump said his Administration would ‘write up papers’ or a ‘legal brief’ justifying these positions.”

Over several press conferences in the past weeks, Trump hinted that he would use a variety of powers afforded to him as president “that people don’t even know about” that would allow him to take emergency actions to address different concerns during the pandemic.

On March 12, when asked whether he was going to invoke the Stafford Act, a law that provides for federal disaster aid, Trump said his administration has “very strong emergency powers under the Stafford Act” and that he has the “right to do a lot of things that people don’t even know about,” without specifying further.

Elizabeth Goitein and Andrew Boyle from the Brennan Center for Justice suggested in an op-ed that the “rights” the president was referring to could be secret powers under classified documents called the “presidential emergency action documents,” which contains draft proclamations, executive orders, and proposals for legislation that broaden presidential authority during an emergency.

Trump has also claimed that he has the authority to decide when to reopen the country and lift stay-at-home orders, even if it requires him to supersede some governors’ orders. But in later statements, he acknowledged that “the governors are responsible. They have to take charge,” and that he would be speaking to the governors to discuss his plans.

In their letter, Nadler and Cohen said it “remains unclear what the President is referring to when he describes authorities ‘that people don’t even know about,'” but they said his remarks suggest that “his Administration has produced or may soon produce documents purporting to support the use of extraordinary legal authorities in response to the pandemic,” referring to Trump’s April 14 remarks.

“Such documents would likely undergo review by the Justice Department’s Office of Legal Counsel,” the lawmakers wrote.

The lawmakers are requesting that the DOJ hand over any briefings about the administration’s potential use of emergency powers during the pandemic, any presidential emergency action documents the DOJ may possess, and any other documents or communications that describe or analyze the legality of using emergency authorities during this time.