Homeland Security Secretary Kristi Noem’s testimony before Congress over the past two days has revealed a troubling view of executive power.
Congressional hearings are often dismissed as political theater. Lawmakers ask pointed questions, witnesses give prepared and careful answers and the exchange becomes part of the daily churn of partisan debate. But occasionally those exchanges reveal something deeper about how a government understands its own authority.
Noem declined to say what the moment seemed to demand: that the U.S. government should not pronounce that kind of judgment before the facts are known.
Pressed by lawmakers about her claim that two Americans killed by federal agents in Minneapolis — Alex Pretti, an intensive care nurse, and Renee Good, a wife and mother of three — were “domestic terrorists,” Noem repeatedly refused to withdraw the label. She expressed sympathy for the families. She noted that the investigation is ongoing. At one point she insisted, “I did not call him a domestic terrorist. I said it appeared to be an incident of” domestic terrorism. But she declined to say what the moment seemed to demand: that the government should not pronounce that kind of judgment before the facts are known.
That refusal matters. “Domestic terrorist” is one of the most serious accusations the modern American government can make. It signals that a person is not merely suspected of wrongdoing but belongs in the category of enemies of the state.
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When the government applies that label to its citizens, particularly in the immediate aftermath of deadly force, the accusation carries enormous moral and political weight. And when it comes without charges or evidence presented in court, it begins to resemble something the American constitutional system was designed to prevent. Even the acting director of Immigration and Customs Enforcement told senators last month that he saw no evidence to suggest the terrorism claims were true.
Later in Tuesday’s hearing, Noem suggested that her statements reflected reports coming from agents on the ground during what she described as a chaotic situation. But that explanation only underscores the problem: Preliminary field reports are not a substitute for evidence tested through the legal process.
In the U.S. legal system, accusation is only the beginning of the process.
Government officials accusing people of wrongdoing is not unusual. Prosecutors do it every day. But in the U.S. legal system, accusation is only the beginning of the process. A prosecutor files charges, a judge evaluates probable cause, evidence is presented and a jury ultimately determines guilt or innocence.
The accusation is the start of due process but not its replacement.
The structure of the Constitution reflects that distinction. The system deliberately separates the powers to investigate, to accuse and to determine guilt. Law enforcement gathers facts, and prosecutors bring charges. Courts and juries decide the outcome.
Each step involves a different institution because the framers understood that when those powers are combined, the risk of abuse grows dramatically.
The colonists saw that risk firsthand. English authorities once wielded sweeping powers to accuse individuals of disloyalty or criminal conduct with little meaningful judicial oversight. Proceedings in institutions such as the Star Chamber allowed government officials to investigate, accuse and punish within the same system of authority.
Those practices helped shape the American understanding of liberty. The founders concluded that accusations made by the government must always be tested by an independent process.
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That conviction runs throughout the Constitution and the Bill of Rights. The Fourth Amendment requires the government to persuade a judge before entering certain private spaces. The Fifth Amendment guarantees that no person may be deprived of life or liberty without due process of law. The Sixth Amendment ensures that criminal guilt is determined before a jury.
Together, those protections reflect a simple but powerful principle: The government does not get to decide guilt on its own.
The Supreme Court has repeatedly reaffirmed that principle, even in the most extreme national security contexts. In Hamdi v. Rumsfeld, the government argued that it could detain an American citizen captured in Afghanistan as an “enemy combatant” based largely on its internal determination.
The court rejected the idea that the executive branch could simply apply that label and move on. Even in the context of terrorism and war, former Justice Sandra Day O’Connor wrote for the majority, a citizen must have “a meaningful opportunity to contest the factual basis” for the government’s accusation before a neutral decision-maker. The Constitution, she added, does not give the president a “blank check.”
That principle is fundamental. The executive branch investigates and accuses, but it does not pronounce final judgment.
In Senate testimony Tuesday, Noem offered another striking view of executive authority. She defended the government’s ability to enter private homes using administrative immigration warrants issued within the executive branch rather than approved by a judge. Those warrants are signed by immigration officials themselves, not by neutral magistrates.
The constitutional concern is similar in both situations. When the executive branch authorizes its own entry into homes and simultaneously reserves the power to apply the most serious public accusations without legal process, the safeguards that normally constrain government power begin to weaken.
Those safeguards exist for a reason.
When officials treat their own declarations as if they carry the authority of legal judgments, the constitutional architecture begins to blur.
The Constitution was written on the assumption that government officials, even well-intentioned ones, should not be trusted with unchecked authority. So the system slows the government down at the moments when its power is greatest. It requires the executive branch to persuade a judge before crossing certain thresholds. It requires evidence before guilt can be declared. And it requires juries to stand between accusation and verdict.
When officials treat their own declarations as if they carry the authority of legal judgments, the constitutional architecture begins to blur. The roles that the system deliberately distributes across judges, juries and prosecutors begin to collapse.
In a constitutional system, the government does not get to declare someone guilty simply by saying so. That is why due process exists.
And it is why no official, however powerful, gets to be judge, jury and executioner.
Duncan Levin
Duncan Levin is a criminal defense attorney and former federal prosecutor who serves as a Lecturer on Law at Harvard Law School and is a frequent contributor to MS NOW.
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