Updated: October 7, 2020 7:51:33 pm
Written by Michael D. Shear, Katie Benner and Michael S. Schmidt
The five U.S. attorneys along the border with Mexico, including three appointed by President Donald Trump, recoiled in May 2018 against an order to prosecute all immigrants who entered the U.S. illegally, even if it meant separating children from their parents. They told top Justice Department officials they were “deeply concerned” about the children’s welfare.
But the attorney general at the time, Jeff Sessions, made it clear what Trump wanted on a conference call later that afternoon, according to a two-year inquiry by the Justice Department’s inspector general into Trump’s “zero tolerance” family separation policy.
“We need to take away children,” Sessions told the prosecutors, according to participants’ notes. One added in shorthand: “If care about kids, don’t bring them in. Won’t give amnesty to people with kids.”
Rod Rosenstein, then the deputy attorney general, went even further in a second call about a week later, telling the five prosecutors that it did not matter how young the children were. He said that government lawyers should not have refused to prosecute two cases simply because the children were barely more than infants.
“Those two cases should not have been declined,” John Bash, the departing U.S. attorney in western Texas, wrote to his staff immediately after the call. Bash had declined the cases, but Rosenstein “instructed that, per the AG’s policy, we should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child.”
The Justice Department’s top officials were “a driving force” behind the policy that spurred the separation of thousands of families, many of them fleeing violence in Central America and seeking asylum in the United States, before Trump abandoned it amid global outrage, according to a draft report of the results of the investigation by Michael E. Horowitz, the department’s inspector general.
The separation of migrant children from their parents, sometimes for months, was at the heart of the Trump administration’s assault on immigration. But the fierce backlash when the administration struggled to reunite the children turned it into one of the biggest policy debacles of the president’s term.
Though Sessions sought to distance himself from the policy, allowing Trump and Homeland Security Department officials to largely be blamed, he and other top law enforcement officials understood that “zero tolerance” meant that migrant families would be separated and wanted that to happen because they believed it would deter future illegal immigration, Horowitz wrote.
“The department’s single-minded focus on increasing prosecutions came at the expense of careful and effective implementation of the policy, especially with regard to prosecution of family-unit adults and the resulting child separations,” the draft report said.
The draft report, citing more than 45 interviews with key officials, emails and other documents, provides the most complete look at the discussions inside the Justice Department as the family separation policy was developed, pushed and ultimately carried out with little concern for children.
This article is based on a review of the 86-page draft report and interviews with three government officials who read it in recent months and described its conclusions and many of the details in it. The officials, who spoke on the condition of anonymity because they had not been authorized to discuss it publicly, cautioned that the final report could change.
Before publishing the findings of its investigations, the inspector general’s office typically provides draft copies to Justice Department leaders and others mentioned in the reports to ensure that they are accurate.
Horowitz had been preparing to release his report since late summer, according to a person familiar with the investigation, though the process allowing for responses from current and former department officials whose conduct is under scrutiny is likely to delay its release until after the presidential election.
Sessions refused to be interviewed, the report noted. Rosenstein, who is now a lawyer in private practice, defended himself in his interview with investigators in response to questioning about his role, according to two of the officials. Rosenstein’s former office submitted a 64-page response to the report.
“If any United States attorney ever charged a defendant they did not personally believe warranted prosecution, they violated their oath of office,” Rosenstein said in a statement. “I never ordered anyone to prosecute a case.”
Gene Hamilton, a top lawyer and ally of Stephen Miller, the architect of the president’s assault on immigration, argued in a 32-page response that Justice Department officials merely took direction from the president. Hamilton cited an April 3, 2018, meeting with Sessions; the homeland security secretary at the time, Kirstjen Nielsen; and others in which the president “ranted” and was on “a tirade,” demanding as many prosecutions as possible.
Hamilton declined to comment for this article, as did Horowitz’s office. Sessions did not respond to requests for comment. Alexa Vance, a spokeswoman for the Justice Department, disputed the draft report and said the Homeland Security Department referred cases for prosecution.
“The draft report relied on for this article contains numerous factual errors and inaccuracies,” she said. “While DOJ is responsible for the prosecutions of defendants, it had no role in tracking or providing custodial care to the children of defendants. Finally, both the timing and misleading content of this leak raise troubling questions about the motivations of those responsible for it.”
The draft report also documented other revelations that had not previously been known:
— Government prosecutors reacted with alarm at the separation of children from their parents during a secret 2017 pilot program along the Mexican border in Texas. “We have now heard of us taking breastfeeding defendant moms away from their infants,” one government prosecutor wrote to his superiors. “I did not believe this until I looked at the duty log.”
— Border Patrol officers missed serious felony cases because they were stretched too thin by the zero-tolerance policy requiring them to detain and prosecute all of the misdemeanor illegal entry cases. One Texas prosecutor warned top Justice Department officials in 2018 that “sex offenders were released” as a result.
— Senior Justice Department officials viewed the welfare of the children as the responsibility of other agencies and their duty as tracking the parents. “I just don’t see that as a DOJ equity,” Rosenstein told the inspector general.
— The failure to inform the U.S. Marshals Service before announcing the zero-tolerance policy led to serious overcrowding and budget overruns. The marshals were forced to cut back on serving warrants in other cases, saying that “when you take away manpower, you can’t make a safe arrest.”
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