Justice Dept. Probe Faults Sessions in Pressing Policy of Separating Immigrant Families
A report from the Justice Department’s inspector general released Thursday, January 7, 2021, showed that top DOJ officials knew that their policy of arresting all illegally-border-crossing adults would result in separation of migrant families, but they went ahead with the policy anyway. The report noted, “We concluded that the Department’s single-minded focus on increasing immigration prosecutions came at the expense of careful and appropriate considerations of the impact of family unit prosecutions and child separations.”
The investigation went on for 2.5 years and documents that former Attorney General Jeff Sessions and other top DOJ players pushed the policy ahead despite their failure to cooperate with or plan with other parts of the government. This push was due to pressure from the White House to take action because of the increasing numbers of migrants approaching the border. The report stated, “…the increase in immigration prosecutions under the zero tolerance policy created operational, resource, and management challenges for the USMS, the USAOs, and the courts. DOJ officials were aware of many of the challenges prior to issuing the zero tolerance policy, but they did not attempt to address them until after the policy was issued.”
The policy was implemented in May and June of 2018. As a result, more than 3,000 children were separated from their parents. A recent court filing showed that 611 children remain separated from their families and that their parents cannot be located.
Trump ended the policy via executive order on June 20, 2018, because of condemnation from world leaders, religious groups and lawmakers. He replaced it with a similar policy that kept families together, but it was too late for more than 3,000 children.
The report set forth a variety of findings previously reported in the media, but this inspector general report is an official summation of all the issues leading to the long-term separation of thousands of families. Many of those families said they were fleeing violence and poverty and were coming to the U.S. for humanitarian protection.
Sessions was found to be a driving force behind the policy, though he later tried to escape that notoriety. Then-DHS Secretary Kirstjen Nielsen was left holding the bag and defending the policy after Sessions’ defection. The report revealed that Sessions believed news coverage of separated families would deter future immigrants from requesting U.S. asylum. Sessions would not comment or be interviewed for the report. Nielsen resigned in April of 2019.
A 2018 DHHS inspector general report blamed DHHS for not preparing to track the people - both parents and children - who would be separated by the border policy.
The policy, introduced on April 7, 2018, required the five U.S. Attorneys on the southern border to prosecute any case referred from the Department of Homeland Security that involved migrant adults crossing the border illegally. After a month of this, adults who arrived with children were included in those prosecutions.
On May 7, 2018, Sessions said, “If you cross this border unlawfully, then we will prosecute you. It’s that simple. If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.” He called it a “zero-tolerance” strategy. This zero tolerance, and Sessions’ and the Trump administration’s knowledge of it, contradicts the administration’s repeated public claims at the time that it did not have a family separation policy at the border. They repeatedly said that if those separations did happen, it was no different than what happens to any parents who are arrested in the criminal justice system.
The five U.S. attorneys weren’t forewarned about the policy change to prosecute all eligible adult migrants; instead, they were informed by Border Patrol rather than their bosses in the Justice Department. The five attorneys (including three who were appointed by Trump) told top Justice Department officials that they were “deeply concerned” about the impact the policy would have on the separated children, the report said. This conversation took place on May 11, 2018, by phone. Later that day, Sessions called all five U.S. attorneys, and his meeting notes showed that he told them separating the children was the primary purpose of the policy change.
He said, “We need to take away children,” according to an attendee. The attendee also noted that Sessions said, “if care about kids, don’t bring them in.” Sessions resigned at Trump’s request in November 2018.
Although Sessions told the U.S. attorneys a week prior that after the adults were processed in court they would be quickly reunited with their children, he failed to mention that federal law requires that unaccompanied children be transferred to child-welfare shelters operated by DHS within 3 days of their border arrest. This led to the long-term separation of families.
Even when the DOJ knew the prosecutions of the parents were taking on average three to seven days, thus ensuring the transfer of the kids to DHS, the DOJ didn’t change its policy.
The government set up no system to track which children belonged to which parents after they were separated. Parents were deported without their children.
The report found that Sessions’ office was the driving force in increasing the number of prosecutions. His deputy, Rod Rosenstein, promoted and enforced the policy, as well. He had several calls with the U.S. attorneys on the border telling them how significant the policy was to Sessions, and that DOJ Leadership was monitoring the volume of prosecutions. He scolded one U.S. attorney for refusing to prosecute parents with toddler children.
Unbelievably, Rosenstein, in an interview with the inspector general, praised the coordination between Homeland Security and the Justice Department, saying, “I think it’s unlikely that ever in history has there been more coordination about enforcement.” Rosenstein left the department in May of 2019. At that point, he said, “It was a failed policy that never should have been proposed or implemented. I wish we all had done better.”
According to Gene Hamilton, who drafted the policy, Justice Department officials were acting on orders from the president. He cited an April 3 White House meeting with Sessions, Nielsen and the president in which Trump had grown agitated about media reports of a “migrant caravan” coming to the U.S. border.
The report revealed that Sessions told prosecutors, “We need to take away children.” A month before, Nielsen had said at a press briefing, “We do not have a policy of separating families at the border. Period.” Child welfare experts have said the separation’s effect on the children amounted to torture.
Once the report was released, just six days before the end of Trump’s term of office expired, Democrats were quick to comment. Rep. Bennie G. Thompson, D-Miss., chair of the House Committee on Homeland Security, said the report “confirms what we already knew: that the Trump Administration intended to separate families at the border. They knew the consequences and did it anyway.” Sen. Ron Wyden, D-Ore., added that Sessions and Rosenstein, together with the administration, “willfully disregarded the lives of innocent children in their xenophobic crusade to criminalize migrant families. The trauma of thousands of migrant kids is on their hands. Everyone involved in this cruel and ill-conceived policy must be held accountable.”
Sen. Jeff Merkley, D-Ore, also said, “It is crystal clear that Jeff Sessions, Stephen Miller, Chad Wolf, Kirstjen Nielsen and other senior Trump administration officials were not only fully aware that their policy would have traumatizing impacts on families, but also that their intention was to inflict that trauma as a means to deter people from coming to America in search of a better life. Further, it’s now confirmed that they committed perjury by lying to Congress about their intentions and actions in order to avoid accountability for their monstrous initiative.” Merkley further said he will work with the Biden administration to investigate and prosecute fully those involved in “both the atrocities and the cover-up.”
Democratic leaders and members of the House Judiciary and Oversight committees said of the report, “Our Committees and multiple independent Inspectors General have now uncovered shocking evidence that the Trump administration sought to intentionally harm children and families as a deterrent to migration, and did not care to plan for the consequences. This dark chapter in our history must never be repeated.”
The report revealed that the DOJ was warned about potential problems beginning in August 2007. Those warnings arose from a pilot program initiated in El Paso. The U.S. attorney’s office there raised concerns that it couldn’t locate separated children. “We have now heard of us taking breast-feeding defendant moms away from their infants,” wrote the office’s deputy criminal chief. “These parents are asking for the whereabouts of their children and they can’t get a response.”
President Biden has pledged to create a task force focused on reuniting the remaining children detained at the border with their families. He condemned the policy as “criminal.”
The ACLU has an active lawsuit against the federal government based upon the family separation policy and called for more than just a task force and reunion. “The barbaric family separation practice was immoral and illegal,” said Lee Gelernt, lead attorney for ACLU in the lawsuit. “The incoming administration must reunite the separated families in the United States, but we cannot stop there. These families deserve citizenship, resources, care, and a commitment that family separation will never happen again.”
