Originally Published in NBC News
Julia Ainsley, Jacob Soboroff and Phil Helsel - October 6, 2020
The "zero tolerance" policy ultimately separated nearly 3,000 children from their parents for crossing the border illegally, which is a misdemeanor at the first offense.
Sessions announced the policy in April 2018, saying that every immigrant who crossed the U.S. border illegally would be prosecuted, including parents with young children. It resulted in children being separated from their parents and generated a huge public outcry.
Five U.S. prosecutors along the Mexican border in May 2018 pushed Sessions and Rosenstein to clarify the order with an age minimum, according to a draft report by Justice Department Inspector General Michael Horowitz.
The New York Times first reported the details of the draft report. NBC News has reviewed the draft report, which has not been publicly released, and confirmed details in the Times story.
"We need to take away children,” Sessions told the prosecutors in a conference call, according to participants’ notes, the Times reported. One participant added in shorthand: “If care about kids, don’t bring them in. Won’t give amnesty to people with kids," the report said.
Rosenstein, in a second call about a week later, told the five prosecutors that it did not matter how young the children were and that government lawyers should not have declined to prosecute two cases based on the fact the children were very young. The Guardian first reported details of Rosenstein refusing to rule out separating any child based on age.
John Bash, the U.S. attorney for the Western District of Texas, wrote to his staff immediately after the call that "those two cases should not have been declined," referring to cases in his district that had been declined the day prior because the defendants had very young children, the report said. Rosenstein “instructed that, per the A.G.'s policy, should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child," according to the report.
Horowitz's draft report says that top Justice Department officials were "a driving force" of the family separation policy.
The report says that Sessions and others knew that the policy would result in family separations, and they wanted them because they believed that would deter illegal immigration, Horowitz reportedly 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 Department of Homeland Security, led then by Secretary Kirstjen Nielsen, has taken much of the blame until now for the policy. But the report shows how officials at the Justice Department pushed the policy in meetings and directed its prosecutors to prosecute all parents, regardless of how young their children were.
Trump in June 2018 signed an executive order halting federal separations after widespread outrage.
NBC News has previously reported that in early May 2018, Trump Cabinet officials called to a meeting at the White House Situation Room were asked by a show-of-hands vote whether to move forward with the controversial policy, and they voted yes.
Nielsen kept her hand down, but she later signed a memo instructing DHS personnel to prosecute all migrants crossing the border illegally, including parents arriving with their children.
The draft report also had details on a 2017 policy in El Paso known as the “pilot program” for zero tolerance. It has previously been revealed that the Trump administration separated children from their parents before the "zero tolerance" policy was announced.
Horowitz's draft report says that in that program, one government lawyer wrote with alarm to superiors: "We have now heard of us taking breastfeeding defendant moms away from their infants," and added, “I did not believe this until I looked at the duty log."
A Justice Department spokeswoman, Alexa Vance, told The Times that the "The draft report relied on for this article contains numerous factual errors and inaccuracies."
"While D.O.J. is responsible for the prosecutions of defendants, it had no role in tracking or providing custodial care to the children of defendants," she told the newspaper. "Finally, both the timing and misleading content of this leak raise troubling questions about the motivations of those responsible for it.”
Sessions and Rosenstein have since left the Trump administration. Bash announced this week that he would retire and enter the private sector.
Trump administration officials in 2018 claimed that separating children from their families was not a policy of its own making, but that it was a consequence of prosecuting people entering the country illegally.