Originally Published in The New York Times
Michael D. Shear - January 14, 2021
WASHINGTON — President Trump and top aides in the White House aggressively pushed the get-tough policy that led migrant children to be separated from adults at the border with Mexico, according to a top Justice Department official in a new report from the department’s inspector general and other internal documents.
In the report, formally released on Thursday, Gene Hamilton, a top official, said the policy was put in place after complaints by the president and others at the White House involved in carrying out his immigration agenda.
“The attorney general was aware of White House desires for further action related to combating illegal immigration,” the report quotes Mr. Hamilton as saying in response to questions about the origins of the program, in which the Justice Department began prosecuting migrant adults who arrived at the border with children.
Mr. Hamilton said that former Attorney General Jeff Sessions “perceived a need to take quick action” from Mr. Trump and that after a meeting at the White House on April 3, 2018, Mr. Sessions “directed that I draft a memo that would put in effect a zero-tolerance approach to immigration enforcement at the border.”
A spokesman for the White House declined to comment.
In a statement issued on Thursday after the inspector general’s report, Rod J. Rosenstein, the former deputy attorney general involved in the zero-tolerance policy, expressed deep regret about its development and the part he had played.
“Since leaving the department, I have often asked myself what we should have done differently, and no issue has dominated my thinking more than the zero-tolerance immigration policy,” he said. “It was a failed policy that never should have been proposed or implemented. I wish we all had done better.”
Notes obtained by The New York Times of two meetings — one between federal prosecutors along the southwestern border and Mr. Sessions, and another with Mr. Rosenstein — also indicate that law enforcement officials were pushing the separation policy in response to pressure from the president.
During a meeting with Mr. Sessions on May 11, 2018, the attorney general told the prosecutors, “we need to take away children,” according to the notes. Moments later, he described Mr. Trump as “very intense, very focused” on the issue, according to one person taking notes at the meeting.
Another person who attended the May 11 meeting wrote about the same part of the conversation involving Mr. Trump: “INTENSE: prosecute everyone.”
The inspector general’s report is largely the same as a draft that The Times reported on in early October. It comes almost two and a half years after the Justice Department’s zero-tolerance policy in summer 2018 led to the long-term separation of nearly 3,000 children, many of them very young, and created a global political firestorm.
Hundreds of those children remain separated from their parents, either because the Trump administration had already deported the parents to their home countries or because they could no longer locate them. Advocates for immigrants called the Justice Department report a scathing indictment of a failed policy.
“The barbaric family separation practice was immoral and illegal,” said Lee Gelernt, the lead lawyer for the American Civil Liberties Union lawsuit against the policy. “At a minimum, Justice Department lawyers should have known the latter. This new report shows just how far the Trump administration was willing to go to destroy these families. Just when you think the Trump administration can’t sink any lower, it does.”
Democrats on Capitol Hill, citing the report, said they would hold Trump administration officials to account even after President-elect Joseph R. Biden Jr. takes office next week.
“Those who planned and executed the zero-tolerance policy will have to live with the knowledge that their cruelty and cowardice are responsible for the scars these children will carry for the rest of their lives,” said Senator Richard J. Durbin, Democrat of Illinois, who promised hearings when he assumes the chairmanship of the Judiciary Committee next week. “They must be held accountable for the fundamental human rights violations that they perpetrated.”
Mr. Trump has repeatedly tried to avoid responsibility for his administration’s family separation policy by falsely blaming Democrats and former President Barack Obama.
The inspector general report does not issue a formal finding that the responsibility for the zero-tolerance policy rests with Mr. Trump. It concludes that top Justice Department officials were a “driving force” behind the decision to put in place policies that led to separating families.
But the report and the other documents directly implicate the Trump White House.
The report cites Mr. Hamilton as saying that there was anxiety in the White House in the early spring of 2018 about the increased number of Central American migrants who were headed to the border with the United States.
“We were told that one of the events generating concerns within D.O.J., D.H.S. and the White House was a migrant caravan of 1,540 Central Americans that was moving toward the United States through Mexico on 16 buses,” the report says, referring to the Departments of Justice and Homeland Security.
Other documents obtained by The Times reveal that the concerns from the White House continued into the early summer as Mr. Trump and his aides grew frustrated by the lack of increased prosecutions of illegal border crossers.
On May 14, just days after Mr. Sessions met with his prosecutors, Stephen Miller, the chief White House architect of Mr. Trump’s immigration policy, forwarded an email to Mr. Hamilton noting a news article indicating that United States attorneys were at times refusing to prosecute migrants who were crossing the border illegally, in part because the migrants were crossing with young children. Mr. Hamilton responded, “This article is a big problem.”
Those concerns quickly made their way to the Justice Department, according to a series of emails that document the scheduling of a meeting to discuss the issues.
Eight days later, on May 22, Mr. Rosenstein again met with United States attorneys who handle border issues to insist that they prosecute every case of illegal crossings that were referred to them from the Border Patrol. He dismissed concerns from at least one prosecutor that children under 5 would be separated from parents if the adults were prosecuted.
“If they are referring, then prosecute. Age of child doesn’t matter,” Mr. Rosenstein said, according to the notes of one person at the meeting.
Mr. Biden has vowed to create a task force to help reunite children who remain separated from their parents. Top Democrats on the House Judiciary and Oversight Committees issued a statement after the report’s release saying that they would invite the inspector general to appear at a hearing and declaring that “this dark chapter in our history must never be repeated.”
Despite Mr. Trump’s decision to largely abandon the family separation policy in 2018, Mr. Miller and top Homeland Security officials have continued to work to put Mr. Trump’s immigration agenda in place during the final days of his term.
Multiple federal judges had invalidated some of the more restrictive asylum rules and visa fee hikes after finding that the appointment of Chad F. Wolf to lead the Department of Homeland Security most likely violated a federal statute that dictates the order of succession.
Mr. Wolf stepped down from the acting secretary position this week, but the department has since discovered a way to get around the court rulings.
Mr. Wolf’s replacement, Peter T. Gaynor, issued a memo on Wednesday delegating Mr. Wolf, now the under secretary of policy, to ratify the rules. Mr. Gaynor, the former administrator of the Federal Emergency Management Agency, had told colleagues in recent weeks that he did not intend to willingly ratify the rules himself, according to an official familiar with the matter.
Zolan Kanno-Youngs contributed reporting.