The Trump administration and then-Attorney General Jeff Sessions barreled forward with their “zero tolerance” border crackdown in 2018 knowing that the policy would separate migrant children from their parents and despite warnings that the government was ill-prepared to deal with the consequences, according to a long-awaited report issued Thursday by the Justice Department’s Office of Inspector General.
The report called the Justice Department and the attorney general’s office a “driving force” in making sure the Department of Homeland Security aggressively prosecuted adults arriving with children, findings that cast doubt on statements made by Sessions that the government “never really intended” to separate families.
The bureaucratic chaos and trauma for families that resulted from the policy were not unanticipated consequences, the inspector general found. “DOJ officials were aware of many of these challenges prior to issuing the zero tolerance policy, but they did not attempt to address them until after the policy was issued,” the report states.
While DHS, the Department of Health and Human Services, and other federal entities have issued autopsy reports assessing the failings of the zero-tolerance policy, the internal Justice Department findings provide new details about Sessions’s lead role in pushing for the crackdown, despite numerous red flags.
Once the policy was underway, Sessions at one point told U.S. attorneys along the border that “we need to take children away,” according to the report, even as the Trump administration publicly claimed that it did not have a policy that called for separating families.
Sessions declined to be interviewed for the report by the inspector general’s office. A representative for Sessions had no immediate comment.
Former deputy attorney general Rod J. Rosenstein, who also pushed for the prosecutions, expressed contrition in a statement issued through a spokesman after the publication of the report.
“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,” Rosenstein’s statement said. “It was a failed policy that never should have been proposed or implemented. I wish we all had done better.”
Gene Hamilton, a former DHS official who became a top aide to Sessions, told the inspector general that he wrote the zero-tolerance policy memo in early April 2018 at the attorney general’s direction, after a meeting at the White House, according to the report. At the time, President Trump was agitated about “caravans” of Central American families streaming to the U.S.-Mexico border.
Sessions and Hamilton, who joined the administration with reputations as immigration hard-liners, worked with another longtime ally, Trump adviser and speechwriter Stephen Miller, to formulate the crackdown.
The team implemented the policy by working backward: Sessions announced the “zero tolerance” plan in an April 6, 2018, speech despite not having consulted the U.S. attorneys who would be tasked with the prosecutions or the federal agencies that would deal with the resulting family separations, according to the inspector general.
And in the weeks that followed, when court data showed prosecutions had not increased, Sessions pushed harder. The Justice Department’s “single-minded focus on increasing immigration prosecutions came at the expense of careful and appropriate consideration of the impact of family unit prosecutions and child separations,” the report found.
During the crackdown, the government took more than 3,000 children from their parents, placing them in government shelters while adults were jailed. Some of the mothers and fathers were deported while their children remained in government custody, and in the ensuing chaos, the government had no functional plan to reunite the families.
Trump ordered an end to the separations barely six weeks into the implementation phase, as recordings and images of anguished families and separations at the hands of border agents triggered a backlash against the White House.
More than two years later, attorneys representing the families have been unable to contact more than 500 of the parents whose children were taken. Some of those minors remain in the United States with relatives.
Trump administration officials say the government has been working to reunite the families but has found in some cases that the parents do not want to regain custody of their children, allowing them to remain in the United States. President-elect Joe Biden has announced plans to assign a task force to intensity efforts to find the parents, with advocates urging that they be allowed to return to the United States for an opportunity to make humanitarian claims.
“The Biden-Harris administration will inherit the legacy of family separation, and we don’t doubt that more horrific details will continue to emerge,” said American Civil Liberties Union attorney Lee Gelernt, who has led class-action lawsuits against the Trump administration and other challenges to its immigration policies.
“The incoming administration must reunite the separated families in the United States, but we cannot stop there,” Gelernt said. “These families deserve citizenship, resources, care and a commitment that family separation will never happen again.”
Democrats on the House Judiciary and Oversight committees said that the report “sheds new light on the chaos, cruelty and reckless disregard for vulnerable children in our nation’s custody” and shows 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,” said their statement, which indicated Democrats plan to schedule hearings in the coming weeks to discuss the report.
According to the inspector general’s report, “Department leadership and, in particular, the Office of the Attorney General (OAG), which had primary responsibility for the policy’s development, failed to effectively prepare for, or manage, the implementation of the zero tolerance policy.”
A 2017 pilot program in El Paso was cited by Sessions as evidence that the policy would work, but his team ignored warnings from that effort about what could go wrong.
As the department prepared to ramp up prosecutions in late April 2018, its own Executive Office for U.S. Attorneys warned it would not be possible, saying the U.S. attorneys’ offices lacked the resources they needed to bring the cases or deal with the logistical effects of a prosecution surge that jammed courtrooms and immigration jails along the border.
“The USAOs and other interested stakeholders could not absorb this increase,” an official wrote to Hamilton. “Furthermore, DHS/CBP would not be able to process these numbers within the time constraints set for presentment in criminal court.”
Hamilton told investigators that he “missed” that message and was not aware of the U.S. attorneys’ concerns. He and other Justice Department officials told interviewers they did not realize the prosecutions would result in the long-term separation of parents and children — but the report found they were warned about that being exactly what would occur.
Similarly, there was no system in place to ensure children would be quickly returned to their parents. Instead they were sent to government shelters, some thousands of miles away. “During interviews and document review, we found no evidence, before or after receipt of the memorandum, that DOJ leaders sought to expedite the process for completing sentencing in order to facilitate reunification of separated families,” the report found.
Justice Department officials took no responsibility. “I just don’t see that as a DOJ equity,” Rosenstein said at the time when asked about inadequate care for children taken from their parents.
Rosenstein also at times boasted about how the policy was implemented. “I mean, I think it’s unlikely that ever in American history has there been more coordination about enforcement,” he said, according to the report.
Rosenstein and Hamilton told the inspector general’s office that Sessions understood when he announced the policy that it would separate families. But, according to Hamilton, he was driven to proceed anyway because apprehensions at the border were increasing and Trump was concerned. “There was no deterrent, no consequences for unlawful entry, especially if people were coming over with children . . . and there needed to be consequences,” Hamilton told investigators about Sessions’s thinking.
Kirstjen Nielsen, then the homeland security secretary, was initially tasked with announcing the crackdown, but DHS suddenly withdrew her from a news event “to protect Secretary Nielsen from bearing the wrath of the policy.” That left Sessions — who was a vigorous backer anyway — to do it.