Justice Department was unprepared for family separations but Sessions pushed it anyway, watchdog says

“The barbaric family separation practice was immoral and illegal. 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,” said ACLU lawyer Lee Gelernt, the lead attorney in the family separation lawsuit, in a statement Thursday.

One draft talking point prepared for Sessions ahead of a May 2018 White House meeting read: “An illegal alien should not get a free pass just because he or she crosses the border illegally with a child.” The talking points also cited an initiative that led to the separation of approximately 280 families, saying that it “worked,” even though it had generated concerns from prosecutors, judges and officials.

More than 5,000 families had already been separated at the US-Mexico border between 2017, when a pilot initiative kicked off, and 2018, when the policy was announced, according to the American Civil Liberties Union.

Sessions declined to be interviewed by the inspector general.

Early concerns were ignored at DOJ

Thursday’s report provides a thorough accounting of US attorneys caught unaware — and unprepared — for the policy change, and underscores the push by top Trump officials, citing migrant caravans, to press forward despite known concerns over the prosecution of families.

In August 2017, during the pilot initiative in El Paso, Texas, the deputy criminal chief emailed acting US Attorney Richard Durbin, expressing concerns raised by defendants and a judge, including situations where breastfeeding moms were taken away from their infants.

“We have now heard of us taking breast feeding defendant moms away from their infants, I did not believe this until I looked at the duty log and saw the fact we had accepted prosecution on moms with one and two year olds,” the deputy criminal chief wrote.

“The next issue is that these parents are asking for the whereabouts of their children and they can’t get a response, the courts are turning to us for help with providing contact information to defense counsel,” he added.

In 2018, the Trump administration moved forward with the so-called “zero tolerance” policy, but US attorneys charged with prosecuting individuals referred by the Department of Homeland Security for illegally crossing the southern border had not received guidance about the policy change from DOJ headquarters until after it was made.

The primary concern held by the attorneys, according to an email obtained by the inspector general: What was happening with the children?

On May 11, 2018, days after the policy had taken effect, Sessions held a conference call with the attorneys. During that call, Sessions told US attorneys “we need to take away children,” according to notes from the call cited in Thursday’s report.

Sessions also led attorneys to believe that prosecutions would be swift and followed by reunification. That was not the case. The Justice Department inspector general found that department leaders were notified, during implementation of the policy, that the average time a defendant remained in DOJ custody was three to seven days.

Rod Rosenstein, then the deputy attorney general, told the IG he also reached out to US attorneys and “that the focus of these calls was to ensure that the U.S. Attorneys were fully engaged on immigration prosecutions” and that they understood how significant the policy was to Sessions.

According to a summary of a call Rosenstein held with US attorneys, Rosenstein, “instructed that, per the [Attorney General’s] policy, we should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child.”

Rosenstein rejected that characterization. “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. It was a failed policy that never should have been proposed or implemented,” he said in a statement to CNN.

Beyond a lack of planning between agencies involved in the apprehension and care of migrants, DOJ also didn’t plan for the operational, resource, and management impacts associated with an increase in immigration prosecutions, according to Thursday’s report.

The US Marshals Service, for example, didn’t have the opportunity to address housing needs for an increased number of defendants until after Session’s April 2018 announcement.

The inspector general report cites an email to staff in mid-May from a USMS supervisor in the Southern District of California that reads: “Our manpower has been completely depleted…we are in ‘crisis mode,’ ‘critical mass’ ‘DEFCON 1’ or however you want to phrase it.”

Biden immigration focus

“There is no more powerful and heartbreaking example of that inhumanity than the separation of children from their parents,” he said.