Jurisprudence

Was the Latest Family Separation Report a Whitewash?

A cage full of teddy bears with a sign on it that says "666 children is 666 too many"
Volunteers from Families Belong Together build and fill a chainlink cage with about 600 teddy bears “representing the children still separated as a result of U.S. immigration policies” on the National Mall in Washington on Nov. 16. Chip Somodevilla/Getty Images

Last week, Michael Horowitz, the Justice Department’s inspector general, finally released his report on the department’s implementation of the Trump administration’s family separation policy. That program resulted in thousands of children being separated from their parents after illegally crossing the southern border, and hundreds have still not been reunited. The report came 2½ years after the policy ended, months after an election in which this information may have been useful to voters, and less than a week before the end of the Trump administration. The report is critical of the handling of the policy by senior officials, but it is also deeply flawed itself—exemplifying the sort of bureaucratic obtuseness and myopia that allowed misconduct like the family separation policy to pervade the Trump administration.

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The report’s most significant problem is its self-imposed scope, specified at the outset: “Consistent with the Inspector General Act of 1978, this review does not substitute the OIG’s judgment for the judgments made by DOJ leadership regarding the substantive merits of the zero tolerance policy.” In other words, the report does not account for the fact that the policy—the purpose of which was to psychologically torture children to deter their parents from crossing the border—was both immoral and illegal. Everyone who was intentionally involved in any way, at all levels of the department, ought to be publicly ostracized, something the Office of the Inspector General will not acknowledge. Its principal conclusion is that former Attorney General Jeff Sessions and his team “failed to effectively prepare for, or manage, the implementation” of the policy. The real issue, of course, is that there is no way to “effectively prepare for” and “implement” a child torture program.

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Usually, the notion of an internal government review that does not reevaluate the underlying policy objective of a program would make some sense, but if ever there were reason for an exception, this would be it—if only to impress upon DOJ lawyers that they are, in fact, independent moral and ethical agents whose responsibilities as humans go beyond simply doing what they are told.

The report’s second serious problem is that it focuses almost entirely on a small group of key participants—Sessions, an adviser named Gene Hamilton, former Deputy Attorney General Rod Rosenstein, and the five U.S. attorneys along the southwest border. Pretty much everyone else—including people present for key meetings and calls—goes unnamed. I lost count of how many anonymous “officials” are referenced in the report—people who had the chance to speak up but did not—whose names I would very much like to know. As Lee Gelernt, the ACLU attorney who stopped the child separation policy in court and who continues to try to reunite still-separated children, told Slate last week, any future investigative hearings need to involve “basic information gathering … with everyone that was involved [including] both high-level officials … but also people on the ground … who were actually carrying out these separations.”

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The report is also filled with information that suggests the possibility that several former officials tried to mislead investigators about their involvement in the policy, but the report is noticeably incurious about these incidents.

Rosenstein, for instance, initially told investigators that he did not ask “for assurances” from the Department of Homeland Security that it would be able to track the children taken into its custody, but he changed his story after reviewing an early draft of the report—later telling the office that “I was getting reassurances that I now believe to be wrong.” Rosenstein also denied telling the southwest U.S. attorneys on a conference call that they had to prosecute cases irrespective of the separated children’s age, even though the contemporaneous notes of one of the U.S. attorneys indicate that he said this. True to form, Rosenstein’s reaction to the final report was to spread blame—telling the New York Times, “I wish we all had done better.”

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John Bash, the U.S. attorney for the Western District of Texas during the policy, is less well known, but his conduct was also appalling. He told investigators that he did not recall a December 2017 briefing in which (according to his own notes) he informed other senior officials about the results of a pilot program for family separation in his district earlier that year (before he took the job). Bash claims to have been confused about the purpose and results of the borderwide zero tolerance policy in the spring of 2018, but the December 2017 briefing make his self-serving claims hard to believe.

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Later, a footnote in the report describes a May 2018 memo from Bash’s office to another senior department official stating that his office “supports [the policy] to discourage misuse of children for the nefarious purpose of attempting to avoid prosecution,” but Bash claimed that someone else “inserted this sentence after [he] had already reviewed and approved” it. Bash now has a lucrative job at the law firm Quinn Emanuel—which once worked in opposition to the policy—but the firm refused to respond to multiple requests for comment about what the report reveals about Bash’s involvement. Rosenstein works for King & Spalding.

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I could go on. Gene Hamilton was a close adviser to Sessions throughout the whole ugly episode, and there are too many instances in the report to recount that demonstrate his indifference to the catastrophe that he helped to cause. Another lawyer named Ed O’Callaghan is identified as a participant in some key discussions, but he “did not agree to be interviewed” and now works at the law firm WilmerHale—which has also touted its work on behalf of families during the “family separation crisis,” but also ignored multiple requests for comment.

The Biden administration has said that it intends to further probe the involvement of department officials in the policy. The odds of criminal liability for implementing the policy itself are low—assuming no new facts come out—but the report could provide fodder for charges based on misleading the inspector general’s office, a particular irony given the zeal with which the Trump DOJ itself pursued those sorts of offenses against administration antagonists.

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The report is also the latest reason that Horowitz, the current inspector general, should resign. I had my own dubious experience with the office, but more importantly, Horowitz has spent four years largely ignoring anything that might upset Trump DOJ officials, while churning out hundreds of pages of reports that bolstered conservative propaganda campaigns—about James Comey, Andrew McCabe, and Carter Page—and facilitating whistleblower retaliation that the office is literally supposed to prevent.

The department needs a fresh start under Joe Biden, and part of that work should include retrospectively investigating Trump-era misconduct at DOJ that the inspector general’s office, with its current leadership, has proved that it cannot do with the urgency or clearsightedness that the job demands.

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