Jurisprudence

The Architects of Trump’s Family Separation Policy Have Landed on Their Feet

Former Deputy Attorney General Rod Rosenstein smiles widely as he leaves after a Republican-led Senate Judiciary Committee hearing on  "Crossfire Hurricane", the FBI's probe into Russian election interference and the 2016 Trump campaign in the Dirksen Senate Office Building in Washington, DC,on June 3, 2020.
The smile of man with career prospects despite illegally separating thousands of children from their parents. Greg Nash/Getty Images

During a conference call in May 2018, then-Attorney General Jeff Sessions told five U.S. Attorneys “we need to take away [the] children” of asylum-seekers and other migrants caught illegally entering the United States. The unprecedented policy of taking children away from parents to deter migration was cruelillegal, and wrong; yet, the U.S. Attorneys on the call implemented it without moral objections, according to a recent report by the Justice Department’s Office of the Inspector General.

If our country is to “undo the moral and national shame” of family separation, as President Joe Biden has promised, we must ensure accountability for the lawyers who devised and carried out the policy, and who still occupy prestigious roles in the legal profession as if nothing happened.

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While U.S. Immigration and Customs Enforcement has received the brunt of public ire for family separation, federal prosecutors have faced far less scrutiny. Yet it was these prosecutors, who enforce criminal rather than civil immigration laws, who actually caused the separation of more than 3,000 children from their migrant parents and guardians. They did so by carrying out Sessions’ “zero tolerance” policy, which instructed them to criminally charge all adults caught illegally crossing the U.S-Mexico border, even if that required separating them from their minor children.

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The OIG report shows that when given the unambiguously immoral task of separating children, top federal prosecutors along the border raised mostly “practical implementation questions.” For example, during the policy’s rollout, Adam Braverman, then-U.S. Attorney for the Southern District of California, emailed a Justice Department official and his fellow border U.S. attorneys about implementation issues ranging from the lack of detention space to medical screening, but omitted any substantive concern with the policy itself of separating children.

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When Sessions first publicly announced that his zero tolerance policy would cause child separation, the U.S. attorneys contacted Justice Department leadership—not to oppose the policy, but rather to request media talking points. According to an email summarizing the call, one “BIG CONCERN” raised by the U.S. attorneys was: “What is happening with these children when they are being separated from the parent?”; “What are the safeguards to the children[?]”; and … “How are they getting the child back to the parent?” The email is smoking gun evidence that the U.S. attorneys did not know of any plan in place to reunite the families Sessions was asking them to separate. This means that when the prosecutors decided to separate them anyway, they at best recklessly disregarded the welfare of hundreds of children, and at worst were knowing participants in taking children illegally from their families, potentially forever.

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In the following weeks, prosecutors continued separating families even as public defenders and judges raised alarm over the unknown whereabouts of separated children as young as three years old. While the U.S. attorneys had the opportunity to resist or morally object to the policy during weekly calls with then-Deputy Attorney General Rod Rosenstein, the report does not mention a single instance in which they did so.

One striking example of moral acquiescence is when John Bash, then-U.S. Attorney from the Western District of Texas, emailed his subordinates conveying Rosenstein’s instructions to separate children no matter how young they were. Bash told his subordinates that, according to Rosenstein, his office should not have declined to prosecute two cases the day before just because the children were younger than five years old. (Rosenstein told the Inspector General investigators that he did “not recall” anyone asking him whether they “were required to prosecute parents of infants and near infants.”)

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Bash admits that he and the other U.S. attorneys “never really” received “an accurate and full summary of what happens to children, how they’re cared for, and so forth.” Turns out there was no real plan, and the parents of hundreds of separated children have yet to be located.

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Meanwhile, many of the lawyers named in the OIG report continue to enjoy positions of power and prestige. Rosenstein is a partner at King & Spalding and was named a member of the extremely exclusive and influential American Law Institute. President Donald Trump nominated Braverman to the federal bench in San Diego (he did not receive confirmation before Democrats took over the Senate), and the local paper of record describes him as a non-“controversial” potential nominee for President Biden. Bash is now a partner at the prominent liberal-leaning law firm Quinn Emanuel, which holds itself out as a defender of immigrants. Ryan Patrick, then-U.S. Attorney for the Southern District of Texas who carried out the family separation orders in his jurisdiction, kept the position until February 2021 and was named partner at the law firm Haynes and Boone the following month. John Anderson, then-U.S. Attorney in New Mexico who also implemented family separation, is a partner at Holland & Hart.

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This lack of accountability creates little incentive for government lawyers to do the right thing the next time an administration devises a policy to violate human rights, as one inevitably will, and demands further inquiry, not just into what these attorneys knew, and when they knew it, but what to make of their complicity in defending the indefensible.

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The Biden administration should conduct a thorough investigation into family separation and identify all those responsible for devising and carrying out the policy. At a minimum, lawyers who designed the policy and supervised its implementation should be named and explicitly barred from judgeships and leadership roles in the Justice Department, including in U.S. attorneys’ offices. Private firms and professional associations should be publicly discouraged from elevating these attorneys.

These accountability measures would provide deterrence, albeit a more humane and proportional version than what Trump officials envisioned with family separation. In contrast with psychologically torturing children to deter migration, we are merely asking to take power and prestige away from lawyers behind the heinous policy, to deter similar abuses in the future.

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