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No One’s Hands Are Clean at the Justice Department

Why officials at every level are implicated in the department’s worst abuses of the Trump era, starting with its family separation policy

Chip Somodevilla/Getty Images
Rod Rosenstein (center), the former deputy attorney general of the United States, explicitly told U.S. attorneys that the age of a child was irrelevant if authorities had to split up immigrant families.

Last week—as we close in on an election that will hopefully make Donald J. Trump a single-term president—we learned new information about one of the most dismal chapters of this period from a New York Times report on the administration’s short-lived “family separation” policy. That is how we have come to refer to the policy that was in place from April through June 2018, when the Justice Department, under then–Attorney General Jeff Sessions, implemented an unprecedented policy of “zero tolerance” for illegal entry into the country that resulted in several thousand children being separated from their parents after attempting to cross the southern border.

A federal court halted the effort after a lawsuit by the American Civil Liberties Union, and following widespread public outrage, Trump reversed course and signed an executive order ending it. A court has since been overseeing the reunification of the families that were affected—a process that remains incomplete even to this day.

The Times’ story concerned a draft report by the Justice Department’s inspector general that contains new details about the despicable seriousness of purpose with which Sessions and then–Deputy Attorney General Rod Rosenstein pursued the policy—including a call that Sessions had with the five U.S. attorneys along the border in which Sessions told them bluntly, “We need to take away children.” On another call a week later, Rosenstein made clear that it did not matter how young the children were.

The Times also quoted a curious line from the draft report, ostensibly styled as an overarching conclusion about the behavior of department officials: “The department’s single-minded focus on increasing prosecutions came at the expense of careful and effective implementation of the policy, especially with regard to prosecution of family-unit adults and the resulting child separations.” This would represent a puzzling and incongruous takeaway—one that seems to treat family separation as a failure of bureaucratic planning and competence—from an investigation that, according to the Times, corroborated the widely available public evidence that top administration officials affirmatively “wanted” family separations to happen “because they believed it would deter future illegal immigration.”

In fact, there has been a considered effort by former administration officials to rewrite this recent history so that we see it as a failure of competence instead of what it really was—a grotesque failure of moral conscientiousness. An acceptance of that effort may presage a broader failure to bring moral clarity to a much-needed post-Trump reckoning of government misconduct during his presidency.

The objective of the Trump administration’s family separation policy was depraved: to deliberately inflict psychological trauma on innocent children in order to punish their parents. Far from being some well-kept secret, this point was made by Trump officials publicly.

Sessions and John Kelly (who was secretary of Homeland Security at the time) repeatedly made clear that the purpose of the policy was to deter immigration—an objective that could be achieved, though Kelly and Sessions did not put it this way, precisely because of the cruelty of the family separation element. In May 2017, Kelly told CNN that he was considering a family separation policy “in order to deter” illegal immigration. In late April 2018, he told NPR that family separation “would be a tough deterrent.” In June 2018, Sessions told Fox News’s Laura Ingraham, “I see that the fact that no one was being prosecuted for this was a factor in a fivefold increase in four years in this kind of illegal immigration.” That same month, one day after Kelly’s successor at Homeland Security, Kirstjen Nielsen, claimed to find the notion of family separation as a deterrent to be “offensive,” an official from the Department of Health and Human Services told reporters, “We expect that the new policy will result in a deterrence effect, we certainly hope that parents stop bringing their kids on this dangerous journey and entering the country illegally.”

The plan was about as grotesque as government policy can get. The question of “careful and effective implementation” entirely aside, it was more than a sufficient basis for people in positions of responsibility to object to the plan or to resign in protest.

Instead, as we saw from an NBC News report in late August of this year, the most senior officials in the administration approached the policy with a shocking degree of casualness and callousness. In May 2018, 11 “of the president’s most senior advisers were called to the White House Situation Room” by Stephen Miller—widely perceived as leading the White House’s hardline approach on immigration—who asked them, “by a show-of-hands vote,” who supported the policy. The invitation list reportedly included Nielsen, Sessions, HHS Secretary Alex Azar, Secretary of State Mike Pompeo, Kelly (who was now chief of staff), and White House Counsel Don McGahn. Nielsen was reportedly the only person who dissented, which she did on the ground that “there were simply not enough resources” to promptly reunite families—apparently missing the point that prompt reunification would defeat the whole purpose of the policy. She nevertheless proceeded to sign a memo days later implementing the policy at DHS.

As for whether anyone objected to the policy on the grounds that it was, in fact, morally despicable, NBC’s story relayed some preemptive special pleading on the point: “No one in the meeting made the case that separating families would be inhumane or immoral,” according to “officials” who claimed that “[a]ny moral argument about immigration ‘fell on deaf ears’ inside the White House.” One of the sources for the story claimed that “some of the subordinates to the Cabinet secretaries who were responsible for carrying out zero tolerance had raised moral objections,” but the report provided no specifics: which “subordinates,” which “Cabinet secretaries,” or whether any of these “moral objections” were raised in writing and could actually be corroborated. The story also did not address the possibility that the claim was self-serving, perhaps lodged on behalf of a former senior government official who stands to gain from shifting the responsibility for the morally reprehensible effort entirely onto Cabinet-level officials.

There was a moral defense of sorts advanced at the time by Nielsen and others—albeit one that relied on a deliberately obtuse and blinkered view of how the government actually works.

Nielsen and others sought to defend the policy by claiming that there was not, as she put it, “a policy of separating families at the border.” Instead, the separations were merely the unavoidable consequence of the zero-tolerance policy coupled with the fact that, under the policies in place at the time, minors could not be held with their parents in detention. As a 2019 report from the Congressional Research Service argued, “The widely publicized family separations were … a consequence of the Administration’s policy of 100% prosecution of illegal border crossing, and not the result of a direct policy or law mandating family separation.” (The emphasis is from the original.)

This distinction—which relies on a myopic and compartmentalized view of how our government actually implements complex policy objectives across multiple agencies—draws on a moral principle, which can be traced back to Thomas Aquinas, known as the “doctrine of double effect.” In its simplest form, as the Stanford Encyclopedia of Philosophy explains, the doctrine holds that “sometimes it is permissible to cause a harm as a side effect (or ‘double effect’) of bringing about a good result even though it would not be permissible to cause such a harm as a means to bringing about the same good end.” (The principle is perhaps best known today for providing a moral justification for the deaths of civilians during war.) As applied to the family separation policy, the suggestion by Nielsen and others seemed to be that what they were doing was permissible because they did not specifically intend to separate children from their parents—it was simply the collateral but foreseeable result of the zero-tolerance policy.

The distinction was superficially plausible but nonsense upon inspection, for at least two reasons.

The first was that, until the public backlash became untenable, administration officials had made clear that the separation element was an integral and deliberately conceived component of the zero-tolerance policy, as the Times’ recent reporting has borne out. The second problem was that, even if administration officials had not made clear what seemed obvious, the policy violated what is known as the “proportionality condition” of the doctrine of double effect, which requires the good that is being achieved by the actions at issue to outweigh the harmful side effects. But there was no compelling argument that the (arguable) effect of reduced immigration outweighed the harms caused by ripping thousands of innocent children away from their parents.

Of course, Nielsen was not engaged in sincere moral argument or debate. She never explained any of this, because an explanation would have prompted obvious questions on these points. The argument reflected a strategy of moral obfuscation—an effort to confuse rather than clarify the responsibility that many individual officials across the government had for a policy that required all of their involvement.

These days, the fashionable defense of the policy by former Trump administration officials is the one that the Justice Department’s inspector general may be entertaining—that the government was simply not prepared to execute the policy in a responsible way. It is a defense that has gotten a surprisingly respectful reception in the media.

Consider Miles Taylor—a young Republican operative who was chief of staff to Nielsen during the family separation policy. In August, he endorsed Joe Biden for president in an ad from the group Republican Voters Against Trump, as part of the sort of expert media rollout that we should expect from a political staffer backed by a group of professional political operatives. The rollout included an op-ed in The Washington Post titled “At Homeland Security, I saw firsthand how dangerous Trump is for America,” followed by a series of high-profile television interviews in which Taylor sharply criticized Trump.

Taylor was repeatedly asked about his involvement in the family separation policy, and though it was understandable that he would try to distance himself from an effort that drew widespread public outrage, it was vexing to see how easily he got off. In his op-ed for the Post, Taylor argued that executive branch agencies “were unprepared to implement the policy, causing a disastrous backlog of detentions that ultimately left migrant parents and their children separated.” He also claimed that Nielsen resisted repeated efforts by Trump to “restart” the policy after it was halted and that she refused to “implement a more deliberate policy of pulling migrant families apart en masse.”

In an interview with MSNBC’s Hallie Jackson, Taylor claimed that Nielsen’s staff attempted to argue that DHS was unprepared “from a logistics perspective” for the policy but were eventually “overruled on this.” Taylor told ABC’s George Stephanopoulos that the policy “was a mistake” and that DHS advocated for the eventual June 2018 executive order that officially put an end to it. Conspicuously absent from Taylor’s handling of the questions about his role in the family separation policy was an account of whether anyone within the government—including himself or Nielsen—ever objected to the policy on the grounds that it was, in fact, morally abominable.

Last month, CNN signed Taylor to a contract as a commentator for the network.

If you seriously entertain the possibility that the failure of the family separation policy was in fact a failure of organizational competence, you quickly end up in some absurd places. You find yourself—as a report from HHS’s inspector general did earlier this year—employing the sterile vocabulary of bureaucratic deflection, lamenting the difficulties of “interagency communication” and the frailty of “interagency channels for coordinating immigration policy.”

You also begin to pursue specious lines in the sand. The Times’ story relays internal concerns from the five U.S. attorneys along the border about separating particularly young children, but would it have been acceptable to separate teenagers from their parents if the objective remained to psychologically torture them?

The answer is obvious, but the implications are sweeping: Everyone with a hand in implementing the policy—from the most senior political appointees at the Justice Department to the most junior prosecutors pursuing the cases resulting in family separations—should have objected, and if that failed (as it likely would have), they should have quit their jobs and gone public. Anything less was a moral and ethical failure.

Even setting aside such objections, any decent lawyer should—at a bare minimum—have had serious reservations about the legality of the family separation policy under the Fifth Amendment of the Constitution and international human rights prohibitions. An article in the Columbia Human Rights Law Review published earlier this year explored these issues and concluded—in a manner both unsurprising and necessary all the same—that “[b]oth domestic and international law prohibit the deliberate separation of children from their families as a means of attempting to deter unlawful immigration.”

These failures of conscience on the part of government officials echo across time, with each episode making the next more likely.

Indeed, there is a good case to be made that the Justice Department’s integral participation in the family separation policy can be traced, at least in part, to the failure to seriously discipline lawyers in the department’s Office of Legal Counsel who prepared the George W. Bush–era “torture memos,” which were used as the authority to allow the CIA to engage in the use of tactics like waterboarding and sleep deprivation on suspected terrorists. When the news of those memos became public—and in fact for years after, until a law was passed under Obama and over the objections of most Republicans—it was routine to hear political pundits debate which torture techniques were truly objectionable (waterboarding, perhaps, was not great, but was sleep deprivation really all that bad?).

Obama famously announced, before taking office, that “we need to look forward as opposed to looking backwards” on the question of torture, and although this may have been defensible as a general guiding principle, it became clear—as even the most modest efforts at accountability failed—that it was a mistake. The Justice Department, for instance, conducted a criminal investigation into the deaths of two detainees who died while in custody, but it concluded that charges were not warranted, apparently on the theory that those involved had acted in accordance with legal advice from the Justice Department.

As the torture era demonstrated, controversial government policies usually have the hands of lawyers all over them—bureaucrats know that a legal opinion will go a long way to relieving them of responsibility if a policy comes under scrutiny in the future—even if it is not obvious to the public at the time. The fallout for the people who crafted and signed off on the torture memos was, however, practically nonexistent. The most infamous and flawed of the memos was written by John Yoo, but many other Bush administration lawyers reached the same conclusion, and Yoo got off with a slap on the wrist from the Justice Department’s ethics office that was so light that he managed to portray it as vindication and has continued to serve as an influential legal commentator in conservative circles. He is a professor at Berkeley Law School.

Another author of the memos, Jay Bybee, was nominated less than a year after he wrote his memo to be a judge on the Ninth Circuit Court of Appeals, one of the most powerful in the country. He was confirmed in 2003, before his involvement became known through public reports to Democratic senators who had voted for him. Needless to say, nothing about these consequences served as a meaningful warning to future Justice Department officials to think twice about lending their services to justify even the most morally dubious government activities.

At the time, conservative commentators bristled at the idea of legal accountability for the Bush administration’s torture program—calling even a 9/11 Commission–style inquiry the “banana-republic notion of investigating [Obama’s] political rivals.” Perhaps not coincidentally, as the country may be poised to turn the page on the Trump era, we are hearing similar things today. Last month, Attorney General William Barr gave a speech touting his supposed commitment to the rule of law, in which he warned that “it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state.” He claimed—without a hint of irony or self-awareness—that “the political winners ritually prosecuting the political losers is not the stuff of a mature democracy.”

If the family separation policy is viewed as it should be—as an intrinsically immoral effort—then there was no competent way to execute it. Everyone involved was complicit, and no one should be spared this judgment—from the most senior to the most junior officials who had anything to do with it.

The Trump administration has resisted disclosing information about the family separation policy in response to both congressional inquiries and litigation. This stonewalling will likely continue unless Biden wins in November, but if that comes to pass, it is vital for the government to undertake a thorough excavation to determine exactly who was involved and how, and for the government to consider possible repercussions for those who had a significant role in it.

Government lawyers and bureaucrats without a public profile who were involved in the development and implementation of the policy—especially those at the Justice Department and including career officials—should not be exempt from that scrutiny. Far from it. In fact, even if department lawyers merely kept quiet about misconduct that they witnessed, then they violated their affirmative legal obligations to report misbehavior in real time.

The only way that we can avoid moral abominations likes these in the future is if we impose some consequences when government officials shirk their moral and civic responsibilities as egregiously as many have in the Trump administration and if we insist on serious, comprehensive, and retrospective efforts to uncover misconduct that we may not even know about yet. It is not enough to object to despicable policies simply because they might be ineffective, or for government officials with power simply to keep their heads down on the theory—the incorrect theory—that silence is not complicity.

If Biden wins, there will likely be many more former Trump officials who will try—like Nielsen, Rosenstein, Taylor, and others have done in the context of the family separation policy—to evade responsibility through a strategy of deliberate obfuscation, outright lying, or both. For those seeking the off-ramp from Trumpism, doing so may be vital to their professional prospects and their future in Republican politics, and even to their ability to enjoy themselves freely in public. They should not be let off the hook easily.