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Biden's acting attorney general signed off on reassigning prosecutor who objected to family separations

The incident would have made Wilkinson aware families were being separated long before the Texas pilot program for zero tolerance was known to the public.

WASHINGTON — President Joe Biden's pick to run the Justice Department temporarily, Acting Attorney General Monty Wilkinson, signed off on a 2017 decision to remove a prosecutor from his position after the prosecutor’s superiors complained he was not adequately prosecuting migrant parents separated from their children, according to documents reviewed by NBC News.

Wilkinson, who once served as former Attorney General Eric Holder's deputy chief of staff, was not a Trump appointee when he received the complaints about Joshua Stern, an attorney detailed to the Western District of Texas in 2017. He was handling personnel matters as the director of the Executive Office for U.S. Attorneys — a position to which he was appointed by Holder in 2014.

In a memo sent to Wilkinson on Sept. 11, 2017, Stern’s superiors said he was not adequately performing his duties because he was “very concerned" about cases in which he was asked to prosecute an immigrant parent who had been separated from and did not know the whereabouts of their child.

"He voiced repeated concern about the separation of the children from their parents," the memo said of Stern.

The parents in question had been separated from their children in the El Paso area in what is now recognized as a pilot program for the Trump administration's 2018 "zero tolerance" policy, which intentionally separated more than 3,000 migrant families.

Wilkinson’s receipt of the memo would have made him aware that families were being separated in El Paso long before the existence of the pilot program was known to the public or even began circulating in policy memos among Trump officials in Washington.

"Stern appeared particularly disturbed that our office prosecuted these cases," the memo said. "He commented that our prosecutions resulted in children separated from their parents when the parents were often fleeing violence in their home country. He informed us that he contacted agencies so that he could assist the defense with the process of locating the defendant's children."

The memo was sent in response to a Sept. 8 request from Wilkinson for more details about Stern after a call Wilkinson had with Stern’s boss, then U.S. Attorney for the Western District of Texas Richard L. Durbin, according to an internal email reviewed by NBC News.

The memo accompanied an official letter from Durbin to Wilkinson, asking him “if there is any way to end the relationship [with Stern] early, it would probably be best for everyone involved.”

In that letter, Durbin said Stern had “sympathies [that] seem to lie with the aliens we are prosecuting.” Durbin also said Stern had been “admonished at least twice” for being late to work and had been “somewhat difficult to deal with.”

On Sept. 20, nine days after Durbin’s letter to Wilkinson, Wilkinson sent the appropriate paperwork to relieve Stern of his detail early, according to a document reviewed by NBC News. Wilkinson’s office had to give permission before Stern could be removed from his job early and on short notice and reassigned to another job in the federal government.

Wilkinson, who is serving temporarily as acting attorney general until Biden’s nominee for attorney general, Merrick Garland, is confirmed, has largely been seen as a long-serving career official whose low profile has kept him out of handling anything that could be considered controversial or a conflict of interest for the incoming administration.

Robert M. "Monty" Wilkinson has been serving as acting United States Attorney General since Jan. 20, 2021
Robert M. "Monty" Wilkinson has been serving as acting United States Attorney General since Jan. 20, 2021U.S. Department of Justice

A current spokeswoman for the Justice Department said Wilkinson’s office at the time of Stern’s reassignment, the Executive Office of U.S. Attorneys, “plays an administrative role related to the associated paperwork but does not make decisions on assignments” regarding detailed personnel.

“The department cannot comment on specific personnel matters. Regarding the process for detail assignments from components to U.S. Attorneys Offices, the decision on whether to continue a detail is between the lending and receiving components,” the spokeswoman said.

The Guardian first reported on Stern’s reassignment, and some of Wilkinson’s involvement in it, in September 2020. A spokesperson for the White House declined to comment on whether the Biden transition team knew about Wilkinson’s role in Stern’s reassignment or came across The Guardian's reporting when vetting Wilkinson for the position.

Durbin declined to comment on his requests to reassign Stern early or his communications with Wilkinson. Stern did not respond to a request for comment.

Biden has said he is committed to reuniting migrant families separated by the Trump administration and is expected to announce a task force to do so in the coming days. Biden has said he would leave it to his Justice Department to determine whether or not any officials involved in the policy had committed criminal conduct.