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Justice officials respond to report on family separation by blaming Trump, expressing regret

Former DOJ official Rod Rosenstein told NBC News that zero tolerance "was a failed policy that never should have been proposed or implemented."
AG Sessions And Deputy AG Rosenstein Announce Efforts To Reduce Transnational Crime
Jeff Sessions and Rod Rosenstein at a news conference in Washington on Oct. 15, 2018.Andrew Harrer / Bloomberg via Getty Images file

WASHINGTON — After a scathing new report from the Justice Department's watchdog blamed top department officials for being the "driving force" behind the Trump administration's 2018 migrant family separation policy, former Deputy Attorney General Rod Rosenstein issued a statement of regret Thursday while former acting Attorney General Matt Whitaker and current DOJ official Gene Hamilton blamed the president for the policy.

In interviews with the DOJ Office of Inspector General in the lead-up to the report, Hamilton, known as a close ally of White House adviser Stephen Miller, and Whitaker said the decision to separate families, a policy known as "zero tolerance" that lasted two months in 2018 before it was terminated by executive order, ultimately rested with President Donald Trump and then-Department of Homeland Security Secretary Kirstjen Nielsen.

"If Secretary Nielsen and DHS did not want to refer people with minors, with children, then we wouldn't have prosecuted them because they wouldn't have referred them. And ultimately that decision would be between Secretary Nielsen and the president," Whitaker told the Office of Inspector General, according to the report.

"The Attorney General was aware of White House desires for further action related to combatting illegal immigration, imminent and ongoing actions by the Department of Homeland Security, and he perceived a need to take quick action," Hamilton told the Inspector General.

In response to the report, Rosenstein, who left the department in May 2019, said in a statement to NBC News: "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. I wish we all had done better."

During an April 20, 2018, meeting at the Justice Department, then-Attorney General Jeff Sessions, Rosenstein, Hamilton and others met with Nielsen, says the report. There, according to notes from Hamilton, "the Attorney General and the Deputy Attorney General both expressed a willingness to prosecute adults in family units if DHS made the decision to start referring such individuals for prosecution."

Sessions refused to be interviewed by the Inspector General and could not be reached for comment. The White House referred NBC News to the Justice Department for comment.

NBC News previously reported on a draft version of the report in October.

The report, published Thursday by the Justice Department's Inspector General more than two years after the policy ended, pieces together decisions made by high-ranking Trump administration officials that led to the separation of more than 3,000 migrant families.

"We concluded that the Department’s single-minded focus on increasing immigration prosecutions came at the expense of careful and appropriate consideration of the impact of family unit prosecutions and child separations," the Inspector General's report said.

The Trump administration's "zero tolerance" policy instructed U.S. attorneys to prosecute all adults crossing the southern border illegally — a misdemeanor offense — regardless of whether or not they had children. As a result, border agents were instructed to send children into the custody of Health and Human Services while their parents were prosecuted.

According to the report, several U.S. attorneys along the southern border raised concerns about whether the migrant parents they were being asked to prosecute would be reunited with their children or whether some of the children might be too young to be separated.

Then-U.S. Attorney for the Western District of Texas John Bash communicated with other U.S. attorneys his understanding of the policy based on his direction from Rosenstein.

"I just spoke with the DAG (Rosenstein.) He 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," according to Bash's notes contained in the report.

In a court filing on Wednesday, pro-bono attorneys tasked with finding separated families and giving them the chance to reunify said they have yet to find the parents of 611 children. Of those, the lawyers estimate, the parents of 392 children have been deported, making them harder to track down.

The report could provide a road map for the incoming Biden administration to investigate those responsible for a policy President-elect Joe Biden has called criminal.

Biden has pledged to set up a task force to find separated families and to have a Justice Department-led "thorough investigation of who's responsible and whether or not the responsibility is criminal."

Biden made that pledge in a news conference last week, noting that his attorney general would ultimately make the decision on who to prosecute.

A former DOJ official, speaking on the condition of anonymity, responded to the report by telling NBC News: "I think the most important thing from this is the very deep premeditation and intentionality for the entire family separation effort regardless of known harm that would come to parents and children. And a strong belief in the actors here, and one presumes other parts of the government, that cruelty was the intent and that was an acceptable way for the government to operate for four years."