WASHINGTON — In early May 2018, after weeks of phone calls and private meetings, 11 of the president's most senior advisers were called to the White House Situation Room, where they were asked, by a show-of-hands vote, to decide the fate of thousands of migrant parents and their children, according to two officials who were there.
President Donald Trump's senior adviser Stephen Miller led the meeting, and, according to the two officials, he was angry at what he saw as defiance by Homeland Security Secretary Kirstjen Nielsen.
It had been nearly a month since Jeff Sessions, then the attorney general, had launched the Trump administration's "zero tolerance" policy, announcing that every immigrant who crossed the U.S. border illegally would be prosecuted, including parents with small children. But so far, U.S. border agents had not begun separating parents from their children to put the plan into action, and Miller, the architect of the administration's crackdown on undocumented immigrants, was furious about the delay.
Those invited included Sessions, Nielsen, Health and Human Services Secretary Alex Azar and newly installed Secretary of State Mike Pompeo, according to documents obtained by NBC News.
Nielsen told those at the meeting that there were simply not enough resources at DHS, nor at the other agencies that would be involved, to be able to separate parents, prosecute them for crossing the border and return them to their children in a timely manner, according to the two officials who were present. Without a swift process, the children would enter into the custody of Health and Human Services, which was already operating at near capacity.
Two officials involved in the planning of "zero tolerance" said the Justice Department acknowledged on multiple occasions that U.S. attorneys would not be able to prosecute all parents expeditiously, so sending children to HHS was the most likely outcome.
As Nielsen had said repeatedly to other officials in the weeks leading up to the meeting, according to two former officials, the process could get messy and children could get lost in an already clogged system.
Miller saw the separation of families not as an unfortunate byproduct but as a tool to deter more immigration. According to three former officials, he had devised plans that would have separated even more children. Miller, with the support of Sessions, advocated for separating all immigrant families, even those going through civil court proceedings, the former officials said.
While zero tolerance ultimately separated nearly 3,000 children from their parents, what Miller proposed would have separated 25,000 more, including those who legally presented themselves at ports of entry seeking asylum, according to Customs and Border Protection data from May and June 2018.
That plan never came to fruition, in large part because DHS officials had argued it would grind the immigration process to a halt. But after Sessions' announcement that all families entering illegally would be prosecuted, the onus had fallen on DHS to act.
At the meeting, Miller accused anyone opposing zero tolerance of being a lawbreaker and un-American, according to the two officials present.
"If we don't enforce this, it is the end of our country as we know it," Miller said, according to the two officials. It was not unusual for Miller to make claims like that, but this time he was adamant that the policy move forward, regardless of arguments about resources and logistics.
No one in the meeting made the case that separating families would be inhumane or immoral, the officials said. Any moral argument about immigration "fell on deaf ears" inside the White House, one of the officials said.
"Miller was tired of hearing about logistical problems," one of the officials said. "It was just 'Let's move forward and staff will figure this out.'"
Frustrated, Miller accused Nielsen of stalling and demanded a show of hands. Who was in favor of moving forward? he asked.
A sea of hands went up. Nielsen kept hers down. It was clear she had been outvoted, according to the officials.
In the days immediately following the meeting, Nielsen had a conversation with Kevin McAleenan, then the Customs and Border Patrol commissioner, in her office at the Ronald Reagan Building and then signed a memo instructing DHS personnel to prosecute all migrants crossing the border illegally, including parents arriving with their children.
Nielsen did so despite her stated reservations in the Situation Room and her having been warned in a legal memo by DHS General Counsel John Mitnick — which was also sent to her chief of staff at the time, Chad Wolf, who is now the acting secretary of DHS — that the decision would result in separation of families. Of the practice, Mitnick wrote, "a court could conclude that the separations are violative of the INA, Administrative Procedure Act, or the Fifth Amendment Due Process clause."
Less than two months later, Trump signed an executive order halting family separations and a federal judge in California ordered family reunifications on the grounds that the separated families' due process rights were violated.
At the time, no plan was in place to track the children who had been separated or to create a system to reunite thousands of separated families, according to the two former officials.
According to an invitation list obtained by NBC News, those expected to be in attendance at the meeting included: Sessions, Nielsen, Miller, Pompeo, Azar, Undersecretary of Defense John Rood, then-White House chief of staff John Kelly, White House deputy chief of staff Chris Liddell, then-White House counsel Don McGahn and Marc Short, who was then director of legislative affairs and is now chief of staff to Vice President Mike Pence.
Asked about the show-of-hands vote, Judd Deere, a White House spokesman, said, "This is absolutely not true and did not happen."
In response to a request for a comment about the meeting and the show of hands, HHS spokesman Michael Caputo said, "This never happened."
The State Department and DHS referred NBC News to the White House. Sessions, Nielsen, Kelly and John Bolton did not respond to requests for comment. McGahn and Rood could not be reached for comment.
Before Trump ended zero tolerance by executive order on June 20, 2018, over 2,800 children had been separated from their parents. When a federal judge ordered the Trump administration to begin reuniting the families it had separated, it became clear that there was no method to track both parent and child as they moved through the system. As a result, some took months to reunite, and, in hundreds of cases, parents were deported from the U.S. without their children.
On May 4, Gary Tomasulo, who was then the senior director for border and transportation security on the National Security Council, sent an email to the deputies and lower-level staffers tasked with carrying out immigration policy, telling them that their bosses had agreed to the new zero tolerance prosecution and separation policy and that they needed to develop plans to support it.
At the time, some of the subordinates to the Cabinet secretaries who were responsible for carrying out zero tolerance had raised moral objections, according to a source familiar with the discussions.
In the email, obtained by NBC News, Tomasulo told the deputies and other subordinates that their bosses "acknowledged that there are no easy solutions, but remained committed to collectively do everything possible to develop innovative solutions that leverage the full resources, capabilities, and authorities of the U.S. government."
He went on to say, "I ask that if you are unable to participate in these meetings, the message of commitment and resolve expressed by our principals is communicated and internalized by those that represent your departments and agencies."