Sessions' DOJ 'driving force' behind 'zero-tolerance' family separation policy: Watchdog report

More than 500 children remain separated from their families as of October 2020.

January 14, 2021, 8:32 PM

Former Attorney General Jeff Sessions and his office were the "driving force" behind the Trump administration's efforts separating migrant families as part of the "zero tolerance" policy aimed at unauthorized border crossers, according to a federal watchdog report released Thursday.

The Department of Justice Office of the Inspector General found that 280 families were separated under what it describes as the "El Paso initiative." Conducted from March through November of 2017, the "initiative" served as something of a trial run for the "zero tolerance" push later implemented across the entire border in the Southwest.

Sessions' office pushed forward for the initiative despite concerns raised by prosecutors and judges, according to the report.

Lee Gelernt, the lead attorney in the American Civil Liberties Union's lawsuit against the government on behalf of separated families, called the practice, “immoral and illegal.”

“This new report shows just how far the Trump administration was willing to go to destroy these families," Gelernt said. “Just when you think the Trump administration can’t sink any lower, it does.”

The White House did not respond to ABC News' request for comment on the report.

“This report confirms what we already knew, that the Trump Administration intended to separate families at the border," House Homeland Security Committee Chairman Bennie Thompson (D-Miss.) said in a statement. "They knew the consequences and did it anyway."

Prosecutions along the southwest border increased from 2017 to 2018, according to a 2019 report from the Government Accountability Office. Sessions took the further step of publicly announcing the total prosecution policy in April 2018.

By the time President Donald Trump pulled back the practice about two months later, more than 3,000 children were separated from their families. Nearly 550 children remain separated from their families, according to court documents released in October 2020.

Sessions assured U.S. attorneys on the border that families could be "immediately" reunited, according to a May 2018 conference call described in the report.

The lack of feasibility of such an expectation, as outlined by the inspector general's report, reflects Sessions' lack of understanding of illegal entry prosecutions at the same time he pushed for the practice.

The report describes a memo from U.S. attorneys to Sessions' office in May 2018, which explained that average sentences for illegal entries were as long as two weeks. Given the 72-hour requirements for transferring minors to the Office of Refugee resettlement, it meant reunification could not “immediately” follow sentencing.

“Completing a prosecution within such a timeline was, in most cases, a practical and legal impossibility, even if a defendant sought to plead guilty and be sentenced immediately,” the report said.

Sessions declined to be interviewed for the report. ABC News was unable to reach Sessions for comment.

Rod Rosenstein, deputy attorney general at the time of “zero tolerance,” responded to the report with regret over the policy. “I wish we all had done better," he said in a statement Thursday.

"I stayed in the job of Deputy Attorney General for two years because I wanted to help protect the integrity of elections, defend the rule of law, and preserve the Department’s independence," Rosenstein said. "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."

Matthew Whitaker, Sessions' then-chief of staff, said the involvement of the Department of Homeland Security was instrumental in carrying out the policy and pushed back on the characterization that his office was principally responsible.

"That is a false narrative because [Homeland Security] had to refer the cases, they could have categorically said, 'We are not referring people with children.' And that was not under our discretion," Whitaker told the OIG.