Scott Shuchart

When the Trump team comes to town and they start to do things, they tell an immigration story. They’ve been telling it throughout the campaign, and now they’re arriving in town. Tell me what you could tell from where you were what it looked like they intended to do.

So the first couple of things that we got were a series of executive orders in late January of 2017, right after they came in. The first version of the travel ban came down on Friday afternoon, I think the, what, second Friday afternoon of the administration with basically no notice. And so that was indicative of what they were going to try to do, which is to do things with a lot of sound and fury, things that make a big public impact without a lot of care whether they’re being done right or in a way that would be effective.

And then shortly after that, or maybe right before—I’m sorry I don’t remember the sequencing—there was a day that they put out three different executive orders on immigration-related themes, and they were obviously things that had been in the works, either from the campaign or from the transition period that indicated the kinds of policy memos they wanted to set aside; that there would no longer be any enforcement priorities, really, for immigration enforcement; that every immigrant who was without status were amenable to removal was suddenly fair game.

And so the game plan came down in a fairly thorough and fairly official form. And then in mid-February, Secretary [of the Department of Homeland Security John] Kelly put out a signed—I’m sure he didn’t write it—a longer memo explaining a little bit more of the roadmap for what they were going to try to get done within the course of a couple of years.

Well, Bannon, for example, pushing on Fox a certain immigration view of the world that must have alarmed you from where you were sitting.

Well, the thing that I needed to be alarmed about professionally was whether what they were proposing to do was not compatible with the law or not compatible with the Constitution, right? Banning people from the country based on their religion, there was no proper way to do that. That’s just flatly unconstitutional. So I was concerned about that. I had my own personal views about very substantive immigration issues, and there were some things that they wanted to do that didn’t seem like very good ideas.

But I was in the civil rights office [of DHS], and the primary thing that we were trying to focus on, we were trying to focus on where was it possible that we could be effective, given the limited domain of our office? And that was on civil rights, civil liberties, discrimination, things like that. And so we were particularly focused on that kind of stuff.

… What is the general—your general understanding of “There’s a new sheriff in town, and things are going to change”? In what way?

So their baseline was, what did things look like Jan. 19, 2009? The presumption was nothing that happened in the Obama administration was worthwhile, and the first pass of anything should be what did it look like at the end of the Bush administration? And then maybe there would be a change they’d want to make or a direction they’d want to go that’s different from that. But there was extremely little interest in finding out why something that was done during the Obama administration might have been worthwhile. Wasn’t necessarily a partisan move but was a response to what was just obviously a change in the world over the course of those eight years.

So that was the attitude we got initially, was, to the extent that they wanted a briefing or they wanted information, what they wanted to know was, what was the policy like on this subject under the Bush administration? And they wanted to see if that was a thing to go back to immediately, and they were generally interested in removing anything that seemed like a protection or anything that seemed designed to mitigate the consequences or the effects of immigration enforcement.

Look, there were two different phases of the Bush administration and two different phases of the Obama administration on immigration, too. Both of them tried during different periods a kind of compassionate approach, and both of them tried a maximalist enforcement approach. But the Bush and Obama administrations were both pursuing both of those strategies as part of a legislative push for comprehensive immigration reform, right?

Second term of Bush, a lot of effort went into comprehensive immigration reform. The middle couple of years of Obama, a lot of effort went into comprehensive immigration reform on the Hill. And the different enforcement strategies were built around that. When the Trump people came in, I was at least not aware of there being a legislative side of it. They were primarily interested in what the executive branch changes would be.

Bannon, Sessions and Stephen Miller, all of whom hang out at the Breitbart embassy, all of whom have a plan… What kind of a position would they be in to change immigration in the country?

So one thing that was curious, I felt, during the time that I was in the government, is that the attorney general was back to trying to exercise a lot of authority over immigration that really had been largely taken away from the attorney general in 2002 when the Department of Homeland Security was created.

… There was a sense that the DHS headquarters was often being bypassed, and ICE [Immigration and Customs Enforcement] and CBP [Customs and Border Protection] were talking, and I guess USCIS [U.S. Citizen and Immigration Services], were talking directly to the White House and were getting a lot of instructions from the Department of Justice. So it was a definite change in the chain of command from how things had been under the prior administration where there was some White House interest through the Domestic Policy Council for the most part, but then went over to DHS and did not flow through the Department of Justice in nearly the same way.

So it was—I got all this secondhand from people who knew how decisions were being made. But it was apparent that influence and control was coming from the White House and from DOJ in a way it hadn’t been before, sure.

The impact of that would be?

Well, I mean, pervasive, right? The ideas that they were trying to carry out were these restrictionist ideas across the board: the reduction in the number of refugees; bringing about immigration removals for people who hadn’t committed any crime or anything, weren’t a public safety threat just because they were at a status; all of the changes they wanted to make to the asylum system. That was all obviously consistent, and, with the Muslim ban, consistent with a worldview that was about reducing immigration across the board, sure.

…. Who’s John Kelly? What impact did you think he would have as the head of DHS? Why Kelly, do you think?

So I hadn’t had any experience with him before. I didn’t remember seeing him on any documents before his name emerged. He’d run [SOUTHCOM] [U.S. Southern Command], and so it seemed like that was his primary qualification, which was that he had run the military operations that were related to the Northern Triangle [Guatemala, Honduras and El Salvador] and Mexico, and that seemed not unreasonable. He seemed not unreasonable. He had served on a DHS advisory committee in the fall of 2016, I think around the use of private prisons, and it seemed like had been a constructive member of that.

And so remember, it was in the context of [Secretary of Defense] Jim Mattis and a little bit before [National Security Adviser] H. R. McMaster, and this idea that because all of the éminences grises of the Republican foreign policy establishment were on the outs because they had found Trump anathema and vice versa, that he had to find people somewhere, and he was finding all these generals. …

… Let’s go back to the travel ban. So it’s that Friday. How do you hear about it? How do you know about it? What does it feel like when you hear that this is happening over at the Pentagon?

So I was on work travel to Los Angeles at the time, so it was three hours earlier there. I think it was San Diego, actually, at that part of the trip. But we were meeting the stakeholders and doing some training. And I think I learned about it basically from public sources. It might be that an article went around on work email at the same time I saw it on TV. And then there was the chaos of everybody going to the airports, and we immediately started hearing from our stakeholders in various ethnic and immigrant communities about the problems that were being created.

The policy, clearly, had not been vetted by somebody who was knowledgeable about immigration law—the way that it failed to address what was going to happen to lawful permanent residents, green card holders, who were abroad, and the way it was going to address people who had lawful status in the United States but not a U.S. passport. There are refugees who travel on refugee travel documents, all these things.

The fact that it had just not at all addressed what was going to happen to those people—that wasn’t the bulk of the people who were affected, but it was a substantial group of people who were very clearly affected, where CBP obviously had no idea what it was supposed to do.

And so instead of general outrage over the fact that it was … obviously unlawful religious discrimination, we in my office tried to focus on what were the issues for the particular stakeholders that we might be able to get something done about.

So we put together talking points or something on these very specific issues. Lawful permanent residents abroad and people who were on advanced parole who did not have a U.S. travel document, what was going to happen to them? And we really tried to escalate those issues to get CBP out-in-the-field guidance that would allow those people to come into the country. I mean, I think we had a plausible argument that that really wasn’t what the executive order was aimed at. It just hadn’t thought it through.

And sure enough, I think it was Sunday, the White House counsel put out a statement clarifying the executive order didn’t apply to returning lawful permanent residents, right? That would have happened even if we hadn’t done it, but we were involved in escalating that issue for decision and some other things like that. So that was what we were primarily focused on.

And as the litigation started to be filed, we tried to develop some visibility into how the department was responding just to make sure it was implementing it faithfully. We heard pretty quickly that while they had a court order at JFK Airport to allow lawyers to access folks who were back in the CBP secondary area, that there maybe was an impasse because the court had required access to people CBP was detaining. And CBP’s line forever has been they don’t detain people, and that maybe this semantic quibble was keeping the substance of the court order from being obeyed.

I don’t know what the total truth of the matter was to that, but we were hearing about that and trying to make calls and trying to make sure that the lawyers who would know what the court was really requiring were talking to the CBP people to make sure that whatever the court really required, they were actually abiding by. And that was the chaos the first 48, 72 hours.

What was the message being sent?

… The travel ban seemed partly about the performance. I mean, it’s partly Steve Bannon’s performance, I guess we now understand, but it was partly about this performance of saying, “No, there is not going to be a professionalized, normal Republican administration coming out of this.” This really is this formerly fringe movement taking over.

And so I think that was the domestic message. …

But also it also proves that the effort to “drain the swamp,” they were pulling the plug. They didn’t run it by you; they didn’t run it by the bureaucracy; they didn’t even really run it by General Kelly.

I assume that that’s true. I mean, it did show that they were incompetent in the sense that they couldn’t get one qualified immigration lawyer to look at it who would have blue-penciled—

You think that’s incompetence or intentional?

I don’t think they knew what they didn’t know. I think that a general contempt of expertise—I think that it took them a long time to understand the value of lawyering things properly… I think that executive order was written by Stephen Miller, who never went to law school, and it just is not sophisticated. Over time, you know, they got better at that.

…I am puzzled that Kevin McAleenan found out about it from television. That is a strange process valve.

Who is he?

Kevin McAleenan is still, or was, the head of Customs and Border Protection. He had been the deputy head of Customs and Border Protection in the Obama administration. He was nominated to be the head in the Trump administration. As I’m sitting here, he’s now the acting secretary after they pushed other people aside so that he could rise. And it’s clear from the Inspector General’s report on this that he hadn’t gotten advance notice.

I will say this: There was a pervasive sense, I thought, in the first year of the Trump administration that they genuinely did not understand how large organizations worked and didn’t understand that for things to be successful, you had to build the internal infrastructure to roll them out.

And I do think that there’s an extent to which all they ever cared about was the first five minutes on Fox News. All they cared about was the headline. In that there was a disconnect… They understand that there’s a difference between saying “No refugees are going to come in” and then actually making it the case, through a workforce of tens of thousands of people, that no refugees are going to come in.

And so I remain puzzled why throughout that early period, they cared so little about implementing things in a competent way. Just like the most basic idea of human rationality is means and ends, right? And they had this end that they wanted and we’ve talked about, and they had some idea about the means, like you would keep people from coming in. But the subsidiary thought, “So we need to make sure the customs officers know how to keep people out; we need to give them the guidance to do that; we need to program the computer so that the red flag, whatever it is, comes up in the right way”—why they cared so little about getting that right I still don’t entirely understand.

… But by now, maybe it’s dawning on you and maybe it’s dawning on some others, this is job one, immigration, for these guys.

Yes, I think that’s right. I think it slowly became more and more clear that these immigration issues were very important to them and that continuing to create a feeling of crisis around immigration was important to their political project. I think that whole first half of the term that was clear, and then it became really, really clear in the run-up to the midterms, right? But it was clear before that.

It was a real crisis by then, though. Now, at the beginning—I mean, maybe it was a real crisis all the way along, but we don’t have to—

Maybe they manufactured it at the midterms.

The manufactured crisis: Talk a little bit about that. What did you see? This is Bannon and Fox and all those guys, Breitbart.

Well, I mean, they manufactured the travel ban crisis, obviously. The issue with people coming and seeking asylum from the Northern Triangle follows—we can look at the graph. It follows an interesting pattern where there’s sort of a surge—so the problem really dates to about 2014, 2015 of a very much larger number of children, particularly younger children, and family units coming in a way that the government wasn’t very skilled at addressing the needs of. And then the numbers dip in 2016; they kind of come up at the end of 2016. They go way down in 2017, and then they start to come back up.

And there are lots of reasons for that relating to changes in the patterns of violence and push factors in Central America, probably changes in the way the trafficking networks and the smuggling networks work, changes in weather. These things are all very seasonal, and so it never makes sense to look at this month compared to last month so much as this month compared to this month the year before.

And so the patterns are complicated. But it is certainly the case that the number of non-Mexican children and families coming rose and fell and rose again and then rose again since around the time of the midterms. I mean, that’s true.

… But let’s go to “zero tolerance.” There’s a policy announcement. When Sessions makes that announcement, where are you? Are you watching it? Are you watching it on television? Did you know it was coming?

No. I was at my desk, and I think I just saw a news story about it. I don’t remember watching it on TV.

And what was your instinct, thought, response?

Well, it was not a surprise, because there had been so much groundwork laid beneath it and before it. There had been an earlier memo about prosecuting much more border-crossing crime. There had been the decision memo about separating families that had been floating around the department that I’d come through in an earlier draft many months before. There was what’s now known as the El Paso pilot that we belatedly found out about through some excellent reporting, where they had tried doing basically zero tolerance family separation-type thing mostly in the El Paso sector.

Like what? That’s like a practice—a practice—

Yeah, well, that’s a standard—again, not illegitimate per se. You pilot things in one area. That’s a common thing that the bureaucracy does… But we had, by that point, by the time that zero tolerance is announced, we didn’t know exactly that that’s what it would be called or that’s what it would look like, but we were very worried that it was coming. We expected that it was coming.

Why worried?

Well, Secretary Kelly had been talking about separating families as a deterrent for a year. I think he first says that on a CNN interview in March or April of 2017, right? So there’s plenty of reason to anticipate this. And then there was that memo that Sen. [Jeff] Merkley had put on the Rachel Maddow Show with all those comments from Gene Hamilton in the margin that talks about different ideas for family separation.

Take me there. What’s this memo?

So there’s a memo that Sen. Merkley obtained, and then he talked about on the Rachel Maddow Show. It’s on his website, and it’s a list of—I think it’s a memo from early in the—the main part of the memo, I think, is from early in the Trump administration, and it has a series of those Microsoft Word comment bubbles down the side that are all from “HG.” That’s Gene Hamilton, from his perspective of now being at the Department of Justice. So the version that’s come out is of Gene Hamilton’s comments on this earlier list of ideas—I don’t know if he wrote the earlier version, too—that include separating families in an illegal way that they never tried; separating families through zero tolerance, which they did try; changing the USCIS asylum jurisdiction policy, a few other things, short-, medium- and long-term things that they wanted to do to address asylum seekers on the southern border, right? That was a major policy goal, was to reduce the number of Central American families and children who were coming across and claiming asylum.

Is it shocking to see that memo?

Well, not shocking, because I saw it a long time ago. It’s cavalier. The memo is very much built on the presumption that I think they have, that asylum for people fleeing violence from Central America is not legitimate; that these are not legitimate claims and that the government, the Obama administration had been fools for treating it seriously, and that they were going to do everything they could to cut back the asylum system because they didn’t think that there was a legitimate goal that the asylum system was addressing there. So it was extremely dismaying.

I think that’s inaccurate. I think there are lots of legitimate asylum seekers, and even people who don’t technically qualify for asylum because that’s narrow, the vast majority of families and children who come seeking protection are legitimately seeking protection from something terrible, whether or not it’s technically something that qualifies as asylum.

And so it was very alarming, and it was alarming that they were so dismissive of the way the humanitarian asylum legal system works. But that’s not surprising, because Trump, because Sessions, because all of them in public were constantly saying, “These are loopholes.” They were describing the asylum law as a loophole, which is conceptually incoherent, but it’s a worldview, and that was their view, is that people were falsely claiming asylum, baselessly claiming asylum as a way of coming in, and then they would just kind of melt away and not show up for court and all that.

So it was a set of proposals to address what they saw as those problems in various ways. And one of them was the zero tolerance thing, which, again, I had seen—it’s now the memo the Project on Government Oversight has, right, the decision memo that’s signed by McAleenan and [Tom] Homan and [Francis] Cissna recommending to Nielsen that she go along with this and start prosecuting parents and separating the children. So we were expecting it. It was a shoe we were waiting to have drop.

Zero tolerance: Define it the way you heard it being defined.

There’s a concept that appears in those early executive orders from early 2017 that what the administration was going to do was end catch and release. Catch and release isn’t a thing; it’s a criticism. But it’s a criticism that right-wing, anti-immigration people had been making for a long time; that what Border Patrol and the rest of CBP was required to do was to catch unauthorized migrants and then release them into the interior. And the fact that they were being charged with removal and required to show up for court, that didn’t count. This was catch and release, and they were going to end catch and release.

And the way they saw it, it was a loophole in the ability to end catch and release that they were a little bit stymied in what they could do with families that had children. The government only has one facility with about 96 beds in Pennsylvania where it is legally allowed to hold families for more than about three weeks. Has two other family detention centers in Texas, but they don’t meet the legal requirements to be able to hold families for longer than that.

And so their view was we catch all these families, and then we have to release them because there’s nothing else to do because we don’t have huge family detention centers that we’re allowed to keep them in. And we can’t just immediately deport them, because the vast majority of these Central American families pass the initial screening, the “credible fear” interview. And so then they need to be put on the calendar for a real asylum hearing, and that takes many months.

And so in their view, there was a loophole to ending catch and release, which was that they were being forced to tolerate unlawful border crossing by families, and they were going to stop that…

They were what they call “metering” at the ports of entry. It is legal. It is entirely legal to walk up to a port of entry, walk to the bridge at Nogales and wait in line and say, “I don’t have permission under the United States, but I would like to claim asylum now that I have two feet on American soil.” And CBP has to process that claim.

And what they were doing at more and more ports at a greater and greater level was restricting the number of people who were allowed to do that. And you’ve seen the lists that now get kept in these towns in northern Mexico, these unofficial lists of people who are waiting to come through.

So the people who are crossing through the desert increasingly were people who tried to do the legal thing, tried to approach a port, were put onto a list to wait for weeks or months, sometimes sleeping out on a bridge with small children for weeks. Ridiculous. And then they would give up on that, cross through the desert. Well, now they’ve committed a misdemeanor, which is crossing between ports of entry. Even if you cross and immediately flag down a Border Patrol agent, that is arguably a misdemeanor under 8 U.S.C. 1325.

And so, oh, now they’ve committed a crime. So there are these criminals whose crimes we are tolerating just because they have kids with them and we can’t do anything else. That’s going to stop. That’s what zero tolerance was, was we are going to create criminals by metering at the points of entry, forcing families to cross in the desert. Then we’re going to no longer tolerate the fact that what we’ve pushed them to do is a misdemeanor, and we’re going to prosecute parents for that.

This is what they mean when they say they were using their kids as a passport.

I hadn’t heard that particular turn of phrase, but yes, the view was that because they were only generally holding families for 20 days or less that people were coming in as families in order to get more favorable treatment. That’s right. But it is a two-pronged thing. It is partly the criminal prosecution piece, but it’s also just the civil immigration detention piece. A single adult, even if they weren’t prosecuted for unlawful crossing, would generally be detained even after passing credible fear up through the asylum hearing, whereas the families, once they pass credible fear, were not.

… The separation idea, when the memo is written by all of her senior staff and they’ve sent up to Secretary Nielsen urging her to sign, what are they urging her to sign, and what is her response? What does she want to do?

I was never in those meetings. I don’t know what she wants to do. What the memo is recommending that she do is extend the policy of prosecuting all border crossers, and if that means that a parent, in being sent over for criminal prosecution, then is separated from children who are in Border Patrol, say, custody, that those children will be deemed to be unaccompanied children, separated from the parent, and sent over to Health and Human Services. There were different options, and the option that was being recommended, the option that she chose was the zero tolerance version, that they would do that for parents of all children.

If I can add something to my earlier comments, you asked why I was concerned or alarmed or whatever when the zero tolerance came through. I think the other thing that my office was very concerned about, that I was very concerned about, was that whether this was a good idea or a bad idea, it was clear that there were better ways to do it and worse ways to do it. And we were concerned based on what we knew about how CBP worked, that they would need a lot of training and guidance, and, frankly, better-trained and maybe a different kind of officer to do family separation in a humane and sensible, appropriate way.

… We were concerned about the policy as such because we thought it wasn’t legal. But we were also really concerned that if it was turned on overnight that CBP was not an agency that would just know how to do this in the right way. And as I’m sure we’ll talk about, our fears about that were all borne out, too.

… There was a controversy from [Nielsen’s] perspective. Isn’t this a sort of hard thing for her to stomach? Isn’t she here again, not here again, going to do it, not going to do it?

I’ve heard that. I was not privy to any of the back-and-forth. I have heard that. This was during the time when we were struggling to get information. We were asking for briefings and not getting them. I don’t know if the reason we were being pushed off was related to the fact that the signing of the memo was somehow being agonized over or not. But at some point, it gets signed.

And the effect?

So the effect is that CBP starts creating unaccompanied children by taking family groups and sending the parent off for prosecution. I think if you have the framework, family units tend to travel together through the immigration system. That’s a parent or a legal guardian and their children. They’re processed as a unit. If the parent passes a credible fear interview, then the children’s cases travel along with that parent. They’re subject to expedited removal, and so if they’re denied credible fear, they can be removed as a unit.

Unaccompanied children, children who are under 18, don’t have a parent or a legal guardian, have a whole bunch of special protections under our law. They have to be transferred from DHS over to Health and Human Services within 72 hours. They get additional procedural protections if they pursue asylum. They’re exempt from the credible fear process. They go directly into full removal proceedings.

And what they were doing was taking parents who were there, sending them to prison so that then under the statute, there would no longer be a parent who was available to provide care and physical custody—that’s a statutory term—and then with the parent unable to provide custody because the parent is in U.S. Marshal’s custody in a federal prison, the child is now unaccompanied as a matter of law. And so they’re treated as though they come in without a parent at all, and they’re sent over to Health and Human Services.

You must have known this was going to be a disaster when you—when did you first get an inkling that it—

Well, we had been getting complaints of separated families under these pilot programs. So we already knew. The law defines unaccompanied children as anybody who doesn’t have a parent or legal guardian. Well, the fact is, a lot of kids travel internationally with an adult sibling, with an aunt, with a grandmother, with an uncle, with a de facto stepparent who never adopted them and never actually married their biological parent.

And the effect of this law for a long time has been confusion and unhappy situations sometimes when a child enters with, say, a grandmother and has to be treated as unaccompanied because their grandmother’s not the legal guardian.

So, going back years and years, my office had been dealing with complaints and concerns about the way family groups were sometimes separated as it was required by law, but not always in a way that was great for policy. And, of course, from time to time, children would be separated from their parents, too, if the parent had a serious criminal history or something.

And so we had been plugged into those issues, I don’t know, going back to 2015 at least, but I think much earlier than that. And so it was obvious that if you were going to do a bunch more family separations, you were going to have those issues in spades. Plus, when you’re breaking up an immediate family, taking somebody away not necessarily just from a sister who can travel with them, but maybe from the only caretaker they have.

And so we start getting complaints from families that are being separated during these pilot projects, not only that it is traumatic for the kids. We’re getting the complaints, I should say, because when the kids are over at Health and Human Services custody, they’re talking to caseworkers, they’re talking to therapists, they’re saying, “I came in with my dad, and we were separated, and I don’t know where he is: I don’t know what happened to him.” And the case file would say there’s no record from DHS that this child came in with the parent. What is going on? Is there really a parent who they should be in contact with?

And so we were very concerned about what was happening to the kids, but also about the bureaucratic failure that the records weren’t being kept properly and the communication wasn’t being put into place. There’s nothing about zero tolerance that dictated that the parents wouldn’t know where their children were or that the children’s caseworker wouldn’t know where the parents were. There’s nothing about zero tolerance that said they wouldn’t be allowed to talk on the phone to each other. Like, that was just ham-fisted, bad implementation. It was bad implementation of a bad policy.

But what we were immediately confronted with as the cases came in from the pilot period was, oh, this is being handled so badly. And then when you get the idea that it’s going to now scale up nationwide to many, many more people, those problems, how are the children going to cope? What is the information going to be? How are they going to be put back into touch? How are their cases going to be synced back up? How are they going to be reunified if the parent decides to accept or is ordered for deportation, [but] they don’t want their child to stay behind?

Like, all of that was almost self-evident as the logistical consequence of having all of this if there wasn’t a system in place to notify the parents and convey the information.

So when Jeff Sessions stands there and makes that announcement, do you imagine he’s been briefed, he knows the consequences, he knows these kinds of things? Or is it something no one is thinking about or somebody’s just letting it go, and whatever it is is whatever it is; there’s a greater good here?

They wanted to deter people from coming. They wanted the message to get out in Central America that if you come to America, they’ll take your children away, and it will be terrible, and that’s a reason you shouldn’t come. So I assume he knew in some sense the mechanics of how it was going to work. But if you had told him that it was going to be implemented badly rather than well, I don’t think he would have had a reaction that that was a problem. … The point of this policy was to be awful to people because it was supposed to have the second-order effect of deterring other people from coming. So I don’t think at the Sessions level there was any serious thought about that.

I mean, I don’t know that generally until very recently people understood how badly CBP runs like on a day-to-day level, how overwhelmed the Border Patrol stations are, how undersupplied, how small and crowded. So I am sure that it just wasn’t getting up to them, the idea that completely changing the logistics of what you do with thousands of children was something that the system would choke on, they couldn’t cope with. I don’t think they necessarily knew that. Again, if you told them, they might have thought that was an upside; I don’t know. But I don’t think that’s the kind of issue that percolated up.

Well, in fact, you could make the argument that the ProPublica crying-baby audiotape, the videos of the separations were actually working to the advantage of the deterrence public relations campaign.

I suppose. You’d have to do some real social science to find out what kind of messages get back to people. You know, the Obama administration was very engaged and the Bush administration had been engaged in public communications campaigns in Central America about the dangers of the journey, about the reasons not to come. I am not aware of those projects having been scaled up in the Trump administration. They seemed to think that the way that it would work is that the signal would propagate naturally through people’s experiences rather than through public messaging. I don’t really know.

How bad was it?

I mean, the reports of how families were being separated were just nauseating… And it is certainly true that kids were sent places without anybody knowing where their parent was at that shelter, without having any communication with them. Hundreds of parents end up being deported without their children. It’s awful. The sheer numbers that we know of right now are that, counting the pilot period through the summer of 2018, it was well over 3,000 children who were affected that way. It’s hundreds more since then. It’s a big problem.

… And from your perspective, admittedly not in the day-to-day or even behind closed doors, your perspective of the performance of Secretary Nielsen on this matter during these days?... She was there, famously, in a press conference.

…. So there is this weird thing where she keeps denying that this is the policy, right? I never understood what game she thought she was playing there, honestly.

Explain. What was the policy?

She said at that press conference and other times that there is no policy of family separation. And I heard this internally, too, from people who were sort of Kool-Aid drinking. The fallacy seems to have been that, or the idea seems to have been that we would fall for this idea; that because what they were doing was making a prosecution decision and the family separation just followed as a natural consequence of that, that there was no family separation decision. And they would say time and again, if you commit some other crime in the United States and you get arrested and taken to jail, then you’re separated from your children, and so how is this different, which is just an incredibly superficial claim to make.

If they serve an arrest warrant on your house and pick you up and expect that there are going to be children in the home, law enforcement will bring somebody from Child Protective Services. They will make arrangements for the family member to take the children. They don’t just leave the children on the street or immediately take them to an orphanage, which is the equivalent of kind of how the border system works…

… Trump signs an EO, backs away. Your thoughts?

The EO says very little, right? It was just his way of getting out of the line of fire right after the court order, getting him on the right side of an issue that had become a clear loser. It doesn’t really set up any long-term resolution. I think the title of it is “Giving Congress an Opportunity to Address the Family Separation or Border Crisis” or something. And so that, along with the court order, allows for those families largely to be reunified, which happens with the efforts of thousands of hours of donated private attorney time, people reaching out to the families that have been already split up who are back home in rural Guatemala, the parents, telling them: “Hey, we have your kid in a shelter here. What do you want us to do with them?”

And so cleaning up the mess for just those 2,700 or so kids who were separated during zero tolerance takes an enormous amount of work thereafter. The executive order doesn’t speak to that at all…

…. How big a mess?

How big a mess? I don’t know what the yardstick is for that. Reputationally it’s still the thing everybody thinks about. I mean, I am struck. Here we are, seven months into a new Congress. They are still having hearings about the 2018 family separation crisis. You’re still making movies about it. This administration has hurt tens of thousands of people in lots of other ways, but the attention is still on these 3,000 families that were hurt in this particular way because it is so obviously wrong and it was so viscerally evocative to people.

And so as a strike against the organizational culture, as a thing that colors the way the entirety of the immigration administration system is seen by the public, it’s huge. Relative to the other terrible things that they’ve done to people seeking humanitarian protection here, it is a substantial piece of it, but again, it’s a few thousand families out of thousands of families that have been hurt in this and other ways.

By the time the midterm election is looming last summer, a year ago, it feels like we know from what we can see that the crisis now that we, you and I, have just been talking about is a very real crisis. And in some ways, that plays to the president’s reelection hopes. It plays to—

Oh, see, I dispute that premise. They are continuing to create conditions of danger by keeping people from accessing the asylum system lawfully by entering at the ports. They are continuing to drive people into the desert. But as the election approaches, they get worried, I think, that it’s not a crisis enough…

The caravans and [murdered student] Mollie Tibbetts and the Army down on the border, sending soldiers down there, those are all the things you could control if you were handling a campaign in a political sense.

Yeah. Well, it’s all the fundamental paradox of the Trump messaging, right, which is “Everything is terrible,” and also “I fixed everything.” “We’re in a state of crisis, but don’t worry; everything is under control,” right? Those are always the two sides of the message. Make America great again, don’t you dare criticize America, right? That’s the message this week. And I think that was part of what you got with the Army on the border, was “We are under siege, but we’re strong, and we’re going to push back these women and children.”

After the midterms, Jeff Sessions goes into the—rides into the sunset, or is pushed into the sunset. What do you figure Sessions’ contributions to the story you and I have been pulling apart and looking at so closely were over that year and a half or so that he was attorney general of the United States?

Sessions and his people were a big part of the bridge between the Bannon-Miller desire to have an immigration crackdown and the question of how do you really do it? How do you operationalize it? What are the legal changes that you need for lots of things that the Department of Justice could do—changes in the law, regulations, decisions of the Board of Immigration Appeals; changes in how they govern immigration judges; hiring of immigration judges? All of that was stuff that it took an attorney general or people in the Department of Justice to do. And then coming up with the program, the executive orders and things, I don’t know if it was Sessions and his people personally, but clearly they were part of a machine that professionalized the immigration enforcement crackdown, the crackdown on the use of the asylum system and all of that.

The difference between the amateurish Muslim travel ban rollout in the beginning of January 2017 to all of the different asylum bans and things that they’re trying to bring about now in 2019 obviously passes through the kind of professionalization of Sessions and people that know how to do legal research and know how to write policy, know how to do things in a more traditional, professional way.

The fact that he’s at DOJ means that the professionalization of that process at DHS is never quite at the same level. Of course DHS is never professional at quite the same level as DOJ is. But DHS is still maybe doing things a little bit more by fits and starts where DOJ had what seems like a pretty coherent set of priorities and policies.

I think to be clear, most of them are terrible, and many of them are illegal. But they have been done more professionally and in a more sophisticated way than they were done in the very early days of the administration for sure.

… And I think my last question anyway. As we head into 2020, if this is their issue, and it seems to be that they want it to be their election issue, their base-feeding issue, they don’t have to solve the problem, especially at a fair and equitable and democratic way. They just have to have the problem and appear to be wielding machine guns, knives, armored vehicles, whatever’s necessary, literally and figuratively, against the problem.

Yes. If the point is to keep the base motivated, I think we’ve all seen the numbers that the people who are most worried about immigrants are people who live in communities that don’t really have them. And so that naturally fits with the idea that scaring people about immigrants who are somewhere else riles up certain people. And so if what he’s doing is a base-motivation strategy, then keeping people afraid about immigrants somewhere is understandably a part of that.

So yeah, I don’t think they’re really trying to solve the problem in that way. That said, they must appreciate that there are things that could happen in the system that are worse for them, right?...

…When you heard about the El Paso program, but more generally, when you heard rumors about the family separation policy that was developing and that was being tested out, what worried you about it initially, and what did you do with your concerns?

So when we first started to understand from media reports and from the complaints that we were getting from the kids who were over at HHS [Health and Human Services] custody, that there were increased numbers of family separations, we were very concerned that the information about where the parents were and what had happened when those kids had come into the country wasn’t being tracked, wasn’t with the caseworkers for the children.

And so we tried to get more information about those cases, and then we tried to find out from CBP what the policy was or what the change was that was leading to this additional number of separations. We had a regular meeting of our office’s leadership with CBP leadership. I can’t remember if it was once a month or once every two months. And so we would put that item right on the agenda for that meeting, and we basically didn’t get anything. We got a denial that there really was an El Paso pilot, and we got told that we would get further information in the future, and then we just kept getting put off.

But they were continuing to deny to us that there had been an El Paso pilot even when reporters were reporting that the government was telling them about this El Paso pilot as proof of why the family separation thing was a good idea. So we knew we were not being told the truth.

… And your concern about the trauma to the kids?

So we were very worried about what these kids had gone through and what they were reporting with regard to the trauma of being separated from their parents and the anxiety of not knowing where their parents were. And we were concerned about the real-world problem of where were the parents and what was going to happen. We were also concerned about the due process problem. Even if parents and kids are separated and they go through the asylum system separately, they might have a completely meritorious claim. They might deserve asylum under anybody’s lights, but the child might not have the information, the documents, the facts, the fact that the reason Mom was killed back in home country was because of a political protest she participated in or whatever. That might be something that only the dad has.

And so if they’re separated, if they’re out of touch, there’s the trauma to the children, there’s the trauma to the parent, there’s just the unconstitutional interference with that family relationship, and there’s the immigration law problem that those kids aren’t getting a fair hearing of their asylum claim because they literally don’t have the relevant information with them to put forward. And the way the system is set up was supposed to be that they would be in proceedings with the parent, the parent would make the showing, and they would all get relief that way. So we were concerned about all of those different things.

… Just tell me what the tear gas—set it up for me, and tell me what it was about and what happened.

So there were these famous pictures and this terrible incident that happened at one of the ports of entry where some migrants who, as I understand it, were frustrated with the metering process, with how impossible it was to get through legally, appeared like they were going to go around the port of entry and try to enter it at the fenced-off area. This is south of San Diego.

And at some point, I think CBP Office of Field Operations—it might have been Border Patrol—used tear gas on the crowd, the crowd that included mothers and small children. And I think most people were really appalled by that. But I gather through media reports that some people in the White House thought it was great.