Reunite families separated at the border, and purge cruelty in the name of justice

Former President Donald Trump’s endgame was catastrophic, from strong-arming local election officials to overturn an election on false premises, to inciting a riot on sacred government ground that left several people dead, to becoming the only president to be impeached twice. But we cannot let any of this erase the memory of the ugliest and most immoral policy choice made by the Trump administration — the willful separation of children from their families at the southwest border.

We have known about the family separation policy for years now. However, details revealed in a new report by the Justice Department’s inspector general make clear how low the administration sank in carrying out the historically cruel policy. It also shows how the president didn’t act alone. Senior Justice Department officials, in blessing a policy that was singular in its cruelty, have stained the Justice Department and the ideals on which it was founded.

First, the report provides a window into how the family separation policy was a result of a “single-minded focus on increasing prosecutions” at the border. The administration crafted a “zero-tolerance” policy, which would knowingly rip children from their parents before prosecuting them, all as a means of frightening adults from coming to the country. Most troubling was the fact that, according to the report, senior Justice Department officials still barreled ahead in spite of warnings that the government was well aware of the likely tragic fallout of the policy.

Warping the law for evil purposes

This approach — arrest, separate, and deport first, ask questions later — was rooted in the erroneous notion that our immigration system is nothing more than an arm of the criminal justice system, and that deterring people from coming to the United States is its principal objective.

Consider, for instance, Attorney General Jeff Sessions’ statement in May 2018 that “we need to take away children” and Deputy Attorney General Rod Rosenstein’s statement a week later to subordinates that prosecutors still should have brought cases despite the children being barely more than infants. The report reminds us that Trump's obsessive opposition to immigration — but only some immigration, from some countries — so easily eliminated the line between enforcing the law and being cruel.

A system focused on enforcing the law can do so justly; a system intent on cruelty warps the law for evil purposes — and is even more dangerous because it cloaks itself in the rule of law. As someone who previously worked as a senior official at both Immigration and Customs Enforcement and the Department of Justice, I will be the first to say that there are plenty of reasons to be critical of the Obama administration's approach to immigration enforcement. However, one thing is certain — the Obama administration left prosecutors the discretion not to bring cases when there was good reason not to do so.

Prosecutors regularly are trained, and have the duty, to consider the potential consequences of their actions at charging and sentencing, in determining how or whether to proceed. In a huge departure from the norms of law enforcement, the Trump administration sought to eliminate this discretion at the border altogether. Being able to say “no” is core to responsible law enforcement, and the Biden administration should ensure that it is fully restored.

Second, in hiding behind the rule of law in order to justify the administration’s horrific policy goals, we see the DOJ's indifference to the core mission embodied in its name. Senior officials viewed child welfare as the responsibility of other agencies, with Rosenstein noting that “I just don’t see that as a DOJ equity.” While this is partly true — agencies like the Department of Health and Human Services play a role in the care of children in federal custody — even artful denials of responsibility fall flat in the face of reality.

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DOJ leaders intentionally separated families and were well aware of the consequences. Indeed, the fear, pain, and trauma caused by these separations were a feature, not a bug, of this program of deterrence. According to a court filing last week, the administration had failed to reach the parents of 611 children separated by the Trump administration. Biden plans next week to set up a task force to reunite families, but some children may never see their parents again.

Cruelty in the name of justice is wrong

Finally, at an April 3, 2018, meeting, as reported in the New York Times, Trump allegedly “ranted” and was on a “tirade,” demanding as many prosecutions as possible. His direct insertion of himself into matters of criminal prosecution is intensely problematic. While the president leads the executive branch, presidents and White House staff have traditionally been walled off from the day-to-day operations and decisions of prosecutors and investigators. Even assuming a president’s interest in carrying out the goals of his border security mission, Trump’s direct involvement — with the assistance of senior law enforcement officials around him — should give us all pause.

Remain in Mexico: My foster daughter was separated from her family at the border

For years, we knew who Trump was. His personal immorality and vindictiveness were on display throughout his presidency. However, the facts detailed in the inspector general report make clear the extent to which some very senior lawyers — who should have known better — were complicit in carrying out the most disgraceful parts of Trump’s legacy. The legal profession, and the Justice Department, deserved better.

New leaders have taken over at the Justice Department. Their work is cut out for them. Immediately, they will oversee the identification, investigation, and prosecution of many individuals who incited and participated in the violence at the Capitol.

More broadly, however, they must purge the notion adopted by their predecessors, that blatant cruelty in the name of justice is permissible. Only then can the department live up to the value for which it was named.

Elliot Williams, a principal at The Raben Group, was an Assistant Director at U.S. Immigration and Customs Enforcement and a Deputy Assistant Attorney General at the Department of Justice. Follow him on Twitter: @elliottcwilliams

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This article originally appeared on USA TODAY: Separating parents and children was Trump's most immoral policy choice