If there’s one person besides President Donald Trump who’s associated with his immigration policies, it’s Attorney General Jeff Sessions.
Regardless of whether it’s his agency’s core jurisdiction.
Sessions and the Justice Department have taken a lead role in announcing and defending the administration’s immigration efforts on a number of fronts – including some that only tangentially involve the department.
It was the Justice Department press office that put out a “fact check” statement Tuesday responding to Oregon Democratic Sen. Jeff Merkley’s publicized border trip to visit detention facilities run by components of the Departments of Homeland Security and of Health and Human Services, and it was Sessions who went in front of cameras the day the DHS announced the policy that would result in more families separated at the border.
Even going back to September, it was Sessions who announced on camera the end of the Deferred Action for Childhood Arrivals policy, which was rescinded by the DHS citing legal guidance from the Justice Department. Sessions has made immigration and border security at least a passing reference in most speeches he’s given and has made multiple trips to the border to highlight the issue.
His investment in the issue doesn’t mean other agencies aren’t involved, nor that his shouldn’t be. Homeland Security Secretary Kirstjen Nielsen has vocally defended the policies in front of Congress and in public appearances. At the time of the DACA decision, the DHS was led by an acting secretary, Elaine Duke, who was not a mouthpiece for the administration’s immigration policies. And Sessions has certainly explored every way his agency could be a player in immigration policy.
But in numerous instances, Sessions has been associated with policies his department would otherwise not have a large role in – and the Justice Department seems to relish taking it on.
Asked for comment, a Justice Department spokesman said Sessions is “proud” to execute the administration’s agenda “in lockstep” with Nielsen.
After previously declining to comment, a DHS official said after publication of this report that the DHS and the Justice Department “work collaboratively” on many immigration issues and that agencies and Cabinet officials working “closely together” is “common.”
A former Obama administration Justice Department immigration official, however, said the department’s hand in making policy is counter to what has traditionally been its role – serving as the government’s lawyer to defend policies.
“It’s unclear what the purpose is of talking about Sen. Merkley at all at the Justice Department,” said Leon Fresco, who served in the Obama administration and is now in private practice. “I think in many cases that agencies are best served by the Department of Justice being perceived as a neutral arbiter on all policies and the agencies being the ones who drive the policy-making agenda. When those roles are blurred, it becomes much harder for the lawyers who have to go to court to have to argue that they don’t have a vested interest in the policies that are being advocated.”
Defending family separations
The issue of families being separated at the border has been a particular example of the attention on Sessions.
Many media outlets have reported it as his announcement and critics of the program have credited him with it – even though his agency plays only a small role in it.
At the beginning of April, Sessions instructed his US attorneys to prosecute every crime related to illegally entering the country they could, but it wasn’t until the DHS announced a month later that it would refer every person caught crossing the border illegally to the Justice Department that the issue took on greater importance.
It was that decision that resulted in substantially more families being separated at the border, as the DHS decided to refer even families applying for asylum to federal prosecutors first, meaning that any children would be separated from their parents as they went into criminal proceedings and Justice Department custody.
Those children become the charges of Health and Human Services, and once done with the short court proceedings, the parents end up back with the Department of Homeland Security. The administration says it seeks to reunite the families as much as possible, but it puts the onus largely on the parents to locate their children within government custody and seek their return.
But the day the DHS made the announcement, a month after Sessions first touted his “zero tolerance” prosecution policy, it was Sessions who had a border state swing scheduled and spoke to cameras about the policy.
“If you’re smuggling a child, we’re going to prosecute you, and that child will be separated from you probably, as required by law,” Sessions said, in what has largely been the speech quoted as unveiling the policy. “If you don’t want your child to be separated, then don’t bring them across the border illegally.”
When Merkley went to a Border Patrol facility in Texas, run by the DHS, and a nearby detention center for immigrant children without parents or guardians, w