Border Wars, page 28
In a briefing for the president in the Oval Office, McGahn pulled out centuries-old statutes and read from them verbatim, going all the way back to Thomas Jefferson’s use of the Navy to deal with the Barbary pirates in 1802, and George Washington’s putting down the Whiskey Rebellion in 1794, when the nation’s first president used the military to quell an insurrection over a tax on whiskey that had been imposed to help pay off the government debt incurred during the Revolutionary War. A president’s powers under the Insurrection Act are quite broad, McGahn told Trump, and they essentially provided a carve-out from Posse Comitatus. President George H. W. Bush had invoked the law in 1992 to deploy the military to restore order during the Los Angeles riots. That didn’t mean it was a great idea, and the authority had never been used to deal with immigration, but if his advisers couldn’t come up with a better idea, McGahn said, this avenue was available to Trump. By nightfall, the White House had massaged Trump’s impromptu pronouncement into an actual policy: the president would be working with governors to send guardsmen to the border to assist DHS officials. But since Trump had sprung the announcement on his administration, officials could not say how many troops would go, or when. When reporters pressed the Pentagon for more details, it was clear that Mattis was not interested in owning this particular policy. Call the White House, they were told.
In early April, during a visit to White Sulphur Springs, West Virginia, where he was supposed to be touting the $1.5 trillion tax cut, Trump found himself distracted. Sitting on an elevated stage in a crowded auditorium adorned with standard royal blue pipe-and-drape and American flags typical of a presidential visit, Trump focused on his remarks for all of a few minutes, dutifully reciting his talking points. “America is open for business,” he declared, flanked by local elected officials and West Virginians who had been invited to speak about what the tax cut had meant to them and their families. But soon, the president tired of his talking points, and delivered a lengthy rant against immigrants and the country’s immigration laws, in which Trump accused Democrats of pushing tax policies because they wanted immigrant votes.
“We’re toughening up at the border,” Trump said. “We cannot let people enter our country—we have no idea who they are, what they do, where they came from. We don’t know if they’re murderers, if they’re killers, if they’re MS-13. We’re throwing them out by the hundreds.”
Going off-script clearly thrilled the president. “This was going to be my remarks,” he told the audience, waving a sheet of paper in the air, “but what the hell? That would have been a little boring.” He tossed the paper into the audience and told them he would rather riff. “I’m reading off the first paragraph, I said, ‘This is boring.’ Come on. We have to tell it like it is.”
Flying back to Washington on Air Force One a short time later, Trump visited the cramped press cabin at the back of the plane and told the reporters traveling with him that there would be somewhere between 2,000 and 4,000 National Guardsmen deployed to the border. The president asked members of the press pool what they had thought of his off-message performance. Met with silence, Trump answered his own question: “Thought it was really great,” he said.
* * *
The last thing Republican leaders wanted to do was make another run at fixing DACA. But throughout the spring, a group of moderates who had been pressing for action on the issue began ratcheting up their demands for a vote. Jeff Denham of California and Carlos Curbelo of Florida, whose districts had voted for Hillary Clinton in 2016, were leaders of the effort, but they were hardly the only Republicans to defy their leaders. One by one, more moderates added their names to the discharge petition, the list of lawmakers demanding a floor vote on a bipartisan bill to protect the Dreamers, and with each passing day, they moved closer to having enough signatures to force action.
Republican leaders considered this possibility disastrous. If the bipartisan bill reached the floor, they knew, it would easily win the support of the vast majority of Democrats and enough centrists in their party to pass the House, producing a humiliating result and dividing the party as it braced for midterm elections that could cost Republicans control of the chamber. There was only one way to stop that from happening, Ryan and McCarthy agreed: they had to come up with their own Republican alternative, a compromise that melded what the moderates wanted with what conservatives were insisting on, something that their members could be for without handing Nancy Pelosi control of the floor. The White House was initially cool to the idea. This was the speaker’s problem—a “floor management issue”—not Trump’s, they said. Miller was sick of trying to cut a DACA deal that was clearly not coming together. Short, the legislative affairs director, assumed Republicans would lose the House in the fall and the issue would remain unaddressed, giving Trump and Republicans an issue to run on in 2020.
But Ryan knew there was no avoiding a DACA vote; his moderates, who were toiling to hold their seats in districts where more moderate voters held sway, would not allow it. With the White House mostly on the sidelines, Ryan’s staff began an intensive behind-the-scenes effort to mediate a compromise. The talks were exhaustive and often emotional. At one point, Ryan’s staff asked the White House for a list of the top ten enforcement measures they wanted in exchange for legal status for the Dreamers; when the moderates agreed to accept all ten, members of the Freedom Caucus still said they couldn’t sign on to a deal. After weeks of negotiations, the negotiators came up with a measure they believed reflected a fragile kind of consensus among Republicans, and something that Trump could sign. Miller even called members of the restrictionist groups to ask them to support it—or at least not try to kill the deal.
But Trump’s ambivalence was palpable. Days before the scheduled votes, Trump strode out on the White House driveway for an interview with Steve Doocy of Fox News and distanced himself from the compromise bill. “I certainly wouldn’t sign the more moderate one,” he said, suggesting that he preferred a different, more conservative version instead. After a day of confusion and mixed signals, White House aides insisted that he had misspoken, and he really did back the bill. But privately, they acknowledged the reality: Trump did not want to be on the record enthusiastically endorsing something that might not pass—particularly a measure that could be tarred by his core supporters as “amnesty” for illegal immigrants.
A few days later, the president went to Capitol Hill to offer his personal reassurance to Republican lawmakers who were deeply nervous about backing the compromise that they would have political cover from him for voting yes. They were desperate for Trump to explicitly bless the compromise, to sell lawmakers on the Ryan-engineered DACA measure, and to make it clear he wanted Republicans to vote for it. He would thank lawmakers who had worked tirelessly in the backroom negotiations—both the moderates and conservatives—for sticking with a difficult process and coming up with a consensus. He even had a list of people to name-check. But when Trump got up to speak in the basement conference room under the Capitol Crypt on Tuesday evening, June 19, he didn’t do any of that.
“I’m with you 1,000 percent!” Trump told the roomful of Republican lawmakers. The problem was, nobody knew what he meant. Trump gave a meandering stump speech touting his own success as president and boasting of his popularity, resurrecting his campaign-trail hyperbole to drive home his point. He could shoot someone on Fifth Avenue and not lose support, the president said. He flitted from topic to topic, from his trade war with China to his great relationship with Kim Jong-un. He regaled the group with a lengthy yarn—one of Trump’s favorites—claiming that he had single-handedly negotiated down the price of the F-35 fighter jet. In true Trumpian style, the president teased and attacked members of his audience with varying degrees of cruelty. He drew laughs for a wisecrack about Trey Gowdy’s hair and more chuckles when he mused aloud about whose idea a DACA-for-wall deal had been. When the members reminded him it was Mario Diaz-Balart, Trump quipped, “I like him more than his brother.” (Diaz-Balart’s brother José was a journalist.) There were muted boos from rank-and-file Republicans when Trump singled out Mark Sanford, who had just lost his primary to a Trump-friendly opponent, and called the vanquished congressman a “nasty guy.” The president remembered to thank conservative members of the Freedom Caucus—Louie Gohmert of Texas, Meadows, and Ohio’s Jim Jordan—and praised them for defending him in the face of the investigation by Robert S. Mueller III, the special counsel, into Russia’s interference in the 2016 election. But then Trump was off on a tangent about the “Russia hoax” and how his adversaries were grasping for ways to bring him down. He never got around to thanking the moderates whose political careers were on the line.
As he treated the Republicans to his stream-of-consciousness narration, the president touched on immigration only glancingly. He slammed the Democrats, saying they only wanted more immigrants because they wanted more voters for themselves. I’m with you all the way, Trump told the Republicans. He paused to recall the first time he had addressed them as a group, and said he had thought to himself, “Who are these people?” Now, the president said, I know these people. And with that, he walked out, applause echoing behind him.
It was hardly the heartfelt presidential pitch Republican leaders had been hoping for. This was the worst performance they’d ever seen from Trump, some of them said. Republican leaders begged White House officials to clarify the president’s position after he left. He had never actually said he supported the leadership’s DACA bill, they said. But no clarification came. This was the very scenario Republican leaders had tried to avoid. They feared they were in for a replay of the disaster they had lived through the year before with their ill-fated effort to repeal the Affordable Care Act. Trump had never made clear which bill he supported, and after the House finally muscled one through and he held a ceremony in the Rose Garden hailing the measure, he turned around and pronounced it “mean,” yanking the political cover they needed. Now, staring down a politically risky DACA vote, Ryan’s staff asked White House officials to issue a formal policy statement declaring that Trump would sign the compromise measure. There was one drafted, they were told, but it was never sent out.
The day before the June 27 vote, Trump invited undecided lawmakers to the White House for lunch in the Cabinet Room, where Republican leaders hoped he would make the hard sell he had failed to deliver a few days before in the Capitol. Trump sat in the middle of the large wooden conference table, flanked by lawmakers, with Kelly, Short, and Nielsen joining him for the session. As the discussion unfolded, lawmakers worried aloud about how a vote to legalize DACA recipients would play in their districts, complaining that the issue was politically perilous and could cost them reelection. That’s okay, Trump kept telling them. You don’t have to vote for it. It was the opposite of the message a president is supposed to transmit on the eve of a difficult vote.
Later, Ryan’s staff got word from the White House that Trump planned to tweet something “nice” about the DACA bill in a last-ditch effort to get Republicans to vote yes. They sent back word to the White House: Tell him not to bother. They had already done their informal nose-count, and they knew it wasn’t going to pass. A presidential tweet would be too little, too late. Trump tried it anyway, blasting out an all-caps endorsement of the “STRONG BUT FAIR IMMIGRATION BILL.”
It failed spectacularly, 121–301, with Republicans almost evenly split and Democrats unanimously voting no.
— 22 — Zero Tolerance
THE MEMO SEEKING KIRSTJEN Nielsen’s approval to separate migrant children from their parents had been sitting on her desk for weeks.
The five-page document laid out in blunt terms the roots of President Trump’s growing fury. Illegal immigration was still increasing, with crossings of single adults at the southwest border “averaging over 1,000 aliens” every day, the authors wrote. Even worse, the number of families trying to cross illegally with children had peaked in mid-April to its highest levels since 2016, with almost 700 families trying to cross in one two-day period. That was nearly as many families as were crossing in an entire month when Trump first took office. The memo was signed by three of the department’s top officials: Kevin McAleenan, the president’s top border official; Francis Cissna, the head of USCIS; and Tom Homan, the acting director of ICE. “Without statutory changes and additional policy and operational intervention,” it concluded, “U.S. Customs and Border Protection (CBP) anticipates the number of apprehensions and inadmissible aliens will continue to rise in April and May.”
Among the possible courses of action they offered Nielsen for fixing the problem was a nuclear option that had been uniformly rejected by prior administrations as impractical and morally questionable, not to mention politically suicidal. She could “direct the separation of parents or legal guardians and minors held in immigration detention so that the parent or legal guardian can be prosecuted,” the memo said.
The idea had been under consideration inside the administration for more than a year, although most officials had been careful to mention it only in private. The one exception had been John Kelly, who had been questioned weeks into his tenure as homeland security secretary by Wolf Blitzer of CNN about whether he was considering separating children from parents caught crossing the border illegally. Kelly’s answer—that he was, indeed, weighing the tactic as a deterrent—drew swift condemnation from lawmakers and an almost instant public retreat by the new secretary. But privately, some tough-minded immigration enforcement officials had told Kelly they thought the government should go even further and adopt a policy in which immigrant children were routinely separated from their parents even when they were apprehended deep in the interior of the country, far from the border.
Inside the administration, discussions about family separation quietly continued, and soon the Trump administration launched a secret pilot program to test its effectiveness. For about five months between July and November of 2017, the Justice Department and Border Patrol officials ran an unannounced experiment in the El Paso sector, which stretched from New Mexico to western Texas. Border agents who encountered families during that time were instructed to detain and refer them for criminal prosecution for illegal border crossing, even if that meant that the children would have to be sent to shelters for months while their parents were detained elsewhere. For decades, it had been common practice for Customs and Border Protection to exempt migrants traveling with minor children from such criminal prosecution unless they were suspected of another crime or of not being related to the children they were transporting. Within months, Justice and DHS had their results, and they were impressive: the number of families crossing the border illegally in the sector had dropped 64 percent.
In late 2017, a discussion document titled “Policy Options to Respond to Border Surge of Illegal Immigration” circulated inside of DHS, suggesting separating children from their parents to accommodate increased adult prosecutions. Under a list of things that could be done within thirty days, number one was titled “Increase Prosecution of Family Unit Parents” and said: “The parents would be prosecuted for illegal entry (misdemeanor) or illegal entry (felony) and the minors present with them would be placed in HHS custody.… The increase in prosecutions would be reported by the media and it would have a substantial deterrent effect.” A second option on the document noted that separation of families would immediately draw a legal challenge. “Advocacy groups are aware that this policy shift may occur and therefore are seeking to identify families who have been separated in order to bring a class action lawsuit. Hence, close coordination with DOJ will also be required.” The memo noted that the status of the family separation idea was “currently under consideration” and added: “Secretarial memo needed for full implementation.”
Trump’s immigration brain trust, including Sessions, Hamilton, and Miller, was convinced that Central American migrants were using children to exploit a loophole in American immigration law that prohibited minors from being detained in jail with adults. Because of that restriction, if a migrant arrived with his or her kids, the entire family would be released into the United States to wait for an immigration hearing. But that could take months or years, giving them a chance to skip out on their court appearance and disappear into the shadows. Trump’s advisers thought that routinely separating all children from their parents when they crossed illegally would close the loophole for good. It was an explosive policy option, but one designed to send a powerful message of deterrence to any migrant who was even considering traveling toward the United States border. It was one of the many ideas Jim Nealon, the DHS assistant secretary, had refused to sign off on in mid-2017, and when it resurfaced, Duke, the acting secretary, had shelved it.
By April of 2018, the formal policy memo had landed on Nielsen’s desk calling for a broad adoption of family separations all along the southern border. The memo hailed the success of the El Paso trial, noting the steep drop in border crossings that had resulted, and adding that the pace only picked up again “after the initiative was paused.” Now it was time to expand the effort across the entire southern border, the memo argued. Just days earlier, on April 6, Trump had issued a presidential directive titled “Ending ‘Catch and Release’ at the Border of the United States.” It was designed to be a swift kick in the pants for the president’s top immigration officials—a reminder of the president’s frustration, in case any of them had missed his tweets. In the directive, Trump demanded that “more must be done to enforce our laws and to protect our country from the dangers of releasing detained aliens into our communities.” Within hours, Attorney General Jeff Sessions took action, sending his own letter to federal prosecutors along the country’s southwest border. Sessions announced a policy of zero tolerance for illegal border crossings. The Justice Department would prosecute 100 percent of the cases referred by DHS officials at the border, he wrote. No exceptions. Sessions described the decision in military terms, saying that “those seeking to further an illegal goal constantly alter their tactics to take advantage of weak points.” Prosecutors on the border are “on the front lines of this battle,” Sessions wrote. “Remember, our goal is not simply more cases. It is to end the illegality in our immigration system.”
