DOJ Decides Leaked, Inaccurate DOJ IG Materials Are Awful

The NYT has a story–on which Michael Shear, who is home in quarantine with his spouse after catching COVID in the White House’s superspreader cluster, has the lead byline–on DOJ’s complicit role in separating children from their parents.

It describes how five border-state US Attorneys tried to avoid imposing the draconian policies masterminded by Stephen Miller (who, like Shear, got infected in Trump’s super-spreader event). But those US Attorneys were overruled by Jeff Sessions and Rod Rosenstein. Those findings appear in a draft DOJ IG Report, which has been sent to DOJ for comment, but not yet published.

The five U.S. attorneys along the border with Mexico, including three appointed by President Trump, recoiled in May 2018 against an order to prosecute all undocumented immigrants even if it meant separating children from their parents. They told top Justice Department officials they were “deeply concerned” about the children’s welfare.

But the attorney general at the time, Jeff Sessions, made it clear what Mr. Trump wanted on a conference call later that afternoon, according to a two-year inquiry by the Justice Department’s inspector general into Mr. Trump’s “zero tolerance” family separation policy.

“We need to take away children,” Mr. Sessions told the prosecutors, according to participants’ notes. One added in shorthand: “If care about kids, don’t bring them in. Won’t give amnesty to people with kids.”

Rod J. Rosenstein, then the deputy attorney general, went even further in a second call about a week later, telling the five prosecutors that it did not matter how young the children were. He said that government lawyers should not have refused to prosecute two cases simply because the children were barely more than infants.

Passages of the report citing John Bash, who recently resigned his position as US Attorney for WD TX only to be replaced by a Billy Barr flunky, are quoted twice.

“Those two cases should not have been declined,” John Bash, the departing U.S. attorney in western Texas, wrote to his staff immediately after the call. Mr. Bash had declined the cases, but Mr. Rosenstein “instructed that, per the A.G.’s policy, we should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child.”


In a briefing two days after Christmas in 2017, top Justice Department officials asked Mr. Bash for statistics from the pilot program, conducted by his predecessor, that could be used to develop “nationwide prosecution guidelines.” Mr. Bash, a former White House adviser, did not receive a follow-up request for the information. Thinking that the idea had been abandoned, he did not provide it.

And there’s at least one other prosecutor quoted — revealing that the no-tolerance policy targeting children let some far more serious criminals go free — who could be him.

Border Patrol officers missed serious felony cases because they were stretched too thin by the zero-tolerance policy requiring them to detain and prosecute all of the misdemeanor illegal entry cases. One Texas prosecutor warned top Justice Department officials in 2018 that “sex offenders were released” as a result.

The article itself is based off a draft copy of the report and interviews with three anonymous officials.

This article is based on a review of the 86-page draft report and interviews with three government officials who read it in recent months and described its conclusions and many of the details in it.

Bash should not have had access to this entire report to review his own role in it. Past practice would have suggested he get just those passages that pertain to him directly (though this report appears to cover his time both at Main DOJ and as a US Attorney). But he would have access to the passages that quote him directly.

The article is most amusing, however, for the response from DOJ, which complains about an inaccurate DOJ IG Report and improper leaks.

Alexa Vance, a spokeswoman for the Justice Department, disputed the draft report and said the Homeland Security Department referred cases for prosecution.

“The draft report relied on for this article contains numerous factual errors and inaccuracies,” she said. “While D.O.J. is responsible for the prosecutions of defendants, it had no role in tracking or providing custodial care to the children of defendants. Finally, both the timing and misleading content of this leak raise troubling questions about the motivations of those responsible for it.”

As I have laid out, the DOJ IG Report on Carter Page has numerous factual errors, just some of which they’ve corrected. The central complaint in the parallel Lisa Page and Peter Strzok Privacy Act lawsuits about the release of their texts is that those were released improperly, both as to timing and legality, and led to misleading interpretations of what the texts mean. Both of those lawsuits implicate a sworn declaration made by Rod Rosenstein (who is badly implicated by this report and who issued a statement to the NYT, suggesting he could be one of the anonymous sources as well). The Rosenstein statement in the Page and Strzok lawsuits will test how credible his claims are about his own actions in response to illegal requests from the President.

In other words, the entire article is thick with irony and revenge. And it will surely focus more scrutiny on the denials that DOJ issues once it is released after the election.

But none of that helps the infants who got separated from their parents.

20 replies
  1. Peterr says:

    Rosenstein and Sessions do *not* come off well in this piece.

    As this story unfolded at the time, you knew that there had to be conversations like this going on between DC and the various USAttys. But seeing them detailed like this is damned ugly.

    If you haven’t eaten already, do so before you read that Times piece. I read the story last night, and I still don’t feel like eating breakfast.

  2. Duke says:

    America has became the shiny gulag on the Mount Doom. Can’t wait for us to start taking on all the toxic waste from Trump’s daddy, Putin.

    Yeah, America….
    Run the country like a business a let us get a CEO in there, that will fix it good.

  3. Peterr says:

    This is but the first of what is likely to be a flood of stories about how people inside the Trump administration acted when faced with policies like this. Do you work from within to try to mitigate things, or do you leave? There are also those who embraced these policies at the time, but who may be looking for a way to distance themselves from them right now. The motives of the ones who left are clear; those of the ones who stayed are suspect.

    There are lots of folks with the Trump administration on their CV, who are going to have a lot of explaining to do the next time they interview for a job. Assuming, that is, that they get an interview at all.

    Parallel story: The Times also has a story up right now about the COVID-19 cases that have all but overwhelmed the hospital system in North Dakota, that includes this:

    Gov. Doug Burgum, a Republican who is widely favored to win re-election next month, has maintained that a “light touch of government” is the best way to handle the coronavirus in North Dakota, and that it has helped the state keep its unemployment rates low and reopen ahead of many others. He has said the hospitals have enough space to handle the situation.

    “It is an accurate statement that capacity to date has not been a problem in the state of North Dakota,” he said this month.

    The state’s response to the virus since the start of the pandemic has been complicated and tense as new plans and restrictions emerged. Even its public health office has been in tumult, with Dr. Paul Mariani, an infectious-disease specialist, resigning last month after just two weeks on the job.

    Dr. Mariani instituted an order requiring close contacts of those with the virus to quarantine or risk a misdemeanor charge, but the governor quickly overturned it after Republican legislators and residents voiced outrage. Dr. Mariani resigned because he did not want his signature on an order he felt went against public health guidelines, Mr. Burgum explained in a news briefing. Dr. Mariani declined to be interviewed.

    I don’t think Mariani needed to say anything else. Walking away said it all.

    • ND senior says:

      I live in Fargo. We are now approaching 4,000 *active* cases in a state with 760,000 population. Also (although I haven’t followed these happenings closely), Dr, Mariana is the THIRD state Public Health Officer to leave the office since March. The Fargo mayor–a physician(!) refused to vote for a city mask mandate on Monday because it would “divide the city” or some such. This summer a mask mandate was proposed by one city commissioner. I was at that commission meeting. There was a small enclave of non-mask-wearers led by former state legislator (Bette Grande) who now works for the Heartland Institute as a PR shill for the petroleum industry. She likes to tout her scientific creds but she actually has a bachelor’s in education with a minor in sports medicine (I think her Heartland bio only mentions the sports medicine part).

      Across the river is Moorhead, MN, which does have a mask mandate. According to a friend who likes his whiskey but drinks at home, the bars are just as crowded as ever, no reduced occupancy rules.

      The state public health covid data shows a dashboard indicating plenty of available hospital ICU and non-ICU beds but in fact the larger population centers have been sending people elsewhere, including out of state, and keeping several covid patients in the ER waiting for a discharge.

      • ND senior says:

        Note: Burgum is a former Microsoft VP (his software company became a Microsoft campus in Fargo in the 90s) and attends DC parties with the Trump circle.

  4. Peterr says:

    Among the “other observations not previously known” was this:

    Senior Justice Department officials viewed the welfare of the children as the responsibility of other agencies and their duty as tracking the parents. “I just don’t see that as a D.O.J. equity,” Mr. Rosenstein told the inspector general.

    At some point, this looks a lot like government-sanctioned child abuse and kidnapping. If the govt took these children from their parents, the govt is legally responsible for their care and protection. If it wasn’t DOJs job to care for them, it certainly is DOJs job to investigate, charge, and prosecute those whose job it was. I follow the news pretty well, but it’s been kind of crazy over the last two years, and maybe I missed all those prosecutions.

    If Mr. Rosenstein wants to tell me all about them, I’m all ears. Until then, let’s just say that Pontius Pilate would be proud of him for his handwashing practices.

    • BobCon says:

      I think the underlying story in the article (and the way it came to light) is about a fight between DOJ, DHS and the White House about who was going to take the fall for this. This clearly fixes the blame on Sessions and RR, which is an awfully convenient spin for some awful people who are still in office.

      That doesn’t mean it’s incorrect as far as it goes — those former leaders have blood on their hands But I am guessing the reason this got to see the light of day now is that people outside that set of former top DOJ officials want to get the jump on spinning what will be a deluge of revelations.

      It’s going to be extremely easy for someone like Barr who is skilled at the game of selective leaking to manipulate reporters over the blame game in the coming years, assuming Trump doesn’t hang on.

      Reporters and especially editors are going to need to fight the temptation for scoop based reporting in favor of articles with fuller context. There are going to be so many revelations that the public is going to want better reporting more than caring about who broke the story first.

  5. joel fisher says:

    Good news for Rod Rosenstein: when he appointed Mueller, right wing nuts accused him of being part of an anti-Trump deep-state cabal; now he can take his rightful place in in the Trump Hall of Shame. I never doubted him for a minute.

    • Spencer Dawkins says:

      At the very minimum, an incoming Biden administration should be collecting test cases from Trump for prospective administration officials – “If I do THIS, what will your response be?”

      That’s often the short path to shooting where the ducks were, fighting the last war with the Maginot Line, etc. but what we’ve been talking about for the past four years has been far beyond my ability to imagine. I feel somewhat sorry for Rod, because I think most of his problems were just being far out of his depth. Did he attend seminars about what to do if the President and Congress decided that inhumanity was a virtue?

      Or maybe we just get human beings at the top, and stop asking people further down to make up for inhumanity at the top. We ALL knew what Sessions was, for longer than we’ve known what Trump was (partially because Trump changed his answers more often than he changed his shorts, while Sessions was consistently racist).

      • BobCon says:

        RR worked for Ken Starr. He knows how political hacks operate. He was there of his own free will and knew when he was sailing past the line where anyone with integrity would have to take a stand.

  6. madwand says:

    When Rosenstein limited the scope of the Mueller investigation, it became a whitewash, basically info only, no matter what turned up in it and no matter what you believe. It’s off the radar as much as the impeachment trial.

    • pablo says:

      Pick a well respected, straight shooter, then clamp limits on what he can do. Brilliant, almost Trump-ian. Except Trump doesn’t know any straight shooters.

  7. Cathie from Canada says:

    What makes me gag is the “we were just following orders” theme throughout the whole piece. Would it have made a difference if a group of these lawyers, who all took classes in ethics, had got together and resigned their positions, and held a press conference about what they were being told to do?
    Maybe this wouldn’t have made any difference at all. But they didn’t even try. For this, history should condemn them

    • Rayne says:

      Particularly since the orders they were following violated

      — Convention Relating to the Status of Refugees (1967 protocol) to which the U.S. is a party, and U.S. laws which support this treaty;
      — International Covenant on Civil and Political Rights to which the U.S. is a party and ratifier;
      — United Nations Convention against Torture to which the U.S. is a party and ratifier.

      They need to face prosecution just as the Nazis did.

  8. Eureka says:

    Not. Good. DOJ election-interference emergency via bmaz twitter:

    DOJ Frees Federal Prosecutors to Take Steps That Could Interfere With Elections, Weakening Long-standing Policy

    In an internal announcement, the Justice Department created an exception to a decadeslong policy meant to prevent prosecutors from taking overt investigative steps that might affect the outcome of the vote.

    by Robert Faturechi and Justin Elliott Oct. 7, 12:40 p.m. EDT

    The Department of Justice has weakened its long-standing prohibition against interfering in elections, according to two department officials.

    Avoiding election interference is the overarching principle of DOJ policy on voting-related crimes. In place since at least 1980, the policy generally bars prosecutors not only from making any announcement about ongoing investigations close to an election but also from taking public steps — such as an arrest or a raid — before a vote is finalized because the publicity could tip the balance of a race.

    But according to an email sent Friday by an official in the Public Integrity Section in Washington, now if a U.S. attorney’s office suspects election fraud that involves postal workers or military employees, federal investigators will be allowed to take public investigative steps before the polls close, even if those actions risk affecting the outcome of the election.

    (internal link removed)

    • Eureka says:

      This basically formalizes DOJ electioneering on behalf of Trump, and of the likes we’ve already seen with the announcements about the incomplete “nine Pennsylvania ballots” investigation — which they use as an example in the article. I am too 2020’d atm to go dig up the thread on that, where I’d also posted Marcy’s tweets about them (then) telegraphing for predicate to vote-count. Here, as experts note, they have established predicate to gaslight. So, inching along… though chaos mediated by (this facultative invitation to Proud Boys and such to create fodder for) targeted announcements may be sufficient.

      Specifically citing postal workers and military employees is noteworthy, former DOJ officials said. But the exception is written so broadly that it could cover other types of investigations as well, they said.


      Experts who reviewed the revision said they were concerned it could be exploited to help the DOJ bolster Trump’s campaign.

      “It’s unusual that they’re carving out this exception,” said Vanita Gupta, the former head of the DOJ Civil Rights Division under President Barack Obama. “It may be creating a predicate for the Justice Department to make inflated announcements about mail-in vote fraud and the like in the run-up to the election.”
      (internal link removed)

  9. Jenny says:

    Thank you Marcy.
    Inhumane is what comes to mind from this DOJ and administration. Also the song from the musical South Pacific, “You’ve Got to Be Carefully Taught.”

    You’ve got to be taught
    To hate and fear, you’ve got to be taught from year to year
    It’s got to be drummed in your dear little ear
    You’ve got to be carefully taught.
    You’ve got to be taught
    To be afraid of people
    Whose eyes are oddly made
    And people whose skin is a different shade
    You’ve got to be carefully taught.

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