Gene Hamilton, a top lawyer and ally of Stephen Miller, the architect of the president’s assault on immigration, argued in a 32-page response that Justice Department officials merely took direction from the president. Mr. Hamilton cited an April 3, 2018, meeting with Mr. Sessions; the homeland security secretary at the time, Kirstjen Nielsen; and others in which the president “ranted” and was on “a tirade,” demanding as many prosecutions as possible.
Mr. Hamilton declined to comment for this article, as did Mr. Horowitz’s office. Mr. Sessions did not respond to requests for comment. 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.”
The draft report also documented other revelations that had not previously been known:
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Government prosecutors reacted with alarm at the separation of children from their parents during a secret 2017 pilot program along the Mexican border in Texas. “We have now heard of us taking breastfeeding defendant moms away from their infants,” one government prosecutor wrote to his superiors. “I did not believe this until I looked at the duty log.”
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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.
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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.
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The failure to inform the U.S. Marshals Service before announcing the zero-tolerance policy led to serious overcrowding and budget overruns. The marshals were forced to cut back on serving warrants in other cases, saying that “when you take away manpower, you can’t make a safe arrest.”
For two years, Ms. Nielsen has taken the brunt of the public criticism for separating migrant families because of her decision to refer adults crossing the border illegally with children for prosecution. A day after the president’s retreat, Mr. Sessions distanced his department from the decision, telling CBN News that “we never really intended” to separate children.
That was false, according to the draft report. It made clear that from the policy’s earliest days in a five-month test along the border in Texas, Justice Department officials understood — and encouraged — the separation of children as an expected part of the desire to prosecute all undocumented border crossers.
“It is the hope that this separation will act as a deterrent to parents bringing their children into the harsh circumstances that are present when trying to enter the United States illegally,” a Border Patrol official wrote on Oct. 28, 2017, to the U.S. attorney in New Mexico, according to the draft report.
