Rosenstein: Zero tolerance immigration policy 'never should have been proposed or implemented'

Rosenstein: Zero tolerance immigration policy 'never should have been proposed or implemented'
© Greg Nash

Former Deputy Attorney General Rod RosensteinRod RosensteinHouse Judiciary to probe DOJ's seizure of data from lawmakers, journalists The Hill's Morning Report - Biden-Putin meeting to dominate the week Media leaders to meet with Garland to discuss leak investigations MORE said on Thursday that the zero tolerance immigration policy briefly used under the Trump administration “never should have been proposed or implemented.”

Rosenstein's statement to The Hill came shortly after the release of a Justice Department watchdog report that was sharply critical of officials it described as the “driving force” in instituting the 2018 policy that resulted in thousands of children being separated from their parents. 

"Since leaving the department, I have often asked myself what we should have done differently, and no issue has dominated my thinking more than the zero tolerance immigration policy,” Rosenstein said in a statement. “It was a failed policy that never should have been proposed or implemented. I wish we all had done better."


The report from the Justice Department’s Inspector General aimed to detail how the zero tolerance policy was instituted and concluded that the top officials in the department, including then-Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsThe Hill's Morning Report - After high-stakes Biden-Putin summit, what now? Border state governors rebel against Biden's immigration chaos Garland strikes down Trump-era asylum decisions MORE, knew it would result in family separations. 

Under the zero tolerance policy, all adults who illegally entered the U.S., including those with children, were referred for prosecution, leaving any children in the custody of the Department of Health and Human Services (HHS). The inspector general concluded the Justice Department did not coordinate with U.S. attorneys, judges or HHS, and its officials did not listen to concerns about the policy. 

"We concluded that the Department’s single-minded focus on increasing immigration prosecutions came at the expense of careful and appropriate consideration of the impact of family unit prosecutions and child separations," the Inspector General's report said.

Rosenstein, who left the department in May 2019, was mentioned in the report as being present at an April 2018 meeting with Sessions in which they “both expressed a willingness to prosecute adults in family units if DHS [Department of Homeland Security] made the decision to start referring such individuals for prosecution."

After some U.S. attorneys expressed concerns about the program, former U.S. Attorney for the Western District of Texas John Bash passed along that Rosenstein told him “we should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child,” according to the report. 


Bash's notes from the call indicate that Rosenstein told him, "AG is clear: Prosecute parents if DHS decides to separate families; use your prosecutorial discretion w/r/t [with regard to] illness, language issues; no categorial decisions w/r/t [with regard to] age; fact-based decisions ok.”

Justice Department lawyer Gene Hamilton placed the blame for the policy at President TrumpDonald TrumpChinese apps could face subpoenas, bans under Biden executive order: report Kim says North Korea needs to be 'prepared' for 'confrontation' with US Ex-Colorado GOP chair accused of stealing more than 0K from pro-Trump PAC MORE and Department of Homeland Security Secretary Kirstjen NielsenKirstjen Michele NielsenLeft-leaning group to track which companies hire former top Trump aides Rosenstein: Zero tolerance immigration policy 'never should have been proposed or implemented' House Republican condemns anti-Trump celebrities during impeachment hearing MORE's feet.

"If Secretary Nielsen and DHS did not want to refer people with minors, with children, then we wouldn't have prosecuted them because they wouldn't have referred them," he said. "And ultimately that decision would be between Secretary Nielsen and the president," Hamilton told the watchdog, according to the report.

A court filing this week indicated that pro bono attorneys looking for separated children’s parents have not yet tracked down the parents of 611 children, NBC News reported. The lawyers predict the parents of 392 children have been deported. 

President-elect Joe BidenJoe BidenChinese apps could face subpoenas, bans under Biden executive order: report OVERNIGHT ENERGY:  EPA announces new clean air advisors after firing Trump appointees |  Senate confirms Biden pick for No. 2 role at Interior | Watchdog: Bureau of Land Management saw messaging failures, understaffing during pandemic Poll: Majority back blanket student loan forgiveness MORE has committed to creating a task force to reunite these families and to have the Justice Department conduct an investigation into the results of the policy.