Dem senator requests FBI investigate Nielsen for potential perjury

Sen. Jeff MerkleyJeffrey (Jeff) Alan MerkleySenate Democrats push Trump to permanently shutter migrant detention facility Senate Dem seeks answers from DHS on reports of pregnant asylum seekers sent back to Mexico Schumer backs Pelosi as impeachment roils caucus MORE (D-Ore.) on Friday requested that the FBI investigate Homeland Security Secretary Kirstjen NielsenKirstjen Michele NielsenDOJ to Supreme Court: Trump decision to end DACA was lawful Top immigration aide experienced 'jolt of electricity to my soul' when Trump announced campaign Trump casts uncertainty over top intelligence role MORE for possible perjury regarding comments she made about the administration’s zero-tolerance immigration policy.

“The FBI has previously indicated that the Department of Justice requires a formal criminal referral from Congress to initiate an investigation concerning Congressional testimony," Merkley said in a letter to FBI Director Christopher Wray. "I write today to execute such a criminal referral."

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“Compelling new evidence has emerged revealing that high-level Department of Homeland Security officials were secretly and actively developing a new policy and legal framework for separating families as far back as December 2017,” he added.

The FBI did not immediately respond to a request for comment.

Department of Homeland Security (DHS) Spokeswoman Katie Waldman said in a statement to The Hill that the department "has never had a blanket policy of separating families in custody."

"As Secretary Nielsen has said publicly and testified multiple times, DHS has never had a blanket policy of separating families in custody," Waldman said in the statement. "What this pre-decisional, pre-deliberative memo — as well as previously leaked pre-decisional, pre-deliberative documents — shows is that the Secretary was provided a menu of options to prevent the humanitarian crisis we predicted at that time and which has manifested itself today."

Waldman went on to claim that Nielsen "specifically rejected a policy proposal to separate all family units in DHS custody."

"Secretary Nielsen specifically rejected a policy proposal to separate all family units in DHS custody. Instead, the Department followed the existing decades-long practice used by multiple administrations of only separating minors from adults 1) when DHS is unable to determine the familial relationship, 2) when DHS determines that a minor may be at risk or 3) when the parent or legal guardian is referred for criminal prosecution," she added.

Waldman continued, stating DHS did not issue "a new, changed or blanket policy regarding family separations." 

Merkley on Thursday provided NBC News with a draft document of what would eventually become the White House’s immigration policy. The senator's office said the December 2017 document was leaked to them by a government whistleblower.

In the draft, Trump administration officials discussed targeting parents of migrant families with prosecution as a deterrent, saying the “increase in prosecutions would be reported by the media and would have a substantial deterrent effect.”

The draft also said DHS was “considering separating family units, placing the adults in adult detention and placing the minors under the age of 18 in the custody of [the Department of Health and Human Services] as unaccompanied alien children.”

A Justice Department official suggested in the document that Customs and Border Protection agents could deny asylum hearings to children who had already been separated from their parents.

“If CBP issues an ER [expedited removal] for the entire family unit, places the parents in the custody of the U.S. Marshal, and then places the minors with HHS, it would seem that DHS could work with HHS to actually repatriate [deport] the minors then,” the official wrote.

It is unclear from the draft whether the government planned on reunifying children with their parents prior to the deportation.

The policy “was specifically designed to gain media attention and generate a ‘substantial deterrent effect,’ ” Merkley wrote in his letter to Wray. “Despite this fact, while testifying under oath before the House Committee on the Judiciary, Secretary Nielsen stated unequivocally ‘I'm not a liar, we've never had a policy for family separation.’ ”

DHS responded to NBC News, saying that it was considering “all legal options” to deal with the “crisis” on the southern border.

“The Trump administration has made clear that all legal options are on the table to enforce the rule of law, rein in mass unchecked illegal immigration, and defend our borders,” DHS spokesperson Katie Waldman told NBC regarding the document.

— Updated 8:15 p.m.