The FRONTLINE Interviews

Kris Kobach

Former Secretary of State of Kansas

Kris Kobach, the secretary of state of Kansas from 2011 to 2019, served as an immigration adviser on President Donald Trump’s transition team.

This is a transcript of an interview with FRONTLINE’s Gabrielle Schonder conducted on August 20, 2019. It has been edited for clarity and length.

This interview appears in:

Zero Tolerance

TOP

Kris Kobach

Chapters

Text Interview:

Highlight text to share it

The Creation of DACA

The post-“autopsy” time period.Immigration reform is a priority for Republicans, and we’re seeing the Gang of Eight brewing in the Senate.… And so Jeff Sessions, Steve Bannon, Stephen Miller are seeing what’s happening in the Senate, and they’re meeting over at the “Breitbart Embassy.”Are you talking to them around this time period?Are you around in the mix in 2013?

So I’ve known Stephen Miller for many, many years, and I was not—I don’t recall specifically having any meetings over at the Breitbart Embassy in 2013.What I was particularly involved in in 2012 and 2013 was litigation over DACA.In the summer of 2012, the Obama administration launched the Deferred Action on Childhood Arrivals policy, or DACA, and it violated multiple federal statutes and was also arguably unconstitutional.And so I represented the 10 ICE [Immigration and Customs Enforcement] agents who sued, which was extraordinary.I’m not aware of any prior case where you had a group of ICE agents suing their superiors for a policy that was forcing them to break the law.

So that was the focus of my activity in 2012 and 2013.And indeed, the district court judge at our preliminary injunction ruled that we were correct; that they were being asked to violate the law.The case then went up to the 5th Circuit, and we got a panel that found that our ICE agents did not have standing, which I disagree strongly with, but it depends on the roll of the dice which three judges you get.

Anyway, so that was—even though that was a specific legal battle, it had wide consequences and wide viewership.People around the country were noticing: “Hey, wait a minute.This DACA amnesty is something that ICE agents are saying is against the law?And a judge just ruled that it’s against the law?”And then right after that, in 2014, you had DAPA [Deferred Action for Parents of Americans and Lawful Permanent Residents], which was an expansion of the DACA amnesty for parents as well—again, a group of illegal aliens being given effectively amnesty; the federal government saying, “We’re not going to deport you; you can stay here,” getting a quasi-legal presence.

And in that case, enough concern and enough sense that there’s something legally wrong with this had developed so that you had states coming in as well.I think there was a lot of movement in the immigration issue on the legal side.Because of that step with DACA, which was clearly unconstitutional, clearly illegal—even Barack Obama said he didn’t have the authority to do anything before he ultimately did it in the 2012 election year—you had now states coming forward.ICE agents already came forward saying, “Look, this is against the law.”And I think that was a tidal shift in the political current, so to speak, where you have now not only law enforcement officers, but states lining up, suing on behalf of their attorneys general.

And actually, fast-forward to today, you’re seeing blue states on the other side trying to use the states as legal plaintiffs to challenge Trump administration policies.But really, if you go to the use of states to challenge executive branch policies in the federal government, it started with DACA and DAPA.In fact, we had the state of Mississippi as a co-plaintiff with the DACA suit.And that has become a prominent part now of immigration battles.There’s the battle in the executive branch or Congress to do something, whatever it is, and then the other side, in our case the pro-enforcement side, saying, “Hey, wait a minute; that violates the law,” and then states lining up, law enforcement officers lining up as plaintiffs to sue.

So the whole immigration debate has a judicial dimension now where it’s always been there, but now it’s how quickly can they get to the courthouse door, and which judge are they going to get, and which court are they going to?And there’s jurisdiction shopping especially, I believe, on the left, where they’re constantly going to San Francisco or to Hawaii to look for the most liberal judges they can find.And that’s now part of the struggle.

Stephen Miller and Jeff Sessions in the Senate

…But going back to this earlier time period, let me just ask you about Stephen Miller.You said you’ve known him for years.So do you remember when you first—

I don’t remember when I first met Stephen Miller, but Jeff Sessions’ office, when he was in the U.S. Senate, was an office that was populated with a lot of immigration experts.There were people there who had years of experience on Capitol Hill, knew the immigration issue inside and out.And I think if you ask people on both sides of the aisle on Capitol Hill which office had the greatest numbers of experts and specialists on this issue, people would say Sen. Sessions did.

So I knew people in Sen. Sessions’ staff for years, going all the way back to when I was chief adviser on immigration to Attorney General John Ashcroft.I had dealings with Sessions’ office back then.So I honestly can’t remember when I first met Miller.

That’s OK.But help me understand the position that they had on immigration.Jeff Sessions’ office at the time was a bit of a minority position within the party, no?

Yeah.Well, it depends on when we’re talking about, yeah.I mean, it’s hard to say where the party was.That was a time of flux, really, where you had conservatives, Jeff Sessions being one of the leaders in the Senate of the conservative contingent.You had pro-amnesty Republicans like Lindsey Graham and John McCain.You had other conservatives both in the House and in the Senate sort of lining up on the Sessions side.

So the Republican Party certainly had an internal battle going on in that period roughly between 2008 and 2015 or ’16.And I think Trump really did bring the tide of the battle strongly in favor of the pro-enforcement contingent within the party.So it’s hard to say who led the Republican Party on this issue.But in terms of one member of Congress who had an outsize influence, or just because of the staff around him, because of his personal concern for the issue, Jeff Sessions certainly stands out.

… And Steve Bannon around this time period, can you place him in this period?

You know, I actually did not meet Steve Bannon until a few years after this period, so I wouldn’t be the right person to ask.

Killing the “Gang of Eight” Bill

… But as opposition to the amnesty bill, do you remember remembering how Breitbart was covering this in a way that maybe other outlets weren’t?

Right.So when the Gang of Eight amnesty came up, that was really a moment of truth for a lot of Republicans.You had to decide where you were on this.For me, that was an easy decision.I was opposed to amnesty, and indeed I testified in the U.S. Senate against the amnesty bill.But there were many Republicans who, for whatever reason, were believing the argument that, oh, everybody just wants a big amnesty, and they all—and then this issue will go away.If you have an amnesty, no one will talk about illegal immigration anymore, and it will be off the table, which is, of course, a myth.It’s like the suggestion that the amnesty of 1986, the IRCA [Immigration Reform and Control Act] amnesty, if you just pass this amnesty, then immigration will be solved, and everybody will be able to move on to something else.

And so some Republicans, mainly ones who were not familiar with the issue, didn’t know the nitty-gritty of the policy and the history, they drank the Kool-Aid and thought: “Oh, yeah, I’ll just sign onto this amnesty.You’ve got a few Republicans who are in this Gang of Eight, and we’ll deal with the issue, and it will be off the table.”

So you had people buying that.And then you had, of course, conservatives and people like myself who have been studying this issue for decades knowing that if you have an amnesty, it will cause just another flood, another surge of illegal immigration, people coming in to fraudulently claim that amnesty as well as people coming in to claim the next amnesty, because nobody ever believes that this is the one and only amnesty.That’s what everyone was told in 1986, and of course people flooded in at that time…

And then we saw in the numbers a surge of additional illegal immigration in 1987, ’88, ’89 as people were coming in expecting the next amnesty.So anyway, there are so many reasons why those of us on the pro-enforcement side were saying: “Don’t do this.It’s not going to solve the problem, and there are all kinds of traps and problems with this bill.”

But it was a moment of truth for a lot of Republicans.They had to decide, were they going to go along with this so-called grand solution, which in my opinion created more problems than it solved?Or were they going to hold the line and say, “No, we need to enforce the law, and we need to secure the border before we even breathe the word ‘amnesty’ and have any discussion about that at all”?

… I was just thinking of [Sen.] Marco Rubio on the podium and speaking in Spanish, explaining the bill next to [Sen.] Chuck Schumer at the time.

There was a Newsweek cover with Marco Rubio on it, and it was in, I want to say 2013, and the title was something like, “The Republican Savior.”And it has a big picture of Rubio on the front.And then inside there’s an article about me, and it’s entitled “The Other Guy.”And the point—it just sort of encapsulates the pro-amnesty crowd was really pushing Rubio as this rising star, and amnesty was his policy; that he owned it, and he was going to make it happen.And then there were us other guys saying: “Hey, wait a minute.This is a bad idea, and here are some reasons why it’s empirically been a bad idea in the past.”

I think they called you fringe.I mean, they called this—

Yeah.That’s typically what happens, is the allies of the either open borders if it’s a far left group or a pro-amnesty coalition trying to create some grand bargain, they will always do that.They will say that the people who want us to enforce the law first, who say that DACA is illegal, those people are fringe.Well, I think people who want to abolish ICE are fringe.I think people who want open borders are fringe.

I mean, my point of view is look, let’s discuss the policy; let’s hear the best points of view on both sides; let’s have a vote or whatever, if it’s in the U.S. Senate or the House of Representatives.But let’s not call each other fringe or extremist.Let’s just put the facts on the table and decide what policy is best for the United States.And that’s the key.It’s got to be best for the United States.You know, our government owes a duty to us, its citizens, to protect us and to adopt policies that are in our interest.Our government does not have a duty to those outside of the United States to—I mean, obviously we have humanitarian concerns for everybody in the world, but in deciding what U.S. policy is, it’s got to be in the interest of American citizens.

Defeating Eric Cantor

Let me jump ahead to one of the early battles in this conversation we’re having, which is David Brat and the David Brat-[House Majority Leader Eric] Cantor race.So, curious to know when Brat comes on your radar, and then ultimately the message that that outcome sends to really everyone about this issue, about immigration.

Yeah, that was 2014, wasn’t it?

It was, yeah.

The David Brat insurgency campaign against Cantor was something that even I was surprised by.I knew that illegal immigration, taking a stand against illegal immigration can be a very potent political issue.And I’d seen races, political campaigns, over the period between 2000 and the Romney-Obama contest in 2012 where it was a potent issue, and was the deciding issue.

But the Dave Brat defeat of Eric Cantor was something that caught a lot of people by surprise, because, of course, Eric Cantor’s prominent position within the House caucus in Washington and usually the assumption is, well, the speaker, the majority leader, the whip, whoever, these are really highly elevated Republicans, and there’s no way they’re going to lose their seat to a primary challenger.

But immigration was the issue that brought down Cantor.And I think a lot of Republicans awakened rather abruptly and smelled the coffee and said: “Whoa, our constituents are here.They really want to enforce the law, and they are not interested in an amnesty.”And I believe the immigration issue was what brought Cantor down.

… So a lot of people were surprised by the outcome in the Cantor-Brat race.But there were already precursor races out there.This had happened before, where someone who was far and away supposed to win the race loses to an upstart dark-horse challenger who’s not supposed to win.And one of the best examples of that was in 2006 in the race for governor in Nebraska.In that case, you had Dave Heineman, who had been the lieutenant governor, and he had just recently been elevated to governor, but he’d never won a race for governor.And you had Tom Osborne, member of Congress, former coach of the Nebraska Cornhuskers.Walks on water in Nebraska.I know this because my in-laws lived in Nebraska at the time and were lifelong Nebraskans.And Tom Osborne would win his congressional seat races by huge margins, 75% plus.Loved by Nebraskans.

And so when he announced that he was running for governor against Dave Heineman, who didn’t have a great name ID, wasn’t as well known, the early polling showed Tom Osborne running away with the Republican primary.I mean, it wasn’t even close.And then in the closing months of the campaign, Tom Osborne says that he—there was a debate in the Nebraska Legislature over giving in-state tuition rates to illegal aliens, and Tom Osborne said that he was in favor of giving in-state tuition to illegal aliens.

The Heineman campaign jumps on that, starts running ads telling Nebraska: “Hey, here’s where Coach Osborne is on this issue.We take the opposite point of view.”And the polling just switched like that.You could see the line.Osborne tanks in the polls; Heineman climbs.My own in-laws were going to vote for Osborne.When they found out about this issue, then they switched to Heineman.And it was a perfect example—and then, of course, Heineman wins.It was a perfect example of how an immigration vote, a very narrow one, the issue of in-state tuition for illegal aliens, completely upset the governor’s race and took out someone who it’s hard to overstate what a big deal Tom Osborne was in Nebraska.I mean, the guy is a living legend and would win political races by massive margins, but then he loses on the immigration issue.So I think that race and that result presaged what would happen in 2014 to Eric Cantor.

The Trump Campaign

…So let’s just jump to candidate Trump’s announcement in Trump Tower.That speech—you’re watching it.What do you think about the way in which immigration is central to that period and that moment?

When Trump declared his candidacy, that gained my interest right away.In addition to the fact that he seemed to really believe in it, in taking a pro-law enforcement position, he has that certain something, that charisma, that is usually required to get a presidential candidate over the finish line.I had the theory about presidential elections—I’m sure it’s not my own, but I’ll call it my own for now.

My theory is this: that if you look at every presidential election in the television age, so going all the way back to Nixon-Kennedy in 1960, the person who wins the race is the one that most people would rather sit down and have a beer with.It’s just a—it can be a likability charisma; it can be a star-power charisma.But whatever it is, the person who’s more charismatic and more likable wins the race.

And when Trump came down that escalator and announced that he was taking a strong position against illegal immigration and he was running for president, that got me thinking, wow, if he really is committed to holding the line like he says he is, I see him moving to the front of this field very quickly, which he did.

Yeah, the traction with that messaging was pretty instantaneous.

Uh-huh, uh-huh.

In the next two weeks, he’s getting an incredible turnout at rallies.

Yeah.And, you know, he has the star power and the charisma that others who have tried to carry the message didn’t have.You know, for example, Tom Tancredo, great friend of mine.I love Tom.He’s a wonderful member of Congress.You know, he tried to capture that issue and use that as the centerpiece of his presidential campaign a few years earlier, but he didn’t quite have Trump’s star power coming onto the scene.

So you have Trump taking a Tancredo-esque message, but then combining it with Trump’s own charisma, and it was a potent combination.

And the message that the base is hearing?

At that time?

Yeah, on immigration?

Well, I think one of the things that really—not surprised me.One of the things that I noticed about Trump’s rallies is the chanting of “Build the wall, build the wall.”You know, it was just amazing how that animated the crowds.

And then the other thing I noticed, the first rally I attended was in Manchester, New Hampshire, on the eve of the primary.And I noticed in the audience, there were a lot of people in the audience who didn’t look like typical Republican activists, you know?The typical Republican activist is, I don’t know, median age of like, what, 58 or 60; you know, very nicely dressed and whatever.That was the sort of past pattern.

Here you had lots of people who, you know, had longer hair, were young, didn’t look like people who spent a lot of time going to Republican meetings or something.And they were there in the assembly in this giant auditorium, and they were chanting, “Build the wall, build the wall.”And they were clearly animated.So that told me also that something was going on where the base was expanding and people were taking an interest in this candidate who—and they might not have taken an interest in somebody else, somebody who was more of a garden-variety politician.So there was something happening, and I could see it in a very visceral, ground-level view looking at these rallies.

… Miller joins the campaign and starts writing speeches.Do you remember when he came on?

Yeah.I remember hearing that and being very encouraged, because I was trying to convince myself, ascertain for sure—during a campaign, you’ll hear politicians make promises, right?I mean, that’s kind of the thing, political promises, right?And is the politician going to stick to it?Is he really 100% committed?Because on the immigration issue, you know, those of us who believe in enforcement, we’ve been burned before.We have a politician say, “Yes, I’m for a secure border, and we must not reward law-breaking,” and then that same politician turns around and says, “Amnesty’s a great idea.”

I wanted to make sure that then-candidate Trump was really as strongly committed to enforcement on immigration as his speeches were suggesting that he was, and one of the moves that signaled to me, yeah, he’s serious, is when he brought Stephen Miller on board.And then, of course, I subsequently had a chance to meet his son and then meet the president himself, then-candidate Trump himself, and have that eyeball-to-eyeball conversation where you can assess is someone really serious, and it became quite clear to me that he was really serious.

And at that point I thought, wow, we’ve got a potent combination.We’ve got a presidential candidate who really gets it, and he has people around him who can keep him really well apprised of the policy points and why his gut instinct is correct.And then you have a candidate who’s got that charisma, got that certain something and has star power.And at that point, I became very, very optimistic.

The Trump Transition

… And pretty early, I imagine, you’re reached out to by the soon-to-be administration, the transition team. Do you hear from Stephen Miller? Do you hear from Steve Bannon around this time?

… So I met with the president roughly a week or two after the election at [Trump National Golf Club in] Bedminster, [New Jersey].And, of course, the members of the team, core members of the team were there.Steve Miller was there; Steve Bannon was there; the vice president was there, and others.And Reince Priebus, who had already been chosen as chief of staff, was there.And they were selecting Cabinet members, selecting other members of the administration.And it was heartening to see that they were doing so with a focus on immigration being front and center.

They were ready to work?

Yeah.And I’d already been on the transition team.One thing I learned that—this was the first transition team I’d been part of—is that the transition team begins working not on Election Day; the transition team begins working months before Election Day in the hope that the candidate will win.So I’d already been involved with members of the transition team and was on the official immigration policy group for months before that point.So we knew within the immigration policy group that, yeah, this president was serious, and we were going to need to be drafting, you know, executive actions that could be taken quickly before Congress does anything, as well as looking at, down the road, at possible actions that would require statutory change.

Was DACA coming up around this time period?

Oh, yeah, absolutely.… DACA was front and center, because DACA had been put in place illegally through executive action in the Obama administration, and many of us were hopeful DACA would be rescinded fairly quickly after Trump took office.

There were certainly a lot of experts on the issue within that group that you describe—

Yeah.

—who, back in ’14, as we were talking about—are watching these EOs be approved.

Yes.And actually, it wasn’t even an executive order.DACA and DAPA were done with policy memoranda, which is a step even below executive order.DACA was announced by Janet Napolitano as a sort of policy directive about how we were going to proceed and not enforce the law against these individuals, and then DAPA was an amendment to that policy memoranda [sic].So an executive order is an official order promulgated by the president.It’s got a number on it.DACA and DAPA were just, “Hey, let’s slide this out there and see what happens.”

And here’s an opportunity to do something.And yet it isn’t taken up in those early days.We can talk about the travel ban if you want, but travel ban dominates a little bit of that time period.But I imagine you were pretty frustrated that that EO isn’t—doesn’t happen.

And it wouldn’t have had to be an executive order.But certainly many of us were frustrated in the early months of the Trump administration that the rescission of DACA wasn’t happening quickly enough.And frankly, I still don’t know the answers to why that didn’t happen quickly enough.It was probably something to do with the fact that the new Department of Homeland Security under Secretary [John] Kelly was getting up and running, and they were finding their footing and still trying to staff up the agency.But whatever the reason, yeah, we would have wanted to see that happen sooner.

Do you remember frustrations that Bannon had around that time period?

You know, you’d have to talk to him.I’m sure I did talk with him.I’m certain I talked with him about the DACA issue.Let me just think for a moment.I can say this: I can remember some of the conversations.I know that in the early months of the administration, certainly Steve Bannon and Stephen Miller wanted to see movement on the DACA issue, wanted to see it rescinded.And there were different forces within the Trump White House pushing and pulling one direction or the other.

But I know that certainly those two were pushing to make sure the president took this action to remove an illegal and unconstitutional step that President Obama had taken.So I know there was an internal struggle in the White House as to the timing of it.and I certainly had talked with Bannon and Miller about that.But I don’t know the nitty-gritty of who was meeting with the president and saying what at what time.But I certainly advised the president, in my discussions with him—I was meeting with him fairly regularly and continue to meet with him fairly regularly, and I was, you know, emphasizing to him that this needed to be done, that DACA was a violation of federal statute.

At that point, you’d had multiple federal courts rule, and certainly gotten through the 5th Circuit, I believe, by that point, and was headed to the Supreme Court if my memory serves.But at any rate, you had district courts, multiple district courts ruling that DACA was illegal, and you had—for various reasons.The DACA ruling that we got on preliminary injunction in the Northern District of Texas was on—it was illegal because it violated a federal statute that required ICE agents to keep in detention and start processing for removal anyone they know is here illegally.And DACA was telling those ICE agents: “Ignore that federal law.You can just turn these people loose.”

Then there was a subsequent lawsuit on DAPA, and that judge in the Southern District of Texas ruled on a completely different statutory grounds that it violated the Administrative Procedure Act.So you had multiple judges on multiple statutory grounds saying DACA and DAPA are illegal, and I was making sure the president was aware of that.It was clear the president was going to take action; the question was when.

A Delay in Ending DACA

…Why don’t you tell me about generally what the debates are at this time period?So this is summer of ’17, and the—I don’t want to call it an EO, but the EO that maybe we thought was going to happen related to DACA has not happened.There’s concerns about whether this program will continue.This is before any kind of deadlines are set.But this is a period of what should we do and how should we do it.

There was concern at that period—there was concern in the summer of 2017, both inside the White House and outside the White House, of what’s the delay for?Why?Everybody knows that DACA and DAPA are illegal.You’ve got multiple federal judges who have already ruled that.And the question is why is there now a delay in rescinding these executive actions that had been taken by the Obama administration?

The ultimate answer there, I’m still not sure of, you know, what the timing—what ultimately pushed the issue to finally where the president announced action on it.But I know that many of us on the outside—I wasn’t in the administration at that point in a full-time position; I was helping the president on the task force on election integrity, the Presidential [Advisory] Commission on Election Integrity.

But certainly many people were saying, “Hey, what’s going on here,” right?Many state leaders were saying, “What’s going on here?”The states had successfully sued and were still in litigation over DAPA and were wondering: “OK, what’s the holdup here?Now we have a president who agrees with us on this issue.”And ultimately the decision was made.But the delay did have a lot of people scratching their heads, wondering: “Well, why wait so long?Everybody knows what the correct answer is here.”

Well, I imagine to Stephen Miller, Steve Bannon, Jeff Sessions, here we are really at sort of the levers of power and our hands seem to be tied.What’s going on?

You know, I think it’s true for any president, though.When you come in, the new president has a whole checklist of things to do.But oftentimes, there are agencies … where there are all kinds of bureaucratic hurdles that the bureaucrats will insist have to be traveled over before you can get to the end.

And so things move frustratingly slowly for any new president.I think the assumption is you come in, you deliver an order, and it happens the next day, or if not sooner.And oftentimes that’s not how it works.And so I think there was frustration, understandable for any president when you come in thinking that things that don’t require congressional action can be done immediately,and they don’t end up happening immediately.

Now, I personally believe, though, that you can still make things happen quickly, and things should have happened faster.But they did happen eventually.And I think in any presidency, the frustration with the friction caused by the bureaucratic state—some of it willful, some of the people in the bureaucracy wanting to slow down this president that they disagree with; some of it not willful; some of it just that’s the way the slow machines of bureaucracy work.But that was frustrating to a lot of people both in the administration and on the outside of the administration.

Ending DACA

You and Steve Bannon have some conversations about attorneys general, and maybe the debate we’ve been talking about is what can be done at the state level.Can you tell us a little bit about that?

… Yeah.So, I mean, the states’ attorneys general on the Republican side, on the pro-enforcement side, had made a big difference on the DAPA litigation.And so there was a letter that was sent in—you probably know the date.Do you know?

It was June.I don’t know the exact date.

June?All right.You know, one of the things that helped push the debate was a letter sent by the state attorneys general who had been prevailing and winning in court saying DAPA is illegal, and that letter saying: “Hey, we’re trying to decide what to do here.We have to proceed with our litigation, but if there isn’t action quickly on DACA and DAPA, then we will continue on our present course.”And the tone of the letter was we didn’t think we’d be here at this point.We thought that DACA and DAPA would both be rescinded by now.

But that was certainly a prominent point in the whole discussion where these are states—these are co-equal sovereigns—telling the executive branch: “Hey, we just won in court.We have the high legal ground.We are going to win again if we continue litigating.Why hasn’t this changed?”And so I think that was an important piece of the puzzle, or an important shift in the landscape that helped move the administration.

And I imagine in some ways it forces action?

Yeah, absolutely it does.And certainly Jeff Sessions, an attorney and someone who knew immigration law very well, I’m sure that that got his attention, because of course the United States would be a party in any litigation.And he had already made clear the correct legal position that would subsequently be echoed by the judges who heard the cases; that look, this is illegal, and the executive branch cannot continue down this illegal policy course.

And it also aligns with his position on DACA prior to this?

Yeah.I mean, the DACA legal case is not—was not a hard one to win; it really wasn’t.Like I said, you had multiple statutes that were violated by the DACA and DAPA policy directives.It wasn’t just one statute, and it wasn’t a close question.I mean, these were pretty easy victories when you look at the statutory language.As a lawyer who’s litigated immigration law cases that are not as easy where there’s a gray area and a statute—you know, you could look at it two different ways.

But these were pretty clear.When I first looked at DACA and looked at the legal problems with it, I thought—and this is way back in late June of 2012—you know, I thought, this isn’t going to be a hard case to win.I mean, you can always end up getting a panel that is going to find some way to rule against you, but even there, you looked at this, and it was like, “The law is clearly being violated here in multiple ways.”And Jeff Sessions knew that.So in a situation like that, where you’ve got an attorney general who knows the law, knows that the Obama executive actions were illegal, you had Obama on tape, on video, saying so many times, “I can’t do this; it would be against the law,” and then he goes ahead and does it anyway, it was just a matter of time before the Trump administration corrected the illegal wrong that had been done with DACA and DAPA.

… Some folks had said there was coordination between the state and the feds prior to some of the public announcements.

If there was, I’m not aware of it.I think there was—I wouldn’t say coordination, but I think everybody in Washington knew that the states were about to restart litigation, and the letter just confirmed what everybody already knew.But I don’t think it was coordinated.

That’s helpful to have the clarity.And I think you’re right.If everyone is on one side of the issue and talking pretty regularly about it—

Yeah, it was no secret that the states were, “OK, what are we going to do next?”And so anybody who’s even remotely familiar with the issue would know that the states were having to make that decision.The arrival of the letter was just sort of stating the obvious discussion that had been going on.

… Ultimately Sessions makes the announcement about DACA and the deadline.You’re watching that speech?Do you remember this?

Yeah, I definitely watched it.I don’t know if I watched it live, but I watched the—

That’s OK, but the signal that it’s sending.Here is the formal announcement’s coming.

You know, it was a sense of relief for those of us on this issue who had been laboring since June of 2012 to try to stop this illegal executive action, a sense of relief.I still remember being a little bit—not unhappy, but still wondering why the delay, because, of course, when it was announced, it was announced it would be a slow rescission, not an immediate one.And of course, as a lawyer, you can understand the political reasons why they’re trying to mitigate the change of course, but as a lawyer you’re saying: “Wait a minute.The federal government is breaking the law.You don’t say: ‘Well, we’re going to slowly stop breaking the law.

We’re going to keep breaking the law for a little while longer, and then we’ll eventually stop.’” So I remember being a little bit frustrated that even at that point, it wasn’t a, “OK, this was illegal; we’re stopping now.”Everything was being done in slow motion.

Let me ask you about a White House meeting that happens in January.So this is—I mean, we all saw it because it was televised.

January of?

This is January 9 of ’18.So this is the meeting where it’s a bipartisan group from the Hill that’s come over to talk about the immigration deal.And at the moment, the president is saying in the meeting, “Send me what you’ve got; I’ll take the heat.” [Rep.] Kevin McCarthy is in that meeting, sort of says, “Whoa, you may not want to say those things. …The Democrats leave that meeting, and two days later, Sen. [Dick] Durbin and Sen. Graham are called by the president, to which he says: “Come on up with your bill.I’m ready to do something.”They go up to the White House, and they’re met with another group that’s also come from the Hill, which is Sen. [Tom] Cotton, [Rep. Robert] Goodlatte.There is a different sort of group of people that have kind of beat them to that meeting.… I’m curious if you’re sort of hearing about this or seeing it and wondering what’s going on.

So I wasn’t in the mix setting up these meetings or whatever, asking for meetings or anything like that, but I do remember when the president first expressed an openness to maybe putting a DACA amnesty on the table in exchange for whatever.My immediate thought was, whoa, wait a minute.If you’re going to give an amnesty, that is going to cause all kinds of negative repercussions for American policy.It’s going to hurt American workers; it’s going to encourage another surge of illegal immigration.So if you’re going to give that much, Mr. President, you have to get everything you want on the other side.You have to get full funding for the full wall.You have to get E-Verify mandatory nationally.Right now it’s just made mandatory by some state governments.You have to get the end of chain migration.You have to get all of the elements of the RAISE [Reforming American Immigration for Strong Employment] Act that Sen. Cotton had put forth, and more.

In other words, you would be giving up the crown jewel that the open-border side wants, and to do so just for some extra border funding or some extra wall money, that is not a deal you want to cut.So I remember thinking, you know, that’s the suggestion that we might be willing to offer an amnesty, a DACA amnesty, which, again, is bad policy, without a statement of, “But we’re going to have to get the entire Christmas list over on this side,” was a little bit jarring to many people.And I think that was reflected in how conservatives and pro-enforcement people on Capitol Hill reacted as well.

Zero Tolerance and Family Separation

… So let’s go to “zero tolerance,” which is announced on May 7.

2018, right?

Yeah.

… And there was talk initially that the president would make the announcement.He decides not to, and Sessions is now doing it.

Yeah.So this is one of the times where Sessions steps forward and does what the attorney general has the authority to do, and that is—people often think of the Department of Homeland Security being the home of all immigration policy, but there’s a lot of authority left in the Attorney General’s Office.Indeed, I was in the Attorney General’s Office from 2001 to 2003 when the statute was being drafted to create the Department of Homeland Security, and I was in those discussions way back in 2002, 2003 about, “OK, how much authority do we leave in the Attorney General’s Office?”

And I remember arguing as strongly as I could that you need to keep authority in the office of the attorney general for a number of reasons.But one is that the attorney general will always be a law enforcement-oriented agency, and the attorney general will always have an interest in enforcing and prosecuting.And so there are several things that—one of the things that we kept in the Attorney General’s Office when that bill was being drafted was the immigration judges, and that there were a number of the immigration judges had done well under the attorney general prior to the creation of the Department of Homeland Security.There was a good argument to be made that if you’re going to have an immigration court system, you shouldn’t have both the prosecutors and the judges coming from the same agency if you’re going to make a change.

Put Jeff Sessions into this, because he understands this system that you’re describing, and he doesn’t sit back.Early in the administration, he’s doing what?

Yeah, so Jeff Sessions is using the authority that was retained in the attorney general’s office after the creation of the Department of Homeland Security in 2003, and he recognizes he’s got a lot of levers that he can pull.He’s got a lot of tools that he can use to move the ball forward.

… And the Department of Justice is going to be, will always be, a strong player on immigration enforcement, because ultimately, when it comes to prosecutions, that’s done by the Department of Justice, not by the Department of Homeland Security, which is doing removals.

And Jeff Sessions comes forward and says, hey, this is going to be a priority for us in our prosecutions; that we are going to devote resources to prosecuting the multiple immigration felonies that go along with human trafficking, just bringing aliens into the country, the drug trafficking that usually done in coordination.The cartels will coordinate their human trafficking so that it focuses the attention of federal law enforcement, and then while the human trafficking is occurring here, the drug trafficking is coordinated to occur at the same time so that they won’t be intercepted.

And Sessions knows this, and knows that in order to use all the tools at the disposal of the federal government, you’ve got to have prosecution, and you’ve got to have prosecution of even the small crimes, the small immigration crimes.There are the big immigration crimes, which are people who are coordinating sex trafficking and committing these horrible abuses of the human rights of female migrants, and you’ve got the massive drug trafficking.But you also have the smaller crimes, where you have the illegal alien who goes in and out of the United States like a revolving door and is prosecuted, is removed multiple times, whatever, but keeps on coming in.Eventually you have to prosecute that individual and say, “No, you’re making a mockery of the rule of law.”

So Jeff Sessions sends a powerful message that, “Hey, we’re going to be using the resources of the Department of Justice as well.”

Backlash to Family Separation

… So the coverage, though, is maybe—it comes fast, and it comes hard at the administration.And the president is watching this.He’s not liking what he sees, obviously.But ultimately at this period, what do you think?Jeff Sessions around this time period is also out defending the policy.Kirstjen Nielsen at one point goes out into the White House press briefing and answers questions and says, “This is not a deterrent.”It appears to be kind of a mess.Is that what you’re seeing?

Well, you’re seeing, again, something that’s been present in the Trump administration from the start, and that is that there is a battle within the White House, a battle within the administration, on a whole host of issues, whether it’s DACA, whether it’s zero tolerance, whether it’s the executive orders on restricting travel at the beginning.There is a contingent that wants to soft-pedal it and wants to not do anything to upset the—to rock the boat too much.And that contingent is usually—has the benefit of media coverage, which will oftentimes exaggerate or distort what’s actually happening on the ground.

I mean, remember, if you talk about the human impact of illegal immigration, unquestionably the people who suffer the most are the young women who are abused by the cartels as they’re trafficking.And if the cartels can traffic with impunity, without being prosecuted, and there is this sense that, well, you might get caught and you might get removed by the Border Patrol, but certainly you’re not going to do any jail time, then the ultimate suffering by these young women who are molested and then are forced into sex slavery in the United States, that’s going to continue.

…But if that image isn’t showing in the media, and instead you have an image of somebody crying because somebody’s been arrested, it’s amazing how images can distort and twist and push a narrative, and oftentimes push it incorrectly, meaning inaccurately.A story’s being told that’s not actually accurate.

You know, perfect example is a children-in-cages story.The wire separation in these temporary facilities for detaining people were there for the children’s safety, because you don’t detain young adult males in the same section that you detain family units, and certainly unaccompanied minors.And so these facilities had all kinds of fences separating different groups.But that story is not told.The story is of an image that appears to be just children being detained.And again, these pictures are used to manipulate the public, and sometimes they’re used to manipulate decision makers.

The president is sort of seeing that coverage and acts; he ends the program.Any frustration as you watch that happen?

I was not in the—on the inside when all of that was happening.I think it’s an example of how the politics and the policy of immigration, they’re constantly mixing, because immigration is one of those issues where it’s legally complex.The policy questions are complex.There’s a long, empirical history here.Those of us who have been studying this issue for decades know exactly what’s going to happen if you send this message to the incoming migrants and to the cartels versus sending that message.

And sometimes it’s frustrating to see a correct policy being abandoned because somebody does a good job of manipulating a few images and doesn’t put the whole set of facts out there.So there’s always frustration on the immigration issue when you see a correct position being distorted and when you see the human suffering of the migrants who are being abused by the cartels.And the only solution there is to stop the cartels from bringing them.And that means you have to enforce the law.

When you see their suffering being ignored and suffering being exaggerated just to achieve a political gain, ultimately the suffering continues.As long as that border is open, the suffering will continue by the young women manipulated by the cartels and by the other people manipulated by the cartels.And that story too often is not told.

Changes in Leadership

….I’m going to jump ahead a little bit.So the DHS purge that happens after this time period.So now in spring—

April ’19?

Exactly, end of March.You’re on Lou Dobbs end of March, and you’re pretty intense about your feelings about the status of DHS at that time period and what it’s doing for this White House.Can you tell me a little bit about your feelings?

… So between October of 2018 and March or April of 2019, we have seen a massive surge of caravans and smaller groups of migrants that in total, in this time period, is over half a million, well over half a million.And then you see numbers in April of 100,000 people coming in illegally across the border in one month alone.And then that would later be followed by more months of 100,000-plus.

And the frustration level is very high among those of us who realize there are solutions to this.It doesn’t take Congress acting, and one of the things that Secretary Nielsen was saying quite frequently was: “You know, it’s up to Congress.We need congressional action to solve this problem.”And many of us are saying, “Well, yeah, congressional action would be great, but there are some things you can do right now in the executive branch that aren’t getting done.”

And so for many people, the inaction in the Department of Homeland Security was becoming a problem, and many of us are saying, “Hey, look, Secretary Nielsen’s got to act, or somebody’s got to be put in there who will act.”

From the outside, it seems as though, wait, aren’t they all sort of aligned?Isn’t this administration totally aligned?You’re seeing something very different.

Well, what I’m seeing are, in this time period, in the winter and spring of 2019, I have been speaking with the president, and I can tell the president is clearly wanting to take action and take action quickly.But then something is happening between when the president says something, and then a couple months later, something still hasn’t happened.

And so I think there was a frustration on the outside knowing where President Trump stands on the issue and then on the inside as well, frustration with the Department of Homeland Security not moving quickly enough on a whole host of issues.There were things that could be done to stop the abuse of the asylum system, and I think everybody on both sides of the political aisle recognizes, if they’re being honest, that yeah, the asylum laws are being abused.People who do not qualify for asylum under the international definition, under definitions provided by U.S. courts, are claiming asylum, and they’re being told, “Hey, come back,” not in six months.“Come back in six years to have your clearly bogus asylum claim adjudicated.And guess what?Here’s a work permit for those next six years that you just got by coming in illegally and making a bogus asylum claim.”

And this is a big problem.And so there were some things the executive branch could do immediately to put the brakes on this abuse of our asylum system, because there are legitimate asylum seekers out there who deserve asylum and should get asylum under our laws.But they were a tiny fraction, maybe 5% of the flow of people coming in and seeking asylum.But 95% are making bogus asylum claims that you can see—as soon as you see the transcript of what the person making the claim says, you can tell this is not a legitimate asylum claim.It doesn’t meet the legal standard for asylum.

And so there were things the executive branch could do to slow that down, and they weren’t being done.There were things that the executive branch could do to discourage the use of children as pawns.And the abuse of children by the cartels and by individual migrants is startling.I mean, it’s happening right now in migrant facilities where they’re being held in Tijuana.There are cartels and individuals trolling in the facilities trying to buy children or rent children and purchase the children and take them away from their family so they can be used as human Get Out of Jail Free cards for other groups that the cartels are bringing in.

I mean, the kids are being bought and sold, rented, used, abused and purchased.I mean, human beings are being purchased by these cartels to get other groups of people across the border and get them out of detention.And there were executive actions that should have been taken very early on.Should have been taken in 2018, even 2017.And here we were in the spring of 2019, and these obvious steps still hadn’t been taken.

And I imagine Stephen Miller is pretty frustrated around this time period?

Absolutely, yeah.

Are you talking to him?

Yeah.Talked to Miller, talked to the president, talked to a number of people in the administration.

Who just sort of feel what at the time period?

There is this just overwhelming frustration that you’ve got a wave after wave after wave of illegal immigration coming in, much of it in the caravans—and caravans get a lot of media notice because they’re so huge—but a lot of it just in nightly apprehensions through some of the bigger gaps in the border, and of frustration that, “Hey, look, this is going to be on the president’s watch,” right?I mean, this is President Trump who came in and wants to stop illegal immigration, and his own agency is falling short.And so there was a sense that, “Hey, something’s got to happen here.”

The 2020 Election

Looking into 2020, we just are giving a report card for this administration on immigration.What’s your feeling?

The administration definitely gets an A for effort.I mean, the president is clearly wanting to do everything he can to enforce the immigration laws and to secure the border.So there’s no question the president gets an A for effort, if not an A-plus for effort.The execution?Some of it is excellent, and the president’s orders are being carried out very well.In other areas, it’s delayed, and so the report card might show a lower grade because the assignment didn’t get it done on time.

But clearly the Trump administration absolutely gets an A for attempting to do everything it can.But, you know, Congress doesn’t provide the resources to build as quickly and as completely as should be done on the border.The statutory changes that would fix many of these asylum loopholes aren’t being done.The Democrats in Congress are holding them hostage and saying—and this has been done long before President Trump, this technique of taking a reasonable change, like fixing an abusive asylum law that many Democrats would agree and say, you know, if you ask them in an interview they would say, “Yeah, that’s not how our asylum law’s supposed to operate,” but instead of saying, “OK, let’s pass this small fix,” and we all agree that if you put this fix to a vote, the majority of Republicans and the majority of Democrats are going to vote for it, what they will do on the left side is say: “No, we’re going to hold that hostage.The Republicans really want it.President Trump really wants that fix, and even though we would vote for it, too, we’re going to say no.We’re going to hold that hostage until you give us an amnesty.”That’s been done for a long time, and that certainly has been done repeatedly by Democrats during the Trump administration.And that’s a source of frustration.

So you can’t ultimately say that the president is responsible for the failure of Congress to pass something.Ultimately, responsibility lies in Congress for both—on the shoulders of both Republicans and Democrats for not being able to move these very sensible and largely popular fixes through Congress.

Latest Interviews

Get our Newsletter

Stay Connected

Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation

Koo and Patricia Yuen

Funding for FRONTLINE is provided through the support of PBS viewers and by the Corporation for Public Broadcasting, with major support from Ford Foundation. Additional funding is provided the Abrams Foundation, Park Foundation, John D. and Catherine T. MacArthur Foundation, Heising-Simons Foundation, and the FRONTLINE Trust, with major support from Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation, and additional support from Koo and Patricia Yuen. FRONTLINE is a registered trademark of WGBH Educational Foundation. Web Site Copyright ©1995-2025 WGBH Educational Foundation. PBS is a 501(c)(3) not-for-profit organization.