The FRONTLINE Interviews

David Lapan

Former Deputy Assistant Secretary for Media Operations, Department of Homeland Security

David Lapan is the vice president of communications for the Bipartisan Policy Center. Lapan previously served as press secretary and deputy assistant secretary for media operations for the Department of Homeland Security in 2017.

This is a transcript of an interview with FRONTLINE’s Jim Gilmore conducted on June 19, 2019. It has been edited for clarity and length.

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Zero Tolerance

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John Kelly

David, let’s begin with Gen. [John] Kelly, to begin with.Why does Trump bring him on to head DHS [Department of Homeland Security]?Who is he?What’s just generally his bio?

So a couple of things in terms of why I think the president brought him aboard.Two.Early on, there was a lot of attention paid to the fact that the president liked generals, and Secretary [of Defense James] Mattis, you know, Marine general; Secretary Kelly, Marine general; well—well, Mike Flynn, an Army general for the time that he was there at the beginning of the administration.

So one, I think the president was attracted to senior military leaders like generals.But two, specifically for Homeland Security, I think it was Gen. Kelly’s experience at U.S. Southern Command.So he was the commander of U.S. Southern Command just prior to his retirement from the Marine Corps.And his ascension into the Trump administration came only about a year later, so he had not been that long retired out of the job when he took the position.

So not only do I think that that helped attract the president to Gen. Kelly, Secretary Kelly, but I think that experience also served Gen. Kelly well in the role of secretary of homeland security.

What was his overview on the issue of immigration?You know, everybody who would have taken that position would have understood just how important an issue it was.It was—it was—you know, the campaign was all about it oftentimes…What was his attitude about immigration?What was his attitude—how did it click with what the Trump administration was pursuing?

Well, again, it was very clear that the president’s interest, as, you know, a candidate, was very clearly focused on immigration.I don’t think that Gen. Kelly understood sort of the complexities of our immigration system.Those are things that he learned on the job.What he did clearly understand was this flow coming from Central America and South America because of his time at U.S. Southern Command.So he understood the factors in the Northern Triangle countries [Guatemala, Honduras and El Salvador], for example.He understood the factors in Mexico.He understood what we call the pull factors of why people were coming.So he understood the region very well.He had lots of close connections personally and professionally in the region.So in those ways, he was very well suited.

But when it got to the intricacies of our immigration system and immigration law, I think you’d be hard-pressed to find anyone who is very well versed in that.In fact, there was a time that he would kind of joke with some of the staff when they would bring up these elements of the law and refer to them by their numbers or by the letters associated with the Immigration and Naturalization Act, and he’d say, “Oh, yeah, you know, Section 238B, of course,” kind of joking, because it was getting him into the intricacies of the immigration law in a much more minute detail than he had.But he had a broad understanding, again, of the factors that were driving illegal immigration.

Was that sort of lack of education in the intricacies of the law, was that pretty normal amongst the people in the Trump administration that were dealing with these issues?

Certainly at that level.There were members of the staff and ones who came to Homeland Security early on, as well as obviously Stephen Miller in the White House, that did from their Capitol Hill experience have a better understanding of some of those intricacies.And then clearly you had people like Kevin McAleenan, who at that time was the acting commissioner of Customs and Border Protection, who had grown up in CBP.So many of the career and—and remember, both Kevin McAleenan in Customs and Border Protection and Tom Homan at ICE [Immigration and Customs Enforcement] had grown up in those agencies, so they were able to provide a level of support and advice to the new secretary about the intricacies that he wouldn’t necessarily come into the job with.

Stephen Miller

Lay out Stephen Miller’s role for me.Complicated guy, young guy, certainly had the president’s trust and had been with him in the campaign, was a very important part of the campaign.Basically runs his sort of, for the White House, the issue on immigration.Who was he?Did you deal with him much?What was he like?What’s your overview of Stephen?

I dealt with him a little.I attended meetings with him, had communication with him and other members of his staff and the Domestic Policy Council.You know, my impression is similar to what others have said.He has a very high opinion of himself.He can be pretty cocky.In one of the meetings, I remember him talking about being sort of the only person that predicted that the president was going to win the election and that, you know, people should have listened to him.

So he tends to be very headstrong.He tends to have very, I’d say, defined views of things.He doesn’t seem to be someone who’s open to persuasion to look at other aspects of it.I think he has pretty strongly held views.And in that way, I think he’s been able to influence the president.Remember, he came from Sen.[Jeff] Sessions’ staff on the Hill, along with Gene Hamilton and some others, who did have a pretty good understanding of the immigration system because of their time in the—in the Senate.

Jeff Sessions

So lay out for Attorney General Sessions the important role that he—that he played, how his goals when he came—I mean, not only did the president have an agenda on immigration, but certainly Sen. Sessions did.He was involved in this thing for a decade or more, dealing with it.What were his goals?How did he come across, and what important role [did] he play?

So I think he played what most people would think was an outsize role.If you look at prior administrations and prior attorneys general, Attorney General Sessions, again, because of his experience at the Senate with a focus on immigration, got very involved in the immigration issue from his perch as the attorney general.I had reporters frequently comment on the fact that they’d never seen an attorney general so intimately involved in what was mostly the Homeland Security mission.

Now, the issue of sanctuary cities, which is something the president made a major point, is clearly in the realm of what the attorney general does, some of the interior enforcement, those aspects of it, but the level to which he got involved in what would normally be the purview of the secretary.

Now, I will say that in the president’s executive orders in late January of 2017, two of them on immigration contained both direction to the secretary of homeland security as well as to the attorney general.So there were things that the president was directing that the attorney general do.But again, it had to do a lot with sanctuary cities and with enforcement of immigration law, and less about the border itself.

Immigration Leadership in the White House

So you’ve got in very important positions Sessions, Miller, [Steve] Bannon in the White House.… You’ve got a goal to deal with immigration in very dramatic ways, to change the system completely from what it was.How did it—how did those three guys—because we’re following each of them because they play such an important role—how did that triumvirate of folks that had very strong and similar feelings about immigration issues that had together had worked to bring down the 2013-2014 Gang of Eight reform bill, how did that change this administration?How did it affect this administration?

Well, a few things.I think that Steve Bannon’s role was much more broadly seen across.He didn’t, again, have that background and experience in immigration the way that the others did.The other individual, again, from a different perspective in that he didn’t have that sort of depth in immigration specifically was Tom Bossert.Remember, he’s the Homeland Security adviser.So Tom’s role in all things Homeland Security had to include the immigration piece as well.

So you have a secretary of homeland security in Secretary Kelly.You have Gene Hamilton as an adviser within Homeland Security.You have the career people that I mentioned that are in positions.You have Stephen Miller; you’ve got the attorney general; you’ve got Tom Bossert.So you have a lot of people, some with more granular understanding of immigration law and the intricacy of the immigration system, and others like Steve Bannon that were just looking for a broader, you know, kind of what the president is trying to achieve with certain policies and leaving the details to Stephen Miller, for example.

So in some ways, that created a lot of tension within the inner agency, as we say, because you have people in the White House, you have people in the Justice Department, you have people in Homeland Security, and then if you roll in the State Department, which also had a role, and Secretary [Rex] Tillerson at the time and his staff that are involved in refugee matters in diplomatic communications with Mexico and the Northern Triangle countries, so you have a lot of very senior and strong personalities all coming at the immigration issue from different perspectives.

And who took the lead?

I think while Secretary Kelly was there, he took the lead.I think that the attorney general was able to push a bit from his end, again, on the certain topics.And Stephen Miller certainly played that insider role of while he may not have had the power or the authority of the secretary and the attorney general, he, as you said, had the ear of the president and was able to maneuver behind the scenes with things, rather than having the secretary of state and the secretary of homeland security and the attorney general being the ones involved in the minutiae of things like executive orders and policies.

The Trump Transition and the Travel Ban

So the executive orders.You come a couple of weeks or a week after they’re issued, the travel ban is issued.What are you walking into when you arrive? What’s the blowback that is already being felt?What’s it like?What’s the discussion like with Gen. Kelly when you walk in the door?

So just to back up a little, so the Office of Public Affairs at Homeland Security to which I came into was at that time staffed with career employees, in many cases ones who had been brought from other parts of DHS to help staff the office during the transition phase, because the political appointees in that office all went away on Jan. 20 or before.So fortunately, the individual who was the assistant secretary for public affairs in the Obama administration saw that there was going to be a gap and arranged to have career employees hold down the fort, essentially.

And that’s what I found when I got there, was a very experienced but shorthanded staff having to adjust to a new regime that was in charge.The president was clearly focused on action early, you know, all these executive orders.So there was a lot of work coming down from the White House on really what was a skeleton staff at DHS, beyond just the public affairs office.The entire staff was kind of operating in this transition phase.

So I walked into this, again, with a staff that was holding on in the midst of all of this both attention and controversy.At that point, the initial executive order on the travel ban had been issued.There had been the blowback from that.The career folks who were in the office were trying to do the best they could with that.So just to give you an example, the day that I arrived after having gone through the security clearance and the vetting and all of those things, Friday, the 3rd of February, I go to the normal orientation that it takes, you know, new employees to fill out paperwork and sign documents and all those things.And not too long into that process, the woman who served as the chief of staff for the public affairs office comes in and basically says, “You’ve got to go.”So I am excused from the rest of the paperwork drill because I’ve got to go.And on the way to a meeting, she says, “Kirstjen Nielsen, who is the chief of staff, needs to talk to you.”I hadn’t even met her at this point, and somebody handed me a phone, and I’m talking to her.So it was go from—from day one.

And what was it about?I mean, was there an emergency?Did DHS also get caught unawares of exactly what was going to happen?

I think that was part of it.Too, there was a recognition that there was such a big communications element that needed to be shored up.One, there was quite a demand from the press for answers about some of the things that were happening to the department.And so if I remember correctly, my conversation with Kirstjen initially was: “Hey, I need you to develop a plan.How are we going to deal with this?How are we going to respond?How are we going to talk about these things?We’re behind, and we need to catch up.”

Why the blowback?But more so, why the problems that occurred and the courts coming in and everything else?Was it due to, as you mentioned in the beginning, sort of a rush to failure, a sort of rushing towards the goals before understanding the system or understanding the ramifications of what the decisions made?

I think that’s exactly it.Now, again, I wasn’t there at the time that these happened, but I was there soon after.I spoke with Secretary Kelly about it.I was present when he was testifying in front of Congress and when he had meetings on the Hill.So through those sources, I was able to, you know, get a good picture of what was happening.

So what were the problems?Did Kelly know himself that this was happening?What was Kelly saying about it?What was Kelly’s perspective on this and the cockup, basically, to begin with that you guys had to deal with?

So I know at the time there was a lot of questions raised about what did he know.You know, was he aware that this was coming out?Had he seen and approved the final version?And he has subsequently said he had seen what he believed were drafts, so it wasn’t that he had no idea, but it came unexpectedly.He didn’t—he didn’t realize that it was going to be released when it was, in the version that it was.That’s my recollection of it.

He certainly talked about it afterward, again, to members of Congress where I was present, where he talked about how we screwed up, and he said, “We.”“I take responsibility.You know, this is on my watch, so I take responsibility.We didn’t come to the Hill and talk about what we were doing.We didn’t talk to the press the right way.This wasn’t rolled out in the way I would have preferred it be done.”

So beyond the questions about his level of involvement in that executive order, he was very concerned with how it was done, and particularly the impact on the workforce, because it took a lot of the line officers by surprise.That’s why there was a lot of questions about how was this supposed to be implemented?What are we supposed to do?Because in Secretary Kelly’s eyes, this wasn’t fully coordinated in a way that allowed Customs and Border Protection officers and others who had to implement this new policy to be prepared for it.

Why the chaotic fashion that it came down?Some people have said that—Bannon has said it; we had an interview with Bannon, and he talks about it—they almost wanted chaos.They wanted movement.They wanted executive order after executive order.They didn’t want to think about the possibilities of legislative needs or dealing with other—what was going on?

So my sense is exactly that: that they just wanted to show action as early as possible, and whether they cared that it was going to create fallout or didn’t, it was clearly the outcome they were going to get by rushing so many things out.It may have been a lack of understanding, again, from a—not just a president but a White House staff that was inexperienced in government, possibly didn’t understand a lot of the ramifications, and I think, potentially, not so interested in taking a long time to make sure that every, you know, “i” was dotted and “t” crossed and that this thing was fully coordinated.The disruption of it, I think, it does seem was part of the—again, whether it was part of the plan or was just an acceptable outcome, it’s clear that that’s what happened because these orders were pushed out very quickly without, it seems, a lot of coordination, a lot of vetting to anticipate what those problems would have been to address them.

And I think that the perfect example is the travel ban in that it took three versions to get to the point where they have had a version that they were able to stand on, the administration.Either they learned through the first how poorly written it was and poorly executed it was and they had to make changes, or they saw legally or, because of courts, that they had to make changes.

So in a normal process, all of those things would have been vetted in advance.People would have been thinking about the second- and third-order effects of that and making adjustments before you issued the order rather than trying to do it after.

The Dreamers and DACA

So a lot happened really quickly, and then there seemed to be a pause, at least to the press.DACA [Deferred Action for Childhood Arrivals] didn’t come out, which was surprising.Do you have any insight into why they—I mean, there had been a prepared executive order done during the transition on DACA.It never came out, or it didn’t come out at that point.Do you know why?Was there discussions about DACA between you guys and the White House?

I think that both the president and Secretary Kelly had a lot of empathy for the DACA recipients and didn’t see it in sort of those hard-line terms.Again, if you go back to the original executive orders on immigration, they don’t talk about DACA at all.They’re all about rule of law, enforcing laws, things having to do, again, with the current immigration system and enforcing the law, and DACA wasn’t part of that.

So I think that both the president and Secretary Kelly were able to forestall any action on DACA in the way that the travel executive order and the other—excuse me, immigration executive orders were pushed out very quickly.And that was one of the things, too, that I saw in the nine months that I was at Homeland Security is Secretary Kelly talking to members of Congress saying: “You want to fix DACA.We agree DACA should be addressed.You need to change the law.”And even though this occurred after he left to go to the White House, when the decision was made to terminate DACA, but to give it a six-month wind-down period, it was for that very purpose: to allow Congress time to legislate a fix.

So it wasn’t about just getting rid of DACA because it wasn’t a program that people thought was necessary.It was the view of the administration that DACA had been done, you know, in an unconstitutional manner by executive order, which is pretty ironic, given the number of executive orders that have come out of the administration.So they didn’t want to completely end that program.They had, again, empathy for children who were brought to this country when they were children through no fault of their own.Can we provide something for them?So that’s why there was this period to try to get a legislative fix rather than just terminating the program.

But there was a section of the administration—Sessions, Miller, Bannon—who didn’t want DACA to stay on the books.They wanted to end it.So was there a division within the White House that was pulling on the president in different directions?

Yeah.So I think there was, within the administration, divisions over whether DACA should be just ended or if it should be continued, but in a different way, so the idea of having Congress legislate.So if there was the belief, and there were people in the administration that had the belief, that DACA, like DAPA [Deferred Action for Parents of Americans and Lawful Permanent Residents], which was a program that was forestalled by the courts involving parents, that they weren’t legal and enforceable and they needed to be changed, not just gotten rid of.So you did have, I think, a difference of opinion of people in the White House and in the administration that believed DACA should just be ended, and Secretary Kelly and the president, who thought that DACA should continue, but in a different form.

And those on the side of wanting to end it completely were?

Again, my sense of that division is the Sessions-Miller-potentially Bannon—though I’m not sure—camp in terms of wanting to end it.The other aspect of DACA was that I think part of the concern beyond how it was put into place by President Obama was the idea that an amnesty was being created, because a lot of people that are considered, you know, immigration hawks abhor anything that can be seen as amnesty.And so the idea that even if we understand people who qualified for DACA came to the U.S. as children, shouldn’t be held accountable for that, the question was OK, we don’t deport them, we don’t hold them accountable, but we also don’t give them a path to citizenship, because then that—there were those that saw, inaccurately, that DACA led to the 2014 unaccompanied-children rush to the border.I say “inaccurately” because the criteria to qualify for DACA wouldn’t have applied.So people weren’t coming in 2014 as unaccompanied children hoping to get protection under DACA.Again, they didn’t meet the criteria.

But there were those in the administration that thought that DACA led to a lot of unaccompanied minors coming to the country, and if we allowed DACA to continue, we would just continue to have more and more unaccompanied children coming to the U.S.

When Kelly was brought in July 2017 to the—to the White House as chief of staff, did he understand how hard it was going to be to corral the president?Did he understand the ramifications of what that job was?I mean, what were his thoughts, parting thoughts, to you when he was moving to the White House on how difficult that role was going to be?

We didn’t—we didn’t talk about his move to the White House, so I don’t know exactly what his parting thoughts were.My sense, just from our time together at Homeland Security, is he understood because he was exposed to it on a regular basis.He would go over to the White House for meetings regularly, and whether they were with the president or with the members of the staff, he understood that there was a lot of dysfunction, that there was a lot of confusion in the White House.And I know to his military mind, that was upsetting.

So whether, again, he understood that clearly when he took the job, he certainly had a sense of that.And I think my view is he believed that he could help address that in ways that perhaps Reince Priebus and others might not be able to because of his background.

So let’s talk about Sept. 5, 2017.Sessions, or before that, in August, had told Trump that he can’t defend DACA anymore because of the 10 states’ suits that were being brought against the government about DACA. …What’s your memory of that event as it took place?Was it unexpected?Your attitude about the fact that to some extent it was a way to move the ball ahead and to sort of some extent force the president’s hand on this to deal with DACA?

Well, I think that—my recollection, one, it wasn’t unexpected.We had been working on this announcement that DACA was going to be sunsetted.Again, it was going to happen over a period of time, not just, you know, flat terminated, because again, unlike the earlier travel executive order, there were the concerns about how are we going to do this?What’s the period?Who qualifies?How many people are in that—in that population?How much time are we going to give them?What’s the deadline date?How are we going to accept applications from people that qualify?What happens to other people?So there were a lot of considerations that had to go into how this was actually going to be implemented.

There may have been an element of having these suits by certain states’ attorneys general to force the hand.I think less so of the president and more so for Congress, and so the attorney general’s determination that DACA couldn’t be defended in the courts, I don’t think it took till September for that to be the fact.I think the attorney general had long ago determined that DACA wasn’t defensible in the courts.I think the suits by the attorneys general accelerated that, you know, sort of forcing the position to say even though we believe that DACA is unconstitutional and therefore not defensible, now that we’re being sued, we really have to, you know, make a decision.So I think that drove the decision-making process.But I think the six-month window was an effort to force Congress to do something, because for the first six months of the—six or eight months of the administration, there had been a lot of pleas to Congress: “Fix DACA, fix DACA.”Wasn’t happening.And so there was the sense that if we don’t take drastic action, Congress is never going to do anything, and it’s the only way to get this thing changed.

So do you think there was collaboration between specifically the Texas AG and Sessions about how to proceed, because this would indeed work best to sort of move it forward?

I don’t have any direct insight as to whether that—I suspect that that’s probably the case, but again, I don’t—I don’t have any way of knowing that.But I do think, again, that period of time was a way to force Congress and also to tell the president, “We can’t just keep going on the way we’re going.” …

… So Sessions, after the recusal, was being berated constantly by the president, and basically he was being threatened—his job was being threatened constantly.Did that have any effect on how he did his job?I mean, other people have said that probably out of all the Cabinet members, he was the most productive member of Trump’s team; that this recusal thing, you know, didn’t affect the way he worked.In fact, it probably made him—put the spirit of God in him or whatever to move forward as quickly as he can because he didn’t know how much longer he’d be there.I mean, how do you sort of view Sessions’ job and how he went about dealing with this issue?Again, remember, one of the most important issues that he ever felt that he had dealt with.

I think that—and again, this is my opinion; I don’t have any special inside information, but it’s certainly convincing to me that the recusal matter would cause him to see his time as limited and want to achieve as much as he could in whatever time he had left.And immigration was clearly something that he was interested in advancing, and so I think he was—he took every opportunity, even to the point, as some have pointed out, of getting out of his lane and getting into DHS business in an effort to try to advance this as much as he could.This was his opportunity as the attorney general to try to advance some of his views on immigration that were, you know, in line with the president’s.

Let me get your sort of overview of this.Despite all this happening, or because of all this happening, there then became a move in Congress to sort of move forward with this.And there were conversations back and forth with the White House, and there’s this famous Jan. 9, 2018, meeting where—which was broadcast live, where the president was very solicitous towards those—[Sen. Lindsey] Graham and [Sen.Dick] Durbin and others—that were working towards trying to find a solution.And [Sen. Dianne] Feinstein was there, and he basically said, “Listen, you guys find a solution, a bipartisan way to move forward—”

“And I’ll sign it.”

Exactly.

Two days later—so this is the Tuesday Trump versus the Thursday Trump.And all of a sudden folks within the White House that had a different opinion started pushing the president hard.The next meeting, where Durbin and Graham come because they think they have the outlines of a solution, a bill here, but there’s all of a sudden a lot of very anti-immigration folk that are in that room.And this is the famous meeting where Trump says: “Well, you’re talking about African countries; you’re talking about s—hole countries.Isn’t there another way to deal with this?I mean, I’m talking to the president of Norway, and, you know, they’ve got lots of fine people.Why aren’t we bringing more Norway folks in?”

When you’re watching that, watching the video, hearing those reports, what are you thinking about sort of what is taking place, and what did it tell you?

So the first meeting and watching that, to me that seemed like President Trump the dealmaker.Again, he wanted to show progress; he wanted to advance certain issues, and he saw this as a way to do that.I mean, this could have been a win.So I think some of the things that he said then about, you know, “Just bring me a bill, and I’ll sign it” was he wanted achievements.This is on immigration.It was his core issue; he wanted a win.

And then subsequently, other voices, both within the White House and in the Senate, or in Congress, start to say, “Whoa, whoa, wait a second.Not so fast.We can get more.Let’s not just stop there,” because remember, in that first meeting, the president talked about DACA.And it’s interesting, because that’s something that I had heard Secretary Kelly talk about a lot with members of Congress, which was: “Look, I understand that politically it’s probably not achievable to do comprehensive immigration reform, but just do one bit at a time.Handle DACA; handle Temporary Protected Status [TPS].Take them one at a time.Don’t lose those to try to get everything.”

And so I think in that first meeting that the president saw that, “Hey, here’s my opportunity to solve DACA.”As I said, my perception is he was very empathetic to the kids who came here and were operating under DACA protections, and he saw it as a way, again, to get a win on an immigration issue.But I think subsequently others got to him and said, “OK, if we’re going to get a deal with the Democrats on it, let’s get legal immigration cuts, and let’s throw in this, and let’s throw in that, and let’s get all these other things,” which then killed the deal.

And frankly, I think that’s where we are today, because that opportunity to make a deal on at least one part of this went by the wayside in an effort to try to get much more.And it’s interesting that the president was talked out of getting a win, and so now he hasn’t had one.

Who do you think were the voices in his ear that were sort of preventing it from happening?

Again, I certainly believe Stephen Miller, because of his views; some of the members of Congress that were in that second meeting who both spoke up directly and others behind the scenes.And again, my perception is it was an effort to try to get more rather than just settle for a DACA fix.

And the effects of conservative media on the president and the worries about the base?How would that have affected him?

I think at that point, it was more powerful coming from, you know, members of his staff and from members of Congress.There may have been an influence of conservative media, but it’s my recollection, or my sense at that time, that it was more coming from within the White House and certain members of Congress.

Zero Tolerance and Family Separation

OK.Let’s talk about “zero tolerance.”So April 6, Sessions gives that—that speech, I think down on the border, about zero tolerance, something that they’ve been working towards for a long time and probably where a lot of meetings had taken place, even when you were there, possibly.What was the—do you know what the internal debate was over this and what zero tolerance is and how it leads to the family separation issue, which then blows everything up?What’s your overview about what’s going on, what Sessions is doing, why he’s doing it and the way it was done?Take us—take us through any of that.

So a couple of things.This happened after I left DHS, so again, some of these are my views from my experience while I was there, and then watching from afar afterward.The experience-while-I-was-there part is that in those early executive orders that I mentioned on immigration, they were pretty clear about, without saying zero tolerance, this idea of enforcing immigration law on everyone.You know, there was a lot of discussion early on about the fact that the Obama administration had created priorities.It recognized that we can’t do everything.You know, we can’t arrest everybody; we can’t deport everybody; we can’t detain everybody.So we’ll have priorities based on, you know, the bad actors.Let’s go after people that have committed serious crimes.

Well, when you look back at the early executive orders, it, one, gets rid of those priorities; two, makes it clear, like, that anyone—and it says not only convicted of a crime, suspected of a crime.I mean, it pretty much puts everybody in the same category.And so I think zero tolerance was born from those early seeds of this idea that we’re going to enforce the law on everyone, regardless of the type of infraction, because, again, crossing the border illegally is a misdemeanor.It’s a—in most cases, that’s a civil offense.So the idea that you’re going to prosecute people for a misdemeanor and for a civil offense when you have other people that are here unlawfully that have committed serious crimes, again, this idea of where’s the priority?So with zero tolerance, it became everybody’s a priority.If you cross the border, we will catch you, and we will detain you, and we will, you know, deport you as quickly as possible.And if you’re already in the interior of the United States, we will catch you.

That was one of the big changes that was going on when I was there, where ICE previously, if they were doing a targeted operation—so Dave Lapan is somebody who’s on our list because he’s committed crimes, and we know, you know, he’s a bad guy, and he needs to go, or he’s already been given an order of removal by a judge, and he hasn’t left, so we’re going to go after him.

So under the previous administration, they conduct this operation.They grab Dave Lapan.Anybody else who’s there, they don’t start asking, “Who are you?Are you here illegally?,” etc.They’ve got their target; they leave. It became the practice that in that targeted operation, I’m going after Dave Lapan, but in the course of that operation, if I come across three other people that are here unlawfully, even if they’ve committed no other offense, I’m taking them, too.

So the seeds of what became zero tolerance were starting to be built early.And again, I think it tracks back to those executive orders and this idea that there is no priority enforcement.Everybody who’s, you know, either—even suspected of an offense related to our immigration laws will be detained, will be held.

And the other part of that executive order was the idea of getting rid of what was known as “catch and release,” which there’s no policy of catch and release.It’s become a term that’s been misused a lot and misappropriated.It’s essentially the practice that if—again, DHS only has so many resources.If they detain somebody, you can’t detain everybody indefinitely, so some people are going to be released with a notice to appear in immigration court at some later date.

That has been derided as “catch and release” because we’re letting people go, and they may or may not come back to court dates.And there’s been a lot of, you know, controversy about the numbers of how many people actually come.And I would say the numbers are actually greater than most people talk about.The majority of people do show up, or had historically been showing up, for their court dates.

So again, this enhanced enforcement mechanism that then became known as “zero tolerance” is then what caused family separations in the way that if you’re going to detain anybody who comes across the border, now if they have children with them, you have to detain the children.And because of the Flores settlement and other laws that prevent you from detaining children for a certain period of time and together with families, because family detention is a whole different thing, and there’s so many—you know, limited spaces for family detention, you effectively create family separation, because you are now looking at everybody the same, whereas in the previous administrations, plural, there was this priority.

Now, as people will point out, there was family separation of a sort during the Obama administration.At the beginning of the Trump administration, Secretary Kelly talked about this in two ways.One, he talked about considering family separation as a deterrent method.He talked about that publicly; he talked about it with members of Congress, but determined that we were not going to do that.So there was a period of time that it was under consideration that we were going to separate families.

But during the time he also said we will separate families like the Obama administration did in that if we believe that there’s child smuggling going on; that there’s, you know, some exigent circumstance that would cause us—you know, there’s an illness.So it wasn’t just separation for the sake of separation, that everybody who came across the border was going to be separated like that.But in certain circumstances, the previous administration had done that in limited ways; the Trump administration at the beginning was doing that in limited ways.But it was the zero tolerance policy introduced by the attorney general that created this widespread family separation that caused the outcry.

Was it intentional?

I don’t know that it was intentional so much as knowable.This is another one that you would have to be aware of the consequences of it.And because this is one that wasn’t done in the first week of the administration when things were rushed and you were short-staffed, they had plenty of time.So again, I certainly think it was knowable.I just can’t make—not being involved, I can’t make the judgment about whether it was intentional, but it was certainly knowable that this would be an outgrowth.

But there’s also reporting that says that this was intentional…So he’s giving this mixed message, the idea being that deterrence is your ultimate tool here, and by separating families, there’s nothing more that will deter families from coming up from Guatemala or Central America, anywhere, Mexico.What’s your—what’s your view of that?

So a couple things.Certainly mixed messages from the president on this.Two, this idea of deterrence because of harsh measures of any kind, and to include harsh rhetoric, has proven not to be the case.I mean, look at all the harsh rhetoric and the harsh measures that have taken place, and the numbers have only gone up, not gone down.So there’s clearly not a deterrent effect there.

Early on in the administration, again, Secretary Kelly in Central American countries talked about please keep your people, especially children; this is a dangerous journey; people are being abused; people are, you know, being trafficked.There’s all kinds of horrible things.And that’s when he was talking about family separation early, was, “If there’s anything I can do as a secretary and as a father to keep children out of these really horrific conditions, you know, I’m willing to consider it.”And that’s when—that was the context of him talking about family separation early on.

But there was also discussion during that time about what kind of deterrent messages can the U.S. deliver in Central America?One of them early on was: “Hey, new administration looking at things differently, you know.Stay home.If you come, we’re going to catch you; we’re going to turn you around; we’re going to send you back home.So don’t—don’t make the journey.”

And remember, early on in the administration, the numbers did go down to historic levels.And there were some at the time who thought, see, the harsh rhetoric works.Talking about these things is causing people to not come.Well, clearly that wasn’t the case, because the numbers started going back up and have only continued to go up.

So my belief, again, is that the harsh measures, the harsh rhetoric, and when you look at that period of family separation, despite the outcry, it didn’t stop, because ultimately, people who are desperate—and that’s the only way that I can see it.If I’m willing to leave where I live and take my children with me, taking money that I don’t have because I’m poor, you know, life savings, borrowing, whatever it takes, putting myself knowingly in the hands of coyotes, cartels, there’s an amount of desperation there that rhetoric on our end isn’t going to fix.

Immigration Deterrence

Does the administration understand that at this point?

I don’t think so.

Why?

Well, for one thing, cutting off aid to Central American countries is, you know, counterproductive to that purpose.If you’re trying to get people to stay in their countries and not make the journey, cutting off aid that’s trying to assist the economics—the other thing, too, is that going back several administrations, the U.S. has had a very close working relationship with immigration authorities, with police, with military in Mexico and Central America, South American countries, to address the idea—the issue of this illegal immigration, or, as they call it in Central America, “irregular immigration.”

So there’s a very clear understanding that the more support that we can provide to those countries, that’s a deterrent, is to create opportunities in the countries.For those—but there’s also a tension in those countries, too, because of remittances.So on the one hand, the countries don’t want this brain drain where all their citizens, you know, to include very talented people, are leaving to go somewhere else.They would prefer to keep them in their country.

But those countries also generate a lot of economic income in remittances that come from families that move to the United States.So it’s tough.But the work that we’ve done with those countries, to include at the beginning of the administration to address corruption in their political systems, to address poverty, all of those things are ways to try to deter without resulting or without resorting to harsh rhetoric or harsh measures that we have seen have not, you know, changed it.

But it seems the direction we’re going, this administration is going, is more stark rhetoric and very harsh moves, such as the 10-city raids to arrest, you know, thousands of people.… What’s the thinking there?

My sense is the thinking is along the same lines, is deterrent; that if we start going after people, make them less comfortable.So on the one hand, advocates and others would say you’re creating fear, and those in the administration would say, “Yes, we are, on purpose, because we want to deter people from coming.”Now, this potential operation that the president talked about in a tweet might be larger-scale potentially, but it’s something that ICE has done in the past.They have done these, you know, targeted raids, or targeted enforcement actions, in certain places.

So again, is this one going to be larger and more widespread than in the past?Don’t know.But it’s happened before, and it hasn’t affected—again, it’s a short-term effect.People in those communities are afraid.They don’t show up for work; their kids don’t go to school; they don’t show up for court dates.You know, there are all kind of negative repercussions to creating this fear.

That word doesn’t necessarily trickle back down to Central and South America in a way that’s going to deter people, again, who are desperate, because there’s always this thought: “Sure, it happened to that person.It’s not going to happen to me.I’m willing to take my chances.If I stay here, gangs, corruption, poverty, you know, all those things are going to harm me, harm my family.If I make it to the United States, I’ll take my chances on, you know, maybe getting in one of these—” because the other thing is once that happens, they detain people, and they deport them.

Well, as we’ve seen, certain people, once deported, come back again.They don’t stop trying after one, again, because it’s desperation.This is the place where they think they can have a difference.

The El Paso Pilot Program

Finishing up on the zero tolerance, family separation thing, explain sort of what the July to October 2017 family separation pilot program in El Paso was all about.Why was that done, with what results, little press, and why weren’t you—why weren’t you briefed on it?

Yeah, so that last part of the question’s the one that leads to the rest of my answer, which is I don’t know how that was done, because I wasn’t brought into those conversations.I know at the time, again, that I had spoken on the record about the fact that Secretary Kelly was considering family separation as a deterrent, and then I’m quoted on the record saying, “We’re no longer considering it.”

So from my view, it was done; it was no longer being considered.So the fact that there was a pilot program that was going on is something that was unknown to me.It may have been known to others in the organization; I just don’t know.And because I wasn’t aware of it, I don’t know how it turned out, you know, what the impacts were, what they may have learned.It was only after I left the administration for reporting that I learned that, you know, that pilot program had been in operation while I was there.

Would that have been able to have been done on the ground in El Paso without someone in the attorney general’s office or in the White House knowing about it?I mean, is this a possible sign that—that you guys were being gone around and that operations were being approved from a higher authority?

It’s certainly possible.My sense, though, is that this may have been done at levels below Homeland Security, that Customs and Border Protection, at whatever level, maybe even down at the regional level, was undertaking this.I don’t know if it was approved at the secretary level at Homeland Security.Again, I don’t think that it was something that the White House would have been directly involved in without the knowledge of, you know, the senior leaders at Homeland Security.

Backlash to Family Separation

The backlash on the family separation issue and how that affected—the pictures of kids in cages and all that, how did that affect the president?How did that lead to the executive order ending the separation, and what’s the effect of all that?

So my sense is that it generated such a backlash and so much negative publicity that that’s what caused the president to end it, because he has since suggested that it, you know, might not be such a bad thing.So I think he was reacting in the moment to the fact that it was causing a lot of negative attention.But I wouldn’t, again, be surprised if it was tried again in maybe some other form because of this idea that it might be a deterrent to stop people.Maybe they would go about it differently than—you know, in some ways analogous to the travel ban, of what did we learn the last time?This went so poorly, can we do another, you know, 3.0 of this in a different way to serve the desire to have a deterrent, but not do so in a way that causes all this, you know, negative blowback?

Where you actually might even know which kid goes to which parent eventually?

Exactly.And that’s—that’s a perfect example of the thing that you create second- and third-order effects by, OK, we’re going to put into place zero tolerance.It’s a decision the attorney general made and announced.That in and of itself creates the family separation, you know, so there’s not a separate family separation policy, but it’s going to be an outcome of zero tolerance.

But then, knowing that, you should have in place before you implement it those policies and procedures and databases and things like that to track, OK, we are going to start separating families, taking kids away.Who’s in charge of that?Who’s keeping track?What’s the recordkeeping?Are there current systems that exist that we have that we can use for that purpose?Do we have to create a new system of records?Do we have to create a new database?Those are all things that should have been, you know, preplanned and thought out in advance so you didn’t have some of those repercussions that on the face of it, the idea of separating, you know, parents was bad enough, but then this idea that you didn’t know where they were or that family—parents or children were being deported without the other knowing that, you know, a family member had left the country or where these children were.

So all of those things, again, in a normal system would be ordained out in advance, thought about.And then if you do need to create a system that doesn’t exist, how do you go about that?How long does that take?You have all those things.

Your thoughts on when Secretary Nielsen got up to the podium in the White House and took responsibility for it and defended it?

My personal opinion was it was a mistake for her to do that.Again, zero tolerance was something the attorney general created; family separation was a knowable outcome of that.It shouldn’t have been up to the secretary to take responsibility for that, but she did.I don’t—I don’t know why.It’s clearly something that will now, you know, be associated with her, unfortunately, for any other good work she did while she was there.She’s been tied to this because she did do that press conference and took this.

Does she—does she get a bad rap?Because to some extent, other people tell the story of her attempting to do things legally, trying to do what the Trump administration wanted but doing it legally; that it was holding things up, for instance, the 10-city raids that she seemed to have been holding back on or preventing from happening immediately.Does she get a bad rap, and is she blamed for decisions made in the White House?

I wouldn’t say it’s a bad rap in that it’s part of the job.And whether it’s Secretary Kelly or Secretary Nielsen or the attorney general, the decisions that you are carrying out—because that’s the way the system works.You know, people forget that when you look back to those executive orders that I referred to on immigration, that’s a direction from the president to a Cabinet official saying, “Here’s what you shall do.”Now, you can have a say as that’s being developed and try to shape it and influence it in some way, but once that executive order is out, now you’ve got to carry it out.And about a month, roughly a month after those executive orders on immigration, you will find implementation memos from the secretary saying, “Here’s how we’re going to implement what the president told me to do in those executive orders.”

So in some ways, members of the administration at the Cabinet level and beyond are going to be held accountable for the things that they carry out, but the decisions are often, you know, made at levels above them, and that’s the way our system works.

Changes in Leadership

… We’re now in March of 2019, and the numbers are continuing to come, and the president is frustrated.He’s angry at things, and he blames DHS, basically, and he starts firing people, Nielsen being one.What—what’s your sort of overview of that?Again, blaming those below for, you know, what could be argued attempting to do the bidding of the president, but to do it in a way that worked, which didn’t end up in the courts, which was legal and such?What’s your overview of sort of what happened there?

So a couple of thoughts, that the—I think it’s unfortunate that under President Trump, the Department of Homeland Security, which is the only agency in the U.S. government created after 9/11 for the specific purpose of having one agency responsible for securing the homeland.Prior to 9/11 that didn’t exist, which is part of the reason Homeland Security was created.So the organization whose primary mission is to secure the entire homeland against all threats has become the department of border enforcement, and not border enforcement, but southwest border enforcement.You know, we have a northern border as well, and it—but it gets very little attention.

So the president’s oversized focus on the southwest border has forced the department and the secretary of homeland security to become overly focused on the southwest border, I think at the expense of other important missions that the department has: cybersecurity, election security, aviation security, domestic terrorism, Coast Guard operations.The Coast Guard plays a huge role in counter drug.We hear about that once in a while, but very little.It’s involved in shifting resources around, so shifting more toward the border enforcement part of the mission and away from other important parts.

So in that context, I—I don’t see how any secretary of homeland security can be successful in the president’s eyes if the metric is the number of people coming to the southwest border.So if that’s the metric upon which you’re being judged, you will never succeed, one, because as the secretary, you can’t control all of those things.There’s only so much a secretary can do to affect how many people are coming to the southern border.

So that’s the unfortunate thing, is that those firings, because the president’s unhappy with the numbers, are likely to continue, because nobody—no secretary of homeland security, acting or full, is going to be able by him- or herself, to affect the number of people showing up on our southern border.

And the irony, of course, is that she was over in London dealing with counterterrorism and cyberattacks, another very important role for her, and the president was mad at her for not being home and dealing with issues at the southwest border.

That’s absolutely right.I said so at the time, that it was unfortunate, again, and it showed this—this oversized focus on the southwest border that you would cause the secretary, who’s in Europe talking to our allies about very important security issues, to then have to turn around and fly back to the United States to attend to the southern border.

And get fired instead.

And again, having other duties and other responsibilities in that job besides the southern border.So if—if you’re being driven by your boss to focus on 1/10 or whatever it is of your mission, what happens to the other 9/10 of the mission?

And just some final sort of thoughts.The new crop of the DHS folks that are now being brought to power seem to be more to Trump’s liking.Is the idea—is there a fear that by having no secretaries, by having, you know, temporary folk, I mean, is there a fear that the White House is taking on more and more power?The Stephen Millers of the White House are, in fact, directing more and more, and there’s less input coming to the president from the normal institutions that have been developed?How do you—how do you view that?

Well, in a couple of circumstances—so Kevin McAleenan, for example, he’s the acting secretary.Again, years of experience in Customs and Border Protection, knows the issues.I believe that he would give the president, you know, his best advice on things.You look at ICE and the acting director there, [Mark] Morgan, who comes from—I mean, he was head of the Border Patrol for three months at the end of the Obama administration.He came from the FBI.So he has a bit of a background in these issues, but not a lot.

Ken Cuccinelli at USCIS [Citizenship and Immigration Services], again, not somebody who’s come up from the ranks, spent a lot of time in the agency where you have a level of knowledge, understanding and confidence in your views to be able to provide those to the president.

To me, the more—maybe not the more—one of the concerning things is the uncertainty and the confusion this creates.So at Homeland Security, there’s an acting secretary; there’s an acting deputy secretary; there’s an acting undersecretary.You have an acting director of ICE.You have an acting commissioner of Customs and Border Protection.You have an acting administrator of FEMA [Federal Emergency Management Agency].You have an acting administrator of TSA [Transportation Security Administration].So this goes throughout the entire organization.It creates confusion, uncertainty in the workforce.For those people in acting positions, you don’t know how long you’re going to be in that position, so your decision-making ability is at least impacted.

Again, if I don’t know if I’m going to be around two years from now, am I thinking strategically?Am I putting into place things that will take two or three years to come to fruition?It’s unlikely, because if I make major changes, and I’m not around to oversee them, then what happens?So I’ve brought in this major course correction, and then six months from now, I’m not in that position anymore for whatever reason.You resigned; you were forced out; you’re fired, whatever that is.Now, you’ve turned this entire agency in that direction.Somebody comes in and turns it back in another direction.So it creates confusion; it creates uncertainty.

Probably my largest concern, again, goes to the fact that the Department of Homeland Security, that having uncertainty, having confusion, having this dysfunction in the agency that’s responsible for securing the homeland is potentially dangerous.It’s not just untidy; it’s potentially dangerous.

Trump’s Record on Immigration

From the original goals that Miller, Sessions and Bannon had when they entered this administration, you look at the effect that all three of them have, or maybe two of them, whatever, how much have things changed, do you think, that this administration have changed things as far as the way the immigration laws are conducted, the way the structure is set up, the basics of the system?How much—what have they done?What have they accomplished?

So first I’d say that our immigration system and our immigration laws are highly complex and broken.There’s nobody that won’t admit to the fact that our immigration system is not working the way that it should.So if the objective is to address that, there’s been very little progress.We haven’t changed the laws—not only DAPA or—I’m sorry, DACA or TPS, but any of the other things.Our immigration system as it exists today was built around single adult males coming from Mexico.That’s not the situation we have now.So the system as it was designed isn’t in a place to address the issues that we’re facing today with children and families, detention space, procedures, all of those things.

So many of the things that the administration has tried to put into place are being held up by the courts.That’s a fact of life and goes to the point that the administration hasn’t been able to achieve many of its objectives.You could argue it’s partially because they’ve gone about it the wrong way.They’ve tried to put policies in place and regulations in place that ran at least potentially afoul of the law, which is why they’re being held up.

Now, some would argue that activists are causing this and they’re holding things up because they’re going to litigate everything.That, too, is a fact of life.If you’re just trying to ram through policies and changes, this is the outcome.So we haven’t changed our immigration law at all.There have been some regulatory changes that the administration has made around, you know, the edges.We haven’t addressed the asylum situation.We haven’t really addressed the refugee situation.DACA is still in abeyance.TPS, the same.So a lot of the things when you look back at the—those executive orders, again, of what the administration wanted to achieve—catch and release, another good example.You know, there was talk not only in the executive order but subsequent that catch and release had ended.It was no longer happening.

Well, that’s never been the case, because again, if catch and release means that when you detain people you have to let them go because you have no place to keep them, that’s still happening.So you can’t wish that away.So despite the desired effect of ending catch and release, that hasn’t happened.The circumstances don’t allow it.So there’s been a lot of rhetoric, but there’s not been a lot of achievement.

And that’s one thing, too, that by the time this program airs, who knows how many of these things will either have gotten to a conclusion or will still be, you know, ensnared in court cases or in other types of things?And whether the numbers of people coming to the southwest border will continue to increase remains to be seen.So again, I would say that despite the intention of the administration to make changes to our immigration law and our immigration system, beyond the rhetoric and some of the short-term things that have been put into place, none of them have made lasting changes.

And for me, the irony is, again, from my time at DHS at the beginning, Secretary Kelly talked about, you know, we follow the law.If you want to, you know, change things, you need to change the law.That hasn’t happened.Until that does—and that’s the other thing, too, is if the administration, whose stated objective is to change the law but is doing everything in a way that’s counterproductive to achieving that goal in terms of its relations with Congress—for the first two years nearly, you had a Republican-led Congress, House and Senate, and you weren’t able to achieve these goals.Now, you have a divided, you know, House and Senate, with Democrats the majority in the House.You need to find ways to compromise, and the administration has shown very little desire to try to meet Democrats in the middle on these things, which means that there won’t be changes to the law, which goes back to the stated goal the administration had said from the beginning: We need to change the law.Well, then, it needs to take steps to be able to change the law by working through Congress, because that’s the only way laws get changed.

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