Comment on this storyComment
A federal magistrate judge in California has ordered a pair of top Trump administration officials to testify in a 2021 lawsuit that migrant parents and children filed against the U.S. government for separating them at the southern border.
Magistrate Judge Kandis Westmore on Monday told the Department of Justice and lawyers for migrant families to meet immediately to schedule the depositions of former homeland security secretary Kirstjen Nielsen and ex-attorney general Jeff Sessions.
Lawyers said the depositions would mark the first time the former officials have been ordered to testify in one of dozens of lawsuits filed against the federal government seeking millions of dollars in damages for allegedly intentionally inflicting emotional distress on migrant families.
Lawyers for migrants say U.S. officials slowed family reunifications
In her decision, Westmore wrote that lawyers representing three families in the California case may depose the former officials because they allege that the agency acted in bad faith to separate undocumented immigrants from their minor children. Sessions and Nielsen also have “unique personal knowledge of their own intent” in making the zero-tolerance policy.
The judge also criticized the Justice Department, which represents the government in court, for initially saying “dozens of people” were involved in creating the policy and signaling that Sessions and Nielsen’s testimony was unnecessary. Then in September, the judge said, the government reversed course to say that only Sessions and Nielsen could have known the policy’s goals.
Westmore wrote that she was “disappointed” by the reversal and the government’s opposition to the depositions.
“Such an injustice cannot stand,” she wrote.
The Trump administration separated more than 3,000 children from their parents along the Mexican border in May and June 2018, the official period of the administration’s “zero tolerance” policy. More than 5,500 children were separated from their parents during Donald Trump’s term as president.
Sessions and Nielsen approved the policy documents that put the separations in motion, records show.
Trump administration officials said they implemented the policy to criminally prosecute parents who crossed the border illegally, typically a misdemeanor offense. But the administration did not have a plan to reunite the families and deported hundreds of parents without their children. Lawyers said many parents were never prosecuted, including two of the three parents in the California lawsuit.
Years after a border separation, a family’s reunion was in a judge’s hands
The Justice Department declined to say Tuesday if the agency will appeal the decision.
“We remain committed to achieving a just resolution for the victims of this abhorrent policy,” Justice Department spokeswoman Dena Iverson said in a statement.
The department opposed deposing Sessions and Nielsen on principle, under the apex doctrine, which generally shields high-ranking officials from testifying in such cases, court records show. Depositions are sworn testimony taken during the fact-finding phase of a lawsuit before trial.
Nielsen did not immediately respond to a request for comment.
Sessions, reached by phone, said he probably would issue a statement through the Justice Department.
“We’ve got to follow the rules one way or the other,” Sessions said, declining to comment further.
Lawyers for the families celebrated the judge’s decision.
“These officials set in motion a cruel program of ripping apart migrant families. It is only right that they provide testimony under oath in this case,” Victoria Petty, staff attorney at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, said in a statement. “Thousands of parents and children will endure the lasting harm of this barbaric treatment for the rest of their lives.”
The migrant families’ lawsuits against the government have placed the Biden administration in the awkward position of defending officials involved in a policy that President Biden abhorred.
Biden blasted the Trump administration for separating families and has reunited many of those who were still apart when he took office. Negotiations to settle the cases broke down in 2021 after Biden balked at a plan to pay migrant families hundreds of thousands of dollars.
Advocates for immigrants praised Westmore’s decision Tuesday.
“This is huge,” Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, wrote on X, formerly known as Twitter. “Five years after thousands of migrant families were cruelly and deliberately separated with no plans for their reunification, this will be the first time officials responsible for this shameful policy might face some degree of accountability.”