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Could an Elizabeth Warren Administration Really Prosecute Trump Immigration Officials?

Yes, but there are a few caveats.
President Donald Trump speaks during his visit to U.S. Border Patrol McAllen Station in McAllen, Texas, on January 10th, 2019.

President Donald Trump speaks during his visit to U.S. Border Patrol McAllen Station in McAllen, Texas, on January 10th, 2019.

Massachusetts Senator Elizabeth Warren is promising that, if elected president next year, she will empower a commission to hold the United States accountable for crimes committed against immigrants under the Trump administration. The Constitution grants the White House far-reaching powers in matters of immigration and border control, but those wouldn't theoretically stop a Warren administration from holding Trump officials accountable for their treatment of immigrants, legal experts warn.

"On my first day, I will empower a commission in the Department of Justice to investigate crimes committed by the United States against immigrants," the Democratic 2020 presidential ticket hopeful told a convention of progressive political activists, Netroots Nation, in Philadelphia on Saturday. "To anyone out there who's working in this system, understand you abuse immigrants, you physically abuse immigrants, you sexually abuse immigrants, you fail to get them medical care that they need, you break the law of the United States of America and Donald Trump may be willing to look the other way, but President Elizabeth Warren will not."

Earlier in the week, Warren published an essay on Medium outlining her prospective policies toward abuses perpetrated under the Trump administration in greater detail. The Department of Justice task force Warren described on Saturday would "investigate accusations of serious violations—including medical neglect and physical and sexual assaults of detained immigrants," and her administration would give the task force "independent authority to pursue any substantiated criminal allegations," she wrote. "Let there be no ambiguity on this: If you are violating the basic rights of immigrants, now or in the future, a Warren administration will hold you accountable."

Experts say that, although there are limits to what a Warren administration could do to prosecute President Donald Trump and government officials involved in executing his immigration policy, it is entirely possible that an administration could follow through with her campaign trail promises. Although the degree of a Warren White House's criminal charges against the Trump administration could indeed be unprecedented, there is some precedent for U.S. government administrations working to right the wrongs of predecessors. Several experts who spoke to Pacific Standard cited the fact that, although the government never successfully held President Franklin Delano Roosevelt to account for his internment of Japanese Americans during World War II, Congress did grant the victims of his executive order the hard-fought redress that community activists had demanded in congressional testimonies.

"Warren states correctly that, as president, she could ask the Department of Justice to investigate and consider bringing charges against individuals from the Trump administration who violated the laws by detaining and criminally abusing immigrants," says Margaret Russell, a constitutional law professor at Santa Clara University. "This is within a president's authority even if the past administration defended its actions as permissible under the immigration laws."

The president's authority on borders and immigration affairs does not trump constitutional guarantees of the due process and other human rights of immigrants, warns Karla McKanders, clinical professor of law and director of the Immigration Practice Clinic at Vanderbilt University. "The president has wide authority to determine who is admitted and removed from the United States. Even in the midst of this broad discretion, immigrants still have constitutional rights," McKanders says. "Immigrants are entitled to due process, the ability to be free from unlawful detention and inhumane acts when in immigration custody. An immigrant does not check all of their rights as a human being at the border."

However, prosecutors would face some major barriers in their efforts to bring Trump administration immigration officials to justice. "One big legal barrier, however, would be that those previous administration's officials could claim immunity from being sued for what the Trump administration considered lawful at the time." Russell explains.

Further, constitutional law experts agree that, while the executive branch's power in the areas of immigration and borders will not protect it from accountability to laws protecting human rights, the branch typically has broad powers in matters of foreign affairs. "Because immigration is derived from foreign affairs there is greater discretion with the executive," says Douglas W. Kmiec, a professor of constitutional law at Pepperdine University and a former ambassador to Malta. Nonetheless, he adds, "this does not mean prosecution is impossible if there is serious misbehavior and the evidence of unlawful behavior is evident."

Some experts believe, regardless of feasibility, a Warren administration would be well-advised to not focus great efforts on addressing past wrongs. "It would be highly imprudent for political victors to adopt a backward looking litigation focus instead of devoting their election mandate for positive, forward-looking improvement," Kmiec says. "We have enough government by investigation. Prosecuting immigration officials who have disregarded clearly stated statutory requirements is one thing; using litigation to express frustration with overworked administrators or the lack of resources for humane detention is simply a misuse of the judicial role."

Of course, only Warren's election would reveal whether her pledges to hold the Trump administration to account over its treatment of immigrants are meant in earnest or in an attempt to raise awareness of the overwhelming legal and human rights concerns in the Trump administration's treatment of immigrants. "Warren undoubtedly is trying to raise awareness of the current ongoing cruel actions of the Trump administration," Russell says. "I think she has been quite effective in this regard."

Warren may be adopting an approach similar to one popular among progressive candidates in the mid-term elections last year. At the time, New York Representative Alexandria Ocasio-Cortez and then gubernatorial candidate Cynthia Nixon brandished calls to abolish ICE. While it would have been impossible for Nixon to do much to abolish a federal agency in her capacity as New York State governor, analysts observed that the power of the message was in its it ability to draw attention to the need to hold an agency plagued with accusations of human rights violations accountable to the law.

"During presidential campaigns, certainly candidates call out the other candidates on their actions," McKanders says. "The important issue is how her comments might facilitate action and change to a system that exists that allows for a president to have wide discretion to take unilateral actions to detain and separate immigrant children from their parents."

The Warren campaign did not respond to an interview request by time of publication.