Durbin Raises Questions About Possible Collusion Between U.S. & Texas Attorneys General In Termination Of DACA
CHICAGO—U.S. Senate Democratic Whip Dick Durbin (D-IL) today called on Attorney General Jeff Sessions to provide detailed information about the Trump Administration’s possible collusion with the State of Texas to terminate the Deferred Action for Childhood Arrivals (DACA) program.
Last year, Texas Attorney General Ken Paxton and nine other state attorneys general threatened to sue the Trump Administration unless the Administration agreed to “phase out” DACA by September 5, 2017. Sessions cited this “potentially imminent litigation” as a justification when he announced on September 5 that the Administration was ending DACA.
“Yesterday, the State of Texas and six other states filed suit against the Trump Administration challenging the legality of DACA and seeking an injunction to “phase out” the program. This lawsuit again raises serious unanswered questions about whether the Trump Administration is conspiring with Texas and other states to undermine DACA,” wrote Durbin. “In fact, you have publicly supported the states’ threat to challenge DACA. For example, in a June 30 interview, you said, ‘I’ve got to tell you, I like it that our states and localities are holding the federal government to account, expecting us to do what is our responsibility to the state and locals, and that’s to enforce the law.’ I cannot recall the Attorney General of the United States ever welcoming a threat to sue the President.”
Full text of Durbin’s letter:
May 2, 2018
The Honorable Jefferson Beauregard Sessions, III
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Dear Attorney General Sessions:
I request that you provide detailed information about the Trump Administration’s possible collusion with the State of Texas to terminate the Deferred Action for Childhood Arrivals (DACA) program.
On June 29, 2017, Texas Attorney General Ken Paxton, nine other state attorneys general and the Governor of Idaho sent you a letter threatening to sue the Trump Administration unless the Administration agreed to “phase out” DACA by September 5, 2017. You cited this “potentially imminent litigation” as a justification when you announced on September 5 that the Administration was rescinding DACA.
Yesterday, the State of Texas and six other states filed suit against the Trump Administration challenging the legality of DACA and seeking an injunction to “phase out” the program. This lawsuit again raises serious unanswered questions about whether the Trump Administration is conspiring with Texas and other states to undermine DACA.
In fact, you have publicly supported the states’ threat to challenge DACA. For example, in a June 30 interview, you said, “I’ve got to tell you, I like it that our states and localities are holding the federal government to account, expecting us to do what is our responsibility to the state and locals, and that’s to enforce the law.” I cannot recall the Attorney General of the United States ever welcoming a threat to sue the President. And I cannot recall the Justice Department ever using such a threat to take an action to shut down a government program, negatively impacting hundreds of thousands of people.
On October 18, 2017, at a Senate Judiciary Committee hearing, I asked you, “Did you have any communication with the Attorney Generals threatening to bring lawsuits to DACA before the decision was made?” You replied, “That kind of legal discussion I believe would be part of the work product of the attorney general office and I should not reveal it.” I then asked you, “You are saying …that communication is privileged? That you had a communication with the Texas Attorney General about the threatened lawsuit against DACA before the Administration’s announcement?” You responded, “…That is correct. I will review it. If I feel it’s appropriate for me to reveal to you, I will do so.”
That was more than six months ago, and I have not received any follow-up communications from the Justice Department. As you know, there is no recognized legal privilege between adversaries in potential litigation. And Attorney General Paxton has acknowledged that his office did communicate with the Trump Administration about the threatened litigation, saying “we had some back and forth conversations” before sending the June 2017 letter.
Please respond to the following questions as soon as possible, and no later than May 23:
1. Did you or any other Trump Administration official have any communications regarding DACA with any officials from Texas or any other state that signed the June 29, 2017 letter prior to June 29, 2017? If so, please describe those communications in detail, including who was involved, when the communications took place, and what was said.
2. Did you or any other Trump Administration official have any communications regarding DACA with any officials from Texas or any other state that signed the June 29, 2017 letter prior to your September 5, 2017 announcement that the Administration was rescinding DACA? If so, please describe those communications in detail, including who was involved, when the communications took place, and what was said.
3. Did you or any other Trump Administration official have any communications regarding DACA with any officials from Texas or any other state that filed the lawsuit challenging DACA prior to May 2, 2018? If so, please describe those communications in detail, including who was involved, when the communications took place, and what was said.
4. You sent a letter to then Acting Homeland Security Secretary Elaine Duke instructing her to shut down DACA. This one-page letter asserts, with no supporting legal authority, that DACA is unconstitutional and will likely be blocked by federal courts. According to long-standing Justice Department policy, the Office of Legal Counsel “drafts legal opinions of the Attorney General.”
a. Did OLC draft your letter to Acting Secretary Duke and your comments announcing the decision to shut down DACA?
b. Please provide a detailed description of the process by which you reached the conclusion that DACA is unconstitutional, including who you consulted and any supporting documentation.
5. I do not recall any Attorney General claiming a privilege regarding the disclosure of communications with people who have threatened to sue the United States. What is the legal basis for this claim? Can you cite any precedent for such a claim?
Thank you for your time and consideration. I look forward to your prompt response.
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