The Biden administration’s acting attorney general, a longtime career official named Monty Wilkinson, took part in a controversial 2017 decision to remove a justice department (DoJ) lawyer in Texas who had raised concerns about migrant children who were being separated from their parents.
Emails seen by the Guardian show that Wilkinson, who is expected to serve as acting attorney general until Judge Merrick Garland is formally confirmed by the Senate, worked with another longtime career official, Iris Lan, in reviewing complaints about Joshua Stern, a prosecutor who had told colleagues he was “disturbed” by the Trump administration’s separation policy.
The policy ultimately led to the separation of about 1,550 children from their parents, hundreds of whom have still not been reunited, although Joe Biden has said he would make that one of his top priorities.
Stern, who is no longer employed by the DoJ, was ultimately removed from his post as a temporary detailee, two weeks after senior officials in Texas raised concerns about him to officials in Washington DC, including Wilkinson.
Wilkinson, who Biden chose to serve as acting attorney general until Garland is confirmed, had been overseeing human resources, security planning and the library at the justice department before he was elevated to serve as acting attorney general.
A recent report in the New York Times suggested that Wilkinson was a trusted longtime official, and that his “low profile” all but guaranteed that he was not involved in any of the myriad scandals that defined the justice department under Donald Trump and the former attorney general Bill Barr.
But a report published by the Guardian in September 2020 revealed that Wilkinson was one of several career officials who reviewed complaints that ultimately led to the removal of Stern from the western district of Texas in 2017.
The report was focused on the role a senior justice department official, Iris Lan, played in reviewing those complaints. Lan had been nominated to serve in a lifetime appointment as a federal judge, but the nomination was never taken up in the Senate after a number of immigrant rights groups raised concerns about Lan following publication of the Guardian’s article.
It is not clear whether Wilkinson or Lan privately supported or criticized the administration’s child separation policy when they heard about Stern’s concerns.
At the time of the controversy, Wilkinson was working as director of the executive office for US attorneys, a role that he had been appointed to by Eric Holder, the former attorney general for Barack Obama.
Emails seen by the Guardian show that a DoJ official in Texas named Jose Gonzalez sent a memo to the then acting US attorney for the western district, Richard Durbin, in September 2017 in which he outlined concerns about Stern, including complaints that Stern was “particularly disturbed” by cases in which defendants could not locate their children.
The western district, in El Paso, was at the time involved in a pilot program to criminally prosecute migrants who were entering the country illegally, which in turn led to people being separated from their children, sometimes indefinitely.
The policy was later expanded to include all border states, but was ended following an outcry in Congress and in the press, when stories about migrant children being separated began to become known.
Stern had been sent to Texas to help deal with a significant influx in migrant cases. But emails show that he was deeply concerned and alarmed about the children who were separated, and told prosecutors that the parents who were being prosecuted were “often fleeing violence in their home countries”.
He also told superiors in Texas that he had been contacting agencies to try to help locate missing children. The memo detailing what was seen as Stern’s insubordination was forwarded by Durbin to Lan, who told Lan that he did not believe Stern was “fully committed to the program”. Durbin was seeking to release Stern from the detailee program early.
Lan, in turn, said she was not sure about the usual protocol, and said she wanted to share the memo with Wilkinson to get his “take” before “we proceed”. Wilkinson then responded to Lan and Durbin saying that he and Durbin had talked and that Durbin was going to send more “specific examples”.
Stern was sent a termination letter that ended his posting on 20 September 2017, two weeks after concerns were first raised with Lan and, later, Wilkinson.
Stern has not responded to questions by the Guardian.
A spokesperson for the DoJ said in a statement: “The department cannot comment on specific personnel matters. Regarding the process for detail assignments from components to US Attorneys Offices, the decision on whether to continue a detail is between the lending and receiving components. EOUSA plays an administrative role related to the associated paperwork but does not make decisions on assignments.”
It did not provide further comment on who did make the decision.
A DoJ spokeswoman under the Trump administration said, in response to questions for the previous Guardian article on the matter, that Lan had received the memo about Stern because of her role as a liaison to US attorneys and did not handle personnel matters.
“She routed it, consistent with her role,” she said.
A recent report by the Office of Inspector General (OIG) at the Department of Justice closely examined the role some officials at the department played in Trump’s separation policy.
It said department leadership knew the policy would result in children being separated from their families and that the former US attorney general Jeff Sessions “demonstrated a deficient understanding of the legal requirements related to the care and custody of separated children”.
“We concluded that the Department’s single-minded focus on increasing immigration prosecutions came at the expense of careful and appropriate consideration of the impact of family unit prosecutions and child separations,” the report said.