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Jun 20, 2018

Amid a bipartisan backlash, President Trump has tried repeatedly to shift blame to Democrats for his own administration’s “zero-tolerance” immigration policy, which has resulted in more than 2,300 migrant children being taken from their families along the U.S.-Mexico border. “The Democrats have to change their law — that’s their law,” Trump told reporters on Friday.

The president didn’t specify which law he was talking about. But the statute at the center of his administration’s policy is the work of Republicans — with origins dating back all the way to World War I — albeit with substantial Democratic support along the way. Known originally as the “Undesirable Aliens Act,” the statute would not exist without support from, respectively, a eugenicist and a white supremacist.

The law in question was the foundation of a memo Attorney General Jeff Sessions issued in early April that laid out the administration’s new, zero-tolerance policy. In the memo, Sessions instructed federal prosecutors in the southwestern United States to file criminal charges against any adults caught entering the country illegally. His order stripped officials of discretion over whether to place migrant families seeking asylum into civil proceedings, which allow families to stay together. (Court rulings limit how long the government can detain migrants in civil proceedings. There’s also no guarantee they’ll return for future hearing dates once they’re let out, a phenomenon that has prompted the president’s complaints about “catch and release.”)

On Monday, ProPublica published audio recorded at a U.S. Customs and Border Protection detention facility in which a Border Patrol agent mocks the wails of migrant children as young as 4. Liberals and conservatives alike have condemned the policy, calling it “cruel,” an “atrocity,” and “inconsistent with our American values.”

Top Trump administration officials have held their ground. “We are enforcing the laws passed by Congress,” Secretary of Homeland Security Kirstjen Nielsen asserted Monday. Her message echoed one Sessions had delivered to law enforcement officers in Indiana last week. “If you violate the law, you subject yourself to prosecution,” he said.

The federal law they say they are enforcing makes it a crime for foreign citizens to cross (or attempt to cross) the border into the U.S. anywhere other than an official port of entry. A first offense is a misdemeanor; a second unlawful entry is a felony.

The law’s ancestry dates back to World War I. Till that point, U.S. immigration laws had tended to be all or nothing: either no limits at all — or blanket bans for certain groups, such as the Chinese Exclusion Act. Others were free to enter provided they weren’t “lunatics,” polygamists, prostitutes, “suffering from a loathsome or a dangerous contagious disease,” or so on.

The result was floods of immigrants: Between 1901 and 1910, for example, close to 9 million came to the U.S. As that happened, anti-immigrant attitudes mounted, with mass influxes from parts of Europe associated in the popular imagination with a litany of social problems, like urban poverty and squalor.

In May 1918, after the U.S. had entered World War I, Congress passed a statute called the Passport Act that gave the president the power to restrict the comings and goings of foreign citizens during wartime. A few months later, however, the war ended — and with it, the restrictions on border crossings.

Federal officials saw potential in the criminal provisions of the Passport Act — a maximum 20-year sentence — as a tool for deterring immigration. So prosecutors ignored the expiration of the law and continued to indict migrants under the Passport Act for unlawful entry into the U.S.

Anti-immigration sentiment continued to climb and the rhetoric of the era has resonance today. One anti-immigration group at the time claimed that immigrants tended to be “vicious and criminal” — the “bootleggers, gangsters, and racketeers of large cities.” The war, Columbia University historian Mae Ngai has written, “raised nationalism and anti-foreign sentiment to a high pitch.”

In response, Congress began clamping down. With the Immigration Act of 1924, it capped the flow at about 165,000 people a year, a small fraction of previous levels The statute’s quotas curtailed migration from southern and eastern Europe severely. Another 1924 law — the Oriental Exclusion Act — banned most immigration from Asia. At the same time, Congress made it easier to deport non-citizens for immigration violations.

In 1925, a federal appeals court put a halt to the practice of indicting migrants under the Passport Act outside wartime. But immigration officials liked what they’d seen, and by 1927, they were working on a replacement.

Two men spearheaded the effort that would lead Congress to criminalize unlawful entry into the United States. They were motivated by eugenics and white supremacy.

The first was James Davis, who was Secretary of Labor from 1921 to 1930. A Republican originally appointed by President Warren Harding, Davis was himself an immigrant from Wales who went by “Puddler Jim,” a reference to his job as a youthful worker in the steel mills of western Pennsylvania. At the time, the Department of Labor oversaw immigration, and Davis had grown disturbed by what he’d seen.

Davis was a committed eugenicist, and he believed principles of eugenics should guide immigration policy, according to The Bully Pulpit and the Melting Pot by the historian Hans Vought. It was necessary to draw a distinction, Davis had written in 1923, between “bad stock and good stock, weak blood and strong blood, sound heredity and sickly human stuff.”

James J. Davis, who was secretary of labor from 1921 to 1930 (Paul Thompson/FPG/Archive Photos/Getty Images)

In November 1927, Davis proposed a set of immigration reforms in the pages of the New York Times. Among his goals: “the definite lessening and possibly, in time, the complete checking of the degenerate and the bearer of degenerates.” One “phase of the immigration problem,” Davis wrote, was the “surreptitious entry of aliens” into the United States in numbers that “cannot even be approximately estimated.”

Deportation alone wasn’t enough to deter illegal immigration, Davis wrote. There was nothing disincentivizing the migrant from turning around and trying again. “Endeavoring to stop this law violation” by deportation only, he wrote, “is like trying to prevent burglary with a penalty no severer than opening the front door of the burglarized residence, should the burglar be found within, escorting him to it, and saying ‘You have no right here; see that you don’t come in again.’”

An immigrant who enters the country unlawfully, he concluded, “should be treated as a law violator and punished effectively.”

To bring his vision to fruition, Davis teamed up with a senator from South Carolina. Coleman Livingston Blease, a Democrat, was “a proud and unreconstructed white supremacist,” UCLA history professor Kelly Lytle Hernández wrote in her 2017 book City of Inmates.

Migrants from Mexico were one group whose numbers the increasingly powerful nativist elements in Congress hadn’t managed to restrict. Mexican workers were key to the booming economy of the southwest. Regional employers, particularly in the agricultural sector, had successfully lobbied Congress to block any bill that would choke off their primary source of inexpensive labor. As a result, migration from Mexico soared, with many Mexicans making illegal border crossings to avoid the cost and inconvenience of customs stations.

Blease saw in Davis’s proposal for criminal penalties a way to advance his vision of a white America, and he believed it would bridge the gap between the nativists clamoring for quotas and southwestern congressmen resisting them. Large-scale farmers didn’t mind criminal penalties, Hernández writes, so long as the law was enforced once the harvest was over.

The legislation wasn’t without its opponents, as the UCLA law professor Ingrid Eagly documented in a 2010 study of immigration prosecutions. Groups like the American Civil Liberties Union opposed the bill. The ACLU felt it was unfair and unlikely to deter migration. An immigrant “may be quite ignorant of this law before he starts on his journey,” the group told Congress.

Coleman Livingston Blease (Library of Congress via Wikimedia Commons)

Despite the ACLU’s objections, a Republican-controlled Congress passed Davis and Blease’s bill in 1929. A Republican president, Herbert Hoover, signed it into law.

The law made it a crime to enter the United States unlawfully and, in so doing, “created the criminalization of the border,” Eagly said.

The statute was swiftly put to use. Between July 1929 and June 1930, according to a Department of Labor report, prosecutors brought more than 6,000 unlawful entry cases. “It is believed that it will prove an effective deterrent,” the report’s author wrote. (In his recent memo, Sessions made similar claims about the Trump administration’s zero-tolerance policy.)

But the law didn’t reduce migration. By 1933, the Labor Department concluded that its rosy outlook had been wrong. The 1929 law “does not seem to have the deterrent effect expected,” noted a Labor Department report published that year.

It blamed budget limitations and judges wary of meting out serious sentences if a defendant was going to be deported anyway.

In the 1930s, the Great Depression achieved what prosecutions and deportations had not. Immigration plunged as the labor market in the United States dried up. Prosecutions for unlawful entry dropped to about 5,000 a year, according to a 2012 examination of the law by Doug Keller in the Loyola University Chicago Law Journal.

A shortage of labor during World War II prompted the U.S. to reverse course and encourage migration of temporary workers from Mexico through what it called the Bracero program. (The word refers to manual laborers in Spanish.)

Despite the earlier lessons, federal prosecutors began to focus their attention on bringing unlawful entry cases against Mexican migrants to deter workers from going around the Bracero program. By 1951, there were 15,000 illegal entry and re-entry prosecutions a year.

At the same time, Congress was working to overhaul American immigration law. The effort was spearheaded by two Democrats: Sen. Patrick McCarran and Rep. Francis Walter. Both were staunch anti-Communists who saw immigration — particularly from Eastern Europe and Asia — as posing a risk that Soviet or Maoist agents would infiltrate the country.

Their law is best known for preserving a quota system that meant about 85 percent of immigration visas annually went to people from northern and western Europe. But it also made a crucial change in the unlawful entry law.

In a counterintuitive move, Congress decided to reduce the penalties for unlawful entry — to a maximum of six months in prison. (It also added a felony provision for any additional illegal entry convictions.)

The change wasn’t driven by compassion or a shift away from criminalizing unlawful immigration. Rather, it anticipated the creation of federal magistrate courts that would handle the cases, according to Eagly, the UCLA law professor. A defendant facing a misdemeanor charge punishable by six months or less generally doesn’t have a right to a grand jury indictment or a jury trial. Once Congress established federal magistrate courts, prosecutors could bring criminal charges against far larger numbers of defendants.

A Democratic-controlled Congress passed the law in 1952, but it was vetoed by President Harry Truman. His veto message decried “carrying over into this year of 1952 the isolationist limitations of our 1924 law.” Congress was unmoved and overrode his veto. (In this sense, Trump is correct that Democrats bear some responsibility for the unlawful entry law that underlies his administration’s new immigration policy.)

The unlawful entry statute has remained largely unchanged since 1952. In 1968, however, Congress finally passed a law establishing federal magistrate courts, allowing for a major expansion of charges under the unlawful entry law. Without the need to go through the grand jury process or deal with potential jury trials, immigration prosecutions — almost all for unlawful entry — shot up, Eagly found in her 2010 study: from 2,536 cases nationwide in 1968 to 17,858 in 1974.

The trend culminated in programs like Operation Streamline during the George W. Bush administration, in which magistrate judges along the border took simultaneous mass guilty pleas for unlawful entry. (An appeals court ended the practice in 2009.)

The use of the law hasn’t been a partisan matter. The number of such cases spiked to nearly 50,000 in the last year of the Bush administration, and it stayed in that range for most of the Obama administration, according to federal government data maintained by the Transactional Records Access Clearinghouse at Syracuse University. By 2016, the number had fallen to about 35,000 — still higher than all but the last year of the Bush administration.

But the number of unlawful entry cases fell, the TRAC data shows, during Trump’s first year in office, to 27,000. (It had begun to rise again in recent months, however, even before Sessions announced the administration’s “zero-tolerance” policy.) Convictions for immigration crimes now account for more than half of all federal criminal convictions.

Jun 19, 2018

As the Trump administration continues to defend its “zero tolerance” immigration policy, which, since April, has separated more than 2,300 children from their parents at the border, ProPublica obtained an audio recording from inside a U.S. Customs and Border Protection facility. The recording captured the voices of kids as young as 4, crying for “Mami” and “Papá” as if those were the only words they knew.

The audio intensified the bipartisan outcry to put an end to the policy. But at a White House briefing Monday, Department of Homeland Security Secretary Kirstjen Nielsen blamed Congress, saying that until the nation’s immigration laws are rewritten, children will remain in detention centers as their parents face criminal charges for entering the country without permission, a move at the discretion of the administration.

Most concerning to the families being separated is what appears to be a lack of a plan to reunite the children with their parents. The little girl who can be heard crying in the video, 6-year-old Alison Jimena Valencia Madrid, had not been able to speak to her mother for days after they were separated, according to the girl’s aunt. Authorities at the shelter have warned the girl that her mother could be deported without her.

Jun 19, 2018

In the end, the decision seemed inevitable. After a seven-day trial in Kansas City federal court in March, in which Kansas Secretary of State Kris Kobach needed to be tutored on basic trial procedure by the judge and was found in contempt for his “willful failure” to obey a ruling, even he knew his chances were slim. Kobach told The Kansas City Star at the time that he expected the judge would rule against him (though he expressed optimism in his chances on appeal).

Sure enough, yesterday federal Judge Julie Robinson overturned the law that Kobach was defending as lead counsel for the state, dealing him an unalloyed defeat. The statute, championed by Kobach and signed into law in 2013, required Kansans to present proof of citizenship in order to register to vote. The American Civil Liberties Union sued, contending that the law violated the National Voter Registration Act (AKA the “motor voter” law), which was designed to make it easy to register.

The trial had a significance that extends far beyond the Jayhawk state. One of the fundamental questions in the debate over alleged voter fraud — whether a substantial number of non-citizens are in fact registering to vote — was one of two issues to be determined in the Kansas proceedings. (The second was whether there was a less burdensome solution than what Kansas had adopted.) That made the trial a telling opportunity to remove the voter fraud claims from the charged, and largely proof-free, realms of political campaigns and cable news shoutfests and examine them under the exacting strictures of the rules of evidence.

That’s precisely what occurred and according to Robinson, an appointee of George W. Bush, the proof that voter fraud is widespread was utterly lacking. As the judge put it, “the court finds no credible evidence that a substantial number of noncitizens registered to vote” even under the previous law, which Kobach had claimed was weak.

For Kobach, the trial should’ve been a moment of glory. He’s been arguing for a decade that voter fraud is a national calamity. Much of his career has been built on this issue, along with his fervent opposition to illegal immigration. (His claim is that unlawful immigrants are precisely the ones voting illegally.) Kobach, who also co-chaired the Trump administration’s short-lived commission on voter fraud, is perhaps the individual most identified with the cause of sniffing out and eradicating phony voter registration. He’s got a gilded resume, with degrees from Harvard University, Yale Law School and the University of Oxford, and is seen as both the intellect behind the cause and its prime advocate. Kobach has written voter laws in other jurisdictions and defended them in court. If anybody ever had time to marshal facts and arguments before a trial, it was Kobach.

But things didn’t go well for him in the Kansas City courtroom, as Robinson’s opinion made clear. Kobach’s strongest evidence of non-citizen registration was anemic at best: Over a 20-year period, fewer than 40 non-citizens had attempted to register in one Kansas county that had 130,000 voters. Most of those 40 improper registrations were the result of mistakes or confusion rather than intentional attempts to mislead, and only five of the 40 managed to cast a vote.

One of Kobach’s own experts even rebutted arguments made by both Kobach and President Donald Trump. The expert testified that a handful of improper registrations could not be extrapolated to conclude that 2.8 million fraudulent votes — roughly, the gap between Hillary Clinton and Trump in the popular vote tally — had been cast in the 2016 presidential election. Testimony from a second key expert for Kobach also fizzled.

As the judge’s opinion noted, Kobach insisted the meager instances of cheating revealed at trial are just “the tip of the iceberg.” As she explained, “This trial was his opportunity to produce credible evidence of that iceberg, but he failed to do so.” Dismissing the testimony by Kobach’s witnesses as unpersuasive, Robinson drew what she called “the more obvious conclusion that there is no iceberg; only an icicle largely created by confusion and administrative error.”

By the time the trial was over, Kobach, a charismatic 52-year-old whose broad shoulders and imposing height make him resemble an aging quarterback, seemed to have shrunk inside his chair at the defense table.

But despite his defeat, Kobach’s causes — restricting immigration and tightening voting requirements — seem to be enjoying favorable tides elsewhere. Recent press accounts noted Kobach’s role in restoring a question about citizenship, abandoned since 1950, to U.S. Census forms for 2020. And the Supreme Court ruled on June 11 that the state of Ohio can purge voters from its rolls when they fail to vote even a single time and don’t return a mailing verifying their address, a provision that means more voters will need to re-register and prove their eligibility again.

For his own part, Kobach is now a candidate for governor of Kansas, running neck and neck with the incumbent in polls for the Republican primary on Aug. 7. It’s not clear whether the verdict will affect his chances — or whether it will lead him and others to quietly retreat from claims of voter fraud. But the judge’s opinion and expert interviews reveal that Kobach effectively put the concept of mass voter fraud to the test — and the evidence crumbled.

An election worker checks voter identification in Centropolis Township, Kansas, on Nov. 4, 2014. (Julie Denesha/Getty Images)

Perhaps it was an omen. Before Kobach could enter the courtroom inside the Charles Evans Whittaker U.S. Courthouse each day, he had to pass through a hallway whose walls featured a celebratory display entitled “Americans by Choice: The Story of Immigration and Citizenship in Kansas.” Photographs of people who’d been sworn in as citizens in that very courthouse were superimposed on the translucent window shades.

Public interest in the trial was high. The seating area quickly filled to capacity on the first day of trial on the frigid morning of March 6. The jury box was opened to spectators; it wouldn’t be needed, as this was a bench trial. Those who couldn’t squeeze in were sent to a lower floor, where a live feed had been prepared in a spillover room.

From the moment the trial opened, Kobach and his co-counsels in the Kansas secretary of state’s office, Sue Becker and Garrett Roe, stumbled over the most basic trial procedures. Their mistakes antagonized the judge. “Evidence 101,” Robinson snapped, only minutes into the day, after Kobach’s team attempted to improperly introduce evidence. “I’m not going to do it.”

Matters didn’t improve for Kobach from there.

Throughout the trial, his team’s repeated mishaps and botched cross examinations cost hours of the court’s time. Robinson was repeatedly forced to step into the role of law professor, guiding Kobach, Becker and Roe through courtroom procedure. “Do you know how to do the next step, if that’s what you’re going to do?” the judge asked Becker at one point, as she helped her through the steps of impeaching a witness. “We’re going to follow the rules of evidence here.”  

Becker often seemed nervous. She took her bright red glasses off and on. At times she burst into nervous chuckles after a misstep. She laughed at witnesses, skirmished with the judge and even taunted the lawyers for the ACLU. “I can’t wait to ask my questions on Monday!” she shouted at the end of the first week, jabbing a finger in the direction of Dale Ho, the lead attorney for the plaintiffs. Ho rolled his eyes.

Roe was gentler — deferential, even. He often admitted he didn’t know what step came next, asking the judge for help. “I don’t — I don’t know if this one is objectionable. I hope it’s not,” he offered at one point, as he prepared to ask a question following a torrent of sustained objections. “I’ll let you know,” an attorney for the plaintiffs responded, to a wave of giggles in the courtroom. On the final day of trial, as Becker engaged in yet another dispute with the judge, Roe slapped a binder to his forehead and audibly whispered, “Stop talking. Stop talking.”

Kobach’s cross examinations were smoother and better organized, but he regularly attempted to introduce exhibits — for example, updated state statistics that he had failed to provide the ACLU in advance to vet — that Robinson ruled were inadmissible. As the trial wore on, she became increasingly irritated. She implored Kobach to “please read” the rules on which she based her rulings, saying his team had repeated these errors “ad nauseum.”

Kobach seemed unruffled. Instead of heeding her advice, he’d proffer the evidence for the record, a practice that allows the evidence to be preserved for appeal even if the trial judge refuses to admit it. Over the course of the trial, Kobach and his team would do this nearly a dozen times.

Eventually, Robinson got fed up. She asked Kobach to justify his use of proffers. Kobach, seemingly alarmed, grabbed a copy of the Federal Rules of Civil Procedure — to which he had attached a growing number of Post-it notes — and quickly flipped through it, trying to find the relevant rule.

The judge tried to help. “It’s Rule 26, of course, that’s been the basis for my rulings,” she told Kobach. “I think it would be helpful if you would just articulate under what provision of Rule 26 you think this is permissible.” Kobach seemed to play for time, asking clarifying questions rather than articulating a rationale. Finally, the judge offered mercy: a 15-minute break. Kobach’s team rushed from the courtroom.

It wasn’t enough to save him. In her opinion, Robinson described “a pattern and practice by Defendant [Kobach] of flaunting disclosure and discovery rules.” As she put it, “it is not clear to the Court whether Defendant repeatedly failed to meet his disclosure obligations intentionally or due to his unfamiliarity with the federal rules.” She ordered Kobach to attend the equivalent of after-school tutoring: six hours of extra legal education on the rules of civil procedure or the rules of evidence (and to present the court with a certificate of completion).

It’s always a bad idea for a lawyer to try the patience of a judge — and that’s doubly true during a bench trial, when the judge will decide not only the law, but also the facts. Kobach repeatedly annoyed Robinson with his procedural mistakes. But that was nothing next to what the judge viewed as Kobach’s intentional bad faith.

This view emerged in writing right after the trial — that’s when Robinson issued her ruling finding Kobach in contempt — but before the verdict. And the conduct that inspired the contempt finding had persisted over several years. Robinson concluded that Kobach had intentionally failed to follow a ruling she issued in 2016 that ordered him to restore the privileges of 17,000 suspended Kansas voters.

In her contempt ruling, the judge cited Kobach’s “history of noncompliance” with the order and characterized his explanations for not abiding by it as “nonsensical” and “disingenuous.” She wrote that she was “troubled” by Kobach’s “failure to take responsibility for violating this Court’s orders, and for failing to ensure compliance over an issue that he explicitly represented to the Court had been accomplished.” Robinson ordered Kobach to pay the ACLU’s legal fees for the contempt proceeding.

That contempt ruling was actually the second time Kobach was singled out for punishment in the case. Before the trial, a federal magistrate judge deputized to oversee the discovery portion of the suit fined him $1,000 for making “patently misleading representations” about a voting fraud document Kobach had prepared for Trump. Kobach paid the fine with a state credit card.

More than any procedural bumbling, the collapse of Kobach’s case traced back to the disintegration of a single witness.

The witness was Jesse Richman, a political scientist from Old Dominion University, who has written studies on voter fraud. For this trial, Richman was paid $5,000 by the taxpayers of Kansas to measure non-citizen registration in the state. Richman was the man who had to deliver the goods for Kobach.

With his gray-flecked beard and mustache, Richman looked the part of an academic, albeit one who seemed a bit too tall for his suit and who showed his discomfort in a series of awkward, sudden movements on the witness stand. At moments, Richman’s testimony turned combative, devolving into something resembling an episode of The Jerry Springer Show. By the time he left the stand, Richman had testified for more than five punishing hours. He’d bickered with the ACLU’s lawyer, raised his voice as he defended his studies and repeatedly sparred with the judge.

“Wait, wait, wait!” shouted Robinson at one point, silencing a verbal free-for-all that had erupted among Richman, the ACLU’s Ho, and Kobach, who were all speaking at the same time. “Especially you,” she said, turning her stare to Richman. “You are not here to be an advocate. You are not here to trash the plaintiff. And you are not here to argue with me.”

Richman had played a small but significant part in the 2016 presidential campaign. Trump and others had cited his work to claim that illegal votes had robbed Trump of the popular vote. At an October 2016 rally in Wisconsin, the candidate cited Richman’s work to bolster his predictions that the election would be rigged. “You don’t read about this, right?” Trump told the crowd, before reading from an op-ed Richman had written for The Washington Post: “‘We find that this participation was large enough to plausibly account for Democratic victories in various close elections.’ Okay? All right?”

Richman’s 2014 study of non-citizen registration used data from the Cooperative Congressional Election Study — an online survey of more than 32,000 people. Of those, fewer than 40 individuals indicated they were non-citizens registered to vote. Based on that sample, Richman concluded that up to 2.8 million illegal votes had been cast in 2008 by non-citizens. In fact, he put the illegal votes at somewhere between 38,000 and 2.8 million — a preposterously large range — and then Trump and others simply used the highest figure.

Academics pilloried Richman’s conclusions. Two hundred political scientists signed an open letter criticizing the study, saying it should “not be cited or used in any debate over fraudulent voting.” Harvard’s Stephen Ansolabehere, who administered the CCES, published his own peer-reviewed paper lambasting Richman’s work. Indeed, by the time Trump read Richman’s article onstage in 2016, The Washington Post had already appended a note to the op-ed linking to three rebuttals and a peer-reviewed study debunking the research.

None of that discouraged Kobach or Trump from repeating Richman’s conclusions. They then went a few steps further. They took the top end of the range for the 2008 election, assumed that it applied to the 2016 election, too, and further assumed that all of the fraudulent ballots had been cast for Clinton.

Some of those statements found their way into the courtroom, when Ho pressed play on a video shot by The Kansas City Star on Nov. 30, 2016. Kobach had met with Trump 10 days earlier and had brought with him a paper decrying non-citizen registration and voter fraud. Two days later, Trump tweeted that he would have won the popular vote if not for “millions of people who voted illegally.”

Then-President-elect Donald Trump and Kris Kobach meet at the Trump International Golf Club in Bedminster Township, New Jersey, on Nov. 20, 2016. (Drew Angerer/Getty Images)

On the courtroom’s televisions, Kobach appeared, saying Trump’s tweet was “absolutely correct.” Without naming Richman, Kobach referred to his study: The number of non-citizens who said they’d voted in 2008 was far larger than the popular vote margin, Kobach said on the video. The same number likely voted again in 2016.

In the courtroom, Ho asked Richman if he believed his research supported such a claim. Richman stammered. He repeatedly looked at Kobach, seemingly searching for a way out. Ho persisted and finally, Richman gave his answer: “I do not believe my study provides strong support for that notion.”

To estimate the number of non-citizens voting in Kansas, Richman had used the same methodology he employed in his much-criticized 2014 study. Using samples as small as a single voter, he’d produced surveys with wildly different estimates of non-citizen registration in the state. The multiple iterations confused everyone in the courtroom.

“For the record, how many different data sources have you provided?” Robinson interjected in the middle of one Richman answer. “You provide a range of, like, zero to 18,000 or more.”

“I sense the frustration,” Richman responded, before offering a winding explanation of the multiple data sources and surveys he’d used to arrive at a half-dozen different estimates. Robinson cut him off. “Maybe we need to stop here,” she said.

“Your honor, let me finish answering your question,” he said.

“No, no. I’m done,” she responded, as he continued to protest. “No. Dr. Richman, I’m done.”

To refute Richman’s numbers, the ACLU called on Harvard’s Ansolabehere, whose data Richman had relied on in the past. Ansolabehere testified that Richman’s sample sizes were so small that it was just as possible that there were no non-citizens registered to vote in Kansas as 18,000. “There’s just a great deal of uncertainty with these estimates,” he said.

Ho asked if it would be accurate to say that Richman’s data “shows a rate of non-citizen registration in Kansas that is not statistically distinct from zero?”


The judge was harsher than Ansolabehere in her description of Richman’s testimony. In her opinion, Robinson unloaded a fusillade of dismissive adjectives, calling Richman’s conclusions “confusing, inconsistent and methodologically flawed,” and adding that they were “credibly dismantled” by Ansolabehere. She labeled elements of Richman’s testimony “disingenuous” and “misleading,” and stated that she gave his research “no weight” in her decision.

One of the paradoxes of Kobach is that he has become a star in circles that focus on illegal immigration and voting fraud despite poor results in the courtroom. By ProPublica’s count, Kobach chalked up a 2–6 won-lost record in federal cases in which he was played a major role, and which reached a final disposition before the Kansas case.

Those results occurred when Kobach was an attorney for the legal arm of the Federation for American Immigration Reform from 2004 to 2011, when he became secretary of state in Kansas. In his FAIR role (in which he continued to moonlight till about 2014), Kobach traveled to places like Fremont, Nebraska, Hazleton, Pennsylvania, Farmers Branch, Texas, and Valley Park, Missouri, to help local governments write laws that attempted to hamper illegal immigration, and then defend them in court. Kobach won in Nebraska, but lost in Texas and Pennsylvania, and only a watered down version of the law remains in Missouri.

The best-known law that Kobach helped shape before joining the Kansas government in 2011 was Arizona’s “show me your papers” law. That statute allowed police to demand citizenship documents for any reason from anyone they thought might be in the country illegally. After it passed, the state paid Kobach $300 an hour to train law enforcement on how to legally arrest suspected illegal immigrants. The Supreme Court gutted key provisions of the law in 2012.

Kobach also struggled in two forays into political campaigning. In 2004, he lost a race for Congress. He also drew criticism for his stint as an informal adviser to Mitt Romney’s 2012 presidential campaign. Kobach was the man responsible for Romney’s much-maligned proposal that illegal immigrants “self-deport,” one reason Romney attracted little support among Latinos. Romney disavowed Kobach even before the campaign was over, telling media outlets that he was a “supporter,” not an adviser.

Trump’s election meant Kobach’s positions on immigration would be welcome in the White House. Kobach lobbied for, but didn’t receive, an appointment as Secretary of Homeland Security. He was, however, placed in charge of the voter fraud commission, a pet project of Trump’s. Facing a raft of lawsuits and bad publicity, the commission was disbanded little more than six months after it formally launched.

Back at home, Kobach expanded his power as secretary of state. Boasting of his experience as a law professor and scholar, Kobach convinced the state legislature to give him the authority to prosecute election crimes himself, a power wielded by no other secretary of state. In that role, he has obtained nine guilty pleas against individuals for election-related misdemeanors. Only one of those who pleaded guilty, as it happens, was a non-citizen.

Kansas Gov. Sam Brownback signs a bill granting prosecuting power to the secretary of state for cases of voter fraud in Topeka, Kansas, on June 8, 2015, as Kris Kobach, back center, looks on. (Chris Neal/The Topeka Capital-Journal via AP)

He also persuaded Kansas’ attorney general to allow Kobach to represent the state in the trial of Kansas’ voting law. Kobach argued it was a bargain. As he told The Wichita Eagle at the time, “The advantage is the state gets an experienced appellate litigator who is a specialist in this field and in constitutional law for the cost the state is already paying, which is my salary.”

Kobach fared no better in the second main area of the Kansas City trial than he had in the first. This part explored whether there is a less burdensome way of identifying non-citizens than forcing everyone to show proof of citizenship upon registration. Judge Robinson would conclude that there were many alternatives that were less intrusive.

In his opening, Ho of the ACLU spotlighted a potentially less intrusive approach. Why not use the Department of Homeland Security’s Systematic Alien Verification for Entitlements System list, and compare the names on it to the Kansas voter rolls? That, Ho argued, could efficiently suss out illegal registrations.

Kobach told the judge that simply wasn’t feasible. The list, he explained, doesn’t contain all non-citizens in the country illegally — it contains only non-citizens legally present and those here illegally who register in some way with the federal government. Plus, he told Robinson, in order to really match the SAVE list against a voter roll, both datasets would have to contain alien registration numbers, the identifier given to non-citizens living in the U.S. “Those are things that a voter registration system doesn’t have,” he said. “So, the SAVE system does not work.”

But Kobach had made the opposite argument when he headed the voter fraud commission. There, he’d repeatedly advocated the use of the SAVE database. Appearing on Fox News in May 2017, shortly after the commission was established, Kobach said, “The Department of Homeland Security knows of the millions of aliens who are in the United States legally and that data that’s never been bounced against the state’s voter rolls to see whether these people are registered.” He said the federal databases “can be very valuable.”

A month later, as chief of the voting fraud commission, Kobach took steps to compare state information to the SAVE database. He sent a letter to all 50 secretaries of state requesting their voter rolls. Bipartisan outrage ensued. Democrats feared he would use the rolls to encourage states to purge legitimately registered voters. Republicans labelled the request federal overreach.

At trial, Kobach’s main expert on this point was Hans von Spakovsky, another member of the voter fraud commission. He, too, had been eager in commission meetings to match state voter rolls to the SAVE database.

But like Kobach, von Spakovsky took a different tack at trial. He testified that this database was unusable by elections offices. “In your experience and expertise as an election administrator and one who studies elections,” Kobach asked, “is [the alien registration number] a practical or even possible thing for a state to do in its voter registration database?” Von Spakovsky answered, “No, it is not.”

Von Spakovsky and Kobach have been friends for more than a decade. They worked together at the Department of Justice under George W. Bush. Kobach focused on immigration issues — helping create a database to register visitors to the U.S. from countries associated with terrorism — while von Spakovsky specialized in voting issues; he had opposed the renewal of the Voting Rights Act.

Hans von Spakovsky, a member of the voter fraud commission (Douglas Graham/Roll Call/Getty Images)

Von Spakovsky’s history as a local elections administrator in Fairfax County, Va., qualified him as an expert on voting fraud. Between 2010 and 2012, while serving as vice chairman of the county’s three-member electoral board, he’d examined the voter rolls and found what he said were 300 registered non-citizens. He’d pressed for action against them, but none came. Von Spakovsky later joined the Heritage Foundation, where he remains today, generating research that underpins the arguments of those who claim mass voter fraud.

Like Richman, von Spakovsky seemed nervous on the stand, albeit not combative. He wore wire-rimmed glasses and a severe, immovable expression. Immigration is a not-so-distant feature of his family history: His parents — Russian and German immigrants — met in a refugee camp in American-occupied Germany after World War II before moving to the U.S.

Von Spakovsky had the task of testifying about what was intended to be a key piece of evidence for Kobach’s case: a spreadsheet of 38 non-citizens who had registered to vote, or attempted to register, in a 20-year period in Sedgwick County, Kansas.

But the 38 non-citizens turned out to be something less than an electoral crime wave. For starters, some of the 38 had informed Sedgwick County that they were non-citizens. One woman had sent her registration postcard back to the county with an explanation that it was a “mistake” and that she was not a citizen. Another listed an alien registration number — which tellingly begins with an “A” — instead of a Social Security number on the voter registration form. The county registered her anyway.

When von Spakovsky took the stand, he had to contend with questions that suggested he had cherry-picked his data. (The judge would find he had.) In his expert report, von Spakovsky had referenced a 2005 report by the Government Accountability Office that polled federal courts to see how many non-citizens had been excused from jury duty for being non-citizens — a sign of fraud, because jurors are selected from voter rolls. The GAO report mentioned eight courts. Only one said it had a meaningful number of jury candidates who claimed to be non-citizens: “between 1 and 3 percent” had been dismissed on these grounds. This was the only court von Spakovsky mentioned in his expert report.

His report also cited a 2012 TV news segment from an NBC station in Fort Myers, Fla. Reporters claimed to have discovered more than 100 non-citizens on the local voter roll.

“Now, you know, Mr. von Spakovsky, don’t you, that after this NBC report there was a follow-up by the same NBC station that determined that at least 35 of those 100 individuals had documentation to prove they were, in fact, United States citizens. Correct?” Ho asked. “I am aware of that now, yes,” von Spakovsky replied.

That correction had been online since 2012 and Ho had asked von Spakovsky the same question almost two years before in a deposition before the trial. But von Spakovsky never corrected his expert report.

Under Ho’s questioning, von Spakovsky also acknowledged a false assertion he made in 2011. In a nationally syndicated column for McClatchy, von Spakovsky claimed a tight race in Missouri had been decided by the illegal votes of 50 Somali nationals. A month before the column was published, a Missouri state judge ruled that no such thing had happened.

On the stand, von Spakovsky claimed he had no knowledge of the ruling when he published the piece. He conceded that he never retracted the assertion.

Kobach, who watched the exchange without objection, had repeatedly made the same claim — even after the judge ruled it was false. In 2011, Kobach wrote a series of columns using the example as proof of the need for voter ID, publishing them in outlets ranging from the Topeka Capital-Journal to the Wall Street Journal and the Washington Post. In 2012, he made the claim in an article published in the Syracuse Law Review. In 2013, he wrote an op-ed for the Kansas City Star with the same example: “The election was stolen when Rizzo received about 50 votes illegally cast by citizens of Somalia.” None of those articles have ever been corrected.

Ultimately, Robinson would lacerate von Spakovsky’s testimony, much as she had Richman’s. Von Spakovsky’s statements, the judge wrote, were “premised on several misleading and unsupported examples” and included “false assertions.” As she put it, “His generalized opinions about the rates of noncitizen registration were likewise based on misleading evidence, and largely based on his preconceived beliefs about this issue, which has led to his aggressive public advocacy of stricter proof of citizenship laws.”

There was one other wobbly leg holding up the argument that voter fraud is rampant: the very meaning of the word “fraud.”

Kobach’s case, and the broader claim, rely on an extremely generous definition. Legal definitions of fraud require a person to knowingly be deceptive. But both Kobach and von Spakovsky characterized illegal ballots as “fraud” regardless of the intention of the voter.

Indeed, the nine convictions Kobach has obtained in Kansas are almost entirely made up of individuals who didn’t realize they were doing something wrong. For example, there were older voters who didn’t understand the restrictions and voted in multiple places they owned property. There was also a college student who’d forgotten she’d filled out an absentee ballot in her home state before voting months later in Kansas. (She voted for Trump both times.)

Late in the trial, the ACLU presented Lorraine Minnite, a professor at Rutgers who has written extensively about voter fraud, as a rebuttal witness. Her book, “The Myth of Voter Fraud,” concluded that almost all instances of illegal votes can be chalked up to misunderstandings and administrative error.

Kobach sent his co-counsel, Garrett Roe, to cross-examine her. “It’s your view that what matters is the voter’s knowledge that his or her action is unlawful?” Roe asked. “In a definition of fraud, yes,” said Minnite. Roe pressed her about this for several questions, seemingly surprised that she wouldn’t refer to all illegal voting as fraud.

Minnite stopped him. “The word ‘fraud’ has meaning, and that meaning is that there’s intent behind it. And that’s actually what Kansas laws are with respect to illegal voting,” she said. “You keep saying my definition” she said, putting finger quotes around “my.” “But, you know, it’s not like it’s a freak definition.”

Kobach had explored a similar line of inquiry with von Spakovsky, asking him if the list of 38 non-citizens he’d reviewed could be absolved of “fraud” because they may have lacked intent.

“No,” von Spakovsky replied, “I think any time a non-citizen registers, any time a non-citizen votes, they are — whether intentionally or by accident, I mean — they are defrauding legitimate citizens from a fair election.”

After Kobach concluded his questions, the judge began her own examination of von Spakovsky.

“I think it’s fair to say there’s a pretty good distinction in terms of how the two of you define fraud,” the judge said, explaining that Minnite focused on intent, while she understood von Spakovsky’s definition to include any time someone who wasn’t supposed to vote did so, regardless of reason. “Would that be a fair characterization?” she asked.

“Yes ma’am,” von Spakovsky replied.

The judge asked whether a greater number of legitimate voters would be barred from casting ballots under the law than fraudulent votes prevented. In that scenario, she asked, “Would that not also be defrauding the electoral process?” Von Spakovsky danced around the answer, asserting that one would need to answer that question in the context of the registration requirements, which he deemed reasonable.

The judge cut him off. “Well that doesn’t really answer my question,” she said, saying that she found it contradictory that he wanted to consider context when examining the burden of registration requirements, but not when examining the circumstances in which fraud was committed.

“When you’re talking about … non-citizen voting, you don’t want to consider that in context of whether that person made a mistake, whether a DMV person convinced them they should vote,” she said. Von Spakovsky allowed that not every improper voter should be prosecuted, but insisted that “each ballot they cast takes away the vote of and dilutes the vote of actual citizens who are voting. And that’s —”

The judge interrupted again. “So, the thousands of actual citizens that should be able to vote but who are not because of the system, because of this law, that’s not diluting the vote and that’s not impairing the integrity of the electoral process, I take it?” she said.

Von Spakovsky didn’t engage with the hypothetical. He simply didn’t believe it was happening. “I don’t believe that this requirement prevents individuals who are eligible to register and vote from doing so.” Later, on the stand, he’d tell Ho he couldn’t think of a single law in the country that he felt negatively impacted anyone’s ability to register or vote.

Robinson, in the end, strongly disagreed. As she wrote in her opinion, “the Court finds that the burden imposed on Kansans by this law outweighs the state’s interest in preventing noncitizen voter fraud, keeping accurate voter rolls, and maintaining confidence in elections. The burden is not just on a ‘few voters,’ but on tens of thousands of voters, many of whom were disenfranchised” by Kobach’s law. The law, she concluded, was a bigger problem than the one it set out to solve, acting as a “deterrent to registration and voting for substantially more eligible Kansans than it has prevented ineligible voters from registering to vote.”

Jun 19, 2018

At the beginning of the year, we asked ProPublica Illinois readers what they wanted to know about how we do our work. Thoughtful, challenging questions have been rolling in ever since, and we’ve been answering them in an occasional series of columns. In this dispatch, ProPublica Illinois news applications developer David Eads answers a question about whether news organizations share their reporting.

To what extent do journalists from various newsgathering organizations share their efforts BEFORE PUBLISHING? I know all media outlets are “friendly competitors” but the “media” are our eyes and ears and if they are chasing the same leads, they are duplicating efforts that would be better spent chasing different leads. —Mel Miller

Thinking about competition and collaboration in journalism conjures up images of the great newspaper rivalries. The Washington Post and The New York Times competed during the 1970s covering the Pentagon Papers, and the Post, Times and others battled over the Monica Lewinsky scandal during the Clinton administration.

Now, the Post and Times are at it again with story after story on the administration of President Donald Trump. In fact, in over a week-and-a-half in May 2017, the Times and the Post published a series of investigative stories that magazines called the “last great newspaper war” and the “10 best days in journalism.”

Among the scoops: the Times reporting that, before he was fired, FBI Director James Comey had asked for more prosecutors and other personnel for the Russia investigation, and the Post revealing that Trump had disclosed highly classified information to top Russian officials in a meeting at the White House.

Journalism juggernauts vying to beat each other by writing smart stories, digging up scoops and cultivating important, inside sources hasn’t abated. It’s good for journalism and it can serve readers.

Over the past decade or so, however, the need for collaboration has grown as well. Staffs at many legacy publications have shrunk, forcing news organizations to decide what’s essential to their mission. Not that newsrooms agree formally or informally to cede stories to competitors, but they increasingly make choices about how to allocate limited resources.

Some stories are so complex, or involve datasets and coverage beyond what even the largest newsrooms can reasonably tackle, that collaboration is key. In other cases, small newsrooms find that by working together they bring different strengths, skills and audiences to a story that ultimately allows it to be told in a richer way and reach different groups of people.

Projects like the Pulitzer Prize-winning Panama Papers, ProPublica’s own Electionland and Documenting Hate, and regional initiatives like the Ohio Valley ReSource are just a few examples of this kind of collaboration. For the Panama Papers, close to 400 reporters from roughly 100 media outlets in some 80 countries sifted through an enormous body of data to show how the rich and powerful avoid taxes and hide their financial activities without breaking the law. (Full disclosure: My wife worked on this project.)

Partnerships are central to the ProPublica model. Some develop intentionally, when we seek out a publishing partner. Others are more serendipitous. ProPublica and This American Life joined with The Marshall Project on 2015’s “An Unbelievable Story of Rape” after reporters discovered they were working on the same story. Instead of rushing competing stories into publication, they decided to combine their efforts.

The result: a Pulitzer Prize.

The rise of technology and open source culture — the practice of freely sharing and collaborating on software development — also has fostered collaboration across organizations and industries. Elex, a project to ease working with election data that I helped develop, started as a partnership between The New York Times and NPR and includes contributions from the Los Angeles Times, The San Diego Union-Tribune and more. It’s used by dozens of media organizations to deliver election results to their audiences.

Competition remains in many markets, though it can shift from day to day. In Chicago, for instance, many news outlets, including the two major newspapers, the Chicago Tribune and the Chicago Sun-Times, vie for your attention. At the same time, they also work together. At ProPublica Illinois, we’ve collaborated with both papers, as well as other local outlets, and other media organizations have also worked together. Some recent examples: WBEZ and the Better Government Association collaborated to investigate broken elevators in public housing, City Bureau and Curious City have worked together to tackle topics like segregation in Chicago, and the Chicago Data Collaborative brings together multiple organizations from media and beyond to go deeper on criminal justice data.

Both competition and collaboration are important parts of the journalism ecosystem. The most important question is whether a story and its audience will benefit from competition or collaboration.

In the case of the great rivalry between the Post and the Times, competition can spur deeper reporting. Audiences win. In the case of giant leaks or fundamental data like election results, collaboration may create broader accountability and best serves audiences.

Jun 19, 2018

Minutes after ProPublica posted a recording of crying children begging for their parents, Kirstjen Nielsen stepped up to the podium in the White House briefing room to answer questions from reporters, as well as a growing chorus of criticism from Democrats and Republicans.

Nielsen, the Secretary of the Department of Homeland Security, blamed Congress for the Trump administration’s policy of separating children detained at the border from their parents. Nielsen said the administration would continue to send the children to temporary detention centers in warehouses and big box stores until Congress rewrites the nation’s immigration laws.

At one point, a reporter from New York magazine, Olivia Nuzzi, played the tape ProPublica obtained from inside a U.S. Customs and Border Protection facility, according to tweets she posted.

I played the audio of children separated from their parents at a US Customs and Border Protection facility that was published by @ProPublica today at the White House briefing. Officials failed to adequately and truthfully answer questions about the policy.

I would have waited until I was called on to play it, but I was not being called on. After another reporter’s phone began loudly ringing with a melodic jingle, I figured the briefing room could probably deal with a more important disturbance.

It’s unclear if Nielsen heard the recording, which consists mostly of the sounds of weeping children calling for their mothers and fathers. Reporters attempted to ask her questions about the material in the recording — including “How is this not child abuse?” — but she did not respond directly. Asked if the recordings, along with pictures and more that have emerged in recent days, are an unintended consequence of the administration’s approach, she said, “I think that they reflect the focus of those who post such pictures and narratives.”

Richard Tofel, ProPublica’s president, said the decision to post the recording and accompanying story reflected a focus on providing a fuller accounting of what’s happening in facilities that are closed to public view.

“Our agenda is to bring the American people facts for their consideration,” he said.

The separation of these Central American children from their parents was triggered by the administration’s decision to bring criminal charges against adults who enter the country without permission. That move, which is discretionary, brings into play regulations that prevent parents facing criminal prosecution from being imprisoned with their children.

Nielsen denied that the policy change was intended to pressure Congress.

“The children are not being used as a pawn,” she said. “We’re trying to protect the children, which is why I’m asking Congress to act.”

Jun 18, 2018

Read in English.

El desesperado llanto de diez niños centroamericanos, separados de sus padres un día de la semana pasada por las autoridades de inmigración en la frontera, es una escucha atroz. Muchos de ellos suenan como si estuvieran llorando tan fuerte que apenas pueden respirar. Gritan “mami” y “papá” una y otra vez, como si esas fueran las únicas palabras que conocen.

La voz de barítono de un agente de la Patrulla Fronteriza retumba por encima del llanto. “Bueno, aquí tenemos una orquesta,” bromea. “Faltaba el maestro”.

Entonces, una angustiada niña salvadoreña de seis años suplica repetidamente que alguien llame a su tía. Solo una llamada, ruega a cualquiera que la escuche. Dice que ha memorizado el número de teléfono y, en un momento dado, se lo recita de un tirón a un representante consular. “Y mi mami después que me venga a traer mi tía va a venir lo más pronto posible para irme con ella”, gimotea.

Una grabación en audio obtenida por ProPublica pone sonido al sufrimiento real de un polémico debate político en el que hasta ahora no han participado quienes tienen más en juego: los niños inmigrantes. Más de 2,300 de ellos han sido separados de sus padres desde abril, cuando la administración Trump lanzó su política migratoria de tolerancia cero, que exige procesar a todas las personas que intenten ingresar de forma ilegal en el país y llevarse a los niños que trajeron consigo. Más de 100 de esos niños son menores de cuatro años. Los niños se encuentran inicialmente en almacenes, tiendas de campaña o grandes almacenes que se han convertido en centros de detención de la Patrulla Fronteriza.

Las condenas a esta política han sido rápidas y agudas, incluso por parte de algunos de los partidarios más fiables de la administración. Ha unido conservadores religiosos y a activistas por los derechos de los inmigrantes, que han dicho que la tolerancia cero equivale a “cero humanidad”. Miembros demócratas y republicanos del Congreso se pronunciaron contra los esfuerzos de la administración durante el fin de semana. La ex primera dama Laura Bush describió las prácticas de la administración como “crueles” e “inmorales” y comparó las imágenes de los niños inmigrantes detenidos en perreras con las de los campos de internamiento japoneses durante la Segunda Guerra Mundial. Y la American Academy of Pediatrics (Academia Estadounidense de Pediatría, en español) ha dicho que la práctica de separar a los niños de sus padres puede causarles un “daño irreparable”.

Aún así, la administración ha respaldado su política. El presidente Trump culpa a los demócratas y dice que su gobierno solo está aplicando leyes ya existentes, aunque eso no es verdad. No hay ninguna ley que obligue a separar a los niños de sus padres, o que exija el enjuiciamiento criminal de todos los individuos que cruzan la frontera sin documentos. Esas prácticas fueron establecidas por la administración Trump.

El Fiscal General Jeff Sessions ha citado pasajes de la Biblia en un intento de establecer una justificación religiosa de esta política. El lunes la defendió de nuevo diciendo que era una cuestión de estado de derecho. “No podemos y no incitaremos a la gente a traer niños dándoles inmunidad general de nuestras leyes”. Un portavoz de la Patrulla Fronteriza se hizo eco de ese razonamiento en una declaración escrita.

En los últimos días, las autoridades en la frontera han comenzado a permitir recorridos estrechamente controlados por las instalaciones con el objetivo de poner un rostro humano a esta política, pero las cámaras están fuertemente restringidas. Y los niños retenidos no pueden hablar con periodistas.

El audio obtenido por ProPublica rompe ese silencio. Fue grabado la semana pasada dentro de un centro de detención de la Patrulla Fronteriza. La persona que realizó la grabación solicitó no ser identificada por temor a represalias. Esa persona proporcionó el audio a Jennifer Harbury, una conocida abogada de derechos civiles que ha vivido y trabajado durante cuatro décadas en el Valle del Río Grande, a lo largo de la frontera de Texas con México. A su vez, Harbury facilitó el audio a ProPublica. Dijo que la persona que lo grabó era una clienta que “escuchó los llantos y los lloros de los niños y que quedó devastada”.

Esta persona estimó que los niños de la grabación tienen entre cuatro y diez años. Parecía que habían estado en el centro de detención menos de 24 horas, por lo que su angustia por haber sido separados de sus padres todavía estaba a flor de piel. Los funcionarios del consulado trataron de tranquilizarlos con bocadillos y juguetes, pero los niños eran inconsolables.

La niña que más destacó fue la salvadoreña de seis años que tenía un número de teléfono metido en la cabeza. Al final del audio, un funcionario consular ofrece llamar a la tía de la niña. ProPublica marcó el número que la menor recitó en el audio y habló con la tía sobre la llamada.

“Fue el momento más difícil de mi vida”, dijo. “Imagínese recibir una llamada de su sobrina de seis años. Está llorando y me ruega que vaya a buscarla. Ella dice: ‘Prometo que me comportaré, pero por favor sácame de aquí. Estoy completamente sola’”.

La tía dijo que lo que hizo que la llamada fuera aún más dolorosa es que no había nada que ella pudiera hacer. Ella y su hija de nueve años buscan asilo en los Estados Unidos después de emigrar hace dos años por los mismos motivos y siguiendo la misma ruta que su hermana y su sobrina. Son procedentes de un pequeño pueblo llamado Armenia, a una hora en coche al noroeste de San Salvador, pero al alcance de sus olas de crímenes paralizantes de la capital salvadoreña. La tía dijo que las pandillas estaban en todas partes en El Salvador: “Están en los autobuses. Están en los bancos. Están en las escuelas. Están en la policía. No hay ningún lugar donde la gente normal se sienta segura”.

Dijo que su sobrina y su hermana partieron hacia Estados Unidos hace más de un mes. Pagaron a un traficante de personas 7,000 dólares para que las guiara a través de Guatemala y México y cruzaron la frontera hacia los Estados Unidos. Ahora, añadió, todo el riesgo y la inversión parecen perdidos.

La tía dijo que le preocupaba que cualquier intento de intervenir en la situación de su sobrina pusiera en riesgo la suya y el asilo de su hija, sobre todo después de que la administración Trump haya anulado las protecciones de asilo para las víctimas de las pandillas y de la violencia doméstica. Ella dijo que logró hablar con su hermana, que fue trasladada a un centro de detención de inmigrantes cerca de Port Isabel, en Texas. Y se mantiene en contacto con su sobrina, Alison Jimena Valencia Madrid, por teléfono. Madre e hija, sin embargo, no han podido comunicarse.

La tía dijo que Alison había sido trasladada de las instalaciones de la Patrulla Fronteriza a un refugio donde tiene una cama real. Pero dijo que las autoridades del refugio advirtieron a la niña de que su madre, Cindy Madrid, de 29 años, podría ser deportada sin ella.

“Sé que no es ciudadana estadounidense”, dijo la tía sobre su sobrina. “Pero es un ser humano. Es una niña. ¿Cómo pueden tratarla de esta manera?”

Puedes contactar con Ginger Thompson por teléfono 917-512-0229 o por e-mail: [email protected].

Jun 18, 2018

Leer en Español.

The desperate sobbing of 10 Central American children, separated from their parents one day last week by immigration authorities at the border, makes for excruciating listening. Many of them sound like they’re crying so hard, they can barely breathe. They scream “Mami” and “Papá” over and over again, as if those are the only words they know.

The baritone voice of a Border Patrol agent booms above the crying. “Well, we have an orchestra here,” he jokes. “What’s missing is a conductor.”

Then a distraught but determined 6-year-old Salvadoran girl pleads repeatedly for someone to call her aunt. Just one call, she begs anyone who will listen. She says she’s memorized the phone number, and at one point, rattles it off to a consular representative. “My mommy says that I’ll go with my aunt,” she whimpers, “and that she’ll come to pick me up there as quickly as possible.”

An audio recording obtained by ProPublica adds real-life sounds of suffering to a contentious policy debate that has so far been short on input from those with the most at stake: immigrant children. More than 2,300 of them have been separated from their parents since April, when the Trump administration launched its “zero tolerance” immigration policy, which calls for prosecuting all people who attempt to illegally enter the country and taking away the children they brought with them. More than 100 of those children are under the age of 4. The children are initially held in warehouses, tents or big box stores that have been converted into Border Patrol detention facilities.

Condemnations of the policy have been swift and sharp, including from some of the administration’s most reliable supporters. It has united religious conservatives and immigrant rights activists, who have said that “zero tolerance” amounts to “zero humanity.” Democratic and Republican members of Congress spoke out against the administration’s enforcement efforts over the weekend. Former first lady Laura Bush called the administration’s practices “cruel” and “immoral,” and likened images of immigrant children being held in kennels to those that came out of Japanese internment camps during World War II. And the American Academy of Pediatrics has said the practice of separating children from their parents can cause the children “irreparable harm.”

Still, the administration had stood by it. President Donald Trump blames Democrats and says his administration is only enforcing laws already on the books, although that’s not true. There are no laws that require children to be separated from their parents, or that call for criminal prosecutions of all undocumented border crossers. Those practices were established by the Trump administration.

Attorney General Jeff Sessions has cited passages from the Bible in an attempt to establish religious justification. On Monday, he defended it again saying it was a matter of rule of law, “We cannot and will not encourage people to bring children by giving them blanket immunity from our laws.” A Border Patrol spokesman echoed that thought in a written statement.

In recent days, authorities on the border have begun allowing tightly controlled tours of the facilities that are meant to put a humane face on the policy. But cameras are heavily restricted. And the children being held are not allowed to speak to journalists.

The audio obtained by ProPublica breaks that silence. It was recorded last week inside a U.S. Customs and Border Protection detention facility. The person who made the recording asked not to be identified for fear of retaliation. That person gave the audio to Jennifer Harbury, a well-known civil rights attorney who has lived and worked for four decades in the Rio Grande Valley along the Texas border with Mexico. Harbury provided it to ProPublica. She said the person who recorded it was a client who “heard the children’s weeping and crying, and was devastated by it.”

The person estimated that the children on the recording are between 4 and 10 years old. It appeared that they had been at the detention center for less than 24 hours, so their distress at having been separated from their parents was still raw. Consulate officials tried to comfort them with snacks and toys. But the children were inconsolable.

The child who stood out the most was the 6-year-old Salvadoran girl with a phone number stuck in her head. At the end of the audio, a consular official offers to call the girl’s aunt. ProPublica dialed the number she recited in the audio, and spoke with the aunt about the call.

“It was the hardest moment in my life,” she said. “Imagine getting a call from your 6-year-old niece. She’s crying and begging me to go get her. She says, ‘I promise I’ll behave, but please get me out of here. I’m all alone.’”

The aunt said what made the call even more painful was that there was nothing she could do. She and her 9-year-old daughter are seeking asylum in the United States after immigrating here two years ago for the exact same reasons and on the exact same route as her sister and her niece. They are from a small town called Armenia, about an hour’s drive northwest of the Salvadoran capital, but well within reach of its crippling crime waves. She said gangs were everywhere in El Salvador: “They’re on the buses. They’re in the banks. They’re in schools. They’re in the police. There’s nowhere for normal people to feel safe.”

She said her niece and sister set out for the United States over a month ago. They paid a smuggler $7,000 to guide them through Guatemala, and Mexico and across the border into the United States. Now, she said, all the risk and investment seem lost.

The aunt said she worried that any attempt to intervene in her niece’s situation would put hers and her daughter’s asylum case at risk, particularly since the Trump administration overturned asylum protections for victims of gang and domestic violence. She said she’s managed to speak to her sister, who has been moved to an immigration detention facility near Port Isabel, Texas. And she keeps in touch with her niece, Alison Jimena Valencia Madrid, by telephone. Mother and daughter, however, have not been able to speak to one another.

The aunt said that Alison has been moved out of the Border Patrol facility to a shelter where she has a real bed. But she said that authorities at the shelter have warned the girl that her mother, 29-year-old Cindy Madrid, might be deported without her.

“I know she’s not an American citizen,” the aunt said of her niece. “But she’s a human being. She’s a child. How can they treat her this way?”

Jun 18, 2018

Four days after Marie McCausland gave birth to her first child, the hospital sent her and her husband home with their new baby boy. Hours later, she felt awful: severe chest pain, a splitting headache and spiking blood pressure. When she laid down to rest, the symptoms got worse. “I just had this feeling like, ‘If I go to sleep, I’m not going to wake up,’” says McCausland.

The hospital’s discharge materials said nothing about her symptoms, but McCausland remembered the ProPublica/NPR story she’d read one week earlier about Lauren Bloomstein, who died soon after childbirth from preeclampsia, a type of high blood pressure that only occurs in pregnancy or postpartum. Recognizing Bloomstein’s symptoms in herself, McCausland and her husband packed up their four-day-old baby and rushed to the closest emergency room in Cleveland.

The first ER doctor she saw tried sending her back home with blood pressure meds, even as her face had become so bloated she barely recognized herself. But McCausland stood her ground. “I said, ‘I’m not leaving here with this high blood pressure. I really think it’s preeclampsia.’” McCausand waited in the ER for another seven hours before the doctor consulted with an obstetrician at another hospital — who immediately registered her symptoms as severe preeclampsia and directed proper treatment.

“ProPublica’s reporting literally saved my life, and it’s changed the course of my life,” said McCausland, who had spent the better part of her graduate career working to become an HIV researcher. “Now I’m trying to figure out how to get into maternal health advocacy as a career.”

She’s off to a good start: A few months after her near-death experience, she contacted the hospital’s Chief of System Quality for Obstetrics, pushing them to improve its protocol. The hospital updated its discharge papers to include a list of potentially dangerous postpartum symptoms, so new mothers now know what conditions to look out for.