Letter to Jefferson Sessions, Attorney General, and James M. Mattis, Secretary of Defense - Rescind Decision to Use Lawyers from the Department of Defense as Temporary Assistant U.S. Attorneys

Letter

Dear Attorney General Sessions and Secretary Mattis,

I write to strongly protest the Justice Department's decision to utilize lawyers from the Department of Defense as temporary Assistant U.S. Attorneys in order to prosecute border entry cases criminally. As the Ranking Member of the Commerce, Justice, Science Appropriations Subcommittee, which oversees the budget of the Department of Justice (DOJ), I believe this to be an extremely inefficient use of federal funds that will undermine the clear distinctions between the work that the Department of Justice does versus that of the Department of Defense.

Two weeks ago, both of your agencies approved a plan to temporarily assign 21 lawyers from the Department of Defense (DOD) to assist with the Department of Justice's new "zero tolerance' policy with regard to undocumented border crossings. This new "no tolerance' policy has significant opportunity and financial costs, and this particular effort is a demonstration of those problems. According to your information, it is expected that this effort will cost the Department of Justice more than $3.3 million to host DOD lawyers for 179 days (or slightly less than 6 months). We do not know the related costs of this policy to the Federal Judiciary and in particular to the Federal Defenders, as they are forced to take on a larger caseload without a similar increase in funding.

This flawed proposal raises serious concerns about DOJ's commitment to due process and fairness. There is no indication that any of the temporarily assigned attorneys have experience prosecuting immigration-related cases. There is little indication that they will receive needed training to understand the various affirmative defenses and claims to asylum that they may encounter- and their legal duties in these circumstances. Additionally, the Appropriations Committee has received no justification that this effort is necessary. Immigration cases are generally better addressed in our immigration court system, which is better equipped and trained to understand the complexities of our immigration laws, rather than through the federal courts.

There are also several outstanding questions regarding this effort. I am interested in the answers to the following questions:

1. What types of cases were these 21 lawyers working on prior to this temporary assignment for the Department of Defense?

2. How many cases, on average, did each of these 21 DOD lawyers work on for the Department of Defense over the last six months? Please include the statute or law at issue in each case.

3. How many cases will each attorney work on while on detail to the Department of Justice?

4. What is the current case backlog at the Department of Defense? What is the total number of lawyers working at the Department of Defense's Office of General Counsel?

5. According to previously provided information, this effort will cost the Department of Justice $3.3 million over the course of the 179-day term for pay, travel, and housing- or $154,782 per lawyer for less than 6 months' work. What is the average salary of an Assistant US Attorney (AUSA) who would usually prosecute these cases? What is the average cost for transferring an AUSA from another district on this type of temporary assignment?

6. Within the Department of Defense, have these lawyers volunteered for this effort, or have they been assigned without their input?

I have yet to hear a convincing argument that criminal prosecution of every single border crossing case is better than the administrative justice system we already have in place. It remains my deeply held concern that by irrationally focusing on the criminal prosecutions of minor violations of immigration law, our federal prosecutors will fail to prosecute dangerous criminals in other, more pressing areas of the law. This appears to be a waste of resources that will potentially leave the Department of Justice with fewer resources to prosecute drug traffickers, white-collar criminals, and those committing gun violence. This proposal does the same at the Department of Defense, where issues pressing for our nation's national security will remain unfinished while these individuals are transferred to the Department of Justice.

I urge you to reconsider this decision. I look forward to your response and to discussing these issues in detail.

Sincerely,

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