At her confirmation hearing Wednesday, Attorney General nominee Loretta Lynch offered a provocative answer to a question about Barack Obama's actions on immigration, remarking that prosecutors should in fact be able to deport immigrants eligible for "deferred action" under Obama's actions.
The answer got attention for obvious reasons — it sounded like the AG nominee was saying the president's much-hyped deferred-action program wouldn't actually protect immigrants. But that's not what she said.
Lynch was asked whether the president's actions would get in the way of "prosecutorial discretion." And her answer was that they wouldn't — as long as prosecutors still had the power to choose who to deport.
What Lynch said isn't relevant to how the program's actually going to be implemented. The Department of Justice isn't involved in that. And the Department of Homeland Security, which is, just rolled out instructions today for Border Patrol and Immigration and Customs Enforcement agents telling them to release immigrants who might qualify.
But that means Lynch just set a stricter standard for legality than the one DHS is actually meeting. And since her DOJ is going to be responsible for defending DHS' actions in court, that might come back to haunt her.
Lynch wasn't talking about how the program will work
Here's the quote of Lynch's that, taken out of context, sounds like a bold statement about the President's policy: "As a prosecutor I always want the ability to still take some sort of action against those who may not be in my initial category as the most serious threat. I didn't see anything in the opinion that prevented action being taken [against] individuals who might otherwise qualify for the deferral."
But the important part of that second sentence is "in the opinion." Here's why.
In their questions, most of the Republican senators tried to address what Obama's executive actions on immigration were actually going to do, and how they were going to be implemented. But that's the jurisdiction of the Department of Homeland Security, not the DOJ. Even the prosecutors responsible for choosing which immigrants go into deportation proceedings are DHS employees.
The big reason that the executive actions Obama announced in November are relevant to an Attorney General hearing is because they were grounded in a legal opinion written by the DOJ's Office of Legal Counsel — which argued that it was legal for the president to allow millions of unauthorized immigrants to apply for deferred action, but that it wouldn't be legal for him to institute a much broader deferred action program.
So when Lynch answered the questions, she kept her answers to her analysis of the Office of Legal Counsel opinion — which she supported. She was clear that she wasn't talking about the November 2014 DHS memos that laid out what the president was actually doing via executive action, and that she isn't part of the process by which DHS is currently developing actual regulations to govern how those memos are implemented.
Let's take another look at that sentence from Lynch above. Judiciary Committee Chair Chuck Grassley (R-IA) had just asked her whether DHS prosecutors would still be allowed to put immigrants in deportation proceedings, even if they met the requirements to apply for deferred action set out in the November memos — or if the government would tell prosecutors that those immigrants were off-limits for deportation. Lynch said that she "didn't see anything in the (OLC) opinion that prevented action being taken" by prosecutors in that case. But as she pointed out repeatedly, that was just based on her reading of the legal opinion undergirding the memos — it wasn't a statement about how DHS was actually setting up the program.
A new DHS memo might violate Lynch's standard for "prosecutorial discretion"
But the first sentence of Lynch's comments — about believing prosecutors should have the flexibility to deport people — might be a bigger problem for her. Here's why.
While Lynch doesn't have a role in implementing the executive actions now, her Department of Justice is responsible for defending their legality in court. And it looks like she has a stricter standard for legality than the people who are currently rolling out the program.
The court battle is likely to hinge on the concept of "prosecutorial discretion": the idea that since a prosecutor doesn't have the time or resources to charge and prosecute literally every person who commits any crime at all, it should be up to the prosecutor to decide which crimes are most important to prosecute.
Defenders of the Obama administration on immigration say that allowing unauthorized immigrants with families in the US and without criminal records to apply for deferred action is an act of prosecutorial discretion: it allows prosecutors to go after serious criminals or threats to national security, rather than wasting their time on people who are simply living in the United States without papers. But the president's critics say that granting deferred action to a large group of immigrants sabotages prosecutorial discretion: it takes some immigrants "off-limits" for deportation, and prevents a prosecutor from choosing, if he or she wants, to focus on deporting unauthorized immigrants who aren't criminals.
The Obama administration says that as long as it's looking at applications for deferred action on a case by case basis, it's fulfilling prosecutorial discretion. So legal challenges to the program — like the lawsuit filed by 26 state attorneys general that's currently unfolding in Texas — have focused on whether or not someone who meets all the requirements the November memo laid out could still have her application rejected. If everyone who meets the requirements gets approved, the states say, it's not real prosecutorial discretion after all.
Lynch's comments add another test. She's saying that prosecutors need to have the flexibility to decide to deport someone who meets all the requirements for deferred action.
But instructions that DHS just sent out Wednesday — while Lynch was testifying before Congress — say something else. Those instructions tell Immigration and Customs Enforcement agents to ask immigrants they encounter whether they might qualify for Obama's deferred-action program (even though the precise application requirements aren't yet public). Furthermore, according to the AP, DHS wants agents to review the files of immigrants currently in custody — and release the ones who would qualify for deferred action.
That certainly sounds like DHS doesn't want ICE to prosecute immigrants who might qualify for deferred action. And that would run afoul of the standard for "prosecutorial discretion" Lynch just set.
Again, since Lynch herself isn't working on implementation of the program, what she told Congress today won't affect what DHS tells agents they can and can't do. But as the legal challenges to the program roll through the courts — and her Solicitor General has to be the one defending it — she and DHS might need to get on the same page about what prosecutorial discretion really means.