The House Judiciary Committee convened on Tuesday without its star witness. Don McGahn, the former White House counsel and a key witness in the Mueller report, refused to appear after President Trump ordered him not to testify. New York Representative Jerry Nadler, the committee’s Democratic chairman, told the assembled lawmakers and spectators that congressional subpoenas “are not optional.” He also condemned Trump in some of his strongest language yet.
“I believe that each of these incidents, documented in detail in the Mueller report, constitutes a crime,” he told the committee. “But for the Department of Justice’s policy of refusing to indict a sitting president, I believe he would have been charged with these crimes.” The hearing, which largely focused on an empty chair, still received wall-to-wall coverage from news networks and political journalists.
The president’s misdeeds surrounding the Russia investigation can’t be ignored. A tragedy of the Trump era, however, is that it’s hard to know which episodes of wrongdoing to prioritize. Foremost among them should be the Trump administration’s handling of the desperate, vulnerable people crossing the southern border. The inhumane treatment of these migrants is not an impeachable crime, but it may prove to be the deepest scar his presidency leaves on the nation.
The most visceral evidence is the death of young migrants in U.S. custody. On Monday, Carlos Gregorio Hernandez Vasquez became the fifth Guatemalan minor since December to die after being taken into U.S. custody at the border. Customs and Border Protection officials did not announce the 16-year-old’s cause of death, though a U.S. nurse reportedly diagnosed him with the flu over the weekend. Other migrant children who have died in U.S. custody recently also reportedly had infections or flu-like illnesses, raising questions about whether the Department of Homeland Security is doing enough to ensure the health of detained minors.
As for the adults in its custody, the department has held an untold number of them in cruel and unusual conditions. The International Consortium of Investigative Journalists obtained more than 8,400 incident reports from Immigration and Customs Enforcement, an agency within DHS, about migrants put in solitary confinement in recent years. Officials placed many of those migrants in isolation for months and weeks at a time, even though the United Nations recommends no more than 15 days. The rationales ranged from hunger strikes and disciplinary measures to consensual kissing and having a physical disability. And ICIJ found that nearly a third of those placed in solitary had a mental illness, even though the U.N. says the mentally ill should never be subjected to solitary.
It’s well established that solitary confinement can be mentally and physically debilitating. In 2015, Justice Anthony Kennedy denounced the practice after hearing a case about a prisoner kept in solitary for 23 hours a day for more than 25 years. “Research still confirms what this court suggested over a century ago,” he wrote, referencing an 1890 case on the matter. “Years on end of near-total isolation exacts a terrible price.” Kennedy was even more blunt during a congressional budget hearing earlier that year. “Solitary confinement literally drives men mad,” he told lawmakers.
The ICE reports provide haunting proof of Kennedy’s assertion. “Records reviewed by ICIJ describe detainees in isolation mutilating their genitals, gouging their eyes, cutting their wrists and smearing their cells with feces,” the organization reported. “The review found that while held in isolation cells, immigrants had suffered hallucinations, fits of anger and suicidal impulses.” A DHS whistleblower told ICIJ that she believes ICE’s approach to solitary confinement “rises to the point of torture.”
While it’s true that federal resources are stretched thin by the arrival of thousands of migrant families, the Trump administration’s response has veered toward cruelty over compassion whenever possible. Last month, the president groused that border agents and military personnel couldn’t “get tough” without consequences. “When you do all of these things that we have to do, they end up arresting Border Patrol people,” Trump complained to Fox Business Network. He also reportedly offered pardons to U.S. immigration officials last month if they ignored judicial orders.
Some rank-and-file officials are receiving the president’s signals. Federal prosecutors in Arizona released dozens of racist and inflammatory text messages this week sent by Border Patrol agent Matthew Bowen. The 39-year-old agent faces criminal charges for knocking down a Guatemalan man with his car in November 2017 and lying about it to his superiors. In the texts, Bowen describes migrants as “disgusting subhuman s--- unworthy of being kindling for a fire” and wrote “PLEASE let us take the gloves off trump!”
Bowen’s lawyer defended his client’s text messages in court filings by writing that the sentiments are “commonplace throughout the Border Patrol’s Tucson Sector” and “part of the agency’s culture.” The lawyer later told The Washington Post that he was specifically referring to an exchange where Bowen used the word “tonk,” which some agents insist is a harmless acronym but others say is an onomatopoeic slur—“tonk” being the sound an agent’s flashlight makes when it hits a migrant’s skull. His assertion about cultural problems seems accurate, though: Some of Bowen’s texts came from exchanges with another officer who was later acquitted on murder charges after shooting migrants through a border fence.
In the wake of last year’s family separation crisis, I wrote that migrant families broken up by the Trump administration’s malice and cruelty should receive some form of compensation from the United States for their suffering. Those reparations, like those given to Japanese American internment survivors in the 1980s and those proposed for African Americans, should also come with a deeper reckoning of what happened and how it happened.
Trump’s cavalcade of scandals means that such a reckoning is nowhere near imminent. Instead, all but a few Republicans have rallied around the president, defending him against Democrats who, while agreeing that he’s a threat to American democracy, disagree on what to do about it. These political dynamics have consumed Washington and the national media, obscuring an ongoing crisis in which deeply immoral acts—torture, even—are being committed on a regular basis.
Those, on both sides of the aisle, who have kept quiet out of political expediency will live to regret their silence. The negligent deaths and enduring trauma that spring from Trump’s abusive policies toward migrants won’t just define his legacy. They will haunt the American conscience for decades to come.