Carrie Cordero is the Robert M. Gates Senior Fellow at the Center for a New American Security and an adjunct professor at Georgetown Law. Garrett M. Graff is a journalist and historian who covers national security and is the author of, among other books, The Threat Matrix: Inside Robert Mueller’s FBI.

President Donald Trump is in the midst of a purge at the Department of Homeland Security, evidently aimed at implementing more severe immigration and border security policies. Last week he ousted Secretary Kirstjen Nielsen and followed by firing or threatening to fire other top figures in the department, even forcing out the department’s next-in-line in order to install his preferred choice. Recent reporting suggests one of the next targets will be the department’s general counsel, a serious Senate-confirmed professional, showing that Trump is concentrating on lowering DHS’s legal compliance and removing the guardrails that have constrained his immigration actions thus far.

This isn’t the first time Trump has tried to bend a federal law enforcement agency to his will. Since he took office, Trump has beat up on the Department of Justice and the FBI in an attempt to derail the Russia investigation and direct officials instead to investigate his political enemies. But even though he managed to push out several high profile figures—notably, FBI director Jim Comey—most of his efforts backfired spectacularly, and the rule of law held. The special counsel completed its investigation. In the end, Trump has not been able to subjugate DOJ and the FBI to his own whims and desires.


Will DHS, too, be able to resist White House pressure to break or bend the law? Don’t count on it. Given the administration’s track record and the unique history and characteristics of DHS, there are reasons to worry that DHS is more vulnerable to manipulation than other law enforcement agencies. And, its performance over the last year, in which it has been willing to implement the president’s travel ban, his family separation policy and increase deportations for a wider array of illegal residents who otherwise pose no threat to society, underscore its malleability.

Trump’s new institutional target has few of the antibodies that allowed the Justice Department to resist his worst impulses. A young and immature department patched together after the 9/11 attacks, DHS is ripe for abuse by a would-be authoritarian—it has fewer institutional norms of behavior, less organizational DNA rooted in the rule of law, a comparatively high number of political appointees and a workforce and union base uniquely sympathetic to the president’s goals. These institutional susceptibilities should be particularly concerning for anyone paying attention to the rule of law under Trump.

DHS, with little public attention and in ways its original creators likely never imagined, has grown over the last decade into the nation’s largest federal law enforcement body. Its original legal authorities were geared towards protecting the country from terrorism threats. But Customs and Border Protection today has swelled into a literal army of 45,000 Border Patrol agents and CBP officers—that’s three times the number of armed law enforcement at the FBI and even more gun-carrying personnel than the Coast Guard, the nation’s smallest military branch. The 20,000 additional sworn law enforcement personnel of ICE, for its part, is roughly equivalent to the Justice Department agent ranks of the FBI, ATF and DEA combined. Plus, of course, there are the 4,500 agents and officers of the Secret Service—whose director was part of the president’s purge last week.

And unlike the DOJ and FBI, which have powerful and long-held traditions of independence from White House control, DHS, in some ways, was specifically designed to be responsive to political concerns. Created after 9/11, DHS was given a sprawling mission that ranged from financial crime to drug interdiction to airport security to immigration and border security.

Whereas the Justice Department’s leader, the attorney general, is meant to be the executive branch’s final authority on the Constitution and the rule of law and is traditionally politically independent—adherence to the law is in the department’s genetic DNA—the DHS secretary is meant to respond to the president’s direction on national security priorities, a realm where the president is traditionally given far more leeway than in “rule of law” issues.

Moreover, the two DHS secretaries under Donald Trump—specifically John Kelly and Nielsen—did not insulate their workforce from politicization the way that Christopher Wray has at FBI, but instead exacerbated it. They’ve used CBP employees in commercials and White House photo ops to further the president’s political agenda. The White House has encouraged a perception that DHS is militarized and above the law—sometimes literally, as Donald Trump recently reportedly urged border agents to take actions in contravention to established law and, if they were given trouble by the courts, to just respond, “Sorry, judge, I can’t do it.”

Many of DHS’s rank and file also directly support Trump. Whereas the FBI Agents Association—its voice for the rank and file—has fought back against the president’s assaults on the rule of law and the GOP’s attacks on its members, Trump was endorsed during the campaign by the union rank-and-file of ICE and the Border Patrol unions, both of which gave Trump unprecedented endorsements during the presidential campaign.

All these differences between DHS and other law enforcement agencies might not be such a big deal if DHS were better-run to start with, but it already suffers from low morale and years of mismanagement, with a workforce that is already one of the deadliest, least trained and least transparent in the federal government.

CBP ranks as the nation’s deadliest federal law enforcement agency and despite years of efforts at reform still often operates with little accountability. Its rules surrounding use of force are noticeably less transparent and less progressive than the norm for modern law enforcement—even notably out of line with other federal law enforcement agencies.

For years, CBP was the only federal law enforcement agency that didn’t actively release officer-involved shootings, confirming deadly encounters only if asked by the media. Among other recent use-of-force scandals, a Los Angeles Times investigation just this month found that more than 22 people have been killed and upwards of 250 injured in the last four years in previously unreported vehicle pursuits by the Border Patrol. We don’t know how many accidents, deaths, and injuries that number doesn’t include because the Border Patrol won’t say.

DHS’s law enforcement personnel also operate under different legal authorities than most law enforcement agents in the Justice Department. For the most part, DHS’s hiring and training requirements are markedly lower than peer agencies within the Justice Department. Unlike the FBI or CIA, CBP until recently did not require polygraphs or the same depth of background checks, which has meant that its ranks have been uniquely riven by corruption, abuse and criminal scandals over the last decade. From 2005 to 2012, nearly one CBP agent or officer was arrested every single day; while those rates have dropped, there were still more than 500 CBP officers and agents arrested from 2014 to 2015. The disparity in training is explainable if the agency stuck to its original mission and authorities; but over time as the investigative activities have expanded and its border enforcement and immigration enforcement has become more complex, those hiring differences become more relevant.

All this is why the purge at DHS should be setting off alarm bells: The signs are that Trump is attempting to clear all the obstacles in his way—whether that’s people or laws, and there’s reason to worry that the DHS will not be capable of stopping his most severe directives.

It is true that in the most recent episodes, DHS appears to have resisted the illegal orders of the president; as CNN reported, when the president left the room after making his alleged “Sorry, judge, I can’t do it” comments, Border Patrol officials made clear to agents that such orders were illegal and that the agents would face personal liability if they followed through on the president’s wishes. On Thursday, the Washington Post reported that the White House tried to get ICE to beach migrants in sanctuary cities home to political adversaries—an idea that the president then endorsed Friday on Twitter, weaponizing ICE to attack adversaries like Speaker of the House Nancy Pelosi. ICE leaders similarly appear to have tried to block that attempt to drop migrants in sanctuary cities.

But it was just last year that former Secretary Nielsen became the face of the administration’s uniquely cruel and ill-advised “family separation” policy last summer, and DHS and the government is still sorting through the mess it created there, leading to predictions that it might take years to reunite children with their families—and that some children may be permanently orphaned. Ironically, the president’s aggressive policies expose the CBP and ICE workforce to not only politicization, but also potential legal liability. The family separation policy was implemented without clear legal basis or policy, and apparently without adequate training and oversight. Similarly, the president’s alleged encouragement to ignore judges’ orders in immigration and border enforcement could push agents to act outside the bounds of the law, exposing them further.

Until Congress gathers the political will to confront these presidential attempts to break the law, we must hope that the next round of DHS’s leadership is strong enough to resist his next ill-conceived order and focus on protecting the DHS workforce from further exploitation and enforcing the law justly.