“I signed a good executive order, but it’s limited, no matter how you cut it," President Donald Trump said, after previously defending his administration's policy. | Olivier Douliery/AFP/Getty Images White House Trump's herky-jerky immigration moves sow confusion Agencies made conflicting statements about how migrant families would be treated in the wake of the president's executive order halting separations.

President Donald Trump’s administration was gripped by confusion on Thursday as agencies struggled to implement his executive order halting the separation of migrant families at the U.S. border.

At the heart of the problem was uncertainty about how to begin detaining families together and whether the government would make any effort to reunite parents still in the U.S. with children currently held in separate shelters or foster facilities.


The mixed messaging began Wednesday, just hours after Trump signed his order, when the Department of Health and Human Services sent out a statement saying one of its spokespeople “misspoke” in saying that children who were already separated would not be returned to their parents but rather processed as unaccompanied minors.

On Thursday, the Department of Justice took issue with a report that border crossers would no longer automatically be referred for prosecution — the central tenet of Trump’s “zero-tolerance” enforcement policy, announced in April by Attorney General Jeff Sessions.

The chaos followed the hasty development of the executive order in response to a growing public outcry over the separations, which resulted in even babies and toddlers being sent alone to shelters. Two people familiar with the process said Homeland Security Secretary Kirstjen Nielsen told only her inner circle about the executive order, keeping top officials at DHS — including those at Immigration and Customs Enforcement and Customs and Border Protection — out of the loop.

POLITICO Playbook newsletter Sign up today to receive the #1-rated newsletter in politics Email Sign Up By signing up you agree to receive email newsletters or alerts from POLITICO. You can unsubscribe at any time. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

One of the people familiar with the process compared it to Trump’s January 2017 travel ban, which was signed the week after his inauguration and triggered widespread chaos at airports across the U.S. as customs officials struggled to understand who must be detained.

Frustrated White House aides said the damage created by the herky-jerky policy process is twofold. The president’s sudden decision to sign the executive order threw off a planned House vote that could have set in motion the permanent legislative fix the White House has been seeking.

More importantly, these aides said, the original zero-tolerance policy championed by senior presidential adviser Stephen Miller was not run through the Domestic Policy Council, which Miller oversees. Some in the White House are also unclear whether the executive order is legal, which is something that would have been determined by a regular policy process.

Aides also argued that zero-tolerance had been a massive miscalculation that has served only to distance Republican lawmakers and GOP voters from the president ahead of the midterms.

On Capitol Hill, senior Republicans were also unsure how the policy change would play out.

“We keep hearing that they’ll keep prosecuting the cases and we’re trying to figure out a way to keep families together,” Senate Homeland Security Chairman Ron Johnson (R-Wis.) said in an interview.

Trump, Nielsen and other top officials spent days insisting that only Congress could resolve the growing crisis at the border, where about 2,000 children were forcibly separated from their parents and sent to government shelters.

Under pressure from Congress and the public after the release of photographs showing kids kept in large cages and harrowing audio of children wailing for their moms and dads, Trump reversed course Wednesday, signing a document that called for DHS to keep families together.

An administration official told POLITICO the shift happened very quickly Wednesday and led to uncertainty earlier in the day about what exactly Trump was planning to sign. The White House continues to view the order as a temporary measure designed to buy time until Congress takes action, the official added.

But at a rally Wednesday night and again on Thursday, Trump stuck to his line about remaining “tough” on immigration, continuing his habit of characterizing migrants from Latin American countries as a menace.

“The media never talks about the American victims of illegal immigration,” Trump told a raucous crowd of nearly 9,000 at Amsoil Arena in Duluth, Minnesota, on Wednesday. “What’s happened to their children, what’s happened to their husbands, what’s happened to their wives — the media doesn’t talk about American families permanently separated from their loved ones.”

On Thursday at the White House, he told reporters before a Cabinet meeting: “Look, if we took zero tolerance away you would be overrun as a country.”

He added: “I signed a good executive order, but it’s limited, no matter how you cut it.”

As he spoke, first lady Melania Trump was in McAllen, Texas, for an unannounced visit to a child detention center, where she visited migrant children alongside HHS Secretary Alex Azar.

“She wanted to see everything for herself,” a spokesperson for the first lady said. “She supports family reunification. She thinks that it’s important that children stay with their families.”

The administration’s disarray became apparent soon after the order was signed, when a spokesperson for the Department of Health and Human Services said there would not be an effort to reunite children already held in shelters with their families.

“There will not be a grandfathering of existing cases,” said Kenneth Wolfe, a spokesman for the Administration for Children and Families, a division of the Department of Health and Human Services. “I can tell you definitively that is going to be policy.”

HHS quickly moved to walk back that statement, saying Wolfe “misspoke” and that the department was awaiting further guidance from the White House on the matter.

By Thursday, Nielsen was saying that there is, in fact, a plan to reunite families — though she did not spell it out. “We have a plan to do that,” she said at an event on Capitol Hill. “It’s a combination of DHS, DOJ, HHS reunited as quickly as we can.”

The confusion was compounded on Thursday when The Washington Post reported that the White House was temporarily suspending the prosecution of adults who cross the border with children because Customs and Border Patrol doesn’t have the resources to process all of the cases while keeping families together.

The Justice Department, which is spearheading the policy alongside DHS, quickly denied the story.

“The Washington Post never reached out to the Department. Their story is not accurate,” a Department of Justice spokesperson said in a statement. “There has been no change to the Department’s zero tolerance policy to prosecute adults who cross our border illegally instead of claiming asylum at any port of entry at the border.”

However, there were several news reports from border areas of Texas on Thursday that immigrants who crossed the border with a child were having their criminal cases dismissed or that Border Patrol officials were told not to present such individuals in court.

A Justice Department spokeswoman said there could be delays in some cases as officials shift to a system in which border crossers and their family members were detained together in immigration custody while prosecutions went forward.

The Associated Press reported that a public defender’s office for western Texas said U.S. Attorney John Bash indicated that pending criminal cases would be dismissed against those who had crossed the border with children, absent unusual circumstances. POLITICO located two cases where female immigrants from Guatemala and El Salvador who were picked up on misdemeanor illegal entry charges earlier this month had their criminal cases dismissed on Thursday with prejudice, meaning they could not be refiled.

In a statement, Bash's office confirmed some cases were dismissed, but insisted the zero-tolerance policy remains in place.

"Following the President’s executive order, we are moving quickly to keep families together as we process the criminal charges for those who crossed illegally," the statement from the federal prosecutor's office said. "The zero tolerance policy is still in effect but there is a necessary transition that will need to occur now that those charged are no longer being transferred to the custody of US Marshals and are staying together with their children in the custody of our partners at DHS. As part of that transition, the office today dismissed certain cases that were pending when the President issued the order."

Immigrant-rights advocates said Thursday that they intended to battle Trump’s policies in court, even if he moved toward the family detention model he appeared to promise on Wednesday. Two Democratic state attorneys general, Xavier Becerra of California and Bob Ferguson of Washington, announced Thursday that at least eight states planned to sue over the previous family separation policy. They also denounced Trump’s new executive order, although it was unclear how it would figure in the suit, expected to be filed late Thursday.

Attorney General Barbara Underwood of New York also vowed to sue over the separation policy Thursday, although it was not clear whether she would join the other states or sue separately. “Keeping children separated from their families is unconscionable and illegal—and we’ll be filing suit to stop it,” she wrote on Twitter .

Lawyers from the American Civil Liberties Union also denounced Trump’s new policy, but said they were still hoping that a judge in San Diego would issue an injunction soon blocking authorities from separating asylum seekers from their families. Arguments in the case were held last month. The judge considering the case issued an order on Wednesday taking note of Trump’s new directive and scheduling a telephone conference with the lawyers for Friday afternoon.

The Justice Department, meanwhile, filed an emergency motion on Thursday asking a federal judge in Los Angeles to modify a decades-old consent decree to permit immigrant families to be detained together for more than 20 days. A prior ruling that the settlement in the case forbade long-term detention of children and teenagers has contributed to a “destabilizing migratory crisis,” administration lawyers said.

Nonprofit groups working at the border said they were seeing changes on the ground.

Zenén Jaimes Pérez, spokesman from the nonprofit Texas Civil Rights Project, said a representative from his group saw a federal court in McAllen, Texas, decline to charge 17 adult migrants on Thursday morning because they were heads of household.

However, Pérez said that those migrant parents were still expected to be released into ICE custody and were separated from their children days earlier — and that their processing in court came with no announcement of a change in the administration’s current policy of prosecuting all those who illegally cross the border.

By the time Friday’s round of court hearings take place, Perez added, immigrant advocates should have more clarity on whether Trump’s executive order prioritizing “family unity” is having a meaningful effect on the treatment of newly detained parents.

Burgess Everett, Elana Schor, Andrew Restuccia and Josh Gerstein contributed to this report.

CORRECTION: An earlier version of this article misspelled the given name of the attorney general of California.