Migrant family separations under the Trump administration’s “zero tolerance” immigration policies began in the summer of 2017. Then Homeland Security chief John Kelly was actually one of the original architects of the family separation policy that began percolating in March 2017—just two months into the Trump administration.
After leaving his post as the Chief of Staff for Trump’s White House, Kelly assumed a paid position with one of the companies, Caliburn International, currently operating facilities detaining migrant children who have been separated from their parents. Some in Congress have charged that Kelly is profiting from the horrendous policy he helped put in place while in the Trump administration.
John Kelly Profiting on Family Separation
Senator Elizabeth Warren (D-Mass.) bluntly put it this way:
“John Kelly oversaw many of the Trump Admin’s most morally repugnant immigration policies,” Warren said. “Now he could be making big bucks serving on the Board of a company that’s profiting from the same cruel plans he put in place. This is corruption at its absolute worst.”
Beyond the corruption and the horrific impact of the family separation policy is the legal issue of whether those carrying out this policy are committing crimes. This issue was raised by several presidential candidates during the June Democratic debates. The candidates said the government agents forcibly separating migrant children from their parents are committing crimes of kidnapping and child abuse.
Where does the law actually come down on these assertions?
Parents’ Right to Custody of Children
In 1982, the U.S. Supreme Court held that a parent’s right to the “companionship, care, custody, and management” of the child has a constitutional interest “far more precious than any property right.” The Texas Supreme Court adopted the same position in 2003.
Thus, under the basic tenets of family law, a parent’s interest in maintaining custody of their child is paramount—one the government cannot summarily or arbitrarily abridge.
Texas Penal Code § 20.03 provides that “a person commits an offense of kidnapping in third degree if he intentionally or knowingly abducts another person.”
Texas Penal Code § 20.01(2)(A) says that “abduct” means the restraint of a person “with the intent to prevent [their] liberation” by “secreting or holding [them] in a place where [they are] not likely to be found.”
No one knows exactly how many migrant children have been forcibly separated from their parents. The ACLU puts the number roughly at 2650. In April, the Trump administration said it could take up to two years to identify all the migrant families separated. That’s because roughly 500 parents have already been deported to their home countries without their children by the Trump administration.
It can reasonably be stated then that hundreds, if not thousands, of children have been separated from their parents in violation of the 1982 Supreme Court parental custody rule.
Against that backdrop, it can also be reasonably charged that government agents and/or officials in the Trump administration have “intentionally or knowingly” secreted these children in places where they are not likely to be found, e.g., in foster care or in some private run detention facilities, especially those children those parents have been deported.
That’s kidnapping on Texas soil. Admittedly, that the federal government cannot be indicted in state court with a criminal charge, however, the state attorney general surely has power to investigate and bring civil action against the federal government for these brutal and unwarranted acts committed without due process.
As for representatives of the Trump administration committing child abuse, the Texas child abuse law, Injury to a Child, § 22.04(a-1)(2), states that a person commits injury to a child “if the person is an owner, operator, or employee of a group home, nursing facility, assisting living facility, boarding home facility, intermediate care facility for person with an intellectual or developmental disability, or other institutional care facility and the person intentionally, knowingly, recklessly, or with criminal negligence by omission causes to a child … who is a resident of that group home or facility … serious mental deficiency, impairment, or injury.”
The private run “institutional care” facilities being operated by the Trump administration are imposing horrific, brutal, and unconstitutional conditions of confinement on migrant children that create “serious mental deficiency, impairment, or injury” to those children.
Thus, besides substantial evidence that agents and/or officials of the Trump administration having violated Texas’s kidnapping statute, there is an abundance of evidence that owners and/or operators of the private run facilities housing migrant children have through criminal negligence violated Texas’s child abuse law with inhumane conditions of detention, physical and sexual abuse, and denial of adequate medical care involving migrant children.
Texas Attorney General Ken Paxton should with immediate haste launch a criminal investigation to determine any and all government officials and private parties involved in these violations of Texas criminal laws and submit their cases to a duly empanelled Texas grand jury for possible criminal indictment.
We suggest that the investigation begin with John Kelly.
Crimes Against Humanity
All crimes on Texas soil should be investigated and prosecuted, regardless of who commits them.
Attorney General Ken Paxton is the chief law enforcement office of the State of Texas, and as such, he has a legal obligation to investigate the litany of crimes committed against migrant children in this state. Given Paxton’s stance as a pro-Trump, pro-wall, fear mongering politician, it is doubtful he will lift a finger to investigate the crimes being committed against these helpless and innocent children in his own state.
It is also inconceivable that the federal government will conduct a meaningful investigation into this flagrant child abuse. We therefore encourage an international investigation into Trump’s policy of family separation and child abuse and that the international community take proper action regarding these crimes against humanity.