Donald Trump

Did the Justice Department Really Support the President's Misstatement to Congress? Let's Find Out

By Benjamin Wittes
Monday, April 17, 2017, 7:55 AM

Back in Februrary, in his address to a Joint Session of Congress, Donald Trump made an arresting claim: “according to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism and terrorism-related offense since 9/11 came here from outside of our country.”

  

Last week, Lawfare ran a series of articles by Nora Ellingsen and Lisa Daniels raising serious questions about the veracity of this claim. I strongly recommend readers read these posts in their entirety, but for those who may have missed them, the authors poured through a large public list of terrorism cases released by the Justice Department's National Security Division to determine which defendants did and did not come "here from outside of our country." Their findings are rich across a bunch of different axes, but for present purpose, one conclusion is key: "The data Trump cited in his speech to the Joint Session of Congress simply don’t support his claims that a 'vast majority' of individuals on the list came from outside the United States—unless, that is, you include individuals who were forcibly brought to the United States in order to be prosecuted and exclude all domestic terrorism cases."

To be more precise, here's what they found:

In some very technical sense, [Trump's statement] is true. Of the 455 persons, 132 are U.S.-born and 323 were born abroad. So yes, since 2001, a substantial majority of terrorist defendants have been born abroad.

But there’s a big problem: 100 of the 323 persons born abroad were extradited, or brought, to the United States for prosecution. This is a group of persons that the U.S. quite literally imported for purposes of prosecution. Including such people in the count of foreign-born folks convicted of terrorism-related crimes in the U.S. is a little like considering Chinese made products domestic products because we bought them and brought them here. Excluding that group leaves 220 foreign-born persons, which is not quite a majority at all, let alone an overwhelming one.

Moreover, the NSD data includes only international terrorism cases, leaving out domestic ones, which grossly biases the analysis:

what would the numbers look like if we excluded extradited subjects while including all of these domestic terrorists—the approach that seems to us the unbiased way to express the real rate at which foreign-born, as opposed to domestic-born, people are committing terrorist or terrorism-related crimes?

If we clean up the data to account for the issues described above, instead of accounting for between 63 and 71 percent of terrorism convictions, foreign-born persons would likely account for between only 18 and 21 percent of terrorism convictions.

I'm going to be very blunt here: I not only believe that the White House made up "alternative facts" about the substance of this matter in a Presidential address to a Joint Session of Congress, I don't believe that the National Security Division of the Justice Department provided any data or analysis to the White House that could reasonably be read to support the President's claim. In other words, I believe the President was lying not merely about the underlying facts but about his own Justice Department. Or, in the alternative, I believe it's possible that the Office of the Attorney General may have supported the White House's claim. But I think it extraordinarily unlikely that the folks at NSD actually provided data in support of this presidential statement.  

Here's why I believe this: I know a lot of people at NSD, and they are not the sort of people who grossly mischaracterize facts in order to make political points. Indeed, I believe that the folks there have the integrity to raise internally the very issues that Ellingsen and Daniels raised in these pieces. That is, if they were queried about the President's plans to make this claim, I think it preponderantly likely that they would have made at least the following points that would have cautioned against it:

  • The Justice Department does not keep data at a systematic level (at least not to my knowledge) on where criminal defendants were born. While defendants' immigration status might be trackable, the history of people "entering" the country and—at some point later, maybe much later—commiting a crime simply isn't something the department keeps track of. 
  • To the extent such data can be reconstructed, as Ellingsen and Daniels reconstructed it, they cannot be said to support the President's words without tendentious distortion.
  • To the extent you exclude domestic terrorism cases, cases generally not handled by the National Security Division, you grossly bias the inquiry. To the extent you include such cases, you would have to analyze a raft of data that NSD has no reason to keep and does not keep. 

I could be wrong about this. Perhaps there is correspondence in which the White House asked for guidance from DOJ on what federal data show, and the Justice Department supported what appears to be an outrageously false presidential statement. But if so, one of two things happened that it's important for the public to understand. Either there exists some body of data that supports what Trump said but that isn't public, or the Justice Department fell down on the job and behaved politically in characterizing its own data in response to a White House request. My working hypothesis is that neither of these things happened. 

But let's find out—whether the data support Trump, whether NSD supported the claim, whether Attorney General Jeff Sessions did, or whether Trump just shot from the hip in the face of the facts. On Friday, I submitted a trio of Freedom of Information Act requests seeking:

  1. All records, including but not limited to emails, notes, and memoranda, reflecting any data or information relating to the nationality or country of origin of individuals convicted of terrorism-related offenses (domestic or international) from 2001 until the date that a search is conducted for records responsive to this FOIA request.

  2. All records reflecting communications (including but not limited to emails, telephone call logs, calendar entries, meeting agendas, or text messages) between the Department of Justice and the Executive Office of the President relating to data concerning the nationality or country of origin of anyone convicted of terrorist crimes or terrorism-related crimes (domestic or international). The timeframe for this request is from January 1, 2016 until the date that a search is conducted for records responsive to this request. 

  3. All records, including but not limited to emails, notes, and memoranda, in preparation for or in reaction to the President’s address to a Joint Session of Congress on February 28, 2017, specifically those records referring to the President’s characterization of data provided by, or originating from, the Department of Justice. The timeframe for this request is from January 20, 2017 until the date that a search is conducted for records responsive to this request.

  4. All records reflecting communications (including but not limited to emails, telephone call logs, calendar entries, meeting agendas, or text messages) between the Department of Justice and the Executive Office of the President in preparation for or in reaction to the President’s address to a Joint Session of Congress on February 28, 2017, specifically those records referring to the President’s characterization of data provided by, or originating from, the Department of Justice. The timeframe for this request is from January 20, 2017 until the date that a search is conducted for records responsive to this request.

  5. In addition to the records requested above, I also request records describing the processing of this request, including records sufficient to identify search terms used and locations and custodians searched and any tracking sheets used to track the processing of this request. If your agency uses FOIA questionnaires or certifications completed by individual custodians or components to determine whether they possess responsive materials or to describe how they conducted searches, I also request any such records prepared in connection with the processing of this request. 

I also sought:

All records validating or verifying the following quote from the President’s address to a Joint Session of Congress on February 28, 2017: “according to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism and terrorism-related offense since 9/11 came here from outside of our country.” The timeframe for this request is from January 20, 2017 until the date that a search is conducted for records responsive to this request. 

It will be interesting to see what, if anything, I receive in response.