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Justice Department threatens to subpoena records in escalating battle with 'sanctuary' jurisdictions

President Donald Trump and Attorney General Jeff Sessions at an FBI National Academy graduation ceremony in Quantico, Va., Dec. 15, 2017. (Tom Brenner/The New York Times Copyright 2018 / New York Times)

The Justice Department on Wednesday escalated its attempt to crack down on so-called "sanctuary" jurisdictions, threatening to subpoena 23 states, cities and other localities which have policies the department suspects might be unlawfully interfering with immigration enforcement.

President Donald Trump and Attorney General Jeff Sessions have long promised to target places with policies friendly to those in the country illegally - warning they might withhold federal money from some and trying to tie grant eligibility to cooperation with federal authorities on immigration matters. The Justice Department had previously contacted the 23 jurisdictions threatened Wednesday, raising worries they might be in violation of a federal law barring places from enacting policies that block communication with Immigration and Customs Enforcement.

In a new letter, Bureau of Justice Assistance Director Jon Adler said officials remained "concerned" that the places had policies that violate the law, even after their previous responses. He asked for a new bevy of documents - including "any orders, directives, instructions, or guidance to your law enforcement employees" - and said the department would subpoena the materials if necessary.

That threat escalates the department's effort, as it could have the courts compelling jurisdictions to turn over documents that they didn't provide voluntarily.

"I continue to urge all jurisdictions under review to reconsider policies that place the safety of their communities and their residents at risk," Sessions said in a statement. "Protecting criminal aliens from federal immigration authorities defies common sense and undermines the rule of law. We have seen too many examples of the threat to public safety represented by jurisdictions that actively thwart the federal government's immigration enforcement - enough is enough."

Among those jurisdictions in the crosshairs are Chicago, New York City, Los Angeles and the entire states of California, Illinois and Oregon. In total, the 23 jurisdictions received more than $39 million in fiscal year 2016 money from the Edward Byrne Memorial Justice Assistance Grant Program - which Sessions is now threatening to put at risk.

It is unclear, however, whether the threat will come with real teeth.

Much of Sessions and the president's sanctuary jurisdictions crackdown has been stymied by the courts. A federal judge in California last year blocked Trump's executive order to cut funding to such places, and a federal judge in Chicago ruled that Sessions had exceeded his authority in imposing new conditions, such as requiring recipients to give immigration authorities access to jails and 48 hours notice when suspected illegal immigrants are to be released. on particular law enforcement grants. A federal judge in Philadelphia also ruled that city was in compliance with the law and blocked the Justice Department from withholding money. The Justice Department has appealed all those cases.

Sessions, too, has issued guidance that defines sanctuary cities narrowly - essentially as only those places that don't comply with the particular federal law that stops places from blocking communication with Immigration and Customs Enforcement. Justice department officials believe they can still link federal money to compliance with that law - as the Obama administration did - on grants where it already was required.

Some targeted cities, though, have said in the past they are following that law, and what counts as compliance is up for debate. A senior Justice Department official said at a briefing for reporters that local jails should notify immigration authorities when a suspected illegal immigrant is released from a jail, even though the judge in Chicago said Sessions could not impose the new condition of a 48-hour advance notice.

The senior Justice Department official said that the department wants more documents - beyond the cities' legal analysis for why they are following the law - to evaluate whether grant money should be withheld. The department has yet to issue money to Edward Byrne Memorial Justice Assistance Grant Program recipients for fiscal year 2017 - which the official said was due at least in part to the legal wrangling over sanctuary cities.

Sessions has long sought to tie crime to immigration - recently releasing data, which experts said was misleading, that said 73 percent of terrorism convictions in the U.S. involved individuals from other countries. Determining a link between illegal immigration and other crime is statistically difficult to do, though some research shows that immigrants are less likely to commit crimes than those who are native born. Civil liberties and immigration advocates, too, note there is irony in Sessions threatening to withhold law enforcement grants in the name of fighting crime.

Author information: Matt Zapotosky covers the Justice Department for the Washington Post's National Security team.

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