Biden Tries Flipping the Script on Immigration. Capitol Hill is Unsure.

Plus: Merrick Garland changes his tone with Republicans.

Photo by Chip Somodevilla/Getty Images

President Joe Biden signed an executive order this afternoon that places significant restrictions on border crossings. This is something conservatives have begged for and Democrats have either opposed or gradually warmed up to in recent years, and naturally, everyone is contorting themselves in response to the news.

The order halts asylum claims at the border if the average number of daily crossings between ports of entry exceeds 2,500 individuals over the course of a week; the border would reopen only if that number goes back down below 1,500. It’s a policy straight off of the Republican dream board, and in this form, it’s more severe than previously negotiated proposals.

For context, the bipartisan immigration restrictions and border security bill that failed the Senate earlier this year would have authorized a border closure if encounters reached a daily average of 4,000 or higher over seven days, and a closure would have been mandated if the daily crossings average reached 5,000 in the same time frame. If encounters hit 8,500 in a single day, it would also have triggered a border closure. Needless to say, Biden’s executive order is a major escalation, and he’s going ahead without congressional approval.

When something like this happens—the political version of Kaiba’s defeat—it forces lawmakers in both parties into uncomfortable positions. I asked around the Senate about the order on Monday evening, just as members of Congress were returning from their weeklong recess, and found that many lawmakers are at a loss. Here are some of the things I heard from senators in both parties.

Sen. Roger Marshall (R-Kan.), one of the more far-right senators (despite first entering Congress as the “moderate” challenger to a Freedom Caucus co-founder), told me he’s unimpressed with what he deems an insufficient gesture:

Well, it’s too little, too late from what I understand. . . . The border patrol says all they can handle is a thousand a day, so even at a thousand they’re overwhelmed. So, I think that there will be lots of got-aways and just [improper] vetting, but it’s too little too late.

Sen. James Lankford (R-Okla.), a very conservative but typically good-faith lawmaker who was thrown under the bus by his party for drafting the recently torpedoed bipartisan border security plan, told me he still needs to learn more about Biden’s plans.

My first question is, are they including the CBP One, and are they including the parolees in it? I bet they’re not, which means there are still four or five thousand not included in that number.

Sen. Gary Peters (D-Mich.), the chairman of the Senate Homeland Security Committee and also the top dog in Senate Democrats’ campaign arm for the second cycle in a row, told reporters that Biden’s wielding of the executive pen highlights the lack of action by Republicans in Congress.

We believe we’re being tough on the border. We just wish our Republican colleagues would actually take the votes necessary to secure the border.

Sen. Alex Padilla (D-Calif.), a progressive who opposed the aforementioned bipartisan bill because he found it too severe in its treatment of migrants, told reporters Biden’s plan is “just not the solution we need, and it’s very incomplete as a strategy.”

Off Capitol Hill, Trump campaign spokeswoman Karoline Leavitt issued a lengthy statement on the executive order, saying, “Joe Biden's Executive Order is for amnesty, not border security.” This is a plain lie: There is no “amnesty” in the order. But Republicans have rendered that word meaningless: It’s become commonplace for them to invoke “amnesty” as a vague umbrella term for any immigration policy backed by a non-Republican.

All Senate Democrats were invited to the signing ceremony at the White House today, but not all senators made the trip. Although some Democrats facing tough re-election campaigns might think it is wise to avoid flashy ceremonies with Biden, who doesn’t have the best favorability, some of their colleagues are leaning into their association with the president. And his new policy could help them with moderates and disaffected Republicans this fall. 

Merrick Garland has had enough

Attorney General Merrick Garland struck a different tone than he’s known for while testifying before the House Judiciary Committee this morning, calling out members of Congress for their repeated attacks on the justice system.

In his opening remarks, Garland noted the committee’s repeated attempts to obtain audio recordings of President Biden’s interview with the special counsel who described him as a “sympathetic, well-meaning, elderly man with a poor memory.” Many Democrats and observers understood their scrounging as an attempt to use the authority of the committee for purely political purposes:

This effort is only the most recent in a long line of attacks on the Justice Department’s work. It comes alongside threats to defund particular department investigations, most recently the special counsel’s prosecution of the former president. It comes alongside false claims that a jury verdict in a state trial brought by a local district attorney was somehow controlled by the Justice Department. That conspiracy theory is an attack on the judicial process itself.

It comes as individual career agents and prosecutors have been singled out just for doing their jobs. It comes as baseless and extremely dangerous falsehoods are being spread about the FBI’s law enforcement operations. And it comes at a time when we are seeing heinous threats of violence being directed at the Justice Department’s career civil servants.

These repeated attacks on the Justice Department are unprecedented, and they are unfounded. These attacks have not, and they will not, influence our decision-making. I view contempt as a serious matter. But I will not jeopardize the ability of our prosecutors and agents to do their jobs effectively in future investigations. I will not be intimidated, and the Justice Department will not be intimidated. We will continue to do our jobs free from political influence. And we will not back down from defending democracy.

Garland’s pushback is noteworthy because it demonstrates how fed up the Justice Department is with House and Senate Republicans’ repeated political attacks. In addition to the many attempts to defund parts of the DOJ or their ability to seek prosecutions, a group of Senate Republicans has now promised to oppose any legislation that “funds partisan lawfare”—by which they clearly mean any legislation that funds the Justice Department investigations of Trump, led by Jack Smith. In other words, they say they will oppose funding the department altogether, creating the possibility that must-pass agenda items scheduled to come up before the election—the farm bill comes to mind, along with annual government funding—will fail. I suppose one way to rebrand total legislative dysfunction is by valorizing it as a protest.

Crime pays

The Trump campaign has awarded raises, jobs, and bonuses to witnesses in his various trials, according to a new analysis by ProPublica: 

Nine witnesses in the criminal cases against former President Donald Trump have received significant financial benefits, including large raises from his campaign, severance packages, new jobs, and a grant of shares and cash from Trump’s media company.

The benefits have flowed from Trump’s businesses and campaign committees, according to a ProPublica analysis of public disclosures, court records and securities filings. One campaign aide had his average monthly pay double, from $26,000 to $53,500. Another employee got a $2 million severance package barring him from voluntarily cooperating with law enforcement. And one of the campaign’s top officials had her daughter hired onto the campaign staff, where she is now the fourth-highest-paid employee.

These pay increases and other benefits often came at delicate moments in the legal proceedings against Trump. One aide who was given a plum position on the board of Trump’s social media company, for example, got the seat after he was subpoenaed but before he testified.

The report’s details are so damning that one of Trump’s attorneys, David Warrington, sent ProPublica a cease-and-desist letter attempting to stop its publication. 

Read the whole thing.