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

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: