Trump takes a wrecking ball to legal representation for immigrant children

William Shakespeare’s famous line in Henry IV — “The first thing we do, let’s kill all the lawyers” — depicted a peasants’ rebellion against a tyrannical monarchy. The rebels realized that in order to achieve their objective, they first had to eliminate those who knew the rules and could stand in the way of a lawless mob.

Secretary of the Department of Health and Human Services Robert F. Kennedy Jr., himself a lawyer, may know something about this strategy. He seems to be using it against immigrant children.

On September 29, in a nondescript notice published in the Federal Register, Kennedy announced the creation of a new department in the general counsel’s office named the “Unaccompanied Alien Children Representation Division,” which is supposed to “operate[] as a legal service provider for unaccompanied alien children.” Translated, the Trump administration will now use its own lawyers to go up against its own lawyers in deportation proceedings involving children before immigration judges employed by the Department of Justice. Trump sits atop of all of the actors in this play. The kids don’t stand a fighting chance.

Immigration proceedings are considered civil, not criminal, in nature, so the Sixth Amendment right to counsel does not apply. But Congress half-heartedly acknowledged that immigrant children need lawyers in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, which directs that “[t]o the greatest extent practicable, the Secretary of Health and Human Services shall ensure that unaccompanied alien children . . . have access to counsel to represent them in legal proceedings or matters and protect them from mistreatment, exploitation, and trafficking.”

“To the greatest extent possible” is hardly a guarantee. But in a subsequent rule , HHS explicitly mandated that immigrant children get “[l]egal services information regarding the availability of free legal assistance, and that they may be represented by counsel at no expense to the government, the right to a removal hearing before an immigration judge; the ability to apply for asylum … in the first instance, and the ability to request voluntary departure in lieu of removal.”

Many of the 20,000 children who appear in immigration courts each year have no counsel. And so for decades, HHS has contracted with legal service providers such as the Acacia Center for Justice to handle court representation and mandated know-your-rights briefings for the kids.

Then, last November, the Trump administration stopped paying many legal nonprofits if they refused to turn over confidential information about their pediatric clients. These children will now be represented either by Trump HHS lawyers in the new division created by Kennedy or by OUR Rescue — a controversial organization originally founded by the former Trump advisor involved in the 2023 film “The Sound of Freedom,” which was promoted heavily by conservative media.

OUR Rescue is not a law office and has no competency to represent these children, yet Trump’s administration somehow gave it a $158 million sole-source, no-bid contract to do just that. Also receiving a no-bid contract to the Burke Law Group , whose principal worked for Trump in his first administration. The firm does energy law, not immigration.

The Acacia Center for Justice has filed a bid protest. But in the meantime, there is a legitimate concern that these children will not receive effective counsel. With either the Trump administration itself or a Trump-adjacent organization now on both sides of these children’s immigration proceedings, their Fifth Amendment right to due process becomes farcical.

When young kids show up in court alone, judges usually at least feel an obligation to ensure that they understand what is going on and are treated fairly. With a government “lawyer” now at the podium on their behalf, that incentive could dissipate. Moreover, Trump administration lawyers’ involvement likely means that the deportation process will move along more quickly and efficiently, in keeping with the Trump’s obsession over accelerated mass deportations .

For the lawyers involved, the dual representation violates numerous standards of professional conduct. This includes their obligation not to represent a client if it would involve a concurrent conflict of interest, not to reveal confidential information regarding a client (here, to the Trump administration) without the client’s consent (which young children cannot give), not to allow someone paying a lawyer (here, the Trump administration) to direct how their professional judgment is exercised (lest they lose their jobs), and to zealously represent minor children whose capacity to make decisions is by definition diminished.

Meanwhile, pre-verbal toddlers as young as two are routinely issued notices to appear for removal proceedings and are increasingly showing up without legal representation. They cannot read forms, comprehend charges of “removability,” or articulate viable legal claims like fear of persecution. Courtroom reporting has described kids playing with microphones, drawing on benches, and crying while judges attempt to conduct official proceedings.

Statistics show that children’s deportation rates go from over 80 percent to just 12 percent if they are represented by counsel. As Nelson Mandela rightly said, the true character of a society is revealed in how it treats its children. By that metric, America under Trump is an abject failure. We must do better.

Kimberly Wehle is currently a thematic group coordinator and fellow at the Netherlands Institute for Advanced Study in the Humanities and Social Sciences and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer — and Why. “