A random lawprof twitted about how the video of AUSA Sarah Fabian, arguing before the Ninth Circuit, proves how critical it is that oral arguments be shown to the public. And the public was, indeed, outraged by the snippet of the argument that went viral.
Ironically, the caption below the video states, “Soap and beds are not essential for detained migrant children says Trump lawyer.” Except Fabian isn’t a “Trump lawyer” at all, but a career assistant who worked for the Department of Justice since 2011, and the case isn’t about Trump, but the 1985 Flores Agreement.
As Ken White explained in The Atlantic, the outrage over the argument may have been justified, but for the wrong reasons.
The government’s “safe and sanitary” argument did not arise from a new case generated by Trump-administration policies. It arose in 1985, during the Reagan administration, when a 15-year-old Salvadoran child named Jenny Lisette Flores was detained after entering the United States illegally, hoping to escape her country’s vicious civil war. Flores spent two months at a facility in California, confined with adult strangers in poor conditions and strip-searched regularly. In July 1985, she and three other minors brought a class action against what was then called the Immigration and Naturalization Service, challenging its policies for the care and confinement of minors.
This doesn’t make the argument any less “loathsome,” but it does explain why this wasn’t one person, this woman in the video, who was the perpetrator of this loathsome conduct. This was a career AUSA doing her job, making the argument her office required of her, and doing so before a panel of the Ninth Circuit who would, at the least, realize that this wasn’t Fabian speaking for Fabian, but a lawyer arguing on behalf of her client.
But that’s a lawyer’s view. The public not only despised the government’s position, as well they should, but blamed Fabian personally for it. And the media demonstrated that it was ill-equipped not to exacerbate the problem.
In testimony last week before the Ninth Circuit Court of Appeals, Fabian argued that the requirement that the government provide “safe and sanitary” conditions for detained children didn’t necessarily require showers, soap or toothbrushes. In appealing a 2017 ruling that found the government violated the 1997 consent decree known as the Flores Settlement Agreement, Fabian argued that the decree does not specifically enumerate those items as mandatory.
Testimony? Is that what lawyers do when arguing before an appellate court? Is Fabian a witness, a perpetrator, the Trump lawyer responsible for denying children soap and showers, sleep and toothpaste. If so, she deserves to be universally denigrated for the terrible harms she personally did to these children. But she’s not. She’s just a lawyer for the government, doing her job for the government, arguing an appeal.
Worse yet, the American public’s “awareness” of the multitude of serious problems with our immigration policy, and our handling of immigrants including, especially children, awoke upon Trump’s election. That they knew nothing about how this has been happening, to greater and lesser extents but happening, for decades becomes a reality they try desperately to rationalize away. The woke want this so desperately to be about Trump, and only Trump, when that’s a facial lie.
The fault lies not with any one administration or politician, but with the culture: the ICE and CBP culture that encourages the abuse, the culture of the legal apologists who defend it, and our culture—a largely indifferent America that hasn’t done a damn thing about it.
Pointing out that the public has been complicit in this happening for decades, and it didn’t care a whit, is viewed as a pro-Trump reaction, because any point that relieves Trump of any offense is intolerable. But a lot of human beings, including children, suffered for decades while Americans were busy worrying about their “first world problems” and didn’t care.
I wrote about immigration. Cristian Farias, who now sits on the New York Times editorial board, and Mario Machado, an exceptionally knowledgeable and experienced immigration lawyer, wrote about it for Fault Lines. It’s not as if the information wasn’t out there, fully available for all to see, long before Trump was elected. But nobody cared.
The president is responsible. Congress is responsible. The Dems and the Reps are responsible. The public who didn’t care is responsible. And AUSA Sarah Fabian is responsible, but no more than anyone else. What was seen in the video of oral argument wasn’t Fabian single-handedly trying to be the most hateful person in America, but just a government lawyer arguing the case she was charged to argue.
The random lawprof’s point in arguing that this video proved the necessity of making oral argument publicly available was that the public needed to hear, to see, the argument being made by the government that soap and toothpaste wasn’t necessary for “safe and sanitary” conditions. That wasn’t exactly the argument, of course, but rather the “safe and sanitary” language from the Flores Agreement addressed this level of specificity such that a failure constituted a violation of the Flores Agreement.
Still, that this is what our government is arguing, on our behalf because everything the government does is ultimately on our behalf, even though we have nothing to say about the details, is important to know. But the takeaway wasn’t just this one, slightly misunderstood, argument. The takeaway was that AUSA Sarah Fabian was a monster testifying for Trump as to why it should get to traumatize and harm children.
As a result of this video going public, Sarah Fabian will be tainted forever for doing nothing more than the job of a career prosecutor. Some will argue she should have refused to argue the cause, and by doing so, adopted it as her own and was complicit in the harm. That’s not how being a lawyer works. Just as Ron Sullivan didn’t magically morph into the presumed rapist and threat to young Harvard womanhood because he took on Harvey Weinstein, Sarah Fabian did nothing more than the job required of her as a career lawyer at the Department of Justice.
But people saw the video and lacked the capacity to distinguish an advocate’s duty from their personal “testimony.” They know what they see, but they are incapable of appreciating what it means and who is to blame. Fabian shouldn’t win any prizes for her oral advocacy before the circuit, but she doesn’t deserve the hatred either. Video can be illuminating, but not if people don’t grasp what they’re watching. They didn’t here, and Sarah Fabian can testify to it.