Lessons From Fabian’s Viral Video

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.

23 thoughts on “Lessons From Fabian’s Viral Video

  1. Uncle Wanya

    Would you have denied arguing the case if you were working for AUSA? actions have consequences and i seriously think that doing work for AUSA makes you complicit in government policy, whether that be this or an earlier president.
    Sure You can argue that she was hated too much, but don’t forget that it is human rights we are taking about.
    Her shame is probably not as traumatizing as what the children in question are going through.
    We must not forget utilitarianism.

    1. SHG Post author

      I used to find it curious how undue passion had an inverse relationship with capacity to reason. No more.

    2. Guitardave

      …yeah, Unc… I used to be a building maintenance guy… until the day i ‘denied’ picking up human shit and needles in the back stairwell cause i didn’t want to be ‘complicit’ in drug trafficking…and they (my employer) said, ” but Dave, whats the problem?…you surely can’t feel as bad as the poor junkie…

      BTW, what the fuck does ‘hated too much’ have to do with ‘talking human rights’ …whats the angle?..”when we talking human rights, there ain’t no ‘too much hating’?….ITS OUR RIGHT TO HATE THE BAD MAN AS MUCH AS WE WANT TO! ..I think that, and your impotent, twit sized brain farts might finally be “moving the conversation forward”…um huh.

      1. Jeff

        I was dwelling on how to tackle this comment…something along the lines of starting with ‘actions have consequences’, pehaps…Thank you for taking the bullet, Mr. Guitardave, sir. My sanity thanks you as well.

        1. SHG Post author

          Sometimes I ponder whether to deconstruct nonsensical and irrational comments, but they’re rarely worth the effort and I presume readers will be smart enough to recognize on their own that they’re inane. This infuriates the unduly passionate nutjobs, as they confuse my allowing them to comment here with their entitlement to my time to engage in a debate over their stupidity. If someone makes a good arg, I tend to discuss it. When a comment is ridiculous, it’s not worth my time to address it and I commend it to the wisdom of other readers.

          1. Jeff

            You’re both wiser and possessed of more willpower than I, clearly. Then again, this should be obvious by the fact that one would expect that you don’t get bogged down in arguments lasting hours because you’re treating the opinions of a madman as though they’re equally valid simply because they’ve been expressed. I’ve a lot to learn.

        2. Guitardave

          You’re welcome.
          I think sometimes Scott lets the door of the hotel open, to ‘air out’…and maybe let a little trash blow in just to see if the barflies are awake. I should know better…that the idea of twisting someones already tortured logic a bit further will show them the flaws…but it is fun.

    3. I never forget utilitarianism

      That first sentence is a masterpiece of non-lawyerese. If you want to camouflage yourself better in the future, Uncle, the following phrases make sense in this context:
      -working as an AUSA
      -working for a USA
      -working for the USA (bonus double meaning)
      -working in the USA’s office
      -if you were an AUSA
      Also, you would refuse to argue (possibly efectively quitting) not deny arguing, unless you are suggesting that a denial would be effective here for Ms. Fabian.

  2. B. McLeod

    I don’t expect much from non-lawyers on social media. On the other hand, I was shocked by how poorly and inaccurately this case and this argument were reported by substantially all of our major, national news media organizations. This is a demonstration of the creeping, institutional ignorance we can expect due to the death of basic civics and the failure of the educational system in our country. Try as they might, the news media cannot “inform the public” because they are butt ignorant themselves.

    1. SHG Post author

      Not that they aren’t ignorant, but even if they weren’t, they would nonetheless report news from the advocates perspective of making sure readers took away the “right” interpretation.

    2. Morgan O.

      I am not a lawyer, and I find the whole thing repugnant. She’s a lawyer. Lawyers are professionals. Professions have codes and obligations. She has a duty to argue the case the government wants her to argue. Duty isn’t easy, but it isn’t complicated either. But then, the concept of duty has been coopted too, hasnt it?

  3. Jay

    So do you leave court and immediately disavow your client and your arguments? You have no stake in them? It’s not bound up in your reputation?

    I assume what you mean is that she is arguing a plausible reading of the law, damn the consequences. Which would be fine for a criminal defendant, but this is our government, and they don’t have to take these positions. They can just stop harming children.

    1. SHG Post author

      Disavow? We’re lawyers, Jay. At least I am. We neither avow nor disavow. We represent. I may have given lawyers, as a group, too much credit, now that you’ve added in your two cents.

  4. Jake

    “The woke want this so desperately to be about Trump”

    I ask sincerely: Who gives a fuck? The public didn’t know enough before, and now they know, in part because the woke are screaming about it on social media.

    The bigger prize we both want (I am assuming) is a decrease in the suffering of children and others at our borders. That will require legislative change because we can’t rely on the federal government to respect fundamental human rights unless they are legally obligated. Legislative change requires the attention of the unwashed, unlawerly masses. Drama helps.

    1. SHG Post author

      Do we both prize a decrease in the suffering of children, Jake? I do. I’m doubtful about you. But if so, how does legislative change happen if the warring tribes can’t put down their weapons long enough to improve the situation? That’s why the “desperately about Trump” thing matters, Jake, and why you should give a fuck if you were sincere. But you don’t, which leads me to think you’re not.

      1. Jake

        I sincerely don’t care that there are a few people screaming about how everything got worse under Trump if it ultimately leads to everything getting better. You can take that to the bank.

        1. SHG Post author

          The Trump side is easy. The man is a self-aggrandizing asshole, easily played. The mob is harder to deal with.

  5. Erik H.

    You argue what needs to be argued in defense of your client. That’s the bloody JOB.

    Hell, in civil work we deal with both sides. As such it is not entirely uncommon for us to take radically different positions, on the same substantive issue, before the same judge. The judge–who is a smart cookie–knows perfectly well what is going on, but understands that this is our job.

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