Kopf: AUSA Sarah Fabian Is Not the Devil’s Advocate

When our host posted Lessons From Fabian’s Viral Video, I was dumbstruck by the outpouring of hatred regarding Ms. Fabian.[i] See, e.g., Manny Fernandez, Lawyer Draws Outrage for Defending Lack of Toothbrushes in Border Detention, New York Times (June 25, 2019) (quoting Howard Dean, the former governor of Vermont and presidential candidate, stating that Fabian “needs to be fired and prevented from ever holding another government job.”)

Having had my ass kicked many a time while arguing before an appellate court, I decided I would take a deep dive into the record to see whether Fabian deserved the attacks. I read the Flores agreement, I read Judge Gee’s opinion in the District Court, and I read the briefs filed in the Ninth Circuit. I also read Ken White’s piece in the Atlantic. Additionally, I watched the entirety of the oral argument in the Ninth Circuit which lasted about an hour. Hell, I even read pieces about Fabian written by Joe Patrice at Above the Law.

For what it may be worth, let me give you my opinion. Ms. Fabian is not the Devil’s Advocate.

I wish to elaborate, albeit briefly. For example, let’s take Judge Tashima’s[ii] question of Ms. Fabian on the “toothbrush, toothpaste and soap” issue. After closely examining the foregoing sources, I am of the firm belief that Ms. Fabian had a good faith argument to make. Had she had time to make it (she was before a “hot” bench that was not shy about interrupting), her argument might have made five points:

1. The Flores agreement, particularly paragraph 12A, did not give the court authority to micro-manage the holding facilities. On the contrary, the broad language of Paragraph 12A of the agreement is fairly read to give the government the authority to fill in the gaps when it comes to the meaning of “safe and sanitary,” such as what specific items of personal hygiene must be provided and when.

2. From the evidence cited by the trial judge, the alleged deprivation of toothpaste, toothbrushes and soap was of short duration (2 or 3 days).

3. From the evidence cited by the trial judge, about 93% of the children in the relevant sector were transferred within 33 hours to the Ursula Centralized Processing Center. That fact was not disputed by plaintiffs.

4. From the evidence cited by the trial judge, at the Ursula facility it was the government’s practice to provide “a hygiene kit consisting of a towel, toothbrush, toothpaste, mouthwash, soap, and shampoo” together with “shirts, sweat pants, socks, and undergarments.” The detainees also had “an opportunity to shower, have their clothes laundered, and receive a change of new clothes.” The district court failed to give this evidence proper weight and instead credited a few counter examples. Even then, and strangely, the trial judge’s order regarding “safe and sanitary” seemed to focus mainly upon “non-CPC-Ursula CBP stations,” which apparently are short term holding facilities and which were not addressed in detail by the district judge.

5. The decision of the district judge was based upon affidavits and snippets of deposition testimony rather than live testimony. The appealed decision was a trial on the merits regarding breach of the agreement, yet no real trial was held. The district court, in violation of the Federal Rules of Evidence and the Federal Rules of Civil Procedure, deprived the government of the opportunity to cross-examine the plaintiffs, resulting in a record consisting mainly of unreliable hearsay. One example is illustrative: Several declarations contained indicia of unreliability on the face of them, such as the use of the exact same or very similar language by different people. Thus, the “toothbrush, toothpaste and soap” findings and other similar findings were “contrary to law” and “clearly erroneous.” In short, the method the trial judge set up to try the question of breach was both legally improper and factually unreliable. The judge’s decision not to give the government a real trial was both unfair and wrong.

Now, I am not suggesting that Fabian had a particularly strong argument. But she certainly had a good faith argument. In short, she had a job to do and she did it. Ms. Fabian is a real, rather than a faux, lawyer who represents unpopular clients with unpopular policies. While Fabian may not deserve praise for doing her job (lawyers seldom do), she does not deserve the calumny heaped upon her either, particularly by those idiots who base their opinions on a few seconds of video.

Richard G. Kopf
Senior United States District Judge

[i] Ms. Fabian was educated at Amherst and then took her law degree from George Washington. After working at the law firm of Kirkland & Ellis, she was hired by the Justice Department under the Obama administration and has been a government lawyer since at least 2009.

[ii] During World War II, the judge, when he was a child, was interned at the Poston War Relocation Center in Arizona, an internment camp for Japanese Americans.

27 thoughts on “Kopf: AUSA Sarah Fabian Is Not the Devil’s Advocate

  1. B. McLeod

    Of course, many of these Internet critics simply hate women so much that any attempt to defend Fabian against their misogynist onslaught will fall upon deaf ears.

  2. Howl

    Judge, thanks for taking the time to research and summarize. Having these facts will be helpful when the woke folk in my family get on a rant about this.
    Then again, maybe I would be better off to just let them rant.

  3. Jay

    In short, she had a job to do and she did it. Ms. Fabian is a real, rather than a faux, lawyer who represents unpopular clients with unpopular policies.

    Well with sentiments like that, you can forgive lawyers anything. She wasn’t defending a rapist judge, she was defending our government. Frankly if this is where we are I highly doubt this republic has many years left. Especially when old men like you keep defending inhumane policies and their advocates like there’s just nothing anyone can do, it’s just how it is. Well if that’s how it is it’s because of you. Thanks for this depraved, craven government you defend.

    1. B. McLeod

      Most of these children are present in this country because people trying to make a buck off them or people trying to break down U.S. border security (or some of each) have misled them as to their prospects of obtaining entry and lawful status. Generally, they are not going to achieve their personal goals of relocating permanently to the U.S. Rather, almost all of them will end up back in their nations of origin. The 2-3 days of their lives that they spent in the U.S. without soap and toothpaste will not be among the major, memorable horrors of their overall life histories.

    2. Howl

      How long to the fall of the Republic is anybody’s guess. In the meantime, we can place our bets over at Reddit.

    3. Skink

      “Especially when old men like you keep defending inhumane policies and their advocates like there’s just nothing anyone can do, it’s just how it is.”

      You’re brain is being affected by Factual Avoidance Retrograde Transference. Fortunately, there’s a cure: read the facts of the case before brain farting all over this here Hotel. Some people don’t think brain farts smell, but they’re wrong–they smell really bad. They also leave a cloud. Do you know how hard it is to remove a really dense cloud from the lobby? Do you care that it takes at least 6 Hotel employees to part the cloud just enough to allow regular guests to check-in?

      1. SHG

        You’re not being fair, you old dinosaur. A few years ago, a slightly more mature and experienced PD would have pulled Jay aside, smacked him and told him to grow up, think harder and stop spouting off like an unduly passionate twelve-year-old. Today, that not only doesn’t happen, but he gets tons of validation from the similarly woke, whether PDs, lawyers or non-lawyers, confirming his astoundingly simplistic view of the world is not merely acceptable, but brilliant. No one will even mention his reading comprehension sucks.

        Is it his fault that he, like most young woke lawyers, feels so validated in his mindless simplicity that he has no reason to try to think? Granted, he’s on the back end of the curve, but even Jay might have adopted a modest capacity to think like a lawyer with the right mentoring. Is it his fault that his peers are just as simplistic and blind as he is? Pity Jay rather than spank him, for he will never grow up to be a lawyer.

        1. Skink

          I’ll save the pity for the clients of lawyers who can’t be bothered to gather facts before forming an argument.

          1. SHG

            You think facts would have changed Jay’s argument? Oh, sweet Skink. Sit down, I have something to tell you and it’s going to make you sad.

        2. Scott Jacobs

          A few years ago, a slightly more mature and experienced PD would have pulled Jay aside, smacked him and told him to grow up, think harder and stop spouting off like an unduly passionate twelve-year-old.

          Or at least to not do it to a federal judge.

    4. Guitardave

      Hey Jay, you ought to hook up with Uncle Wanya ( first comment on the linked post), you guys would be a tag team tour-de-force in the non-sequitur logical fallacy Olympics.

      One other thing…you might want to stick a fork in your republic, cause with citizens like you, its already done.

    5. Vin

      Just spent the better part of the past 60 seconds trying to figure out the significance of a judge who is a rapist.

        1. Vin

          That would be true if it took me longer than 60 seconds. Dude needs to change the order of his nouns, or, add some commas.

  4. Guitardave

    Judge Kopf,
    Looks like the hyper-footnoting therapy is working out well. Congrats!
    That second one [ii] is quite juicy. I’m wondering if Judge Tashima’s childhood memories might have had a finger on the thermostat of the bench that day? I got the feeling his emotions were leading the charge.
    Regards, GD

    1. Richard G. Kopf

      Guitardave,

      I added the footnote about the judge after thinking hard about whether I should do so. I was not sure it was particularly relevant. But, I anticipated an attack from the more woke among us if I failed to mention that the judge personally experienced, as a young child, the grave error of interning American citizens recognizing that some have compared that stain on America’s past to what is now happening at our southern border with young children.

      I leave it to others to draw their own conclusions about how the judge’s experience impacted him in this case, if it all. Frankly, I simply didn’t what to get called out for being an ignorant dumb ass–a fact I will gladly stipulate to in most other matters.

      All the best.

      RGK

      PS And, yes, I am trying my best to deal with my addiction to footnotes–SHG’s pretty good self-help program seems to be working.

  5. Turk

    I think if Ms.Fabian wants the job of Devil’s Advocate she’s going to have to fight Marc Randazza for it. Since he represents the Satanic Temple in Salem, MA.

    Thank you.

    I’ll show myself out.

    (Oh yeah nice piece, Judge. I’m likewise befuddled that so many don’t realize lawyers often represent unpopular clients. You’d think John Adams representing shooters in the Boston Massacre would have been a pretty important US History lesson.)

    1. Richard Kopf

      Turk,

      No need to show yourself out. Both points well taken.

      All the best.

      RGK

      PS Fun fact: My dear buddy, retired federal district judge Judge Mark W. Bennett, during his years of practice, once represented the Unification Church of the United States, sometimes colloquially referred to as the “Moonies.” Mark once told me they were one of best clients he ever had–even though they were viewed with horror by many folks, particularly in flyover country!

      1. Turk

        One of the best clients means, I take it, that they:

        1. Took the advice of counsel, and
        2. Paid their bills

      2. John Neff

        Jail and prison inmates are also unpopular and District Judge Donald O’Brien (also of the Northern Iowa District) treated them fairly.

  6. John Hawkinson

    Is it too late to pick the nit that Ms. Fabian is not an AUSA (see headline), but rather a Senior Litigation Counsel at Main Justice’s Office of Immigration Litigation (OIL)?

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