The Justice Department lawyer who went viral arguing that the government shouldn’t have to provide soap and toothbrushes to migrant children tried to defend herself on Facebook recently. In a private post that some of her friends shared with the media, Sarah Fabian had a whole lot of justifications—justifications for how she wasn’t really arguing what everyone who saw the video (and the judges questioning her) heard her saying and justifications for why she stays in a job that calls on her to make such arguments.
Of the legal position that the government doesn’t have to provide soap and toothbrushes and sleeping accommodations, Fabian wrote that “I do not believe that’s the position I was representing, and I get that defending myself by parsing out a technical legal position won’t change most people’s minds.”
Of her continuing work for the Justice Department, where she is a career attorney and not a Trump administration appointee, Fabian wrote that “it has not always been an easy decision,” but she stays because of the good she can do: “A vast majority of the work that I do is not public, but I strive to help people by my participation in the process, and I feel like so often I get to do so in ways that are unique to me and my experience.”
Here’s the thing: Fabian is an attorney who was making a legal argument for her employer. To a great extent we have to respect the position that lawyers are not the positions they argue and they are not their clients—that’s a position we on the left especially have to honor since the right so often attacks defense attorneys simply for representing people accused of crimes.
But there’s a point where a lawyer working for a powerful entity has to decide where to draw that line, and Fabian got up one morning and went to court to argue that the government does not have to provide soap and toothbrushes to the children it’s imprisoning. She may claim that that’s not “the position I was representing,” but it’s not like only laypeople heard her doing it. Three judges of the 9th Circuit Court of Appeals pretty clearly heard her the same way. So either she was doing an exceptionally poor job of articulating her legal argument or she’s being a wee bit self-justifying here.
But hey, she said she “shared many people’s anger and fear at times over the future of our country” and is trying to “make it better.” And also “I’m so sorry that happened and I wish I could go back and try to say something better to make the position more clear, and since I can’t lots of people may well hate me for a long time.” This, note, is about how people see her, not about wishing she could go back and not make the argument at all. Not about wishing she was challenging the policy—about wishing she had explained it better.
Sarah Fabian may well be the kind of person who is decent to those around her. She may be a good lawyer, though if she really wasn’t arguing what the entire world heard her arguing, then again she may not be. But she failed a basic test that day in court, and the available evidence suggests she continues to fail it.