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Defending the Devil: That DOJ Lawyer Who Denied Kids Soap

Vivia Chen

June 27, 2019

Sarah Fabian arguing before the Court of Appeals, Ninth Circuit.


I have a penchant for defending lawyers who are loathed or scorned, so here goes nothing.

The latest contender for the most-hated lawyer in the land is Sarah Fabian, the Justice Department lawyer (and one-time Kirkland & Ellis associate) who’s now identified as the public face of inhumane treatment of immigrant children by the Trump administration.

You probably know Fabian as the Queen of Mean who suggested that migrant kids in detention aren’t entitled to sanitary necessities (like soap or toothbrushes) or decent sleep conditions (concrete floors with lights glaring throughout the night). A week ago, she defended the government’s handling of these children when she appeared before the U.S. Court of Appeals for the Ninth Circuit.

Let me cut to the chase: She didn’t come off well. This exchange between her and Judge A. Wallace Tashima was indicative of the tenor of the hearings:

Tashima: It’s within everybody’s common understanding that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, that’s not safe and sanitary. Wouldn’t everybody agree to that? Do you agree with that?

Fabian: Well, I think it’s, I think those are, there’s fair reason to find that those things may be part of safe and sanitary.

Tashima: Not “may be.” “Are” a part. Why do you say, “may be”? You mean there’s circumstances when a person doesn’t need to have a toothbrush, toothpaste and soap for days?

When I read those exchanges, I thought—as you probably did—that she was a cold, cold defender of an indefensible policy. 

But when I viewed the 10-minute video of the hearing (not the heavy-handed four-minute video), my view shifted: Fabian was no Cruella de Trumpvil. Arguably, she deserves some sympathy.

To me, she was badly cast as a Trump defender. She looked uncomfortable, as if she’d rather sit through a funeral. And she did a terrible job. She stumbled. She hesitated. And she seemed embarrassed.

My impression is that she barely tried to defend the administration’s position.

Yet, rather than putting blame on her boss, U.S. Attorney General William Barr, who’s the puppeteer, she’s the one on the hot seat. For instance, one-time Democratic presidential contender Howard Dean told The New York Times, she “needs to be fired and prevented from ever holding another government job”—an ironic statement, considering that if she didn’t argue the government’s position, she might have also been fired. 

Which brings me to my larger point: I have no doubt other DOJ lawyers are in a similarly untenable position—that is, advocating for an administration whose policies they find reprehensible.  

Indeed, there are hints that Fabian is a reluctant foot soldier. For starters, the New York Times reports that she’s a registered Democrat who joined the Justice Department during the Obama administration. 

And in response to the criticisms she got about the recent hearings, Fabian wrote a long personal message to her friends on Facebook that was obtained by NBC News. Along with statements that she was misunderstood, there was this: “I think I share many people’s anger and fear at times over the future of our country, and I want to work to make it better too.”

You could read that as Fabian making herself look more neutral and palatable. To me, however, there’s a distinct hesitancy about where all this is headed, a tone that’s un-Trumpian.

Some will criticize her for taking up the government’s mantle on one of the administration’s most despised policies. But not everyone can afford to ditch an unpleasant job. And who knows how the task fell on her lap? Perhaps it’s considered a high-profile assignment. Or maybe she drew the short straw.

All we know is that she did her job—icky as it may be.


Contact Vivia Chen at vchen@alm.com

On Twitter: @lawcareerist


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The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: VChen@alm.com

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