Biden’s Red Queen Justice: How He Destroyed Both the Investigation and the Reputations of Border Agents

Below is my column in the Hill on the controversy over U.S. Customs and Border Protection agents allegedly whipping undocumented immigrants on the southern border. The false accounts given by members of Congress and the media were alarming and likely defamatory. However, it was the comments of President Joe Biden that were the most damaging to both the investigation and the reputation of these agents. He seemed to finally find his “dog-faced lying pony soldiers” in the mounted border unit. Ironically, he is the most legally protected person in making defamatory comments.

Here is the column:

Those people will pay.” With that promise, President Biden vowed to punish Customs and Border Protection agents accused of whipping undocumented immigrants on the southern border. Despite the announcement of an investigation into the allegation just the day before, Biden did not stop for the pretense of process in declaring the agents guilty.

This “sentence first — verdict afterwards” approach may amuse the Red Queen of Alice in Wonderland, but it should be anathema to an American president. Not only did Biden shatter his own administration’s investigation but he joined other leading Democratic figures in defaming the agents.

Biden told the American people that these easily identifiable officers would be punished after they allegedly “strapped” the Haitian migrants. Other Democratic politicians like Rep. Maxine Waters (D-Calif.) declared that the whipping was “worse than what we witnessed in slavery” and described “the cowboys who were running down Haitians and using their reins to whip them.”  Rep. Ayanna Pressley (D-Mass.) called it simply “white supremacist behavior.” Many in the media went into high gear, too, denouncing what one outlet described as the “Whipping (of) Haitian Asylum Seekers.”

However, Biden’s behavior was the worst, due to his position as head of the Executive Branch: “It was horrible what — to see, as you saw — to see people treated like they did: horses nearly running them over and people being strapped. It’s outrageous. I promise you, those people will pay.”

By announcing that the agents were guilty and needed to be punished, Biden destroyed the credibility of the Department of Homeland Security’s ongoing investigation. It is akin to what is called “command influence” in the military, when comments or actions of a superior officer influence an investigation or prosecution. Investigators and department officials could well be worried about their own careers if they do not find a basis to punish one or more of the border agents. The failure to do so would be an embarrassment to the president and risk the wrath of powerful figures in Washington. Conversely, any action taken against these agents can now be challenged due to Biden’s preemptive declaration.

The biggest problem is that the whipping story was entirely untrue.

Indeed, it was obviously untrue from the start. We were all watching the same video, and the officer was clearly using his strap to control his skittish horse. Even the photographer expressed astonishment at the coverage and said he did not see a single person strapped or whipped by agents.

The profile of this scandal is familiar. The media repeatedly has worked people into a frenzy over stories that eventually were proven false, but with little later coverage when the truth contradicted earlier accounts. One such example is the Lafayette Park incident in 2020, in which the media declared that then-Attorney General Bill Barr cleared the area with tear gas to enable a photo op for President Trump. From the outset, there was ample evidence undermining that claim, but it was uniformly ignored. Later, the Justice Department’s inspector general disproved the claim — but few reporters or commentators corrected the earlier false claims.

Biden and other figures ran with this false claim because it was popular — and they did not have to bear the costs. They simply declared the border agents to be modern-day Bull Connors, whipping helpless migrants.

Legally, however, this has all of the makings of a defamation case.

The most important element is that all of the whipping stories were based on the same videotape; there were no added sources for most of these accounts. Even if these officers were treated as “public officials” under the more difficult standard of New York Times v. Sullivan, they could still make a compelling argument that the comments were made with the “actual knowledge” of the falsity or “reckless disregard of the truth.” Moreover, these claims would be recognized in many states as per se defamation. While some can legitimately argue that the use of the horses was still abusive or dangerous, horses are routinely used for crowd control and these border agents were ordered to the river for that purpose.

Congressional members like Waters and Pressley can often rely on the protections of the Speech or Debate Clause of the Constitution (Article I, Section 6, Clause 1). However, their remarks in this case were made outside of protected congressional areas.

Those in the media might limit their legal liability with corrections posted or published within a few days of the initial reports — but they can still be sued. It could be argued that some apparently did not care if the border agents did or did not whip migrants because “it was a fact too good to check.” Moreover, the use of the still photos was uniformly misleading and could be used as the basis for “false light” charges, in which pictures are used to present a false or misleading image.

The greatest irony, however, is that the person most at fault here — President Biden — may be the most protected from lawsuit, despite defaming federal employees. In Nixon v. Fitzgerald, the Supreme Court held that a president “is entitled to absolute immunity from damages liability predicated on his official acts.” The court recognized that “a President must concern himself with matters likely to ‘arouse the most intense feelings’” and thus would be subject to endless lawsuits. Later, in Clinton v. Jones, the court denied such immunity in private matters involving “unofficial conduct.”

Biden can argue that these were statements issued in his official capacity. Of course, that makes it worse, since he is not supposed to proclaim the guilt of those who are being investigated or who remain unadjudicated.

The danger is that defamation actions often chill speech on issues of public importance. The Supreme Court has struggled to find a balance in such cases in order to limit defamation actions to guarantee free, robust public debates. It is important for people to be able to allege abuses by law enforcement. Conversely, responsible presidents and members of Congress are expected to reaffirm the need for investigations and due process.

What is notable here is that the truth could have been confirmed easily before any political or media figures portrayed the border agents as white supremacists in a race-fueled whipping frenzy.

In the end, we might all agree with President Biden that “it was horrible what you see, what you saw — to see people treated like they did.” But that should include federal agents who were sentenced to officials’ public condemnation before any verdicts were reached.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.


95 thoughts on “Biden’s Red Queen Justice: How He Destroyed Both the Investigation and the Reputations of Border Agents”

  1. Would have been better with this small (addition)

    ….declared the border agents to be a modern-day Bull Connor (DEMOCRAT), whipping helpless migrants.

  2. The government is too big and takes too much power from people and businesses. Why does Europe have these things, but we are still waiting. From the NYT:
    By David Leonhardt
    Good morning. At long last, rapid Covid tests will soon be more available in the U.S.

    I tried to buy a rapid at-home Covid test yesterday, and the search did not go well.

    My local CVS did not have any. On CVS’s website, I found a store several miles away that claimed to have the tests in stock — but I discovered otherwise after driving there. On Amazon, I did find one available option: a box of 90 rapid tests. It cost $1,122.75.

    When I told this tale of woe to my colleagues during our daily news meeting, one of them — Claire Moses, an editor based in London — offered to ship me some tests through trans-Atlantic mail. At-home tests are so widely available in Britain, Claire explained, that she could send a few to every member of The Morning’s editorial team.

    I said no thanks, because I did not have an immediate need for a test. I was searching for one partly to see what the experience was like. I also assume that my family will want to have rapid tests on hand at some point.

    If you wake up with a runny nose or scratchy throat, you should be able to grab a Covid-19 test from your bathroom shelf and find out the result within minutes. The tests exist. They are known as antigen tests and are widely available not only in Britain but also France, Germany and some other places. Rapid tests can identify roughly 98 percent of infectious Covid cases and have helped reduce the virus’s spread in Europe.

    In the U.S., by contrast, rapid tests are hard to find, because the Food and Drug Administration has been slow to approve them. F.D.A. officials have defended their reluctance by saying that they need to make sure the tests work — which they certainly do. But many outside scientists have criticized the agency for blocking even those antigen tests with a demonstrated record of success in other countries.

    The F.D.A. has preferred a different kind of test, known as a P.C.R. test, which is sensitive enough to identify many noninfectious cases (including some that are weeks old). But P.C.R. tests come with a crucial downside: Many must be processed in a laboratory and take more than 24 hours to return results. In the meantime, a person with Covid may spread it to others.

    Fortunately, though, today’s newsletter is not just another recounting of this country’s testing shortcomings. There has been some news this week. Soon, Americans will probably have better access to rapid tests than they now do. …

  3. First thing to note…Fearless dear senile leader darth biden of chyna IS NOT enforcing , but literally ignoring US border , immigration and the constitution by allowing this horde of third world ignorants’ to come in vast waves.
    Then to play this absurd race/hate card so obviously knee jerked politically based just shows him for the shallow vacant gummi puppet he has always been. This man never has had an original thought , likely never even had much of a thought overall . Lord darth biden spent so much time with avowed racists and segregationists and plagiarized so so much of anything he has said or done…the likelihood of anything original out of this human is sub atomically small . But here we see senile fearless dear leader put shoe in mouth and vomit out outrage – fake outrage and a fake reality to suit his senile frothing agenda set by his puppet masters.

  4. 18 percent of the illegals under the bridge in Lerado tested positive for COVID-19. Let’s do the math. 18 percent of 15,000 equals 2,700 infected people. Let’s extrapolate. 200,000 illegal immigrants per month entering our nation accounts for 36,000 new COVID cases per month. In a year the new Covid-19 cases brought to our land would then equal 432,000. Just a little number that Ole Man Joe doesn’t want to let you think about. He may accomplish his goal because 432,000 is a number that many of you are willing to blot from your consciousness. We know that you will not fall out of line and your steps will be perfectly coordinated. You dream of the beautiful sound of your boots made as they strike the pavement.

      1. Yes, jockies, winning or losing, are poor horsemen. They just go around and around.

  5. But that should include federal agents who were sentenced to officials’ public condemnation before any verdicts were reached.

    judgements for thee but no one dare judge Biden.

    It is common practice today that one has to visit European or Asian news outlets to read about the corrupt practices of the Biden White House. Still it is humiliating to see the US fall to such lawlessness at the highest levels of the federal government. This will only get worse when China invades Taiwan while Biden bumbles that too. Biden needs to be removed post-haste.

    Joe Biden deliberately ‘shielded’ from scrutiny as White House siege mentality grows
    Beleaguered president and his team accused of increasingly avoiding tricky questions

    Mr Biden is now facing an accumulation of major problems including the pandemic, a potential government shutdown, the possible collapse of his $3.5 trillion overhaul of the social safety net, a migrant surge at the Mexico border, and continuing fallout over the Afghanistan withdrawal.

    Amid a growing siege mentality at the White House his aides are doubling down on their approach of protecting him from “off point” questions.

    Mr Biden has not held a press conference in weeks, and Ms Psaki has declined to commit him to another one soon.
    “Certainly, I’m sure, we will have another one,” she said, but added she did not think it was “at the top of the list of the American public’s concern.”

  6. Turley: let’s see if I have this right: you are complaining about Joe Biden’s interpretation of mounted border patrol agents, claiming that he lied about them whipping illegals? You might have some credibility if you ever addressed the extensiveness of the serious lying done by Trump and your employer, Fox, but especially Trump’s constant reinforcement of the Big Lie and the serious damage this is doing to America–dividing us one against the other for no reason other than the massive ego of this fat loser. One of Fox’s latest capers is to call Senator Tammy Duckworth a tax dodger because she doesn’t pay property taxes. That’s because in Illinois, disabled veterans are exempt from paying property taxes, so she isn’t dodging taxes at all, much less cheating.

    So, Turley, if you’re going to start throwing rocks about liars, start in your own back yard.

      1. Trump called for people to be locked up all the time, for no reason other than they wrote or said something he didn’t like. Oh, you forgot about that right?

      2. Nacho and fishflaps ; Have TDS/ornage man bad on the membranes….. it shows and like a broken record they deliver the same skip – from reality they can not accept. Pointing out senile fearless lord darth biden’s total failure in any of his multiple failures just gets more deflection of orange man bad bunk…tired and old and says a lot about of them.

    1. You are incorrect about Fox’s story about Duckworth. They did not call anyone a tax dodger. They reported the entire story including the watchdog group who said the exemption was excessive. If you’re going to call out Fox, at least be truthful.

  7. Well let’s look at the why and not just the what. The goal is to get as many illegals in the country as possible as part of the larger plan to destroy America from within. Border security is an impediment to that goal. Therefore border security must be discredited in any way possible. Truth and justice have nothing to do with it. As far as I can tell this was another successful operation by Team 666 aka the Make America Venezuela Again administration. I don’t like their methods but nobody can say they aren’t extremely effective.

  8. One can nearly set the direction of their compass by the talking points of this administration and by the media and reporters who protect him. Set it and go the opposite direction. The stories they try to lead us away from are likely the places to look for more information. The narratives they are pushing are the ones that cannot be substantiated and least likely to be true.

    Is he so used to telling untruths that he no longer knows the difference?

  9. Pseudologia fantastica is a condition where patients represent certain fantasies as real occurrences. It has received little attention in the English psychiatric literature and, apparently, there are fewer than thirty reported case in the English literature. Pseudologia fantastica goes by multiple different names including pathologic lying and mythomania. The facts suggest that the number of cases of Pseudologia fantastica has gone vastly underreported, as multiples of the reported cases can easily be found in just several rooms of the White House alone, let alone the substntial number to be found in Congress.

  10. The communists (liberals, progressives, socialists, democrats, RINOs) intend to destroy America and have communism come to the rescue.

    The teeming masses of parasites will love it – they derive more compensation from the white man’s money by being enslaved by communism than by relying on their talents and capabilities in freedom.

    This is what the American Founders endeavored against – dictatorship in any form, be it a monarchy, the tyranny of a despot or the “dictatorship of the proletariat.”

    The Founders gave Americans the one and only thing they could: Freedom.

    The communists hate that.

  11. I wish this were a one-off and Biden just misspoke. I wish shutting down the Keystone pipleline and lifting sanctions on the Russian pipeline was merely a tactical error. I wish the departure from Afghanistan was merely a tactical miscalculation. I wish CRT was just a crazy philosophy caught in one school district. I wish a biological male wanting to use a female-only facility was the person treated for mental issues and instead of those objecting to it. I wish non-violent protesters at our capitol weren’t held as political prisoners while violent protesters throughout our country are bailed out by the political left. that I could go on, but the point is we need to zoom out from the tactical actions and take a look at the disastrous strategic direction all of these events are moving us. This is the fundamental transformation Obama dreamed of.

    1. Olly, these people are trying to tell us that up is down and down is up.

      1. these people are trying to tell us that up is down and down is up.

        Bob, I believe President Obama cracked the Democratic party. President Trump broke it wide open and out spilled the American Marxists that were hiding within. We are not likely going back at this point to anything the majority of Americans would consider a sane, just and enduring self-governing republic.

    1. I like this note on instapundit: “Facebook learns what it is like to get shut out of Facebook.”

    2. Here is a not so happy mercy killing that should concern all of us.

      August 4, 2021

      Myocarditis and Pericarditis After Vaccination for COVID-19

      Rare cases of cardiac inflammation following SARS-CoV-2 vaccination have been reported.1-4 We reviewed the clinical records of vaccine recipients to identify cases of postvaccination myocarditis or pericarditis.


      Forty hospitals in Washington, Oregon, Montana, and Los Angeles County, California, that were part of the Providence health care system and used the same electronic medical record (EMR) were included. All patients with documented COVID-19 vaccinations administered inside the system or recorded in state registries at any time through May 25, 2021, were identified. Vaccinated patients who subsequently had emergency department or inpatient encounters with diagnoses of myocarditis, myopericarditis, or pericarditis were ascertained from EMRs (see eTables 1 and 2 in the Supplement for exclusions and definitions).



      Two distinct self-limited syndromes, myocarditis and pericarditis, were observed after COVID-19 vaccination. Myocarditis developed rapidly in younger patients, mostly after the second vaccination. Pericarditis affected older patients later, after either the first or second dose.

      Some vaccines are associated with myocarditis,5 including mRNA vaccines,1-4 and the Centers for Disease Control and Prevention recently reported a possible association between COVID-19 mRNA vaccines and myocarditis, primarily in younger male individuals within a few days after the second vaccination, at an incidence of about 4.8 cases per 1 million.6 This study shows a similar pattern, although at higher incidence, suggesting vaccine adverse event underreporting. Additionally, pericarditis may be more common than myocarditis among older patients.

      Diaz GA, Parsons GT, Gering SK, Meier AR, Hutchinson IV, Robicsek A. Myocarditis and Pericarditis After Vaccination for COVID-19. JAMA. 2021;326(12):1210–1212. doi:10.1001/jama.2021.13443

      1. estovir:

        I read those effects subsided in most patients. Is that true?

        On a personal note, just got the blood work back and I’m rolling heedlessly back to normalcy on the CBC and CMP.

        1. Congrats Mark. Health is wealth. Im still training at 430 am Willow Lawn Golds Gym. Ive been meaning to contact you via email. Our mutual friend John Tucker has prostate cancer. Just has his prostate removed. He could use a friendly call from a JD colleague. Lets meet sometime.

          To answer your question, I provide the following. Note the JAMA article I provided mentioned “underreporting”. That means we do not have a full picture of what happens.

          Standard disclaimers apply.

          Viral Myocarditis

          Last Update: August 11, 2021.


          The prognosis of patients with myocarditis depends on the severity of the inflammatory process and presentation of symptoms. Patients with severe disease have a poor prognosis without a transplant. Patients with mild myocarditis usually have a good outcome. Poor prognostic factors include low ejection fraction, left bundle branch block and syncope. The most common cause of death is cardiogenic shock. Others may develop varying degrees of heart block that requires permanent pacing. The highest mortality rates are seen in postpartum cardiomyopathy.

      2. Uh, you DO realize, don’t you, that if the vaccine could cause myocarditis and pericarditis (which they are NOT saying it does), so could an acute infection with COVID. There are a certain number of people who get myocarditis regardless of whether they got vaccinated. An association between vaccination and myocarditis and pericarditis or an observation of vaccinated people being diagnosed with these conditions post-vaccination does NOT prove causation, Your nonsense about “mercy killing” explains why you are a Trumpster.

        1. You do realize that Akathisia is a common adverse event from people taking antipsychotic meds like Haldol but in your case I think youre always a crank, act batsheet crazy on this forum, and otherwise psychotic. Perhaps i understate.

          There are a certain number of people who get myocarditis regardless of whether they got vaccinated.

          Like it being airborne? Full moon? TDS?

          Tell us again about your Nurse Practitioner career before you became an attorney.

          Thanks for the education

      3. Estovir, et al:

        I encourage everyone to find the time to review these 2 links about Covid 19 & mRNA Gene Therapies, & pass them long.

        These had better be game changers or most everyone is screwed:

        (Natural News) The Biden regime’s claim that we are currently in the midst of a “pandemic of the unvaccinated” is a bald-faced lie. New data from the Department of Defense (DoD) shows that we are actually facing a pandemic of the fully vaccinated, who represent at least 70 percent of all new Wuhan coronavirus (Covid-19) infections.

        Humetrix, JAIC, and Project Salus put together a slide presentation of the latest statistics, which paint a starkly different picture than the one Tony Fauci and his mainstream media lackeys have been portraying.

        It turns out that the sickest people in society right now are those who took the jabs thinking they would provide protection against disease. Many of these people are developing “breakthrough” cases of the Chinese Virus that are serious enough to send them to the hospital.


        Monday Night Emergency Broadcast: Video Emerges of Fauci and HHS Plotting TO Stage Massive Health Scare Using “New Virus”


        Oct 4, 2021

        The Alex Jones Show

        Alex Jones breaks down three clips which are the smoking guns which prove the COVID pandemic was planned and carried out Big Pharma, the UN and corrupt government officials.

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