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”
This wouldn’t be a topic of the day if our laws were enforced at the border.
Went in dumb, come out dumb too.
Hustling round DC in his alligator shoes.
He’s keeping Americans down!
Joe BiDen. Bi Den!
He don’t know his arse from a hole in the ground.
He’s keeping America down!
The CDC has recommended virtual holiday celebrations for the 2nd year in a row. Don’t visit Grandma or your cousins for Thanksgiving or Christmas. That might spread Covid. But letting hordes of Covid-positive illegal immigrants into the United States is fantastic public policy.
The world’s gone mad. There’s no talking sense into people anymore.
I always go to the CDC for holiday advice. I think they have ideas for decorations and snacks [served on 10-foot poles] for this year.
Nothing they say or do doesn’t look slightly insane these days.
Young and Karen S.
We are holding our yearly Halloween party, Day of the Dead , Thanksgiving, Friendsgiving, Christmas, and NYE parties.
We will give the Fauci/CDC guidelines a once over and think on them no more!
I just can’t wait for that holiday special, Christmas with the Fauci’s.
Thanks a lot, Young. I was drinking water when I read your post and now it’s everywhere. I’m ugly laughing.
“I always go to the CDC for holiday advice.”
That’s a coincidence. I go there for recipes: A dash of this. A pinch of that. And you have the makings for the French Revolution.
We have completed week 5 of the college football season. Probably in excess of 3,000,000 fans sat in the stands, cheek to jowel with their friends, and covid cases(meaningless metric) and deaths continue on their steep decline, with nary a blip in numbers.
Nice to know Americans are getting on with life. At my university, in person classes are poorly attended, students have the option for virtual instruction, predictably their grades are tanking, masks are required the moment you step onto campus, main campus is a ghost town, at the medical campus physicians and staff wear both masks and face shields, while patients are strongly encouraged to pursue virtual medical appointments….at standard medical fees…but of course! Oh, and our ICU was never at full capacity, this from the second largest medical center in my state
Hey, Joe Biden, are people responsible really going to pay, because you’d be right there on the top of that list.
You owe that rider an apology. And you owe a 50 pound bag of carrots and a complete set of Haas brushes to the horse patrol unit’s horses. For shame, claiming they trampled anyone. They didn’t put hoof on a single person that day.
Wrongfully accusing law enforcement has been the trend for a while, but now they wrongfully accuse horses, as well.
Some animal lover Joe Biden turned out to be.
As a rider myself, I found the President of the United States defaming mounted border patrol to be offensive. It should offend all riders everywhere.
All he needed to do was take 5 minutes and ask. He could have asked the reporter. He could have delegated a staff member to spend 30 seconds reading about split reins. Instead, he defamed this man’s character. When the President of the United States makes racist accusations against you, it’s the Mother of all Cancel Culture.
He made political hay at the cost of an innocent man’s reputation, the horse patrol unit’s reputation, the entire Border Patrol reputation. Once again, law enforcement was the punching bag with erroneous propaganda.
How about learning the truth first???
This is orders of magnitude worse than being accused of blindfolding your horses when they wear fly masks to protect their eyes.
Svelaz– “However Turley himself made his own argument disingenuous by proclaiming that president Biden “declared those officers guilty”. He said no such thing.”
You are right. Biden skipped silly issues of guilt or innocence and went straight to punishment.
We have a senile lunatic in the White House who is controlled by a coven of radical, mean girl Geppettos.
Joe Biden claims that Senator Sinema being followed into a bathroom by activists and harrased is “part of the process” of being in public office.
That’s because turning mobs loose is part of the Woke Democrat process. It is a sacrament of the Left and unchecked it will destroy rational, civil society.
You know what else is “part of the process?” Border Patrol agents on horseback, trying to stop illegal immigrants from entering the country. But according to Biden, only the agents of that process will pay.
“ That’s because turning mobs loose is part of the Woke Democrat process.”
Like the Jan 6 mob too?
Trump loves his mobs. He gathers them at his rallies. How is that any different?
young – he’s also a multimillionaire leftist, socialist. billionaires-backed crony of Nancy- and remember, he’s a member of the same party as AOC – sort of like TRUMP
and Rudy(before Trump barely even remembered having met him once or twice.
Not just in the White House – apparently.
Young, as it is with nearly all conservative posters or trumpists everything is taken literally.
Biden’s statements aren’t going to do anything. It’s no different than a parent making a statement that he/she will kill their child when they are in trouble. We both know parents make such statements all the time intending it to be rhetorical rather than actually intending to kill their child.
What you are delving in as well as Turley is exactly what he often complains about with his “ age of rage “ arguments. He’s doing it himself, by making the issue bigger than it is.
It seems that the whole incident being judged way too quickly by the left and the media. Especially when the photographer himself pointed out that they were not being “whipped”.
However Turley himself made his own argument disingenuous by proclaiming that president Biden “declared those officers guilty”. He said no such thing. Turley is taking liberties with the facts. Turley spends a lot of time on his column criticizing Biden for “defaming” the officers with his statement about punishment. Funny, he made no such criticisms about ex president Trump when he declared people guilty and making statements about locking up his political rivals.
The CBP is under Biden’s authority and if an investigation warrants punishment, be it administrative or otherwise then it will be. Obviously there was a rush to judgment based on the video and chaotic scene. That doesn’t make it a serious issue about Biden’s statement anymore than Trump’s own during his term.
Turley’s is being a bit melodramatic about the whole issue. One can say he is being an active participant of his “age of rage” problem.
Do innocent people “pay”? Or will guilty people “pay”?
Joe Biden said, “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.”
He said they were “strapping” people. As in, they were guilty of whipping people.
He does not need to say the actual word “guilty” in the accusation. He said they strapped people, which appears to mean whipping.
The rider did no such thing.
I am very glad that you agree that this was another rash snap judgement, that turned out to be wrong. Problem is, they can’t just say “my bad” and it’s all better. This accusation will be out there forever. There are now people who either won’t hear any retraction, or they won’t believe it.
Speaking of which, do you know if Joe Biden issued a retraction and exonerated the rider? I haven’t heard yet, and might have just missed it.
It is very serious to be falsely singled out by the President of the United States for whipping black people on horseback, while major Democrat politicians like Maxine Waters call your actions “worse than what we witnessed in slavery.” That can ruin your life, your career, drive friends away, ruin relationships, get your kids bullied and harassed in school…It will dog you forever. It would be frightening to be wrongly singled out like that, and terrifying to everyone that guy worked with, knowing that the President himself will wrongfully accuse you when a 5 minute phone call would have cleared it all up. I really don’t think this can be over stated. False propaganda like this can get someone killed.
Karen, Trump wasn’t expected to retract or apologize for making similar comments during his term. He never offered an exoneration either. Why should Biden? Obviously if trump wasn’t required to, neither is Biden.
Trump often called for locking up his political rivals. He was already calling others guilty by stating they should be locked up. Many here including Turley brushed off such comments as merely rhetoric, but as you pointed out it did ruin other people’s reputations forever.
The officer will be fine. He was doing his job and if he is well aware that he did nothing wrong then he will continue to do his job.
“ He does not need to say the actual word “guilty” in the accusation. He said they strapped people, which appears to mean whipping.”
Yes he does need to say the actual word if he is going to be accused of such by Turley or anyone else. Because if that’s the benchmark would you agree Trump is just as guilty when he made similar statements?
The video and still photos DO appear to show that people were strapped or whipped. Even the photographer admitted as much. But obviously that’s not true. So all that is left is an overreaction on a snap judgment based on the initial impression of what happened. Those calling for Biden to apologize or use this as an example of some sort of tyranny or whatever are really making a lot of hay over an overblown incident.
Svalez, I’m puzzled, as I don’t recall President Trump falsely accusing anyone of whipping black people. I’m not sure why you feel so strongly that Biden shouldn’t clear this up.
Why do you think he has to say the word “guilty” to have falsely accused someone?
I can say Svalez killed Susan. You would say I falsely accused you, unless there is a skeleton in your closet (see what I did there?). Then, using your logic, I could demur that since I did not say Svalez was guilty of killing Susan, then I didn’t falsely accuse you.
Sorry, but that’s pretzel logic.
Biden did wrong and should just straighten it out before BLM starts burning cities again.
Sleezstack ; You have TDS/orange man bad on your brain like a full blown tard man. This is about Senile Joe blow of chyna and his absolute wrong take and absolute BS rhetoric he vomited out for pure political reasons…and because he is senile…yeah there is that. Yet you take umbridge with your dear senile leader for being called the worthless sod he is and you just go right to “orange man bad” as your only way to deflect and muddy the whole debate. But this is your Modus Operandi time in time out. It’s a tired tact on your part…learn some new plays please.
However Turley himself made his own argument disingenuous by proclaiming that president Biden “declared those officers guilty”. He said no such thing. Turley is taking liberties with the facts.
If you had just awakened from a coma and you heard the following statement from the sitting President, would you assume whatever “people” he was talking about were innocent or guilty? “I promise you – those people will pay,” he added.” What totalitarian country do you actually live in that has you so completely demoralized that you would believe this regime is worth defending?
“ What totalitarian country do you actually live in that has you so completely demoralized that you would believe this regime is worth defending?”
First of all, get a grip man. This is nothing more than an overreaction to what Biden said based on a rush to judgment of a situation. What IS surprising is the total lack of awareness that trump has made statements just as “alarming” many times before Biden’s own statement. Remember “lock her up”? What about threatening prison on whistle blowers during the Ukraine scandal?
Surely you would agree that if you think such statements are a sign of a totalitarian regime. Then Trump was the one who brought it upon us first.
This is nothing more than an overreaction to what Biden said based on a rush to judgment of a situation.
Huh? Not an overreaction by Biden based on a rush to judgment? I missed the part where he has since made a public announcement that he rushed to judgment, apologized to his Border Patrol agents and where he said that an investigation wasn’t warranted. I do recall emotionally-charged snap impeachments that proved to be over nothing. Now pick any policy move made by Biden, that if made by Trump, wouldn’t have resulted in impeachment. Which brings me back to the question you dodged: What totalitarian country do you actually live in that has you so completely demoralized that you would believe this regime is worth defending?
Sevvy: “However Turley himself made his own argument disingenuous by proclaiming that president Biden “declared those officers guilty”. He said no such thing.”
Biden: In his first public remarks on the situation in Del Rio, Texas – where thousands of mostly Haitian migrants massed this week – Mr Biden added: “I promise you those people will pay. They will be investigated. There will be consequences.”
Okay. You be the judge.
“ I promise you those people will pay. They will be investigated. There will be consequences.”
As I have been saying, Biden’s critics are making it a much bigger deal than it really is. It wasn’t a big deal when Trump did it. It’s certainly not a big deal if Biden does too.
Apparently you thought it was a big deal, so stop acting like and idiot now by suddenly claiming it isn’t.
In looking at the photo, I observed that the Haitian was laughing like he thought dodging the Border Agent was a game. He certainly wasn’t in pain, and he didn’t drop the two food containers he was carrying. So simply looking at the photo underlies the “whipping” narrative.
And another thing, most Americans now aren’t familiar with slavery issues and personalities, unless they’re elderly or studied the issue. They only know what was taught in school in the 80s, 90s and later. I don’t know who Jim Crow or Bull Conner were. I’ve heard the names but my only understanding of slavery was that it was a world-wide phenomenon and first outlawed by Europeans. It wasn’t unique to the U.S. at all, and white people were enslaved as well. In fact, the word “slave” came from slav because Slavic peoples were enslaved by the Arabs as well as sub-Saharan blacks, and the English sent poor Irish to work on slave plantations in the Caribbean at a time contemporaneous with blacks slavery in the U.S.
Well said, Tin.
It’s funny how the Left, only after this whipping hoax, became interested in the chaos at the Southern border.
Using horses for crowd control — bad.
The worst super-spreader event in the pandemic — good.
I think their priorities are screwed up.
“What is notable here is that the truth . . .”
“The truth”? There’s a quaint notion.
The room is full of voices spouting Kamala’s truth. The unrest should continue. It must continue.
The last time Biden said people will pay was a couple of weeks ago right before he blew up that Afghan family with seven children. Talk about “horrific”. He’s a cold-blooded murderer and a lying dog face pony soldier.
When Biden passes away and gets to Hell, Michael Brown will be there to great him.
“They simply declared the border agents to be modern-day Bull Connors, whipping helpless migrants.”
In Bull Connors’ day, there were an awful lot of Jonathan Turley-types defending Bull Connor. Bull Connor was popular with a significant segment of the public at the time, the same segment that Jonathan Turley reaches out to today.
You get today’s prize for dumbest comment.
…. the same segment that Jonathan Turley reaches out to today.
Which explains why you are trolling his blog.
Democrat terroristspeaceful protestors harassed Senator Joe Manchin at his boathouse in kayaks. Kayaks!. Senator Kyrsten Sinema was stalked all the way to the Ladies Restroom while on a break at work teaching a class at Arizona State University. The brazen law breakersactivists video recorded the Senator while she was relieving herself in the bathroom stall with the voyeur literally recording her movements outside the stall. I am pretty sure video recording inside a bathroom is against the law, but no doubt if charges were filed, they would be dropped because ….reasons.
Xanax should be added in America’s water supply. Its generic so it would cost nothing.
Recall that Biden got elected after claiming that Michael Brown was murdered by the police long after that was debunked by the grand jury and even the Obama Hustice Department. Kamala Harris yelled the same lie and again there was no consequences. So did Elizabeth Warren.
Maybe the problem is even deeper than deliberate lying, perhaps something akin to willful blindness or ‘rationality negligence’. One turns a blind eye to the truth and uses some image or claim or even the fact that untruths are stated over and over again by the press as enough evidence to continue to believe whatever is best for partisan advancement. What do they have to lose in a world of surface images and rhetoric masquerading as deep analysis?
Bear in mind that the “immigrants” are not innocents, they were breaking the laws of the United States by attempting to enter a sovereign country without permission and without following proper immigration procedures. As for Border Patrol agents being on horseback, they weren’t riding horses for “crowd control,” they were mounted because they’re working in a desolate land where the horse provides a mean of covering ground much faster than on foot.
UN & NGO’s are shipping in 100,000 3rd world illegal aliens now & are said to be near crossing right away, with 400,000 total by the end of this month.
What possible could go wrong when Biden/Harris/Pelosi/McConnell/etc., places them in your neighborhoods?
But hey, DC should just go arrest some more White people for supposed thought crimes or saying the wrong gender pronouns to the transgender freaks.
Probably the best thing for these officers is to get fired. It would the same as winning the lottery with the following lawsuit.
The “progressive” political left has show us over and over again that they don’t care about truth, they only care about pushing a propaganda narrative and inciting fear, outrage and hate.
“Shown” not “show”; I didn’t fully depress the “n” key.
Imagine if he were elected. The county is over because the courts have no idea what their role is and isn’t and are cowards. They are hoping the alligator eats them last. But they are alway the first to go in collectivist’s take overs because they are traitors and therefore not trust worthy. Further since the country is lawless there is no need for judges nor lawyers who have no skills outside of manipulating and reinterpreting or making up laws to benefit themselves. Lawyers and judges never should hold elective office. A lawyer who finishes last in his class, plagiarizes, has been wrong on every decision ever and is beyond demented is president. The VP is not nationalized somehow can become VP. She was last in her class, unemployable until she became Willie Brown’s booty call, her great great grandfather was the largest slave trader and she has a bad case of duper’s delight can be in line to be president. Next in line in line is what appears to be a criminal or the greatest stock picker in the history of the world, who appears to be a raging drunk who is as incoherent as the potato is the white house. She did have the toughest job in the world, a housewife as her only qualification. She is a national embarrassment. Of course Obama….. Again the judiciary not doing its most important job. Every aspect of the government from the bureaucratic departments, which are model after the Third Reich (Wilson 1913), to taking orders from the losers, perverts and collectivists in the UN, WHO and WEF (lunacy of Climate Change and the UN stops wars- no they are gasoline for both those matters – the design is the destroy the West). But who allowed it all to happen and profit from the destruction of the greatest form of governance for economic and civil freedom ever, lawyers and the judiciary. A living constitution, what utter Ivy League brain dead moronic Hegelian lunacy. The blame is solely on the judiciary. If you can’t do, teach, go into government or become actor, I mean lawyer. You are not a member of productive society but a parasite. Look at the clown show in the Supreme Court – I wouldn’t let ACB nor Bret walk my dog. Obama’s nominees are ever more brain dead and compromised and Roberts is either a moron or they rumors about him are true.
Federal justice is being degraded by both the entitled and by political hacks.
We now have the protected and the unprotected in the justice system.
Look at the FBI lawyer who served no time for altering legal documents in the FISA case.
We have 1/6 rioters kept in solitary confinement for months on trespassing charges (called insurrection).
The powerful play their games – with no apparent cost.
But ordinary Americans are the ones losing faith in the judicial system.
And our society pays the price.
I think one issue that is overlooked here, and that is the Biden administration is not truly upholding the law regarding people entering our country illegally. Therefore the Border agents where put in a precarious position of law enforcement without much needed resources and support. To pick and choose what laws to uphold is a blatant disregard to our constitution.
Reminds me of Obama and DACA, Pelosi and impeachment on no evidence, etc. etc. etc. Dems have the corner on ignoring our laws they don’t like, even though everyone of them took an oath to uphold them. Lying criminal scumbags.
The Civil Service exists for many reasons, one of which is to protect federal workers from political machinations. I’m going to assume that the Border Patrol agents have civil service protection, which means that the government must jump through many hoops to remove them, possibly including an action before the Merit Service Protection Board (I’m not sure about this, but having tried to remove some federal employees in the past, I know that it is a tortuous process). My best guess is that nothing will happen to these agents.
I hope that they sue the congresspeople and win some big bucks. As for POTUS, what an embarrassment especially since he is a lawyer (how much deflection will this bring about)
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