Biden’s Red Queen Justice: Long After the Sentence, the Biden Administration is About to Render a Verdict on the Border Agents

Below is a slightly augmented version of my Hill column on the report that the Biden Administration will go forward with administrative punishment for border agents who were falsely accused of “whipping” Haitian migrants in Texas.

Here is the column:

At the height of the Stalinist purges, Soviet internal affairs minister Lavrentiy Beria famously boasted: “Show me the man and I’ll find you the crime.”

U.S. Border Patrol agents may be wondering if the Beria standard is back in vogue with the Biden administration. The reason: Fox News has reported that the Department of Homeland Security is moving to charge several agents with administrative violations after they were falsely accused of whipping Haitian migrants last September in Texas.

The agents likely felt their fates were sealed the minute that President Biden promised to punish them, before an official investigation had even started. Either the president was wrong, or the agents must be guilty … of something.

The controversy began when the Border Patrol responded to a large influx of undocumented migrants in Del Rio, Texas, on Sept. 19. Officials ordered a mounted unit to an under-defended part of the border. Mounted units are commonly used by federal, state and local police agencies for crowd control. The agents found themselves facing a large group of Haitian migrants crossing the border, and they positioned themselves on the river’s edge to block entry.

A photographer captured the scene, which included agents using bridle reins to guide their skittish horses. While the entire videotape clearly shows the agents using the reins on their mounts, not on the migrants, some clearly misleading still shots appeared to make it look like the opposite was happening. Condemnations immediately erupted from politicians and pundits; some media reports presented the abuse allegations as fact — as the “whipping (of) Haitian asylum seekers.”

Rep. Maxine Waters (D-Calif.) declared that the alleged whipping was “worse than what we witnessed in slavery” and condemned “the cowboys who were running down Haitians and using their reins to whip them.” Senate Majority Leader Chuck Schumer (D-N.Y.) decried “images of inhumane treatment of Haitian migrants by Border Patrol — including the use of whips,” and Rep. Ayanna Pressley (D-Mass.) described the incident as “white supremacist behavior.”

For his part, President Biden rode the wave of media outrage, declaring: “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.”

Of course, the Soviet Union’s Beria was a model of efficiency compared to Biden’s Homeland Security secretary, Alejandro Mayorkas, who promised last September that the investigation would be “completed in a matter of days, not weeks.” Then months dragged on, and Mayorkas and his department went into virtual radio-silence.

The problem for Mayorkas was that the whipping story was not just false but was clearly false from the outset. The photographer who captured the images of the incident, Paul Ratje, stated within the first 24 hours that it was false and “nobody saw a Border Patrol agent whipping” migrants. That was obvious from the videotape, too.

However, the president, some congressional Democrats and many in the media had already adjudicated the case. The agents had to be guilty of something.

So, the agents wallowed in suspension for months. On the six-month anniversary of the incident, I wrote a column on President Biden’s “Red Queen Justice,” noting that the case followed a “classic response to such scandals [which] is to bury them in investigation to wait for public attention to wane.” I noted that officials also could avoid responsibility “by changing the question. For example, what began as an investigation into whether agents used reins to whip migrants might be converted into a long investigation into the use of horses in crowd control operations. That will take a lot of time and, when the report is issued, the actual whipping allegation can be buried in a broader policy debate. That will allow the media, as well as the administration, to focus on the policy as opposed to the personnel involved.”

It is not clear if the administration will clear the agents of whipping migrants, though such a charge would presumably have been treated as a criminal matter. Moreover, it is not clear why, if such an assault did occur, it would take nearly ten months to find a violation. Whipping migrants is not commonly treated as an administrative matter.

If the Fox News report is true, however, the border agents may be found guilty of still unknown administrative offenses.

For many in Washington, the important thing would be that the agents are found guilty of something — anything.

It is all reminiscent of how President Biden rushed to public judgment about the fatal shooting of two men and the wounding of a third during riots in Kenosha, Wis., in August 2020. At the time, Biden strongly implied that accused shooter Kyle Rittenhouse was a “white supremacist” despite no evidence supporting that claim. Even after many accusations about Rittenhouse were debunked and a jury acquitted him of all criminal charges, Biden said publicly that the verdict left “many Americans feeling angry and concerned, myself included.”

Similarly, after protests in Washington’s Lafayette Park in June 2020, Biden repeated a now-debunked claim that the park was cleared with teargas to enable a photo op for then-President Trump, an allegation that falsely impugned the integrity of then-Attorney General Bill Barr. From the outset, there was ample evidence undermining that claim, but neither Biden nor many in the media waited for an investigation to establish the facts. Later, the Justice Department’s inspector general disproved the claim.

Now, as with those previous debunked claims, Biden knows he will have a cooperative media that is unlikely to challenge his version of what the Border Patrol agents did — because they are equally invested in the earlier, inaccurate condemnation of the border agents’ actions.

In announcing the agents would be punished before an investigation had even begun, Biden — like Alice in Wonderland’s Red Queen — insisted on “Sentence first — verdict afterwards.” The agents likely do not hold out much hope, given how there has been little acknowledgment, let alone an apology, from the president, who remained silent for months after his original claim was debunked.  They will finally have the verdict to go with the sentence . . . the offense, of course, to be named.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

125 thoughts on “Biden’s Red Queen Justice: Long After the Sentence, the Biden Administration is About to Render a Verdict on the Border Agents”

  1. Must read Emerald Robinson substack:

    “Ask yourself: why would 14 Republican senators sell out the Second Amendment rights of their own voters just before a widely-predicted “red wave” arrives this November? Why would the GOP establishment surrender to Democrats over the single most important issue for their own party right before a mid-term election that could put them back in control of the House and the Senate?”


    “The answer is obvious: the GOP establishment has no interest in being the ruling party.

    Think about it. The GOP establishment pushed for the Second Impeachment of Donald Trump even though Trump was no longer the President and the impeachment was illegal. Perhaps you still recall that moronic theater piece? The entire pointless exercise seemed to be designed by Mitch McConnell to enrage GOP voters.

    Then the GOP establishment embraced the nomination of Merrick Garland as Biden’s Attorney General at the Department of Justice — and Garland repaid that faith by weaponizing the FBI to punish angry parents at school board meetings as “domestic terrorists.” That insane and unconstitutional police-state maneuver drew mostly yawns from the GOP’s spineless cowards.

    Let’s face facts: the GOP doesn’t care to function properly even as an opposition party in the minority. We are living through the darkest period in American history since the Civil War — and the GOP establishment has continually come to the rescue of the Biden regime to make things worse.

    How about Biden’s insane trillion-dollar infrastructure bill to spark rampant inflation? The GOP helped to pass it.

    How about Biden’s push to create a bogus national holiday called Juneteenth to celebrate the Democrats’ constant race-baiting? The GOP establishment voted for it — and they did so while the FBI was still arresting GOP voters over a fake insurrection.

    The Biden regime’s DOJ still believes that it can detain Trump voters indefinitely in solitary confinement for the “crime” of taking an unauthorized tour of the Capitol. What’s the GOP establishment’s view of this grossly unconstitutional violation of the rights of its own voters? Let’s just say that Lindsey Graham didn’t even care to deny the rumor that he personally urged Capitol Police to shoot the protesters on January 6th.”

    [And what about vaccine mandates? Trump’s border wall? ETC.]


    “So when people ask me if the GOP establishment has any plans to save them, or their business, or their freedoms, or their family from the neo-communist cultural revolution currently taking place in our country — what can I say?

    I’m not in the business of lying to people.

    You would have to be out of your mind to still believe that the GOP establishment is fighting against the Biden regime — as America dissolves before your very eyes into a tyrannical state ruled by a corporate oligarchy.

    In point of fact, the GOP establishment is openly fighting alongside Democrats to maintain uni-party rule.

    These people don’t think they’re our representatives — they’re our rulers.”


    1. “Let’s face facts: the GOP doesn’t care to function properly even as an opposition party in the minority. We are living through the darkest period in American history since the Civil War — and the GOP establishment has continually come to the rescue of the Biden regime to make things worse.”

      100% correct. It is one big fraud on the American people dumb enough to believe the Republican party stands and fights for anything. Democrats advance the ball down the field; Republicans fumble and capitulate every single time.

      Trump 2024.

  2. Off Topic – SCOTUS today struck down Maine’s tuition aid program because it excluded religious schools from the program.

    This could have far-reaching impact on the U.S. education system that could result in a sharp decline in public school enrollment and a major loss of influence for leftist-leaning education groups and unions. Currently approx. 2/3 of all private schools are religious schools which have been denied government funds available to public schools and non-religious private schools.
    Suddenly those parents which the Dems have been trying to deny a say in the education of their children will be able to pull children from schools advancing the WOKE agenda and enroll them in religious schools of their choosing and receive government aid for their expenses previously denied them.

    1. Like Hillsdale College, might be better not to take any government funding because it comes with conditions that violate your principles of faith. Even though those are protected, the courts are indifferent to the constitution in these matters. Like making Catholic Hospitals perform abortions and Catholic Universities pay for abortion in their health care policies. Get the government out of whatever we can get it out of.

  3. The real issue is not that the CBP agents may have “whipped” the Haitians, it’s that Democrats see them as potential voters. To them, they more illegals that get in, the better.

  4. The sooner Trump strokes out the better.

    Imagine the dozens if not hundreds of confirmed, itemized and independently documented outright, blatant lies brain dead Biden has told ((and continues to tell) pre and post Presidency. Imagine also the dozens of court rulings confirming Biden’s illegal policies, possibly outnumbering Trump on this scorecard.

    Now think about the fact the Biden actually started a Ministry of Truth.

    Orwell turns in his grave.

  5. Okay, if you want Putin to conquer the world, including Virigina, then fine: have it your way at Burger King. See if I care if you get sent to slave camps in Siberia. Don’t say I didn’t try to warn you.

  6. If a war becomes your business when it finally reaches you, that means it was your business where and when it started, but
    you did nothing because it was none of your business.

    1. By your logic every war should become a World War because how will you know if the smallest skirmish will eventually affect you when it first started.

  7. OT: Sotomayor described Thomas as “a man who cares deeply about the court as an institution” and “about the people who work there.”

    She said he is the justice with whom she disagrees “more than with any other justice,” but that, in contrast to the image generated by Thomas’s often harsh critics, he is “the one justice in the building that literally knows every employee’s name.”

    […] she said she believes the two justices remain friends because they “share a common understanding about people and kindness toward them.”

    That is not something we hear from the leftists on this blog.

  8. Jonathan: Today is “Juneteenth”. It was June 19, 1865 that Texas freed its slaves. But all slaves were not freed until 6 months later with the 13th Amendment. Pres. Biden signed legislation last year that made “Juneteenth”, today, a federal holiday. There are celebrations going on all over the country. We have invited our African-American friends and neighbors over for a backyard BBQ for our celebration. I’m sure you and your loyal followers will be doing the same. Let’s celebrate!

    1. Dennis, why do we need a 29th day of black history out of every year (30 during leap years)?? It’s this asinine kowtowing to black activists that is finally turning the tide against Democrats. Even Hispanics and Asians are getting fed up with it. This obsession with the grievance industry is destroying liberalism, not helping it. Can’t you see that?

      1. I’d favor a “multi-purpose, choose your own cause” holiday. You like Columbus? Great. MLK? You bet. Pride? Why not? Live and let live. St Patricks Day? Chug one for me. But, all on the same day. Having a pseudo July 4th for the slaves further accentuates division. One day, check your own box. Have fun, then get back to work.

    2. On January 1, 1863, the Naturalization Act of 1802, the original intent and immigration law of the American Founders, was in full force and effect.

      There must be no need or rationale for a “holiday” today.

      The “…RECONSTRUCTION of a social world…” was a “law” of Karl Marx.

      Karl Marx was a direct and mortal enemy, and diametrically opposed to the American thesis, the U.S. Constitution, the Bill of Rights and the free nation of America.

      Which laws shall Americans obey?

      American law must be difficult to grasp and confusing.

      If Americans were not obliged to obey and enforce the law in 1863, they must not be obliged to obey and enforce the law today.

      Can you explain that and help me understand how and why America and American freedom were taken out of the hands of the men who made them, and given over to communists and the Communist Manifesto?

    3. Dennis why do you need to distinguish your African American friends from your other invited friends? How racist of you.

    4. Why not just say you invited some friends and neighbors over to celebrate with a bbq? Why do you need to tokenize your black guests? “We invited some African American friends over.” You know, just so all the neighbors can see what good social justice warriors we are. See how NOT racist we are? Then you need to say it here on the blog.. Sheesh. Really Dennis? You *are* the racist and you don’t even know it.

    5. “Today is “Juneteenth”. It was June 19, 1865 that Texas freed its slaves. But all slaves were not freed until 6 months later with the 13th Amendment.”

      Why not celebrate December 6? Why not make every event a national holiday?

      “We have invited our African-American friends and neighbors over for a backyard BBQ for our celebration.”

      Do you live in a racially restricted area where African-Americans cannot live? Is that why you said “African-American friends and neighbors”? Did you exclude your white friends that weren’t neighbors? Do you see how ridiculous you sound?

      1. “Do you see how ridiculous you sound?”

        No! He does not. He posts an off-topic comment here on the blog to say, “Hey everybody, me and my wife just wanted y’all to know we are good progressives celebrating Juneteenth (made up holiday noone knows what it is) and guess what y’all, we even invited some black people over for a bbq with fried chicken, black-eyed peas, collards and watermelon.”

  9. Monument says:

    “And our lefty posters will respond with their ‘Yes, but’… obfuscations. Except for Jeff Silberman who will tell us what Turley should have said.”

    I am lucky that I have no other tasks than such as I like to give myself; leisure to read this blog and speak my mind uninterrupted by the cares of business. However, upon this subject, I have no opinion.

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