A bigger corner of the universe was demanding answers. Video footage of Fabian arguing in federal court last Tuesday that the federal government was not legally required to provide toothbrushes, soap or adequate sleep to detained migrant children went viral, eliciting outrage. And although the case dated back to the Obama administration, the timing of her argument could not have been worse. Lawyers had just arrived to visit those same detention facilities along the border, finding children who were filthy and hungry and crying, without access to toothbrushes or soap or sleep. Furious people started trying to donate basic hygiene products at the U.S. Border Patrol facilities. And Fabian started getting death threats.
On Monday, she broke her silence — at least to her friends. The Facebook post, first reported by NBC News, was obtained by The Washington Post on Tuesday night and independently confirmed through two of Fabian’s college friends who had access to it. In the post, Fabian accepted responsibility for the argument, allowing that she had possibly failed to articulate it properly. But she maintained that she was not arguing that detained children should be denied hygiene products.
“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,” she wrote. “I wouldn’t be permitted to do so anyway, so I won’t try. I will say that I personally believe that we should do our very best to care for kids while they are in our custody, and I try to always represent that value in my work.”
The Justice Department could not immediately be reached for comment Tuesday night.
Since last week, as anger boiled over conditions at migrant detention facilities, Fabian has emerged as one of the most recognizable faces among the hundreds of mostly anonymous foot soldiers in the Trump administration tasked with confronting the humanitarian crisis at the border. Her role: arguing that U.S. Customs and Border Protection detention facilities satisfy the legal requirement of being “safe and sanitary” for children — in the face of alarming reports from attorneys and advocates who argue that they do not.
Fabian went to court last week to appeal a 2017 ruling finding that Obama-era conditions were deplorable, in violation of a 1997 consent decree requiring conditions remain “safe and sanitary." She argued that, because the 1997 agreement did not explicitly require “toothbrushes,” “soap,” “towels” or “sleep” for children, the government shouldn’t be found to be in violation of the “safe and sanitary” requirement for not providing those things.
The three judges on the U.S. Court of Appeals for the Ninth Circuit were astonished. “Are you really going to stand up and tell us that being able to sleep isn’t a question of safe and sanitary conditions?” U.S. Circuit Judge Marsha Berzon asked.
Fabian’s thoughts remained a mystery. On Monday, the registered Democrat — according to Colorado voting records — told her friends that she was limited in how much of her own opinion she could reveal, bound to the duties of the job. But her Facebook post provided some hints. In Monday’s note, she said she understood why people may “hate” her, but said she “shared many people’s anger and fear at times over the future of our country,” and would continue to do her best to “make it better.”
“I respect that in perceiving my argument as many people did it struck a nerve. Maybe many nerves,” she said. “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. I get it, and I accept it, and I’m not going to try in vain to fight back against that other than to try to look out for my own safety and to hope that people take it easy on my family.”
She changed her profile picture to a quote from Senate Majority Leader Mitch McConnell (R-Ky.), from the time in 2017 he attempted to silence Sen. Elizabeth Warren (D-Mass.), a quote now frequently worn on T-shirts of feminists and liberals: “Nevertheless, she persisted."
Fabian stressed that she is not a political appointee, but rather a “career employee at my current job since 2011,” in the Justice Department’s Office of Immigration Litigation. Before joining the Obama administration, Fabian worked for the private law firm Kirkland & Ellis. She attended Amherst College in Massachusetts in the mid- to late 1990s, where she played on the soccer team and joined a club called Peer Advocates of Sexual Respect, which raised awareness about consent, a friend told The Post. But otherwise, the friend said, Fabian was not overtly political.
Since taking the government job, she has argued controversial positions for the Obama and Trump administrations. In 2015, she argued on the government’s behalf for detaining migrant families for prolonged duration inside the Obama administration’s family residential detention centers that were unlicensed to care for children, arguing that detaining them would deter illegal immigration but releasing them would provide incentive for more to come.
She made headlines during the family separation crisis in 2018, when she told a judge she couldn’t come to court on the weekend for an urgent hearing on the reunification of 101 children with their parents because “I have dog-sitting responsibilities.”
And then there was the “safe and sanitary” case.
Last week was not the first time Fabian argued on behalf of the United States that the federal government was not legally required to provide children with sleeping accommodations or hygiene items. The argument is articulated in court documents dating to at least December 2016, during the final days of the Obama administration.
Child migrants had described going without showers, toothbrushes, soap and sleep then too.
“If Plaintiffs wish to challenge the availability of sleeping accommodations in CBP facilities, or assert that certain hygiene items or clothing items must be provided, they must do so in a new lawsuit,” Fabian wrote in one 2016 filing. “To find otherwise would allow Plaintiffs to use the Agreement to require any number of conditions at CBP facilities that were never intended to be covered by this Agreement.”
Last week, Berzon recommended Fabian drop the appeal rather than continue. The Justice Department did not immediately respond to questions about whether it planned to continue to make this argument.
In her Facebook post, Fabian said the agency has been “super supportive of me."
Fabian said that she has “struggled” with the decision about whether to remain in this role, that “it has not always been an easy decision,” appearing to address a question many in the public raised over the past week: What if Sarah Fabian is opposed to the position of the federal government? Why does she stay?
“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,” she said, “and that is why I stay.”