Punishment of Border Patrol agents is about protecting a president, not migrants

President Eisenhower once said that “The search for a scapegoat is the easiest of all hunting expeditions.” When it comes to subordinates, that can become a virtual canned hunt for a president. Worse yet, presidents often use other subordinates to pull the trigger. 

That is what happened this week when President Biden bagged four Border Patrol agents in one of the most cowardly canned hunts in political history.

After almost a year of investigation, the Biden administration announced the agents would be punished even though investigators found no evidence that they whipped migrants, as Biden and many other politicians and pundits insisted. Since the president declared — before an investigation had begun — that the agents would have to be punished, the agents had to be found guilty of something. So, they were reprimanded for “unprofessional conduct,” “working in an unsafe manner” and “derogatory language.” 

Make no mistake: This is not about protecting migrants. It is about protecting a president.

The verdict on these agents was decided ten months ago, after the media went into a frenzy over a false story accusing mounted officers of whipping undocumented migrants near Del Rio, Texas, on Sept. 19.

A photographer captured the scene, which showed agents using bridle reins to guide their skittish horses. The entire videotape clearly shows the agents using the reins on their mounts, not on the migrants. Not only did the photographer quickly deny seeing any officers whip migrants, the videotape clearly refuted that allegation. However, for many in politics and the media it did not matter because it played into a racial-justice claim of the “whipping (of) Haitian asylum seekers.”

House Speaker Nancy Pelosi (D-Calif.) condemned “the inappropriate use of what appear to be whips by Border Patrol officers on horseback to intimidate migrants.” Senate Majority Leader Chuck Schumer (D-N.Y.) decried “images of inhumane treatment of Haitian migrants by Border Patrol — including the use of whips.” Vice President Kamala Harris emoted on “The View” about how the brutality “invoked images of some of the worst moments of our history, where that kind of behavior has been used against the Indigenous people of our country, it has been used against African Americans during times of slavery.” Reps. Maxine Waters (D-Calif.) and Ayanna Pressley (D-Mass.) described the incident as “worse than what we witnessed in slavery” and “white supremacist behavior.”

President Biden rushed to express his own revulsion and rage, too: “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.”

At the time, some of us objected that the president had, once again, declared the guilt of accused persons without evidence or investigation. The possible innocence of these officers simply did not matter to the president or to many in the press. 

Despite being tasked with an investigation, Department of Homeland Security Secretary Alejandro Mayorkas joined the condemnations of the agents, saying that their conduct “defies all of the values that we seek to instill in our people.” He then promised swift justice with an investigation that would take “days, not weeks” — yet the investigation dragged on for months. 

The reason was obvious. Within hours, the issue was no longer whether the agents whipped migrants. The issue was that the president wrongly claimed they whipped the migrants and would be punished. 

Even some in the media admitted that the story was false, but President Biden never apologized for his false accusation. The innocence of the agents simply did not matter.

In a column last year, I explained what was likely to happen. First, the administration would bury the investigation “to wait for public attention to wane.” Then it would issue a long-delayed report and protect the president “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.”

And that is precisely what has happened. After almost a year, the agents will face relatively light punishment — two weeks without pay — for such transgressions as speaking in a threatening matter or managing a horse too close to a child.

This small detachment of mounted border officers was ordered to the river’s edge to prevent a huge body of migrants from crossing. In previous legal cases, I have deposed mounted officers involved in crowd-control operations. Since horses are commonly used to control crowds, such moments are routine. That does not excuse threatening language or careless maneuvers — but such instances generally result in verbal reprimands at the scene or, occasionally, formal discipline within weeks of the operation. They do not involve multi-agency efforts and almost a year of investigation.

Moreover, these circumstances were known within days of the Del Rio incident. Yet the Biden administration waited until a Friday afternoon ten months later to release its findings. Notably, at no point did it clear the agents of allegations of being racists who whipped black migrants, despite that fact that Customs and Border Protection Commissioner Chris Magnus said there was “no evidence Border Patrol agents involved in this incident struck anyone with their reins intentionally or otherwise.”

From beginning to end, these agents have been treated as props for the president and his administration. They were first used as embodiments of alleged systemic racism in law enforcement; they were then used as scapegoats to fulfill the president’s promise that “those people will pay.” 

Most Americans would be appalled by this treatment, but few have seen the full story. It is doubtful they will, either, because much of the media was complicit with the president in the original false story and may be reluctant to fully correct the record now.

At the start of his administration, President Biden proclaimed that “the most difficult but important step [for a free nation] is burying the legacy of tyranny” and ensuring “a government and institutions that abide by the rule of law. Every country faces challenges to the rule of law, including my own.” What few of us expected was that Biden himself would become one of those most persistent challenges. 

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