Biden should resolve to cease the ‘Red Queen’ justice

For most of us, New Year resolutions are the ultimate exercise of hope over experience, a type of virtue signaling to ourselves in the hope that this year it might actually work. For politicians, it is the same …  just without the hope. With the start of 2022 President Biden will lead the nation in celebrations and reflections. He could truly turn over a new leaf with one resolution: to stop declaring the guilt or innocence of people before they are actually investigated or tried.

History has shown that politicians are rarely late to a hanging or a stoning. From the Dreyfus Affair to Leo Frank, the Scottsboro Boys to the Duke Lacrosse team, there is nothing more binding with the public than to join in expressions of disgust or anger. The difference between a politician and a statesman is that the former demands a result while the latter demands a process from the justice system.

Even before winning the White House, Biden refused to wait for the actual facts before reaching a popular conclusion. For example, after the protests in Lafayette Park in 2020, Biden repeated the now debunked claim that the park was cleared with tear gas to enable a photo op for President Trump. From the outset, there was ample evidence undermining that claim, but neither Biden nor many in the media waited for the investigation to establish the facts. (Later, the Justice Department’s inspector general disproved the claim).

Once in office, President Biden continued that “sentence first, verdict afterwards” habit by making comments that conveyed what he wanted to see happen on legal decisions to be made from agencies. Despite being told that it would be clearly unconstitutional, Biden called for the Centers for Disease Control and Prevention (CDC) to renew a nationwide moratorium on the eviction of renters.

Within days of the shootings in Kenosha, Wis., then-presidential candidate Joe Biden had strongly implied that Kyle Rittenhouse was a “white supremacist” despite no evidence supporting that claim. Even after many claims about Rittenhouse were debunked and the jury acquitted Rittenhouse of all charges, Biden stated publicly that the verdict left “many Americans feeling angry and concerned, myself included.”

However, Biden’s Red Queen justice approach was most alarming with regards to the U.S. Customs and Border Protection agents who were falsely accused of “whipping” undocumented immigrants on the southern border. Before any investigation was actually started, Biden expressed anger at the agents and publicly pledged punishment: “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.”

“Those people” are federal employees who have a right to due process and a presumption of innocence, including from the man who heads their branch of government. However, the President of the United States declared them to be guilty as the matter was sent for investigation. That creates an obvious pressure on lower-ranked executive branch officials to reach the same conclusion — to not contradict the President.

Indeed, while the administration promised a quick investigation, it went into complete radio silence. The agents are reportedly still on administrative duties, while there are reports that the CBP Office of Professional Responsibility has completed its investigation.

What was most striking about the border investigation is that there was extensive videotape evidence. While many in the press used still images that made it look like one agent was about to whip a migrant, the videotape clearly showed the agent using the “strap” — actually the reins — to guide his horse.

For that reason, many of us were confused by Biden’s insistence that these agents allegedly “strapped” the Haitian migrants. Even if the investigation finds culpability, the videotape does not show such abuse, and even the photographer expressed surprise at the “whipping” claim.

Nevertheless, other Democratic politicians like Rep. Maxine Waters (D-Calif.) denounced the whipping, claiming it was “worse than what we witnessed in slavery” and said that the videotape showed “the cowboys who were running down Haitians and using their reins to whip them.” Again, the videotape clearly refuted that claim. Yet that did not stop politicians like Rep. Ayanna Pressley (D-Mass.) from proclaiming the incident as evidence of “white supremacist behavior.” The media dutifully followed suit in reporting that the evidence showed  agents “whipping Haitian asylum seekers.”

Much of the coverage was reminiscent of the false reporting of the incident involving former Covington Catholic High School student Nicholas Sandmann and his encounter with a Native American activist in front of the Lincoln Memorial on Jan. 18, 2019; Sandmann later settled with the Washington Post, NBC, and CNN in defamation actions. There was widely available video of the incident showing that Sandmann did nothing wrong. He just stood there as the activist confronted him.

A president plays a critical role in reinforcing our system of justice. He not only represents our constitutional process of representative democracy, but he is given specific power to correct injustices through pardons and commutations. When passions turn to rage, a president can bring a needed voice for fairness and patience in allowing our system to function without prejudice or prejudgment. Conversely, if the president rushes to judgment, he becomes an enabler of mob justice.

Biden could skip the usual weight loss and work-out pledges this year in favor of something more tangible and meaningful. He could pledge to respect the legal process and withhold judgment on those accused. It may not make it easier to fit in those jeans, but he would fit better in the office that he currently holds.

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