Amicus With Dahlia Lithwick | "Divided Realities" (December 21, 2019)
Podcast Summary

Main Theme & Purpose

This episode examines the deep divides and challenges in American law and politics, focusing on two crises:

• The treatment of asylum seekers on the US-Mexico border under recent and historic policies
• The political and constitutional implications of President Donald Trump’s impeachment

Host Dahlia Lithwick brings on legal advocates for migrants and policy experts to make sense of these parallel emergencies: one humanitarian and largely invisible, the other high-profile and historic.

Segment 1: Law, Justice, and the Crisis at the Border

Guests: Denise Moreno & Liz Willis (Asylum Seeker Advocacy Project/ASAP)
Kristin Clarence (Project Adelante)

Setting the Scene (03:00–03:47)

• Lithwick frames the show within the “post-truth era,” where reality is fractured and policy debates often don’t intersect with lived experiences.
• The episode begins by focusing on legal advocacy for asylum seekers—“the faces and voices of people who don’t have fancy reserved seats at the Supreme Court.”

The Origins & Mission of ASAP (04:00–08:13)

• Liz Willis (04:00):

  • ASAP started as a 2015 Yale Law School volunteer effort, inspired by helping a woman named Suni in a family detention center.
  • Now a national nonprofit in touch with over 4,000 asylum seekers in the U.S. and at the border, providing:
    • Online legal communities for basic information
    • A “legal ER” for emergency legal help
    • Systemic reform via litigation and policy change

  “She kind of turned to us and was like, what about all the other moms that are here? They're going to go through their trials alone and what are you going to do about it?” —Liz Willis (04:15)

• Emphasis: The organization predates the Trump administration, responding to existing injustices exacerbated but not created by current policies.

Continuity & Escalation of Policy (06:33–08:13)

• Family detention, tough rules, and suffering have worsened over time, especially under the “Remain in Mexico” policy and family separation.

  “This crisis goes, you know, before the Trump administration... But things have gotten much worse in terms of human rights abuses.” —Liz Willis (06:54)

Personal Motivation (08:13–09:11)

• Denise Moreno (08:19):
  • Personal immigration ties: both parents immigrated from Mexico, lived undocumented in Chicago.
  • The current administration’s “complete war” against asylum seekers compels her to act as both a Latina and legal advocate.

Explaining Newer Trump-Era Border Policies (09:39–11:53)

• Metering: Restricts daily number of asylum seekers processed at border entry points; results in months-long waits.

• “Remain in Mexico”/MPP: Forcing tens of thousands of asylum seekers to wait in Mexico—often dangerous, unsanitary, and unfamiliar settings, far from family, legal aid, or resources.

  “They're being left homeless. Their children don't have access to an education or access to medical care. And most importantly, they're being put in a lot of danger.” —Denise Moreno (10:59)

Who Are Asylum Seekers? (12:44–13:57)

• Mainly Central American families fleeing “unspeakable, horrific violence”—gangs, drug traffickers, domestic abuse.
• Asylum-seekers distinct from economic migrants: they seek safety from threats their home countries can’t or won’t stop.

The Odds and Obstacles (13:57–17:50)

• Citing TRAC statistics: Only 0.41% of Remain in Mexico cases result in asylum being granted.

  “This is not about needles in haystacks. This is about—I mean, this is insane, the sort of no rate that you're getting.”—Dahlia Lithwick (13:57)

• Policy & legal barriers:

  • Months-long waits just to present themselves
  • Multiple layers of evidence and documentation required to win asylum—near impossible to prepare alone
  • Additional bans and legal “reforms” targeting Central American migrants

• Lawyers’ hands are tied by complexity, backlogs, and ever-shifting rules.

The Challenge for Lawyers & Legal Aid (17:50–19:17)

• Most have “pro se” (do-it-yourself) assistance; remote legal strategies are crucial, but “there just needs to be more attorneys willing to step in and try to take some of these cases.”
• The situation is “Kafkaesque in the extreme.”

Memorable Quotes:

“We specialize in a lot of remote work. And so right now, we're just kind of strategizing to figure out how we can adapt that model to best fit this ‘Remain in Mexico’ context.” —Denise Moreno (18:14)

Life in the Camps & Humanitarian Crisis (20:46–29:45)

With Kristin Clarence, Project Adelante

• Explains how volunteers, many without immigration law backgrounds, now regularly cross into makeshift camps—where cartel criminals circulate as easily as lawyers do.

• The Matamoros tent camp:

  • ~3,000 people, 80% families with young children, living in squalor.
  • “It’s like the kind of tent you’d take camping in the woods”—but for months, in rain and cold, with scarce food and rampant illness.

• Aid is limited, shifting weekly as policy changes, and Mexican authorities can cut off humanitarian efforts at any time.

• Health crises: From kids swimming in sewage to critically ill children denied adequate care.

  “It’s just kind of a recipe for a humanitarian crisis, like within 100ft of an American city.”—Kristin Clarence (26:53)

• Success story: After extended advocacy, a critically ill 7-year-old was allowed to cross into Brownsville, TX for hospital treatment.

  “We spent the bulk of our weekend doing what we could to reach out from afar... and fortunately she was able to cross after I think a collective like eight or nine hours of waiting on the bridge and advocating and negotiating with Border Patrol.” —Kristin Clarence (29:30)

On National Attention & Advocacy (30:11–31:48)

• Major frustration: Tragedies only spark action after deaths, not before.
• Quote:

  “How many seven year old girls would need to die for this to be something that would get in the headlines and stay in the headlines for a day or two?” —Kristin Clarence (30:42)

Segment 2: Trump’s Impeachment and Constitutional Dynamics

Guest: Susan Hennessy (Lawfare, Brookings Institution)

The Impeachment Vote: What It Means (32:05–37:25)

• President Trump impeached on two articles: abuse of power (230–197) and obstruction of Congress (229–198).
• Republican House strategy described as “hearing fatigue”:

  “Just yell about process until everybody’s bored and confused.” —Susan Hennessy (34:00)

• No significant shift in public opinion; political and constitutional significance remain.

Two Tracks of Impeachment (36:00–37:25)

• Political track: Public opinion, 2020 election, possible Senate acquittal/removal.
• Structural/constitutional track: The House’s decision to impeach is historically significant and will last beyond immediate politics.

The Role of The Courts & Chief Justice Roberts (37:25–44:02)

• The ambiguity in Senate trial procedures: Roberts as “potted plant” in fancy robes—or an active check?

• Main impact depends on future questions: especially if called on to rule whether key witnesses (Bolton, Mulvaney) must testify.

• Public wants witnesses; constitutional meaning and public understanding at stake.

  “My instinct is that John Roberts... prays fervently before he goes to bed every night to please not have to answer really, really difficult constitutional questions... but I don’t know that’s ultimately going to be up to him.” —Susan Hennessy (39:01)

Pelosi’s Withholding Strategy (44:02–50:28)

• House’s temporary hold on sending articles to the Senate—tactical leverage or risky ploy?
• Temporary delay can “shine a light on the procedural issues,” but if dragged out, risks appearing as pure “political gamesmanship.”
• Constitutionality:

  “I have to say, I don’t think it’s constitutionally appropriate either...if you pass articles of impeachment...and then refuse to allow the trial, I think it goes against the spirit of the process.” —Susan Hennessy (49:40)

The “Deep State,” Investigations, and National Security (50:28–57:53)

• The simultaneous Trump impeachment and Justice Department inspector general report show contrasting uses/abuses of investigative power.

• The IG report clears the FBI/DOJ of acting out of political animus but shows bureaucratic sloppiness and process failures.

• Hard to address legitimate institutional failures while fending off bad-faith attacks.

  “The counterbalance to bad faith attacks is not to scream, those are bad faith attacks. It’s to reckon with the good faith criticism.” —Susan Hennessy (59:37)

Restoring Faith in Institutions (57:53–64:26)

• Lithwick: “At what point do you say those institutions have been hollowed out to the point that they are now breaking democracy?”

• Hennessy: Restoration happens “one step at a time” by engaging seriously with valid criticisms and enacting reforms.

• The upcoming election, not impeachment, is “the ratification” of our institutional values—2020 may decide the fate of American democracy.

  “To re-elect Donald Trump as president is to ratify his vision of presidential power and of the purpose of institutions as serving his political interests. And...absent that core civic virtue, nothing else works.” —Susan Hennessy (63:27)

Notable Quotes & Timestamps

• “What about all the other moms that are here? They're going to go through their trials alone and what are you going to do about it?” —Liz Willis (04:15)
• “They're being left homeless...And most importantly, they're being put in a lot of danger.” —Denise Moreno (10:59)
• “This is insane, the sort of no rate that you're getting.” —Dahlia Lithwick (13:57)
• “The situation is really dire.” —Denise Moreno (18:14)
• “It’s just kind of a recipe for a humanitarian crisis, like within 100ft of an American city.” —Kristin Clarence (26:53)
• “How many seven year old girls would need to die for this to be something that would get in the headlines and stay in the headlines for a day or two?” —Kristin Clarence (30:42)
• “Hearing fatigue: just yell about process until everybody’s bored and confused.” —Susan Hennessy (34:00)
• “The counterbalance to sort of bad faith attacks is not to scream, those are bad faith attacks. It’s instead to reckon with the good faith criticism.” —Susan Hennessy (59:37)
• “To re-elect Donald Trump as president is to ratify his vision of presidential power and of the purpose of institutions as serving his political interests.” —Susan Hennessy (63:27)

Conclusion

“Divided Realities” lays bare the split realities in law and politics—both at the border, where vulnerable families suffer through legal labyrinths, and in Congress, where constitutional crises clash with partisan gamesmanship. The guests urge a return to “good faith,” both in courtrooms and institutions, as American democracy hovers between two fates—one decided slowly, painstakingly, in humanitarian and legal efforts on the ground; the other to be resolved, perhaps finally, by the voters in 2020.