← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Divided Realities
01:06:27
Lawyers on the crisis at the border, and a cacophony of bad faith in the Capitol.
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- [00:06]
A
It's in kind of the post truth era that we're in. One of the interesting questions right now is, has the president been impeached yet?
- [00:17]
B
How can we do this work better? I mean, we're not trained at this. We're not. Who is trained at this? I don't think anyone is.
- [00:30]
C
Hi, and welcome back to Amicus. This is Slate's podcast about the law and the courts and the rule of law and the Supreme Court and also justice. And this week, impeachment. It is, in fact the case that this past week the House of Representatives impeached President Donald J. Trump. It is the third impeachment in U.S. history. And if you stuck around to listen to the debates, it largely just proved the many ways in which most of this country now shares a landmass, but not reality. We're going to talk about that impeachment later in the show with Susan Hennessy. She's executive editor of Lawfare, and we want to ask her her thoughts on impeachment, the deep state, the Mueller report, and going forward, what we should wish for for Christmas. But before we do that, we wanted to check in on a story that barrels alongside but never quite intersects with the events that happened this week in the Capitol. Immigration, asylum, family separations, and a set of policies that have no formal at all to impeachment, even as they impact tens and thousands of people at the borders. On this show, we've covered family separation lawsuits, we've talked about the DACA challenge, and of course, the ins and outs of the travel ban. But beyond these formal laws and shifting policies at the borders, real people actually experience real suffering every day. And I guess we wanted to mark this holiday season by reminding you, and perhaps ourselves, of the faces and the voices of the people who don't have fancy reserved seats at the Supreme Court. People who may wait months, if not years, for court dates that either never come or offer them no relief. And I think we want it also to usher in the holiday season with the hope that comes when extraordinary people, in this case a bunch of lawyers, do kind of ordinary things to help others, even when it can feel truly hopeless. You know, one of my very favorite episodes of this podcast was an interview I did with Becca Heller. She's one of the co founders of irap, the International Refugees Assistance Project. And she was the lawyer who in some sense helped to wrangle all those attorneys who showed up at the airports and in the baggage claims when the travel ban executive order was first announced. You ever wonder what happened to all those inspiring Attorneys with their laptops and their yellow pads. Well, you're going to meet some more of them this week. My first guests today are Denise Moreno and Liz Willis. They are here representing the Asylum Seeker advocacy project, or ASAP. ASAP was founded in 2016 to provide critical legal services to asylum seekers. And both Denise and Liz are part of their legal emergency room team working to develop new strategies for supporting asylum seekers at the border. Our Slate plus members will be hearing an extended version of this interview. Denise is a law clerk and Equal justice works fellow at ASAP. She got her JD from Yale Law in 2017. Liz is ASAP's co founder and co legal director. She also has her law degree from Yale. Both Denise and Liz were in Tijuana last month to see firsthand the impacts of the new metering and remain in Mexico policies that have been put into effect. Liz and Denise, welcome to Amicus.
- [03:48]
D
Thank you.
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E
Thank you.
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C
And maybe, Liz, you can start by telling us, I feel there's a Yale Law School through line here, but can you describe how ASAP is born and what it does?
- [04:00]
D
This kind of started in 2015. We were still students in law school at the time, and some of us went to the border to, at the time was the largest family detention center, immigration family detention center. And while we were there, we met our first client, Suni, and we worked with her for her trial. She had to go through her trial while she was still in detention with her young son. And we actually kind of supported her to win her case. But instead of celebrating, 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? And I think she really kind of inspired us and showed us that there was still so much work to be done, that this is an ongoing issue and we might go back to school, go back home, but there still were things that we could do. And so we started kind of as a volunteer effort as students, and then spun off and became a nonprofit. And now we are in touch with over 4,000 asylum seekers across the US and at the border. And we, we have kind of three different departments. The first is our online communities where we provide kind of an online space, a safe space for folks to get legal information, basic info about how to go through their process. Really the goal is to give them the tools they need to go through this incredibly complicated process. Then we have our legal ER department that Denise and I are both in, and we really are trying to respond to the crises that asylum seekers are letting us know that they're facing. And so that means trying to reopen removal orders or deportation orders when folks receive them, helping people file asylum applications within this one year filing deadline, helping people change venue to a different immigration court so that they don't miss their hearings and receive a deportation order. And then finally, we have this systemic reform department which is really trying to take all of that, that we learn from the work that we do with asylum seekers and try to make the system better, try to make it so that the US Is actually a place that welcomes asylum seekers, that has a fair process for folks to go. And through that, we do both litigation, trying to call out a lot of the human rights abuses that folks have suffered in detention at the border and within the US and also policy changes. We just worked on a bill to try to change how folks can reopen their cases. So a lot of different work that we've been doing with the real goal of just trying to make it easier for asylum seekers to go through the process here.
- [06:34]
C
Before we go to Denise and ask the same question, Liz, you mentioned, and it's worth flagging that this starts in 2015. This is not a Trump era organization. It is not because of Donald Trump or family separation. Right. These are preexisting Bush, Obama era policies in some sense that you were already contending with them.
- [06:55]
D
This crisis goes, you know, before the Trump administration, folks have been coming to our southern border to seek asylum. You know, especially starting in 2014, there was this huge uptick in Central American asylum seekers coming to the border. And the Obama administration had some really intense family detention policies, had a lot of things that we were fighting against at that time. But things have gotten much worse in terms of human rights abuses. The things that are happening now are kind of a, in some ways they're a continuation of the things that were happening earlier. But there are a lot of new policies, like the remain in Mexico policy that you mentioned, that are totally new. The family separation crisis that happened last summer, too, when we started this, you know, we really didn't know how much of an issue nationally it was going to become, how much of an issue it was going to become for this administration. We didn't know at the time that Trump was going to become president. We definitely didn't know that he was going to have this focus on asylum seekers and on making things more difficult for folks to seek asylum and to deter asylum seekers from coming. And so we started before the Trump administration, but I think because we were really listening to asylum seekers, we were really kind of well positioned to respond to a lot of this stuff once some of the Trump administration policies went into place.
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C
And Denise Moreno, tell me a little bit about how you got interested in this work.
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E
Immigration has always been deeply personal for me because it had to be. My parents are both immigrants from Mexico who lived in the United States without any kind of legal status for a really long time. And I grew up in a really vibrant Latinx community in Chicago where everybody was first generation American children of immigrants. And that was and is my normal. And that is what this country has always been. To me, after the last election, that all felt very under attack. As Liz has described, the current administration has waged a complete war against asylum seekers. And as a Latina, as a daughter of immigrants, as a native Spanish speaker, a recent law school graduate, I knew I just couldn't sit back and watch it happen. And I'm really grateful to do something about it. With the amazing and passionate team at.
- [09:12]
C
Asap, Liz has sort of explained, I think, that there was an existing legal architecture that was not great that predates the Trump era. But I wonder if you could describe some of the Trump era policies. We can start with metering. We can talk about remain in Mexico, but help us understand, just as a sort of legal analyst, what changes on the ground and how that starts to affect asylum seekers at the borders.
- [09:39]
E
So metering and the remain in Mexico program are just two of the policies that we witnessed firsthand on our trip to San Diego and Tijuana. And they're just two policies that the current administration has enacted to make it as difficult as possible for asylum seekers to access their rights. And so when people seek asylum, they have a right to go up to an immigration official at a port of entry and ask for protection in the United States. That's their right. But what's been happening under the metering policy is that border officials are basically capping the number of asylum seekers who are able to go ask for protection at a port of entry on any given day. And that means that asylum seekers are being forced to wait at the border for months and months at a time before they can even try to exercise their right to seek asylum in the United States. And on top of that, even once they finally get to the return to ask for protection here, instead of being referred to the typical asylum process in the US Tens of thousands of asylum seekers have been returned to Mexico to wait for their proceedings under the Remain in Mexico program, also known as the Migrant Protection protocol, somewhat oxymoronically, but what that means is that first, thousands of asylum seekers are being prevented from having any kind of meaningful access to counsel because there just aren't that many lawyers who are able to take cases out of Mexico. But second, the remain in Mexico policy also means that thousands of asylum seekers are being forced to wait for months or even years in Mexican border cities that just don't have the resources for them. 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. Human Rights first just recently released a report detailing at least over 600 publicly reported cases of violent attacks against asylum seekers that have been returned to Mexico under the program. And that's really likely only the tip of the iceberg since most of these cases are going unreported.
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C
And Liz, this probably goes without saying, but let's say it explicitly. These are not folks who started their lives in Mexico. They are not. They are Hondurans who are remaining in Mexico. They have no connections there.
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D
Yeah, absolutely. So the folks that are being sent back to wait in Mexico for their while during their immigration proceedings are asylum seekers from other countries. So folks from Central American countries, Honduras, El Salvador, Guatemala, and from Cuba, from Venezuela.
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E
Venezuela.
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D
What we were seeing is that they're mostly sending back folks from other Spanish speaking countries, not Mexico. So folks do not have connections. They don't have family connections. These are unfamiliar cities. They don't have a network of support. And for that reason, a lot of folks are facing really severe housing insecurity and a lot of the other issues that Denise raised.
- [12:44]
C
So, Denise, I think again, this is worth spelling out explicitly. There is a difference between asylum seekers and economic migrants. There is a difference between, between the communities of folks that you are trying to reach out to and folks who are coming here just to migrate to the United States. Right. Can you help us understand what some of these folks are trying to escape?
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E
The population that we work with most closely is a population of largely Central American families who are fleeing really unsafe, unspeakable, horrific violence that's happening in their countries like Guatemala and Honduras and El Salvador. They're fleeing horrific gang violence, gang violence by drug traffickers. There are women and children fleeing really horrific domestic abuse. And these countries just currently don't have kind of the response to be able to protect people against those kinds of violence. So these are families who are leaving everything they know behind to try to have an opportunity to find some safety in the United States.
- [13:57]
C
This is a show about the law. And, you know, I'm just citing the Washington Post statistic from last month. More than 47,000 migrants have been sent back to Mexico since MPP starts in January of last year through September, 9,974 cases were completed, of which 11 migrants, or 0.41%, actually received asylum, according to the Transactional Records Access Clearinghouse, or trac, a research center at Syracuse University. So this is not about needles in haystacks. This is abouti mean, this is insane, the sort of no rate that you're getting. And I wonder, and maybe we'll ask you, Liz, what is the sort of set of legal hurdles that one of your asylum seekers has to get through in order to be. Be the 0.1% that gets a yes?
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D
Yeah, it's a lot. And I think one thing to understand is there are these policies that are kind of at the border, these, like, procedural policy changes that make it harder for folks to, you know, physically get to the US or to actually present their cases. But there's also these other changes that are happening at the same time that have been happening at kind of the administrative level at the Board of Immigration Appeals, for example, that are making asylum claims more difficult, making especially some of these cases that we see much more difficult, like taking away kind of this basis for domestic violence cases to win asylum, also making it more difficult for folks who were threatened because they're a member of a family, making it more difficult for them. There have been a lot of changes in general that have made things more difficult. And so for someone who is just now getting to the border, the Mexico, US Border, they would have to, depending on where they are, put themselves on the list, on this metering list first. And what we were seeing when we were in Tijuana is the list was like, five months long, and you would take it at least a few months waiting there just to get your number called. And then once you get to the border, if you're from Honduras, for example, you get to the border and you request asylum, you might be held in detention in these kind of awful detention conditions at the border in the US For a couple of days and then be sent back to Mexico with a hearing date, and then you'll be in Mexico waiting for that hearing. And during that time, you might be trying to find an attorney. It's very difficult. And then you'll come into the US Just for that hearing date. You need to submit an asylum application that hopefully you had some assistance to prepare Then you'll get this final date where you're supposed to present your whole case. That means all your evidence, everything that you want to show, give to the judge to show you should win asylum. And it's incredibly difficult to know what to get. First of all, I mean, these are really difficult cases in terms of, like, the amount of evidence for other attorneys that are listening. It's a huge amount of evidence. You need country conditions experts, you need a psych expert, you need family member declarations, you need affidavits from the person. You need medical records, police records, all kinds of stuff to really build a really strong case. And so someone might be trying to do that on their own, not have an attorney, have to go and present their claims. And right now, for folks that are not from that had to pass through another country to get to the border. So if you had to pass through Mexico, so anyone from Central America, you might actually now be facing this asylum ban, which means you don't qualify for asylum. You might qualify for some other types of protection that are harder to win. And on top of that, like I was saying before, there's been these changes in asylum law that have made it much more difficult to win in the first place.
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C
So, Denise, how can lawyers, even if you're, you know, you're sort of in your emergency apparatus, like they're trying to make things better, how are lawyers able to effectuate any better outcomes for folks who are? It just seems like there's. This is Kafkaesque in the extreme. Yeah.
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E
As Liz described, the asylum process is really, really complex, even when you have a lawyer helping you navigate. So it becomes all but impossible for people to be able to navigate when they don't have access to counsel. One of the biggest problems for people who are being forced to remain in Mexico is that there just aren't enough attorneys or organizations that are taking these cases on. There are a lot of really great volunteer efforts happening in different parts of the border. Some that we were able to witness firsthand when we went to Tijuana. But there really just needs to be more attorneys willing to step in and try to take some of these cases and try to help some of these folks, because the situation is really dire. And at asap, we do a lot of kind of pro se assistance where we help people in a really rapid way. 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, this remain in Mexico context.
- [19:18]
C
That is all that we have time for from Denise and Liz here on the regular everyday version of Amicus. But Slate plus members are going to have access to an extended version of this interview with Denise Moreno and Liz Willis from asap, the Asylum Seeker Advocacy Project. If you are not a Slate plus member but would like to listen to ad free versions of all of our shows and extended or bonus content from your favorite Slate podcasters, go to slate.com amicusplus to check it out. Slate plus membership is only $35 for your first year. You are helping to secure and support the journalism we do here and you can sign up for free for two weeks just to check it out first. So sign up for Slate plus to learn more and to begin your free two week trial go to slate.com amicusplus my next guest is Kristin Clarence. I first met Kristin last summer when I interviewed her for a piece I was writing for Slate about conditions at the US Mexico border. She helped me understand a labyrinth of overlapping policies and new laws that were almost impossible to navigate. Along with colleagues that she has made volunteering with families and kids at the border, Kristen founded Project Adelante. This is a group of multidisciplinary professionals, including lawyers and doctors and ministers and psychologists who are working across the country to support asylum seekers at the border. Kristin Clarence, welcome to amicus.
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B
Thanks. It's so great to be here and talk with you again.
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C
Can you just start by explaining to listeners what it is that you do and how just as a lawyer, you were able to kind of amble in and out of border facilities, detention facilities?
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B
Right now, I'm Project Adelante. Many of us have deep experience working in different types of environments, and my experience has been like, as you mentioned before, working with detained children and families in facilities on the Texas side of the US Border over the past year. Because of the change in policy, particularly over the past six months, those people who previously would have been detained are now living in sort of makeshift refugee camps on the Mexico side of the border because of the remain in Mexico policy. So now it's incredibly easy to amble in and out. As easy as it is for cartel members and other organized criminals who are circulating in these camps where migrants are forced to remain while they're waiting for their immigration cases to proceed. The remain in Mexico courts, the tank courts that have grown up at the.
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C
Border, you don't have a huge background in immigration law, right?
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A
No.
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C
You just happen to speak Spanish.
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B
I happen to speak Spanish and I have three little kids at home. And so, like many other people across the country, as the kind of injustices foisted upon immigrant families increased over the past several years, I raised my hand and offered to help, mainly because I think the most valuable skill I have is the ability to connect to and empathize with children and parents with young kids, which is the majority of. Of who's living in the tent camp in Matamoros. The estimates are that there are around 3,000 people there living just in squalor and in tents, and that 80% of them are families with young children.
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C
Can you talk us through? I know there's no average case that you see, but you've described a lot of women traveling with small children. What kind of thing, especially now that you're looking at the tent cities in Mexico, what kinds of things are you seeing? What kinds of legal aid are you able to provide if you are in Matamoros trying to help?
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B
The legal aid that we're able to provide at this point is becoming so much more limited because the statistics out now are that 0.1% of asylum seekers who have their cases heard in the MPP court. So what? The tent courts that have sprung up are called only 0.1% of those asylum seekers, many of whom have valid claims, who would have succeeded with time and due process and legal support, 0.1% are succeeding. And we see the same cases that we've always seen. Nothing has changed with respect to the nature of the cases. Single women who have been persecuted specifically because they're vulnerable in their home country by gangs and by other types of organized crime. They're incredibly vulnerable living in these. Just like a. It's like a tent, just summer. The kind of tent that you would take to go camping in the woods in the summer, except for single women, sometimes pregnant with young children, with no other form of support, no network whatsoever, are living for months at a time in freezing cold conditions and rain and then super hot conditions the next day, just incredibly exposed on every single level. And it's really hard to provide legal support in those instances. The circumstances change almost weekly with respect to the parameters and expectations, the due process provided in the MPP camp, and also with respect to just the feasibility of what we can offer as the numbers of people on the ground grow and the backlog increases in the MPP cords.
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C
And as I understand it, on the ground, at least at Matamoros, people don't have enough showers, they don't have enough food, there's rampant illness, right? I mean, you are seeing kids with tremendous Medical and nutritional and other needs that are not getting met. Right.
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B
Just as the legal structure for supporting migrants has developed as the crisis has intensified. The same is true with humanitarian and health response. There's a sort of a group that's come onto the scene over the past month that's providing mobile health care via a clinic and also a humanitarian support to try and improve the shelters. They're all volunteer based. It's a nonprofit, kind of all of us rolling up our sleeves and trying to figure out the best way to get support in there. But it's subject essentially to the whims of the Mexican government. At any point, this could be shut down or relocated, or people could just be forced to scatter. So it's really on, you know, kind of sketchy footing to stand on. You just don't know how things are going to unfold when the United States government's policies might be enjoined, particularly in the ninth Circuit, or when the Mexican government may decide that it can no longer tolerate these large refugee camps. The Mexican government initially restricted humanitarian groups access to sort of building things like toilets and showers, and did so themselves in Matamoros. But the facilities that they built were really not adequate. They have showers that are not linked to any sort of like drainage systems. So there's just big puddles of disgusting water that smelled bad, and it's just really kind of dehumanizing. Prior to the existence of the showers, though, people were bathing in the river, which is contaminated with human waste, and people were getting sick and these awful skin infections all over. Little kids were swimming in the same place where little kids were also vomiting and having diarrhea. So it's just kind of a recipe for a humanitarian crisis, like within 100ft of an American city.
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C
Kristin, I know you've been dealing this week with a critically ill child. Sorry, buddy.
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B
Yeah, it's hard. I mean, I have a six and an eight year old child. I came back from Matamoto's three weeks ago. When I was there, we encountered many very ill people. I mean, obviously the conditions are horrible. They're unlivable and unbearable. I leave there with such a sense of relief to get out of there after just a few days. And also such a tremendous sense of guilt for being able to leave. It's really difficult for people who could die at any minute of their illnesses to get medical care at Matamoros for a variety of reasons. Mainly, it's hard for them to get around. It's a scary city and it's not safe. And so this past week we heard about several more critically ill migrants waiting at the tent city, including a seven year old who had, I think it can best be described as sort of a breach in her abdominal wall. So her fecal matter was leaking out and kind of reinfecting her, kind of getting reabsorbed by parts of her body. She wasn't able to access clean water or water at all to drink or to bathe herself to prevent just massive infection that could really quickly turn to a life and death situation. So we did the best we could. I've been on the bridge trying to cross with people and been kind of mistreated and like, you know, treated aggressively by the border patrol agents. And I know how scary and hard that is. I can't imagine having that experience as a 7 year old girl who has to wear a diaper because her stomach is no longer able to contain her intestines. So. And with a 6 and 8 year old kid at home and a 10 year old, I felt like, you know, we spent the bulk of our weekend doing what we could to reach out from afar to support Lawyers for good government and GRM's efforts on the ground to get her across. 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, she was able to get across and get to the hospital on Tuesday night.
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C
And Kristen, I guess I just want to ask this last question before I let you go, which is when you reached out to me and said, help me amplify this story, you thought she might die. And when you reached out and said, oh, you know, we got her into Brownsville, she's in a hospital, maybe this isn't a story anymore. I had to try to twist your arm to get you to come talk about her because nobody died so nobody cares.
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B
Yeah, I mean, that's the sense that I get in trying to focus attention on this in such a stressful time in America. It seems scary. Our government is unstable and stressful right now and at the same time, these incredible, egregious human rights violations are happening at our southern border. And it's like, how do we cut through this noise and really stand up for the weakest people that our country is negatively impacting right now? And I don't have those answers, but we keep wondering like, how many, 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. And I think as advocates, our challenge right now is to think how can we do this work better? I mean, we're not trained at this. We're not who is trained at this? I don't think anyone is. But how could we do better and think this through more clearly so that seven year old girls don't have to die before these policies get changed? That seems to be the game that just like they did with family separation and just like they did with some of the detention facility conditions, they'll make modifications to these policies after enough deaths and after enough outcry. And it just would be great if we could have learned these lessons and could sidestep the death to change the policy.
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C
Kristin Clarence founded Project Adelante, a group of multidisciplinary professionals, including lawyers, doctors, ministers and psychologists working across the country to help mobilize and concentrate support for asylum seekers at the border. Kristen, thank you for joining me today.
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B
Thank you so much.
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C
As you may be aware, the President Donald J. Trump was impeached in the House of Representatives this past week, one of only three times this has happened in American history. He also made history by receiving both the largest and second largest votes in the history of American presidential impeachment. The House voted to approve the first article that was abuse of power by 230 votes to 197, one present vote. And the second article, which was obstruction of Congress, was approved by 229 votes to 198. So this was really a big precedent setting day in a couple of ways. So it all happened. It happened. And now we wait to see what comes next. And joining us to discuss both impeachment and these questions that are still swirling about the deep state and investigations and politics is Susan Hennessy, who I've wanted to have on this podcast for quite a long time. She's the executive editor and editor in chief of lawfare, which I hope you all have bookmarked and are reading slavishly. She's also one of the wizards behind their podcast on the Mueller Report called the Report. Susan is a senior fellow at the Brookings Institution. She's a CNN contributor and prior to joining Brookings, she was an attorney in the Office of General Counsel in the National Security Agency. So Susan, it is just a delight to have you here on this extraordinary week. Welcome.
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A
It has been quite a week and thank you so much. I'm delighted to do it.
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C
So I want to start by asking you, Susan, just the optics question. I know you were watching the impeachment hearings in the House. I know you were watching this week, I think you described on cnn the Republican strategy, at least in the House, has been, quote, hearing fatigue, just yell about process until everybody's bored and confused. I wonder how much you think that succeeded as a strategy.
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A
You know, it's hard to say because I think we have to ask ourselves what kind of strategy are we talking about? So if we're talking about as a political strategy, it doesn't appear that the polling has moved very much. And so to the extent that last week's hearings were designed to, to not change people's opinions, not sort of convince people that what the President had actually done and that what he had done was deeply wrong and abusive, that was sort of a stalemate. And so whether or not we attribute that to hearing fatigue or the Democrats inability to sort of break through the message, you know, or just, just the kind of entrenched polarization, you know, politically, it didn't really sort of, sort of change things in terms of perception. You know, that said, I think a little bit we have to separate out sort of two different tracks of what's going on with impeachment. So one is the political track, right? So how many people support the impeachment, the ramification that this might have have on the President's eventual reelection or his being voted out of office, you know, whether or not the Senate actually votes to convict and remove something that I think seems extremely, extremely unlikely to happen in the current circumstances. So that's kind of one track, and it's a really important and consequential one and has all kinds of interesting questions. Then there's another track, which is the structural constitutional one. And that's that as we see the various branches of government, you know, jockeying for preserving or forfeiting their sort of core powers and the continual rebalancing of the separation of powers, this moment actually is really, really significant. And the fact that ultimately the House did vote to impeach the president and did declare, you know, this was unacceptable conduct, it was impeachable conduct, the implications of that constitutionally, I think are significant, are far more enduring over time and are going to become more important as sort of the political considerations fade away. And so I think whenever we think about who had what strategy and what was the Republican, Republican strategy, the big important question here was, was the president going to be impeached? You know, it's funny, you started by saying, you know, the impeachment happened, that happened in the post truth era that we're in. One of the interesting questions right now is has the President been impeached yet? Because the House has voted to pass the articles of impeachment, but has not yet presented them to the Senate. And so it sounds as though Nancy Pelosi is the speaker of the House, is considering maybe not taking that step. And so, right. Whenever we thought we were sort of done with the Republicans deep dive into procedural objections, now all of a sudden, the Democrats come in inserting their own procedural ambiguities, and we're kind of back down in the weeds, and we'll see how it all plays out.
- [37:25]
C
Some of the reasons that this gets very, very fuzzy, Susan, is because I think that we are going through a quasi political, quasi legal process, and we keep kind of toggling back and forth between them. And so, for instance, we have Mitch McConnell saying, we're not gonna have a fair trial in the Senate because this is an illegal process. It's a purely political process. But of course, it's both, and in some sense it's also neither. But the other thing, before we get to Nancy Pelosi's strategy, I want to ask about is, of course there's a third constitutional actor in all this. There's the court. I wrote a little bit about this week, and I confess I feel like I asked this question of every expert we have on the show about what role John Roberts has in a Senate trial and whether when the framers expressly put the courts into this process, made the decision to affirmatively say the Chief justice shall preside. None of us really knows what preside means. I love your sort of way back panned out constitutional structural theory of what happened this week. Is there a lane for the Chief justice, or is he, I think I wrote this week, potted plant, fancy robes, just gonna sit there hoping this ends without embarrassing him. Or is there some affirmative obligation for the courts now in the person of John Roberts, to step in and assert some independent constitutional authority?
- [38:52]
A
I found your article sort of suggesting that Roberts might be the person who is watching most closely and might be most influenced by how we talk about a fair trial and fair process and procedures. You know, because he is sort of, you know, an institutionalist. My instinct is that John Roberts, you know, prays fervently before he goes to bed every night to please not have to answer really, really difficult constitutional questions. To be allowed to get through this process in a potted plant way and sort of, and to be able to, you know, follow a Rehnquist model of really not having to intervene. You know, I'm sure that's what he would prefer in part because, of course, he doesn't want the Supreme Court to be viewed as sort of overly politicized. The. The problem is I don't know that that's ultimately going to be up to him. And so the question is, what are the questions that are going to be presented to him? And is he, in this role, going to defer essentially? Right. So is he going to view himself as the two parties in Congress or the the Senate versus the Senate versus the White House. Right. So parts of the legislative branch asserting prerogatives and the executive branch asserting counter prerogatives. Is he going to view himself as the representative of the third branch there, or is he going to try and sort of defer and say, these are political questions and I don't really want to weigh in. I think that'll probably end up being most consequential if there are serious questions about whether or not witnesses have to testify or not. So, of course, one of the articles of impeachment relates to obstruction of Congress for these four executive branch officials that have refused to respond to subpoenas, the two most significant people being former National Security Adviser John Bob Bolton and current acting White House Chief of Staff Mick Mulvaney, who have both declined to respond to these subpoenas. Now, the House didn't litigate that question, and they've explained the decision to do that. The question is whether or not those witnesses will be called again in the Senate trial. And so I do think it's plausible, at least whenever we think about John Bolton, that somebody who might be willing to say, I'm not sure I'm willing to comply with a subpoena from a committee in the House if that person is also going to say, you know, I'm going to challenge or not comply with an order to come testify in a Senate impeachment trial that has been ruled on by the Chief justice of the Supreme Court. I think the optics of that are quite different. And I do think it's a situation in which. Which he may well have the final say. And so if we think about the really important, open, factual questions here, and I don't mean open factual questions in the sense of maybe Donald Trump didn't do it, right, the distance between, I think, what we all understand occurred and the actual official record, both John Bolton and, more significantly, Mick Mulvaney are in positions to really substantially close that gap and I think put Republicans in the Senate in a position of not being able to ignore what happened and having to confront the really, really core facts of what the president did and why and the linkage specifically of which withholding this military aid with seeking political investigations from Ukraine. One reason why I think it could be really, really significant for Republicans in the Senate to have to confront that is because, of course, that is the president abusing or intruding into congressional appropriations authority. Right. So we're sort of in the realm of really core constitutional injury here. And, you know, maybe it is Pollyanna Ish to the point of just being, you know, absurd and naive to suggest that maybe, maybe that will be something that at least one or two Republicans in the Senate will say. You know, I just can't swallow this. But I do think that, you know, to the extent the procedures in the trial can force clarification of the questions, that's going to be really important in terms of how the public understands what happened. And it's going to be really important in terms of how future administrations understand what happened in Congress and what Congress said and what that means for the boundaries of the office moving forward.
- [44:02]
C
I guess this is a good point, Susan, to flag your initial premise, which is to the extent this is a political process, we've seen polling suggesting that somewhere around 70% of Americans actually want to hear from those witnesses and that to the extent that it matters as a political issue, not letting them appear and simply saying that it's inappropriate to have them speak in the Senate. Whether or not senators feel invested in that question, the public seems to be invested in what does John Bolton have to say about this? And maybe that matters. I don't know if you want to weigh in as a constitutional scholar, but this theory that Nancy Pelosi now seems to be effectuating in some sense, which is we're going to impeach and we're going to hang on and not hand the articles off to the Senate. It's sort of the Larry Tribe versus Noah Feld constitutional giants WWF Smackdown. And I not necessarily asking you to litigate which of them is right about this question of whether it is permissible to impeach and withhold. But I do wonder, as a sort of tactical matter, if you think Pelosi is making a mistake playing into, you know, we heard Mitch McConnell on Thursday being sort of, oh, well, I guess it's such a sham that they can't even bother to handle us, the articles. It shows that they are afraid to show their work or if this is a smart piece of leverage to hold over him, to force him essentially to put on a fair trial in the Senate.
- [45:33]
A
So I think it's something that could be tactically smart if it's very temporary. So the fact that the articles of impeachment have passed in the House but not yet been presented presented to the Senate, what that does is it allows Nancy Pelosi to shine a light on the procedural issues to make sure that everybody is talking about this issue of what does it mean to have a fair trial and should we be thinking about witnesses. And it keeps the power a little bit in her court to kind of to set the timeline and to set sort of the agenda up of this is the issues that everybody should be focused on. And of course, she's probably extremely aware of the fact that the polling suggests that, you know, this overwhelming majority of Americans think that, you know, that witnesses should testify. And so, you know, sort of strategically, I think that could make sense in, you know, in sort of a limited way in part because by focusing public attention, that also empowers those, you know, kind of moderate Republicans who might be willing to force a fair process. Right. So on a lot of these procedural questions of witnesses, you're talking about 51 votes. And so who might be the handful? Right. The group of four senators that are Republican senators that are willing to hold together. You know, this is something that's a little bit similar to what we saw play out in the Kavanaugh context. Right. Which was Jeff Flake was willing to say, I'm going to use my vote and my position here to basically say we're holding off until we get this investigation. And then Flake, of course, did vote to ultimately confirm. And so that was one way in which we saw kind of uncomfortable Republicans being willing to bring break with their party on these procedural questions, even if they ultimately intend to kind of fall in line substantively. So that is something we might see happen. There's a big risk in that, though, and that's that, you know, I do think that it looks like political game playing. We've seen the president pounce on this. We've seen Mitch McConnell and Lindsey Graham. Right. You know, look at the absurdity of this. They say that this is an about politics. They say that this is about this solemn constitutional function and obligation. And here they are, and they won't even sort of hand things over. And, you know, that is something that, you know, I think the public is probably going to perceive as sort of being political gamesmanship. And it is in some sense political gamesmanship to the extent that the challenge here, you know, for Democrats is just a clearly conveyed what happened to the American public And sort of in a clean, concise way, inserting the, you know, congressional parliamentarians into the discussion has never, you know, helped Congress achieve that goal in terms of sort of public messaging. And so I think the real risk here is one, sort of confusing the question in the mind of the public, and two, maybe actually sort of backfiring and creating a situation in which which people like Susan Collins and Mitt Romney and Cory Gardner might be willing to say, you know what, we were concerned, but this is just all a bunch of nonsense and they don't even want to give us the articles to do this serious consideration. And, you know, look, at the end of the day, you know, I have to agree with my colleagues that we just shouldn't really entertain this. And so that's why I think, you know, look, if we're talking about a very limited window here in which which there's a few days of sort of negotiation and then they're passed on, that might work out. I think, if instead this idea of they never send the articles over or it becomes this really protracted battle, I just don't see how that could possibly be beneficial politically. And I have to say, I don't think it's constitutionally appropriate either. The, the idea that you pass articles of impeachment essentially as indictment, as accusation, and then refuse to allow the trial, refuse to allow the process of conviction or acquittal, I think it's probably allowable sort of as a constitutional technicality, but I do think it goes against the spirit of the process. And so, you know, my hope is that they'll come to an accommodation relatively quickly here. But I hope that, you know, the speaker of the House isn't overly captured by sort of these very cute sort of constitutional arguments about what they can and can't do, because I think they will ultimately lose the public on that question.
- [50:28]
C
So this brings me, Susan, to the. The real reason, I think, I wanted to talk to you this week, and that is there's a through line, and it maps so directly onto the work you've been doing about investigating your opponents here and using the sort of apparatus of the national security state to investigate political rivals. And this, right, this is Donald Trump's claim about Jim Comey and about the deep state. This is now the claim about what's happening with the deep state. This is the John Durham Report. This is the IG Report. It feels as though one of the things that is happening subterranean events, is that this is all becoming a massive, national, deeply paranoid, but in some ways deeply justified battle about using the government sort of national security apparatus to investigate political rivals. And I wonder if you can help make sense. I mean, I know you've been watching so carefully both through the Mueller report process and then the sort of counterfactual claims about the crowdstrike in Ukraine and all the mayhem of what Rudy Giuliani is doing, but can you help make sense of where we are in this moment with these rival claims about people abusing national security power to investigate one another?
- [51:56]
A
It's sort of a remarkable. I don't know that it's actually a coincidence, but remarkable statement that we're having both of these discussions simultaneously. Right. So one of the reasons why Donald Trump wants the Ukrainians to announce an investigation of Joe Biden and Hunter Biden is because. Because he understood and understands the power of the mere perception of there being an investigation, you know, into a political candidate. And that the perception of the investigation into Hillary Clinton, her use of email servers while at the State Department was critical to sort of ensuring his victory, and he wanted to manufacture that. And so I think what we're seeing is sort of bookends, and that's that, you know, the IG Report, I think, is about what it looks like when there's a good faith effort. Right. So a group of people who are not motivated by political animus that are trying to investigate valid and legitimate questions in the context of ongoing political, political campaigns and how fraught and perilous and problematic that ends up being in the best of circumstances. And that's right. Against, you know, what it looks like when it is actually abusive. And that even though those two things are all the difference in the world. Right. It's the difference between a free and fair and valid democratic process and system of government and an autocratic one, and sort of write the kind of abusive systems that the United States purports to stand against all over the world, that side by side, it can be hard to tell the difference in part because the difference lies in the core obligations of good faith and in sort of in a sense of civic virtue and of doing things for the right reasons. And whenever you lose that essential element, everything starts to crumble. So I've spent a lot of time with the inspector general's report, you know, over the past week, and I still haven't quite made up my mind about. So on one hand, I think it's sort of a. It's a ringing vindication for Jim Comey and the FBI generally and the Department of Justice that this wasn't a witch Hunt, this was a properly predicated investigation. This was not an investigation driven by political animus, that there were legitimate questions and that these were people who were trying to do the best they could under difficult circumstances, and that the president sort of most favored and frankly, deranged conspiracy theories to the contrary. That just isn't true. It didn't happen. And so I think that's really, really important, and we should sort of take a moment to foot stomp it. You know, on the other hand, the recounting of the process of obtaining and reauthorizing a series of faisal warrants on Carter Page has raised, you know, I think, really difficult questions about the legitimacy and integrity of the Title 1 FISA process. And it's, it's difficult to think about how do we begin to dig into those really hard questions in the context in which a lot of bad faith arguments are being made? Right. So the sort of reflexive Trump defenders are weighing into some. They see, look, this is an abusive FBI, this was an illegitimate investigation. And on the other hand, I do think it's incumbent upon people very much, myself included, who have defended the FISA process in the past of saying, look, this is a legitimate process, and it looks a little bit different, but there are these procedures and they work. And so we can have lots of confidence that it. Because, you know, this is an illustration of the procedures not working. I spent sort of the early part of this week, you know, reading through the report with an eye towards wanting to write something that was kind of a mea culpa, right. Of, okay, I've defended this process. I want to be intellectually honest. Here's all the things that I've gotten wrong. The more time I spend with the report, the more I, I disagree to my own peril with assessments like this is really shocking and outrageous conduct and shows sort of fundamental failures. I think it shows sloppiness. And I think that the inspector general identifies essentially these 17 errors and omissions of information that should have been provided to the FISC in order to make this determination. You know, some of those, a handful, I think, are really problematic, and we need to have a serious conversation about what reforms might be needed. Others, I think, are more justifiable or sort of understandable whenever you think about where they are at the time. And so one really interesting question is how do serious people have a real conversation about what this means and what reforms might look like and how we grapple with this question against this background of sort of this cacophony of bad Faith, you know, of, see, look, here's the inspector general determining, you know, this rotten process and you know, this very, very biased FBI, which of course, it doesn't.
- [57:54]
C
Susan, I think the last question I have for you dovetails so gorgeously with what you just said, and I think you've answered a question for me. I always describe myself as the most sort of small C conservative radical in the world because I really lean hard on institutions and institutionalism, and I believe in the courts and I believe in the systems that we require to make democracy run. But I also so don't know at what point you say those institutions have been hollowed out to the point that they are now breaking democracy. And I think that what you're saying about good faith is really central to that. The courts are only the courts as long as they're operating in good faith, and the national security legal apparatus is only really useful to us as long as it's operating in good faith. And, and we're on the seams of trying to figure out if we can reconstitute institutions that are really being corroded by bad faith. So I wonder if, as my last question of 2019, which is a big swinging question, but I wonder if you feel like it's possible to get back to good faith, whether it's sort of claims about the deep state, doubts about government, doubts about doubts about fisa, doubts about judges, doubts about executive power. Can we weave our way back to a place where instead of imputing bad faith to absolutely everything the other side does, we could work to bolster institutions in good faith?
- [59:35]
A
You know, I think there is, and I think the answer is you move one step at a time, and the answer lies in the specific, not the general. And that, you know, if we take this inspector general's report and, you know, we care about institutions and we care about institutional legitimacy, the counterbalance to sort of bad faith attacks is not to scream, those are bad faith attacks. Those are bad faith attacks. It's instead to reckon with the good faith criticism. And so for someone like me who has defended the Title 1 FISA process, for example, is saying, well, you know, the probable cause standard here is of course, not a crime, but an agent of a foreign power. But, but, you know, that's legitimate and comports with the Fourth Amendment for the following reasons. And no, yes, it's a totally ex parte process. And, and you know, the targets will never be able to sort of challenge warrants in the same way they do in an ordinary criminal context. But, you know, we have these procedures and those procedures are going to, they're going to overcome the deficiencies. I think you have to respond to a report showing that the procedures did not correct one core deficiency, which is, you know, the need to assure the public that the court is receiving all relevant information. Because we can talk about the FISC being well designed in a good faith process and the probable cause determination being a legitimate one. It cannot be defended if the court doesn't have all relevant information. Right. It's just impossible. It's possible to defend the woods procedures as being sort of well designed. If those procedures aren't being followed, it doesn't matter if they're well designed. And so I think the challenge of the Inspector General's report to serious minded people is to reckon with this core question of the benefit of the doubt, the need to identify and preserve external exculpatory materials in context in which there's going to be profound institutional bias and reckoning with that as a first step and reinforcing institutions in really genuine, real ways. I think that happens a hundred times in a hundred different ways across the, the government, across institutions, and we slowly build our way back. That said, I am a believer and have been a believer for a long time that the answer here was never going to be impeachment and that the 2020 election is the ratification of so much or the potential, potential ratification of so much. And so part of the challenge of the next year is not just sort of the usual machinations of political contests, but instead, you know, the challenge of clarifying the stakes and explaining these are the values and the rules of fair play that, that are being attacked right now. And, and 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 that if you do that and if we make that choice, these other things aren't really going to matter because absent kind of that core civic virtue, nothing else works. Right? Absent a genuine belief in the oath of office and a sincerity of that. And so I think the thing to do is within each of our lanes to consider questions seriously, to try and be good faith actors, you know, but ultimately to understand that this big giant question is coming and it's going to be incredibly consequential and convincing ourselves that reelection either isn't possible or that it does not in fact stand for the ratification of all these things, things would be very foolish.
- [64:27]
C
Susan Hennessy is the Executive editor and editor in chief of Lawfare. She is one of the prime movers behind their absolutely brilliant podcast the Report. She's a senior fellow at the Brookings Institution and a contributor to cnn. And prior to joining Brookings, Susan was an attorney in the Office of General Counsel of the National Security Agency. Susan, I I love where you just ended. I wish you a year of good civic virtue, of the benefit of the doubt, of sincerity and sobriety and all the things you do so well every day. Thank you for being here.
- [65:00]
A
Thanks so much for having me.
- [65:02]
C
And that is a wrap for this episode of Hamakist. I wish you happy holidays from myself, from Sara, my producer and everyone here at Slate. We will be back with you in the new year. Remember to send in any questions you have for the conversation I'm going to have with Slate's own Mark Joseph Stern about the Supreme Court term so far and the role of John Roberts in this unbelievably momentous year. We're going to be digging into all of that with Mark answering your questions, talking about his new book, American Justice 2019. The Roberts Court arrives, and this will be our very first show of 2020. So send your questions in to amicuslate.com or find us@facebook.com Amicus Podcast. We're looking forward to your letters and thank you so very much for listening. Throughout this turbulent year, we have loved being in conversations with those of you who write in. Today's show was produced by Sarah Burningham, Gabriel Roth is edited editorial director of Slate Podcasts, and June Thomas is senior managing producer of Slate Podcast. We will be back with another episode of Amicus in two short weeks. Happy holidays and Happy New Year.