The rule of law cannot just be about rules; it has to be about norms as well. Trump’s pardon or Arpaio is within his plenary constitutional authority, but also represents a threat to the rule of law. It could well portend, for example, Trump issuing mass pardons to obstruct the investigation into his campaign’s collusion with Russia. The Constitution does provide a remedy: the impeachment and removal power. The problem is — and this will remain true even if Dems reclaim the House in 2018 — the latter can happen only with Republican support. And the contemporary Republican Party is based on actively supporting or tolerating Trumps and Arpaios:
Arpaio was a public figure in good standing on the right for two decades, not in spite of the fact that he made life hell for prisoners and immigrants living in his jurisdiction, but because of it. Republicans stood by as Arpaio built his infamous “tent jails,” where temperatures sometimes exceeded 115 degrees. They stood by as he made a woman give birth while shackled to a bed. As the country’s demographics shifted over the years, some Republicans started treating Arpaio less like a celebrated hero and more like an embarrassing racist uncle, but by then, their lots had been cast.
Ryan has famously little appetite for contravening Trump in any meaningful way, but as long as that’s the case, he is just as responsible for the consequences of Trump’s depravities as Trump himself. The pardon power is unqualified and vested solely in the president, which creates a real challenge for lawmakers confronting a president intent on abusing it. Unlike other kinds of corruption, which can be countermanded with new laws, subpoenas, and other legislative tools, there is no direct way for Congress to stop Trump from pardoning anyone and everyone. But the fate of the rule of law is not in Trump’s hands alone. Just because Ryan likes to pretend his hands are completely tied doesn’t make it so.
The ethical questions Trump is raising aren’t new, because questionable pardons aren’t new. What is new is that Republicans, by watching dazed and glassy-eyed as a president abuses the pardon so early in his term, are empowering him to make a habit of forgiving and incenting the kind of lawbreaking that he hopes will shore up his power. In 1925, Chief Justice William Howard Taft—a former president himself—opined on behalf of the Supreme Court that the proper remedy for a hypothetical president using the pardon power to serially undermine legal proceedings wouldn’t be for the Supreme Court to crimp the pardon power, but for Congress to remove that president.
“If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument,” Taft wrote. “Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment, rather than to a narrow and strained construction of the general powers of the President.”
Ryan and other Republicans will for all these reasons face difficult questions. What do they intend to do if Trump extends pardons to people who broke laws in the course of getting him elected president or of impeding the investigation of his campaign? If they pretend, as Ryan does, to care about equal protection of law, will they investigate the events leading up to the Arpaio pardon, and will they pass any laws that will make life harder for those who see Arpaio as a role model?
I am certain we’ll be disappointed by the answers.
There’s no set of constitutional rules that can, in themselves, protect against people willing to abuse their formal authority. If Trump abuses his powers, and the Republican reaction continues to be nothing but some furrowed brows and concerned op-eds, the only remedy is the ballot box. And I have bad news about what both rules and norms mean for that remedy…