If news reports are to be believed, President Donald Trump pardoned Joe Arpaio, the racist, inhumane former Sheriff of Maricopa County, Arizona, not for any strategic purpose, but out of some deeply personal desire to help an immigrant-hating friend in need.
According to the Washington Post, Trump—in what was by then his umpteenth attempt to obstruct justice—approached Attorney General Jeff Sessions this past spring about dropping the federal criminal case against his partner in birtherism, only to be brushed off, leaving clemency as his only option.
But whether he intended it or not, Trump’s decision to grant the pardon on Friday night—an unconscionable abuse of power, delivered under the cover of a biblical hurricane—creates a three-pronged moral hazard.
First, it gives fresh hopes to abusive law-enforcement officers across the country, teaching them that they can proceed with impunity.
Second, it further boosts the morale of white supremacists, who are already over the moon for their advocate in the White House.
Third, it stretches the muscles that Trump will have to use if he decides to pardon his aides and family members for crimes uncovered in the course of the Justice Department’s Russia investigation, all while reaffirming his sense that Republicans in Congress will let him get away with it.
Personally, I am convinced that the Arpaio pardon is one of many reasonable grounds on which Congress could initiate the impeachment process, and that even in the absence of high crimes and misdemeanors, Trump should be removed from office because he is unfit to serve. Republicans, by contrast, want you to think that while they strongly oppose Trump’s behavior, they are powerless to do anything about it. But they are not powerless, and now they must confront the questions raised by their own post-hoc objections to something Trump all but announced he would do several days in advance. If Republicans in Congress are not going to do anything to stop Trump, what will they do to contain the damage?
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.
Trump’s decision to pardon Arpaio, like Trump’s success in the Republican primary, is an outgrowth and an emblem of the GOP’s decision to foster the intellectual and cultural climates of Fox News across the country—concentrated in heavily gerrymandered congressional districts—to help them win elections. On its own terms, that project has been an incomparable success, but it has also been a moral abomination, forcing one of America’s two major political parties into complicity with the worst actors in the country. Conservatives finally discovered a vocal distaste for Arpaio after Trump pardoned him, but for decades they have done nothing to kick Arpaioites out of the coalition. Some Republicans may be genuinely uncomfortable with this arrangement, but nearly all of them represent parts of the country that are walled off from dissent.
Thus, the best Arizona’s self-styled rebel senator Jeff Flake could muster on Friday was a tweet saying he “would have preferred” for Trump to withhold the pardon.
House Speaker Paul Ryan delegated his response to a spokesman, who raised a valid concern: “Law-enforcement officials have a special responsibility to respect the rights of everyone in the United States. We should not allow anyone to believe that responsibility is diminished by this pardon.”
The obvious problem is that if Trump faces no consequences for pardoning Arpaio, then Arpaio wannabes everywhere will know, with more certainty than ever before, that they have the official blessing of the president and his party to abuse prisoners and terrorize immigrants.
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.