THE MORNING PLUM:
It is welcome that some Republicans stepped forward to condemn President Trump’s pardon of former Maricopa County (Ariz.) sheriff Joe Arpaio. But something more is needed right now: We also need to hear a loud, clanging alarm from Republicans and Democrats alike that signals to Trump in unequivocal terms that any pardons in the context of the Russia probe will be met by a forceful and immediate response from Congress.
This would be for the good of the country, of course, because it might help avert a full-blown constitutional crisis. But it would also be to the benefit of the GOP and even Trump himself — though he might not be capable of appreciating that right now.
In an interview with me, Rep. Adam Schiff (Calif.) — the ranking Democrat on the House Intelligence Committee — argued strenuously that Trump’s pardon of Arpaio needs to be seen as a signal to those of his supporters who have been implicated in the Russia affair.
“The purpose for which the pardon was granted — to a political supporter of the birther movement — sends a message that if you have the president’s back, if you’re one of his supporters, he won’t necessarily wait until the end of a criminal case to give you a pardon,” Schiff told me. “He is telegraphing to anyone involved in his political campaign that as long as they stick with him, the possibility of a pardon is open, just the way it was for Arpaio.”
Trump pardoned Arpaio on Friday night, in advance of Arpaio’s sentencing, plainly aware that Hurricane Harvey would overshadow his act. At his Arizona rally, he suggested that “Sheriff Joe” had been convicted for “doing his job.” This is an implicit endorsement of the act that got Arpaio convicted of criminal contempt of court — refusing a judge’s command that he stop violating the constitutional rights of Latino immigrants. So perhaps Trump thinks Arpaio’s conviction was faulty. Meanwhile, Trump’s announcement of the pardon cited Arpaio’s alleged “service,” hinting that he deserves mercy. But neither argument has been elaborated upon. We have since learned that Trump had planned to pardon Arpaio, a campaign loyalist, well before there was any conviction, and that he viewed this as a way to please his base.
So Trump has offered no serious rationale for pardoning Arpaio. It is true that the pardon power appears absolute. But as multiple legal experts have pointed out, this particular use of it takes us into uncharted territory: Trump has signaled leniency toward law enforcement officials who refuse to obey judicial commands that they remain constrained by the Constitution, if they are loyal to Trump, or if his “base” will thrill to it. As Harvard’s Noah Feldman argued, Trump’s move appears to “threaten the very structure on which his right to pardon is based,” which risks “breaking the basic structure of the legal order” and constitutes an “abuse of the pardon power to break the system itself.”
And it could get worse. Schiff told me that the manner in which this pardon was done reasonably suggests it may be a signal to officials getting caught up in the Russia probe. “I don’t think it’s lost on anyone that the president is sending a message to those who worked on his campaign that he is not beyond using the pardon power to protect them and protect himself,” Schiff said. He added that Trump showed that “he’s willing to do it even prior to sentence,” which signals that he might be prepared to exercise it “to fend off any further criminal proceedings.”
“There are a number of ways that this could be applied to those who are either asking for immunity in the Russia probe or are exposed to potential liability,” Schiff said.
Grounds for impeachment?
Legal experts told me that if Trump were to do this, it could constitute grounds for impeachment — even if his legal power to do it is uncontested.
“If a president uses a pardon to buy the silence of a defendant or suspect in a criminal case, the witness will still go free,” Robert Bauer, a former White House counsel under Barack Obama, told me. “But the president could face impeachment. Congress is not bound by the requirements for formal legal liability: A High Crime as a basis for impeachment might overlap with the version in the legal system, but there is no requirement that it do. Congress makes its own determination in judging whether the president should remain in office.”
“Congress could pretty clearly use this as a basis for impeachment,” Martin Redish, a professor of constitutional law at Northwestern University, added in an email to me. “This isn’t just another controversial move by a controversial president. This is the first salvo in a war for the survival of American constitutionalism.”
Now, we do not know whether Trump will go through with something like this. We do not even know where special counsel Robert S. Mueller’s probe is heading. But the point is that members of Congress could be putting Trump on notice right now that if he does resort to such measures, Congress will not tolerate it.
“When it comes to this president’s trampling of our constitutional norms, silence is complicity,” Schiff told me. “People need to send a message to the president that the pardon power cannot be used as a way of preventing the implementation of justice when it comes to the Russia probe or any other.”
Schiff said that if a clear alarm is not sounded, the message Trump will get is that “he won’t face a political price or a constitutional crisis if he were to pardon anyone else who is a supporter of is, no matter what their violation may be.”
Obviously, Trump — who fired the FBI director over the Russia probe after reportedly demanding his loyalty, and publicly raged at his attorney general for failing to protect him from it — cannot be dissuaded from such a course of action via appeals to norms or to the rule of law or to any sense of obligation to the American public, which deserves a full accounting of the Russia affair. But Trump does appear to have a survival instinct of sorts that kicks in at moments like this: He reportedly was seriously considering trying to remove Mueller but was talked out of it by his staff.
And so, if Trump is persuaded that Congress will not tolerate it if Trump exercises pardons in the context of the Russia probe, perhaps he’d be less likely to go through with it, which could ultimately spare him from facing a congressional response. True, we can argue all day over whether Republicans actually would or wouldn’t impeach Trump if he went full authoritarian in this manner. But isn’t it in their best interests to do whatever they can right now to avoid a scenario in which they would be faced with this choice?
* TRUMP ORGANIZATION PURSUED MASSIVE RUSSIA DEAL: The Post scoops that Trump’s business organization sought to develop a massive tower in Moscow during the early parts of the campaign. Note this:
The details of the deal … provide evidence that Trump’s business was actively pursuing significant commercial interests in Russia at the same time he was campaigning to be president — and in a position to determine U.S.-Russia relations. The new details from the emails, which are scheduled to be turned over to congressional investigators soon, also point to the likelihood of additional contacts between Russia-connected individuals and Trump associates during his presidential bid.
The deal never came together, but that last bit suggests that this story will likely yield more revelations.
* UNDER TRUMP, DREAMERS COULD GET DEPORTED: Trump may be on the verge of killing Deferred Action for Childhood Arrivals (DACA), the Obama-era executive action that gives the “dreamers” work permits and protects them from deportation. The New York Times explains the consequences:
DACA has changed the lives of many beneficiaries, enabling them to qualify for financial aid for college, secure better jobs and open bank accounts. … if DACA ends, those who benefit from the program would again be eligible for deportation. And they would not be hard to find — the Department of Homeland Security has DACA and tax documents showing their addresses, which may also be the addresses of their undocumented parents.
That is another reason there will be great pressure on the GOP-controlled Congress to protect them legislatively, via some form of legalization. Trump is dumping this in Republicans’ laps.
* HURRICANE HARVEY WILL PUT MASSIVE PRESSURE ON TRUMP, CONGRESS: With catastrophic floods ravaging Texas, The Post reports that the White House and Congress will soon begin talks on a multibillion-dollar recovery package. Note this:
The storm comes as Washington was gripped with a budget battle and little time to resolve differences. Many government operations are funded through only the end of September, and Trump has threatened to partially shut down the government … Harvey could upend that budget fight, pressuring politicians to reach a quick resolution. That is because a government shutdown could sideline agencies involved in a rescue and relief effort that officials are predicting will last years.
One can only hope. As an aside, note that this could give Trump a way to justify not getting the funding for the wall that he has threatened a government shutdown over.
* DEMOCRATS EXPLOITING GOP ETHICS WOES: Politico reports that Democratic strategists are increasingly focused on the ethical transgressionS of individual GOP incumbents in the battle for the House:
Among the incumbents on their early target list are California Rep. Dana Rohrabacher, whose ties to Russian officials have come under scrutiny and was once warned by the FBI that Russian spies were trying to recruit him; New Jersey Rep. Rodney Frelinghuysen, who faces an ethics complaint from an outside watchdog group over a letter that some perceived as targeting an activist; New York Rep. Chris Collins, whose stock-market investments are under investigation … and California Rep. Devin Nunes, whose handling of classified information is being investigated by the House Ethics Committee.
It is often forgotten, but corruption was one of the big factors that led to the Democratic takeover of the House in 2006.
* WHY TRUMP PARDONED ARPAIO: Paul Krugman doesn’t mince words:
Arpaio, with his racism and authoritarianism, really is his kind of guy. … standing up for white people who keep brown people down pleases Trump’s base, whom he’s going to need more than ever as the scandals creep closer and the big policy wins he promised keep not happening.
This was sadly predictable, given the deafening cheers that greeted Trump’s hint at a coming Arpaio pardon at his recent Arizona rally.
* TILLERSON SEEMS TO DISTANCE HIMSELF FROM TRUMP: On “Fox News Sunday,” Secretary of State Rex Tillerson asserted to Chris Wallace that American values had not been diminished by Trump’s Charlottesville response. Then this happened:
WALLACE: And the president’s values?
TILLERSON: The president speaks for himself, Chris.
WALLACE: Are you separating yourself from that, sir?
TILLERSON: I’ve spoken – I’ve made my own comments as to our values as well in a speech I gave to the State Department this past week.
Tillerson not only appeared unwilling to vouch for the president’s values; he also would not say that they are in sync with American values.
* YEP, IT’S TRUMP’S PARTY NOW: McClatchy’s Katie Glueck talks to a lot of Republicans at the RNC’s summer meeting, and finds that most still fully embrace President Trump:
In conversations with RNC officials from across the country, gathered here at a sprawling resort this week, the vast majority of them expressed positive views of Trump, pointing to his help in fundraising for the party, his work on rolling back regulations and his appointment of Neil Gorsuch to the Supreme Court.
Never mind the weak condemnation of white supremacy; the incessant lying about immigrants; the nonstop erosion of our norms; and the relentless profiting off the presidency. The deregulation, SCOTUS seat and (expected) massive tax cuts for the rich make it all worthwhile.