It is a measure of how low we’ve sunk that if this is all that occurred in connection with this demand — that is, if all Trump did was press his officials to break the law in this fashion — we should probably consider ourselves lucky.
House Democrats are set to initiate an investigation that could illuminate this area of Trumpian misconduct in new ways. Unfortunately, administration officials could still drag their feet aggressively in response to Democratic demands, which could frustrate efforts to gather even the most basic facts about it.
On Friday, CNN reported that Trump may have offered a pardon to his acting homeland security secretary, Kevin McAleenan, if he got in trouble for carrying out Trump’s border-closing directive.
Relying on two sources, CNN claimed that during a visit to Calexico, Calif., Trump privately told border agents not to let in any more asylum seekers. Those agents then asked their higher-ups for guidance and were informed that they have to follow the law.
Trump also told McAleenan that he’d pardon him if he got in trouble for getting his border agents to do this, senior administration officials told CNN. The New York Times reported a similar story.
It should be noted that Trump denied the claim, and that CNN and the Times both clearly stated that this might have been a joke.
House Democrats on the Judiciary Committee are not treating this as a joke.
In a new letter, they demand that McAleenan make himself available to the committee for questioning about this matter. And they’re also looking into reports that Trump also pressured his former homeland security secretary Kirstjen Nielsen to close the border in violation of the law. Her refusal to do so was reportedly one reason Trump ousted her.
Democrats request the following information:
1. A list identifying all Department employees present for your meeting with President Trump in Calexico, California on or around April 5, 2019. ...
2. A list identifying all Department employees present for President Trump’s April 5, 2019 meeting with border patrol agents, including but not limited to any DHS personnel instructed by President Trump to not let migrants into the country.
3. Documents and communications relating to Secretary Nielsen’s meeting with President Trump on or about March 21, 2019 to discuss reinstating the zero-tolerance policy and closing the U.S. Mexico border at El Paso, Texas.
The letter also demands that any of these others who might have witnessed these conversations should be prepared to testify as well.
Now, it’s true that a president’s pardon power is near absolute. But as the letter from Democrats points out, Trump has exhibited a “troubling pattern of conduct that has emerged over the past two years that appears to demonstrate” that he “views the pardon power as a political tool, or even worse, as an expedient mechanism for circumventing the law or avoiding the consequences of his own conduct.”
That is what might be at stake here. If the story about McAleenan is true, Trump didn’t merely demand that he (or his border agents) break the law; he also dangled a pardon as a way for his subordinate to avoid accountability for it later, compounding the corruption.
“It would certainly be an abuse of presidential power,” Daniel Hemel, a professor at the University of Chicago Law School who co-wrote a good paper on whether the pardon power can be abused, told me. “The Constitution requires the president to take care that the laws be faithfully executed. If Trump said what he is reported to have said to McAleenan, then he tried to use his presidential power to see to it that the laws aren’t executed.”
To be clear, this really might have been a joke. Of course, one might ask whether a boss can really “joke” with a subordinate about such a matter without the latter wondering whether that “joke” was really a tacit command. After all, former fixer Michael Cohen has told us that Trump developed, shall we say, sophisticated ways of communicating orders (such as lying about his ongoing dealings with Russia) while maintaining plausible deniability about having done so. Still, let’s put that aside for now.
Notably, Democrats are also demanding that McAleenan and other officials testify to the question of whether Trump ordered subordinates to break the law by closing the border to asylum seekers, irrespective of whether any pardon was dangled.
That alone would be a pretty grave act of misconduct. As the letter from Democrats points out:
The President’s directive to close the Southern border entirely would also run counter to the executive branch’s duty to faithfully execute the law. When Border Patrol Agents encounter “aliens” who are crossing between ports of entry, they are already on U.S. soil. Under section 235 of the Immigration and Nationality Act, any “alien” who is “present in the United States” regardless of how they entered are applicants for admission and have the right to seek asylum.
The letter adds that our obligations under international law require this, and that “to instruct DHS officials to do otherwise would explicitly violate these provisions and the law.”
Now, we know that Trump has little patience for international law and hates such constraints. He has openly mused about getting rid of immigration judges — that is, doing away with due process for asylum seekers entirely — and has regularly railed about the need to provide that due process. So it would not be at all surprising if he did command his top officials to break the law in this fashion.
And once again, if this is all that happened, we might consider ourselves lucky that it wasn’t worse.
It is of course possible that this did not happen at all. In that case, you’d think these officials would be eager to tell Congress so. We will see if that is to be, and how eager the White House is to permit them to appear and clear all this up.