Outrageous presidential conduct has to be countered, and not just criticized, or it will become the new normal.
So congressional Republicans decrying President Trump’s Friday night pardon of former Arizona sheriff Joe Arpaio might as well save their breath. Unless they’re willing to do something about it — through censure or impeachment, legal challenge or constitutional amendment — the ritual GOP scolding after each Trump affront to the rule of law is increasingly hollow.
Presidents have issued controversial pardons before — Gerald Ford letting Richard Nixon off the hook for Watergate, George H.W. Bush pardoning Caspar Weinberger for his Iran-contra crimes, or Bill Clinton pardoning fugitive Marc Rich. But Trump’s reprieve for Arpaio appears to belong in a category by itself.
Arpaio never expressed remorse, and did not seek a pardon through normal Justice Department procedures. But those are minor quibbles compared to the grave constitutional implications of Trump’s action.
Arpaio, the longtime sheriff of Maricopa County known for his mistreatment of prisoners and harassment of immigrants, was awaiting sentencing on contempt charges, stemming from his refusal to obey a federal court’s order that he stop discriminating against Latinos. As constitutional law experts have argued, to pardon a law enforcement officer convicted of ignoring a federal court order undermines constitutional guarantees. If the president sends the message that court orders are unenforceable, he effectively nullifies them.
Republicans in Congress, fearful of crossing Trump, haven’t done anything more drastic than cluck about their deep concern. But there are remedies, for lawmakers interested in safeguarding due process.
Some scholars have argued that the due-process guarantees in the Constitution could provide grounds for federal courts to invalidate the pardon. That’s a definite long shot, but it may be worth pursuing. During the Obama administration, the GOP Congress went to court in an effort to stop some of former president Barack Obama’s directives, and could do so again now.
The Constitution can also be amended in response to presidents who disregard traditional norms. For instance, for more than a century presidents observed term limits voluntarily. After President Franklin Roosevelt violated that tradition by serving a third and part of a fourth term, Congress and the states amended the constitution. Similarly, past presidents have always accepted unwritten limitations on the pardon power, but if this president rejects them, Congress and the states could seek a constitutional amendment.
Or, Congress could censure or impeach the president for abuse of power. Like the power to pardon, the power to impeach is essentially unlimited. The argument for impeachment is not far-fetched at this point: Trump has clearly abused his power by short-circuiting justice in the Arpaio case.
House Speaker Paul Ryan and Arizona Republican senators, John McCain and Jeff Flake, put out pro forma statements tsking-tsking the president after he issued the pardon. But unless they and the rest of their party do something substantively about Trump’s abuses, the precedent will be set that any future presidents can let officials he favors ignore the Constitution without consequence. And if someday that’s a Democratic president misbehaving, the GOP leadership that now controls all the levers of power in Washington will have only itself to blame.