What can Congress do if the president uses the pardon power for political purposes? The answer, unfortunately, is "not much."
I have spent the better part of the past 24 hours trying to make sense of Donald Trump’s presidential pardon of former Arizona Sheriff Joe Arpaio. And for the love of me, I cannot understand it.
Perhaps that’s a good sign. Those who are supportive of this move aren’t exactly the type I want to associate myself with.
Trump made hints of the pardon earlier in the week when he said, “I think he’s going to be just fine.” That should have been a sign to us all that the president was going to go through with the unthinkable — pardoning a man who, by all accounts, performed the duties of his office in a way that violated the rights of Latino citizens, unfairly targeting them at traffic stops, and forcing his prisoners to endure unspeakable punishments (sitting in a tent in a scorching hot desert, for instance).
To most sane individuals, those methods of upholding “law and order” betray the tenets set forth by our founders — that all men are created equal, and that those paying their debts to society shouldn’t have to endure “cruel and unusual” punishments. Our nation hasn’t always been perfect in adhering to these principles, but in 2017 a higher standard is expected of us.
That standard doesn’t apply to Arpaio according to Trump, and the reasons why are a damning indictment of just how terrifying the implications of this pardon really are. The reason the president made this pardon isn’t because Trump believes the sheriff didn’t commit a crime, or that the actions were forgivable, but rather that the two are political allies, and nothing more.
Arpaio backed Trump during the 2016 campaign season, oftentimes speaking at his campaign rallies in support of the Republican nominee. But their relationship goes even further back, to the heyday of Trump’s birtherism claims against then-President Barack Obama:
— Donald J. Trump (@realDonaldTrump) July 18, 2012
In fact, it is because of his relationship with Arpaio, the two backing each others’ causes, that Trump likely made this an issue at all. I cannot imagine that Trump would have pardoned Arpaio if the latter hadn’t been an ardent supporter of the former’s presidential campaign.
And that’s obviously a problematic issue — a pardon is supposed to correct a wrong. It’s not supposed to be a helpful “get out of jail free” card for you to use when your friends or members of your family commit crimes, yet that’s just what Trump used it for. Although presidents have misused pardons in the past also, Trump’s move this weekend takes it to heights never imagined, never dreamt of in the modern age of American politics.
(As an aside — Trump’s supposed “tough on crime” demeanor is completely challengeable now. Arpaio clearly committed a crime, for which a conservative judge found him guilty. Trump’s pardon says that those crimes don’t matter, a violation of his own ideals to have those who should go to jail should serve their time.)
In the future, Trump could use the pardon to allow more unimaginable acts, such as shielding his closest confidantes from having to obey subpoena orders for the Russia investigation, or to even pardon white nationalists who commit acts of violence. There’s no telling to what extent this president may abuse the pardon power in the future.
The problem may not be of Trump’s own making. When I was younger, as a student of the Constitution, it always struck me as odd that the president’s pardon power received no checks or balances, unlike some of his other executive privileges.
A veto can be overturned, and although he’s commander-in-chief, the president does not have the ability to declare war. But a pardon can be made for any — or no — reason at all. That’s a peculiar power for the president to have, and my younger self imagined it could lead to some crises if not kept in line.
Fortunately for much of our past, the pardon power hasn’t been abused to such a degree. But Trump is now testing its limits, securing pardons for his political friends like Joe Arpaio, who clearly and unapologetically violated the rights of American citizens. This cannot be tolerable, and if it requires a Constitutional amendment to remedy, so be it.
But the better, and faster alternative may be the removal of Trump from the executive branch. Unfortunately, it may not be that the president can be impeached for this action, of pardoning for political purposes. The power of pardon is only limited to restrict the president from doing so in cases of impeachment itself, and the president cannot be impeached for anything less than “high crimes and misdemeanors.” Congress, even if it wanted to punish the president, may only be allowed to censure him in this case, a slap-on-the-wrist solution that won’t amount to anything.
Yet something has to be done. This president is presenting us with more and more Constitutional crises by the week, and by the end of his first year in office we may be dreading the founders’ ill-conceived failure to allow the non-violent removal of the president by means other than impeachment.