The GOP Can and Should Uphold the Rule of Law Before Trump Pardons Himself
The fear of a constitutional crisis has reached a fever, and for good reason. Observers looking for signs that President Trump would never seriously consider pardoning himself in connection with the Russia collusion investigation had little comfort over the weekend. On Saturday, the president publicly asserted his right to pardon on Twitter, while also suggesting that it’s unnecessary at this stage. “While all agree the U.S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us,” he wrote. “FAKE NEWS.”
It’s possible that this is just posturing from a president worried that Robert Mueller’s investigation will expand beyond Russia to the president’s businesses and financial dealings. But Trump has made clear that he’s prepared to fire Mueller and has been building a case for just that. His idle talk about pardons could just as easily be a signal of future action, preparation ahead of a move to sack Mueller and stymie the Russia investigation. The firing of James Comey was instructive. Shocking in the moment, it is clear—in hindsight—that Trump had been exploring the possibility beforehand. Removing Mueller in an effort to halt an investigation would be a stunning abuse of power, but that doesn’t mean Trump won’t do it.
Looking at the odds for this scenario, it’s hard to escape the feeling of incipient crisis, the sense that we’re just waiting for the shoe to drop and for Trump to take the action that calls our constitutional order into question. Yes, the Constitution has a clear mechanism for dealing with chief executives who abuse the power of their office: impeachment. If a “constitutional crisis” is supposed to signal a problem of authority or legitimacy with no obvious solution, then it’s not clear the term narrowly fits. But if we broaden that definition to include scenarios where key actors have abdicated their constitutionally defined roles, then yes, we might be looking at a crisis.
This is where the Republican Party’s slow-to-nonexistent alarm about presidential wrongdoing comes in. The founders assumed that the two lawmaking branches of government would be somewhat antagonistic to each other. Congress would want to protect its independence and keep the executive from encroaching on its prerogatives; the president, in turn, would clash with a legislature that had its own interests and goals and where individual members could potentially hold a great deal of power. Congressional self-interest works as a check against presidential action—legitimate or otherwise—as long as lawmakers prize their chamber’s independence, or even the needs of their constituents, over partisanship or ideology. A senator who is committed to preserving the influence of the Senate as a body might push against a president who is encroaching on that influence, even if they share a party and a general worldview.
There are lawmakers who fit that bill. But at this point it is clear that Republicans in Congress are more interested in advancing party goals than preserving Congress as an institution. (The drive to repeal Obamacare is a case in point.) It’s why the reaction to Trump’s misconduct has been mooted or met with words but not actions. It’s not just with Russia. There’s little question that Trump has used the stature and influence of the presidency to enrich himself and his family members. Since entering office, Trump has integrated his daughter into his administration, allowing her to pursue business interests while ostensibly representing the United States. And he regularly holds official business at his resorts and hotels, with public dollars going directly into his pockets. Any of these should be shocking on its own. Yet in every case the Republican-controlled Congress has been silent, content to let the president profit as long as he serves to promote its agenda.
For Republicans, to sanction Trump in any way would be to harm their broader agenda. That narrow commitment to conservative ideology and partisan interest is the barrier to presidential accountability. And it’s not new to this presidency. That commitment led Republicans to embrace Trump as a presidential nominee even as he showed a clear contempt for the democratic process. During the Obama presidency, that commitment led Republicans leaders to a stance of categorical opposition, including a series of norm-breaking confrontations—from the debt ceiling showdown to the blockade of Merrick Garland from the Supreme Court—in service of a radically anti-government ideology.
Those choices were politically successful in partisan terms, delivering two successive midterm election waves, but in strengthening the hand of the conservative base (as well as the billionaire donors who built an infrastructure for that base) they also weakened party leaders’ ability to act as gatekeepers, creating the space for someone like Trump. If we are facing a kind of constitutional crisis, where an ultrapolarized, hyperpartisan Republican Party is short-circuiting the mechanisms for accountability, what we’re seeing may be the acute manifestation of trends that stretch back to the “Republican Revolution” of 1994 and the advent of a no-compromise form of political warfare that disdained norms, attacked institutions, and cultivated white racial and cultural resentment.
Six months in, the Trump administration has been extraordinarily transgressive, showing contempt for the norms and standards that govern much of American politics. But for many Republicans, Trump has yet to cross the line into outright lawlessness—an odd belief given the recent monomaniacal focus on Clinton-related scandals like Benghazi. Writing for the Atlantic, McKay Coppins quotes a “senior GOP aide” who described allegations of Trump collusion with the Russian government as “partisan noise.”
“Is there a cybersecurity issue here that needs to be taken more seriously? Absolutely. But,” he added with a scoff, “democracy is not dying in darkness.”
Not yet, perhaps. But a world where the president stops an official investigation to avoid scrutiny of himself and his family—one where he uses his power to pardon anyone facing criminal charges—is one where democracy is actually at risk. In that world, Republicans will have to decide if their loyalty lies with rule of law or simply to their party. Trump hasn’t pardoned himself, or even fired Mueller, but if we are embroiled in a kind of slow-moving, years-long crisis—one that has flared up at points, with Republicans either driving confrontation or provoking fights over political legitimacy—then these issues are already of live concern. And they demand action before the crisis gets worse.
If the Republican Party is the proximate cause for this crisis, if its fateful choice to embrace Trump brought us to the present situation, then it seems foolhardy to turn to it for assistance. But there are few other choices. The next national elections aren’t for another year, which means partisan accountability won’t be possible until January 2019 at the earliest. The GOP is it—for now.
With that said, Republicans don’t have to abandon their agenda. But they can act to preclude further damage to our democracy. Donald Trump often floats ideas before takes action, testing boundaries before he crosses lines. We don’t know if his recent statements and inquiries about the Russian investigation are part of that pattern, but we also know he may back off if shown the backlash he would face. If Republicans want to preclude a major showdown with the president, they can reaffirm those boundaries as they exist. Congress can pre-empt Mueller’s firing by passing legislation to reinstate him should he be removed, and they can take steps to rein in Trump’s actions as president. Already, Republican lawmakers have worked with Democrats to put Russian sanctions into law, a directly oppositional move toward Trump. They can also make selective threats about impeachment to make clear there is behavior they will not tolerate.
Americans tend to talk about checks and balances as if they were mechanical—an automatic process that asserts itself in the face of wrongdoing. The opposite is true. Checks and balances have to be realized by action. Until then, they are just words on paper. The only question is whether Republicans believe they are worth realizing before the choice truly becomes all or nothing.
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