A “constitutional crisis” is generally defined as a problem for which a country’s founding documents don’t contain a solution, or they do, and the solution is ignored.
Five Thirty Eight breaks down this concept even more, delineating four types of American constitutional crises: when the Constitution doesn’t say what to do, when it does but in an unclear way, when it does but it’s not feasible or possible, and when it does and the institutions meant to enforce that solution are bypassed.
Pundits have been predicting a Donald Trump administration constitutional crisis since day one, from his flouting of the emoluments clause to his firing of former FBI director James Comey, to the potential firing of Robert Mueller.
But with Trump’s pardon of loathsome former Maricopa County Sheriff Joe Arpaio, convicted of contempt of court for refusing to stop violating the constitutional rights of Latinos, we likely got a glimpse of the constitutional crisis to come.
To recap, Arpaio is an unrepentant racist who kept jail inmates in an outdoor tent city described as a concentration camp. He’s also a birther and was an early, outspoken supporter of Donald Trump when few legitimate politicians would touch him.
Trump’s pardon of Arpaio flouted every norm that went with presidential pardons and undercut the federal justice system. But it also tipped Trump’s hand.
It now seems apparent that no matter what kind of indictments Robert Mueller’s grand juries return against the conspirators in Russia-gate, Trump will pardon them. He’ll likely do it for everyone, instantly, with no consultation with anyone other than the rapidly shrinking circle of sycophants Trump has cocooned himself within.
Trump has insisted that presidential pardon power is “absolute,” and U.S. law mostly agrees with him. Previous cases have established that the president can pardon anyone, even without a criminal charge. Gerald Ford pardoned Richard Nixon, even though Nixon hadn’t actually been indicted for any Watergate-related crimes.
However, this is much different than a president whose closest cronies are facing legal trouble using pardons as a minefield to keep criminal charges out. It might be allowable, but it’s also crystal clear abuse of power, and therefore grounds for impeachment, as both the Founders and subsequent legal decisions have found.
When asked if a president with pardon powers might “may frequently pardon crimes that were advised by himself” and thereby “stop inquiry and prevent detection,” James Madison starkly laid out the punishment any such president would face.
“If the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him,” Madison said at the Virginia ratifying convention, “the House of Representatives can impeach him; [and] they can remove him if found guilty.”
What even James Madison’s brilliance couldn’t anticipate, however, was a political party that sheltered such a president.
Like almost every norm-shattering behavior by President Trump, the Arpaio pardon was met with either mewling descriptions of how troubling the behavior was, or silence.
A pardonpalooza of every crony Trump worked with during his many years of entanglement with Russia would be as obvious an abuse of the constitution as anyone could possibly imagine. It is both legal and punishable.
The remedy is impeachment. But the body charged with it, the House of Representatives, is controlled by Republicans who are either too scared of Trump or desperately hoping the base who supported him will support them in the 2018 midterms. So they do nothing.
Hence, the constitutional crisis.
It’s likely that Mueller, his team, and the FBI investigators putting the case against Trump together know this. And by pardoning Arpaio, Trump has shown his willingness to thwart their work. They’ll likely act accordingly.
Imagine this nightmare scenario: Mueller’s grand juries return indictments against just Paul Manafort and Michael Flynn.
Trump responds with blanket pardons for the both of them, denouncing Mueller’s charges as a fake news witch hunt.
By accepting pardons, Flynn and Manafort have now waived their right to refuse to testify in relation to the crime they’ve been pardoned for. So now they have to testify against others in Trump’s family for their roles in Russian collusion.
Let’s just say they refuse, knowing POTUS has their back, and are slapped with contempt of court charges. Naturally, Trump pardons them again. They’re subpoenaed again, refuse again, are charged again, and are pardoned again.
How long does this absurd cycle play out? How much will Congressional Republicans tolerate before they put an end to the madness?
Will they tolerate blanket pardons that essentially acknowledge Russians helped put Trump in power and nobody can do anything about it? Will they tolerate Trump firing Mueller? How about suspending the 2018 midterm election to stop Democrats from winning? Dissolving Congress because only they can stop Trump’s reign of terror?
The crisis might not be here yet. But at least we know what shape we should be watching for emerging from the fog.