Donald Trump is an instinctive authoritarian who came into office lacking even a rudimentary understanding of government. But he is beginning to grasp the potentialities available to a despotically inclined leader, and the tool that has most excited him is the pardon power.
The Washington Post reports that President Trump has instructed his subordinates to break any laws they have to in order to complete his wall by Election Day. “When aides have suggested that some orders are illegal or unworkable, Trump has suggested he would pardon the officials if they would just go ahead,” the Post reports. “He has waved off worries about contracting procedures and the use of eminent domain, saying ‘take the land,’ according to officials who attended the meetings.”
It is important context to understand that the wall project itself is an attack on the separation of powers. The power to allocate funds for a domestic project like a border wall belongs to Congress — a fact nobody on either side even disputed until recently. Trump’s ineptitude as a negotiator prevented him from securing the funds even though Democrats were open to making such a deal (“I would lay bricks myself,” Democratic Rep. Luis Gutierrez said last year, “if I thought it would save the Dreamers.”) So he seized the power himself on the basis of a trumped-up military emergency.
The Post story notes the pretext that the wall is needed to ameliorate a border crisis is not Trump’s actual motive. The surge in asylum seekers involves people crossing the border legally and openly. “Trump conceded last year in an immigration meeting with lawmakers that a wall or barrier is not the most effective mechanism to curb illegal immigration, recognizing it would accomplish less than a major expansion of U.S. enforcement powers and deportation authority,” the Post notes, “But he told lawmakers that his supporters want a wall and that he has to deliver it.” Hence the election-related deadline.
Trump has previously directed border officials to violate the law and promised to pardon them in advance. CNN reported in April that Trump told Customs and Border Protection commissioner Kevin McAleenan to block asylum seekers from entering the country in violation of U.S. law, promising him a pardon.
Trump has already used his pardon power liberally to reward political allies, pardoning right-wing heroes like Joe Arpaio, Conrad Black, and Dinesh D’Souza. Last spring, CNN reported that Rudy Giuliani’s lawyer dangled a pardon in front of Michael Cohen if he would perjure himself to protect Trump. The implicit (or possibly explicit) promise of a pardon has likely encouraged Roger Stone and Paul Manafaort — the two Trump agents in most direct contact with Russia’s election operation — to withhold cooperation from the Mueller probe, thereby permitting Trump’s campaign to avoid conspiracy charges.
But the presidential pardon’s truly fearsome power is its potential to not only protect past crimes but to enable new ones. The pardon authority is a kind of wormhole in the Constitution that opens up absolute impunity from the law for the president and his supporters. Once he has crossed this threshold unpunished, every subsequent violation will just be a matter of detail.