Lurching Toward the First Constitutional Crisis Since the Civil War


A couple of days ago, Bill Moyers shared an email from “an old friend” of his and although it is likely too close to reality for comfort, it does accurately portray part of Trump’s motivation in pardoning the self-styled fascist Joe Arpaio. The quoted email was an introduction to an article suggesting that Trump was creating aconstitutional crisis;a term many Americans have heard far too many times since Trump’s sparsely attended inauguration. For perspective, one normally only hears the term “constitutional crisis”  in a university-level history class studying the Civil War.

The email Mr. Moyers shared was from “one of the country’s top trial lawyers.” It said, in part:

“I have underestimated Trump. He knows what is coming, including a variety of criminal charges and other impeachable offenses. He is not just arousing his base to anger, but to arms, some of them. There is no other way to explain the transgender ban, the Arpaio pardon, his Charlottesville remarks…”

Now everything one of the nation’s “top trial lawyers” wrote is true, and this author fundamentally said the same things in a couple of overly-wordy columns here and here. As Trump’s popularity, or lack thereof,  continues declining, he is going to get increasingly proactive and incite his white evangelical fascists to his defense; they are all he has left.

But there is another danger in Arpaio’s pardon and it does represent a constitutional crisis without a remedy because Republicans are too terrified of crossing Trump to put him out of the White House and out of the nation’s misery.

As the author of a book on France under fascism, Charles Kaiser asserted, what Americans are experiencing today is “exactly what incipient fascism looks like.” Most Americans comprehend that Trump’s unrelenting assault on the press, inflaming Nazis and heartening racists, and now pardoning an acknowledged serial civil rights abuser and brazen racist are indeed “acts of a man who is blatantly defying his sacred pledge to uphold the Constitution of the United States.” But those Americans likely don’t comprehend that Trump’s defiance of the Constitution portends the naked fascism lurking on the horizon.

Arpaio’s pardon is wrong on myriad levels; only racists, evangelicals, most Republicans, and Trump believe otherwise.  But it was deliberately “wrong” to send a very clear message that Trump has no regard for, and no intent to ever adhere to, the rule of law or the U.S. Constitution. It was bad enough when it was Arpaio violating the rule of law and the Constitution with impunity, but when it is the monster in the White House it is a constitutional crisis that Republicans show no willingness to thwart.

Look, Trump didn’t even wait for Arpaio to be sentenced, or go through the normal Justice Department channels necessary to petition for a presidential pardon; Trump just said Arpaio was treated “very unfairly” and was only punished for “doing his job.” It is tantamount to saying that refusing to adhere to a constitutional federal court order is legal if it comports with Trump law.

Of course the pardon is a signal to every racist law enforcement officer, and armed white supremacist vigilante, that rounding up innocents and abusing them is legal, and just their job. But more than that it is a message to America that Donald J. Trump is now the law of the land; it is fascism and the act of a tyrannical dictator that Republicans will not regulate. As Charles Kaiser rightly asserted, Trump pardoning Arpaio “is the latest and gravest step he has taken in his continuing efforts to undermine the rule of law.”

Mr. Kaiser is not the first legal expert to explain that although Trump reveled in inciting his racist supporters, “it is not the main reason for this heinous act.”  Kaiser and several other legal authorities expect that Trump is signaling to all of his current and former underlings and family members that they too are under no obligation to adhere to the law, or the Constitution, or a summons from Special Counsel Robert Mueller III. If they are held in contempt by Mr. Mueller or a congressional committee investigating Trump’s ties to Russia for not cooperating, they can ignore any risk or threat of jail time becauseTrump will pardon them.

America has been in a constitutional crisis since the day Trump was inaugurated and it is down to one simple fact; he was always intent on using the authority of the Oval Office solely to benefit himself. Whether it is profiting by keeping his “vast business empire” or keeping his friends out of jail, Trump has abused the federal government office he has no right holding.

By giving Arpaio a pardon, Trump showed Americans, Congress and the Judiciary that he will use his authority to keep a political ally, former underling, mafia friend, or family member out of jail no matter the severity of their crimes. What Trump accomplished in pardoning an evil monster was “obliterating any lines that remain between the chief executive [Branch] and an independent system of justice.

Trump is now the system of justice according to his executive authority and Republicans are complicit for accepting this atrocity as life in Trump’s America. Trump will certainly pursue neutering the legislative branch when the opportunity presents itself to consolidate all federal government power in his tiny little hands; it is what fascist dictators do as a matter of course.

In pardoning Arpaio, Trump incited his racist supporters to his defense, legalized civil rights abuses and detainees’ murders, and created a “class of citizens who are above the law;” including all of his administration’s cronies and particularly himself. It is what any semi-intelligent human being would call a fascist dictatorship. Americans will call it the first honest-to-dog “constitutional crisis” since the Civil War.