Trump’s Unpardonable Challenge to the Constitution

The president regards the border as a lawless space, where courts have no purchase and the only thing that matters is strength of will.

Donald Trump speaks next to then-DHS Secretary Kirstjen Nielsen as he visits the U.S.-Mexico border wall in Calexico, California, U.S., April 5, 2019.
Trump visits the border wall in Calexico, California. (Kevin Lamarque / Reuters)

Updated at 7:35 p.m. ET on April 12, 2019.

Speaking at a U.S. Border Patrol station in Calexico, California, on April 5, President Donald Trump announced his ideal immigration policy: “Our country is full,” he said. “Our area is full. The sector is full. Can’t take you anymore, I’m sorry. Can’t happen. So turn around. That’s the way it is.”

His comments were widely denounced at the time, evoking skepticism along with horror from many of his political opponents. But it turns out that Trump’s time in Calexico was even more eventful than had previously been reported. According to CNN, Trump told Border Patrol agents to turn back people seeking asylum; if they faced resistance from the courts, he said, agents should respond, “Sorry, judge, I can’t do it. We don’t have the room.”

Now both CNN and The New York Times have reported that Trump also personally instructed then–Customs and Border Protection Commissioner Kevin McAleenan to block asylum seekers, saying that if McAleenan faced jail time as a result of those actions, Trump would pardon him. The Times adds that Trump told McAleenan to go around then–Secretary of Homeland Security Kirstjen Nielsen, who had refused to implement a ban on asylum on the grounds that it was illegal. Two days later, Nielsen was forced out; McAleenan was then appointed acting secretary in her place.

A lot remains uncertain about this story. To begin with, the Department of Homeland Security has issued a statement declaring, “At no time has the president indicated, asked, directed or pressured the acting secretary to do anything illegal. Nor would the acting secretary take actions that are not in accordance with our responsibility to enforce the law.” CNN and the Times both quote an unnamed official suggesting that the president might have been joking in his comments about pardons—a comment that has more than a hint of the insistence at the Justice Department that Deputy Attorney General Rod Rosenstein was joking in his comments about wearing a wire to record the president. And while “closing the border,” as the Times puts it, is legally questionable, there is no reason to think that any administration official would face criminal sanctions over the matter.

With all that said, Trump’s reported comments betray both his vision of the border and his understanding of the rule of law, revealing his fundamental incompatibility with the office of the presidency.

I’ve written before on Trump’s bleak vision of the border as a space outside law—or at least outside how law is usually understood in liberal democracies. He has repeatedly characterized the boundary between the U.S. and Mexico as a desert of brutal and routine violence, an imagined space more reminiscent of the Orson Welles border-noir film Touch of Evil than any real place. At a roundtable in San Antonio, Texas, just days after the Calexico remarks, Trump described cities littered with dead bodies and ranchers afraid to go out at night without carrying a gun. In Trump’s understanding, the chaos of the border is so great, the danger of allowing asylum seekers and other immigrants entry into the United States so vast, that securing the border is a matter of existential importance to the future of the country.

If you follow this reasoning, it makes sense that the government would be justified in doing almost anything to protect the nation from descending into the orgy of violence and lawlessness represented by what Trump calls “open borders”—even, paradoxically, breaking the law. This vision evokes the bleak thesis of the prewar German legal theorist Carl Schmitt, who notoriously argued that all law ultimately boils down to a single, unreviewable moment of sovereign decision. The “sovereign,” as Schmitt puts it, “is he who decides on the exception”—the exception being the state of emergency under whose pressure the regular order crumbles. Schmitt’s sovereign acts with all the power of the law, but with none of its constraints.

Schmitt, who later aligned himself with the Nazi Party, is a less-than-wholesome prophet for a liberal democracy. But take his writing on exception, apply it to an administration still best characterized by what my colleague Benjamin Wittes termed “malevolence tempered by incompetence,” and you have a useful framework through which to understand Donald Trump’s approach to the border: a space where the power of the state is at its strongest in its ability to exercise force without the constraint of law, and yet always, fundamentally, under existential threat.

All this comes crashing together in the reports of Trump’s comments to McAleenan. The New York Times describes Trump’s directive as having been to “close the southwestern border.” From context, and read alongside CNN’s reporting, this seems to mean that the president would like to block any further applications for asylum. Under Nielsen, the Department of Homeland Security has already tried to prevent people who cross into the United States outside designated ports of entry from seeking asylum (while simultaneously limiting the number of people who could present themselves for asylum at those ports). What Trump wants to do, as far as the sparse details available suggest, is extend that to bar anyone from seeking asylum, even at a port of entry.

The problem here is that the limitations on asylum have already been held up after both a district court judge and the U.S. Court of Appeals for the Ninth Circuit found they likely violated the Immigration and Nationality Act. (The Ninth Circuit’s order was authored by Judge Jay Bybee, a former George W. Bush administration official and no liberal squish.) The administration has also run into legal trouble in its efforts to make most asylum seekers wait in Mexico for the adjudication of their asylum claims; a judge blocked the policy from going into effect earlier this week. (Shortly after this piece was published, the Ninth Circuit temporarily allowed the administration to move forward with its plans as the case continues.) Any effort to fully seal off the border from further asylum claims would run into similar legal problems.

But for Trump, this is no problem: The border is a lawless space, where courts have no purchase and the only thing that matters is strength of will. His offer to pardon McAleenan is similarly Schmittian. The pardon power, I’ve argued in the past, evokes the state of exception. The sovereign declares, as a matter of pure discretion, who may be freed from the normal trappings of the law. It’s not a coincidence that Trump’s first use of the power was to pardon former Sheriff Joe Arpaio, convicted of contempt of court and well known for his vile treatment of detainees in an ostensible effort to deter illegal border crossings. In the Arpaio pardon, and in the reported offer to McAleenan, the border and the pardon power both exist outside the rule of law.

Again, there is little reason to think that McAleenan would need a pardon in the first place, even if he did carry out Trump’s order to violate the law. But Trump’s comments are striking because they make clear where Trump’s channeling of Schmitt runs up against the Constitution. He swore an oath to “faithfully execute the Office of President of the United States,” and to the best of his ability, “preserve, protect and defend the Constitution of the United States.” It is hard to see how asking an official to violate the law, and promising a pardon to mitigate the risk of doing so, is consistent with a defense of the Constitution—not to mention the similar obligation the Constitution places on the president to “take care that the laws be faithfully executed.”

It is entirely reasonable to ask whether this, in itself, is an impeachable offense. Jamal Greene, a professor at Columbia Law School, sparked discussion on Twitter as to whether Trump’s actions might fall afoul of the Constitution’s requirement that the president “shall be removed from Office on Impeachment for, and Conviction of … Bribery”—the pardon being the bribe offered. The legal scholar Charles Black, in his 1974 Impeachment: A Handbook, suggests that a president’s choice to pardon “all government police who kill anybody under any circumstances” would be impeachable insofar as it is “obviously wrong, in [itself], to any person of honor.”

The great irony is that, while the president’s words shift the country toward the edge of law and arguably bring him within the bounds of impeachment, at the same time they have no power at all. According to CNN, after Trump told Border Patrol agents to disobey judges’ orders, the agents’ supervisors informed them not to follow the president’s instruction. When I read this, I thought of my colleague Jim Baker’s point that the Department of Justice has come to routinely disregard what would seem to be binding legal determinations made by the president—for example, Trump’s tweets that what his former lawyer Michael Cohen did was not a crime. “What does [it] mean for the rule of law in the United States,” Baker asked, that officials so often ignore the president’s statements on matters of law?

Today’s story on Trump’s exchange with McAleenan raises another question: What would it mean for the rule of law in the United States if officials listened?