Report: Trump told DHS official he'd pardon him if he got into legal trouble for blocking immigrants from entering

Old impeachment theory: The House is going to impeach Trump over Russiagate.
Current impeachment theory. The House is going to impeach Trump over whatever’s hiding in his tax returns.
Coming impeachment theory: The House is going to impeach Trump for inducing lawbreaking by his own cabinet.

Between this and the reports last week of Trump encouraging border agents to ignore the courts if they’re told to continue admitting asylum-seekers, we’re destined for House hearings on whether he’s breaching his duty to “take Care that the Laws be faithfully executed.” Imagine how excited acting DHS secretary Kevin McAleenan must be about not only inheriting a department that’s facing a crisis at the border without any permanent appointee in its top three positions but maybe soon having to testify before the House about whether the president tried to get him to break the law.

During President Donald Trump’s visit to the border at Calexico, California, a week ago, where he told border agents to block asylum seekers from entering the US contrary to US law, the President also told the commissioner of Customs and Border Protection, Kevin McAleenan, that if he were sent to jail as a result of blocking those migrants from entering the US, the President would grant him a pardon, senior administration officials tell CNN…

It was not clear if the comment was a joke; the official was not given any further context on the exchange.

Right, the defense will be that Trump was joking, but (a) the border agents whom he told to ignore the courts allegedly took him seriously enough that they asked their supervisors what they should do and (b) the “joke” defense was stronger before he confirmed that he really is thinking of dropping illegals off in blue districts despite the objections of ICE lawyers. Also, note that CNN cites “senior administration officials” — plural — for its scoop. More than one person heard what he said and no one seems to have clearly understood him to be kidding.

The NYT is also reporting this afternoon that Trump offered McAleenan a preemptive pardon for actions taken at the border, citing three sources. One of those people agreed that it was unclear if Trump was joking but noted that his comment “alarmed officials at the Department of Homeland Security who were told of it.” According to the Times, Trump also asked McAleenan to close the southwestern border, a step which he seemed to have abandoned a week ago when the possibility of him cutting off cross-border access to El Paso freaked out Texas politicians of all stripes, including Ted Cruz and John Cornyn. An interesting tidbit:

Ms. Nielsen had earlier refused to carry through with Mr. Trump’s desire to close the border, telling him it was illegal. But the president encouraged Mr. McAleenan to disregard Ms. Nielsen and enforce the move himself. Two days later, Ms. Nielsen submitted her resignation under pressure from Mr. Trump, and the president appointed Mr. McAleenan acting secretary of homeland security…

Mr. Trump’s desire to close the border, despite the legal impediments, was a factor in the forced resignation of Ms. Nielsen. It was one of a number of instances in which Ms. Nielsen believed she was being asked to engage in conduct that violated laws, according to several people with knowledge of those discussions.

The Times sure does seem to have a lot of insight into Kirstjen Nielsen’s thinking! I wonder if the ex-secretary, eager to rehabilitate her image in official Washington for her post-Trump career, has decided to begin leaking to the press about Trump’s most dubious requests of Homeland Security officials. If there are in fact House hearings into whether Trump is encouraging DHS officials to break the law, she seems likely to end up as the star witness. Keeping her on as secretary would have made it easier for Trump to assert executive privilege over the things she says to Congress and obviously would have given Nielsen an incentive not to say anything in testimony that might alienate her boss. As a now ex-secretary whose future lies in distancing herself from Trump, those incentives are … different.

How would the pardon even work in the case of an ongoing process like, say, refusing to interview an asylum-seeker who arrives at a port of entry contra federal law? Could a single pardon immunize McAleenan or border agents for recurring lawbreaking? Could it immunize them prospectively for future lawbreaking? Or would Trump and the DOJ end up in some absurd game in which McAleenan is charged, pardoned, then breaks the same law again, is charged again, pardoned again, etc? Either way, Trump’s impulse to work around federal law with pardons is of a piece with his other dubious moves lately, per Jonathan Last:

It’s true that upon taking office, Donald Trump found that the weight of our system of government did constrain him from acting out his every wish. But Trump has slowly learned to get around these built-in safety measures. That’s why he fired Jeff Sessions and replaced him with a more compliant attorney general. It’s why he declared an extra-constitutional state of emergency to grab funding for his wall. It’s why he first tried to bully his Fed chairman and is now trying to circumvent him by stacking the board with loyalists. It’s why he’s slowly turning over senior positions and refusing to restock them with permanent, Senate-confirmed hires.

Even if you were inclined to hope for the best in a Trump presidency, the guardrails look a lot more wobbly than they did three years ago.

Yep. Senate Republicans are clearly getting tired of it too, although that risks creating a vicious circle in which Trump tries to act unilaterally, the Senate GOP rebukes him, and Trump comes away concluding the only way to get what he wants is to act even more boldly and dubiously unilaterally. McConnell’s caucus really, really doesn’t want a confrontation with him but it may be unavoidable.