David Brooks wrote a really good overview of the Trump and Comey controversy on June 9. I read it and valued it and filed it in my mind. But one small clip from that article has continued to float up to my consciousness and I’d like to give it further thought today.
Comey emerged as a superb institutionalist, a man who believes we are a nation of laws. Trump emerged as a tribalist… who simply cannot understand the way modern government works.
I like the contrast between institutionalism and tribalism. There is no way to have what has often been called “a government of laws and not of men” without people who are committed to making institutions work to the benefit of the public. Tribalism is another kind of thing entirely.
I don’t know exactly what Brooks meant by tribalism, but I know where tribalism goes if it is not contained and I don’t want to go there. Let’s consider President Trump’s pardon of Sheriff Joe Arpaio of Maricopa County, Arizona as a case in point. Why did he do it and what does it mean?
Sheriff Arpaio was convicted of “flagrant defiance of another judge’s orders in a long-running case over the former Maricopa County sheriff’s targeting of Latinos in Arizona,” according to Joan Biskupic, a CNN court reporter. The court said that Arpaio was violating the constitutional rights of Arizona citizens and he said he didn’t care and wasn’t going to quit. Hence the arrest and conviction.
By no coincidence at all, a big part of President Trump’s campaign was strongly anti-immigrant. He may have felt very much the way Sheriff Arpaio felt and he may have wanted to communicate his support for Arpaio to his constituents. I think a presidential tweet would have accomplished that or a “Sorry to hear about your conviction” greeting card. Trump issued a pardon. Why did he do that?
Here’s a possibility. Trump used the resources of the office of President to rescue another member of his tribe. It is the common tribal affiliation that would matter in this way of reading it. It is not that Arpaio was tried and convicted. It is that he was tried and convicted for doing things Trump approves of or at least that he is confident his constituents approve of. Clearly, that brings a new standard to light. It is not whether you have violated the law or not, according to this new standard, it is whether you have done so “in a good cause.” If harassing U. S. citizens on the grounds that they look Hispanic is “a good cause,” then it doesn’t matter that it is against the law. You can be charged for it and tried for it and convicted for it and you really don’t care because there is always the presidential pardon to rely on.
You have to wonder whether that would cover treason “in a good cause” too. Would it cover the assassination of doctors who perform abortions? Would it cover the use of attack dogs and fire hoses against black protesters in the South? If the issue is tribal—a matter of the cause and not of the law—is there any way to tell what is permissible anymore?
I don’t see how.
The legal perspective is that it is illegal to murder people. It is illegal to murder them in a good cause and also in a bad cause and also on behalf of no cause at all. It is the means—murder—that is wrong and the defense that you did it in a good cause does not make it right. Murdering “in a good cause” might be very popular politically, but it is still wrong and it is still illegal. That is the perspective that “a government of laws and not of men” brings to the table.
If we are headed for legal immunity for the people Trump likes, how far are we from the Hatfields and the McCoys.  On the one side of this divide would be the laws of the land and the men and women charged with seeing to it that it is obeyed. On the other would be the people who are immune from legal prosecution for anything they do on behalf of their tribe. It would mean looking at Eliot Ness and Al Capone as the heads of two tribes fighting for supremacy in Chicago. The fact that one represented the law and the other a criminal organization is not brought to light in this conflict of tribes perspective.
I don’t want to go there.
I have been careful in this essay not to try to say what tribalism is—or institutionalism either—but where this emphasis on tribe could take us. It might be, for instance, that President Trump doesn’t care as much as he seems to about Sheriff Arpaio and a great deal more than he seems to about Robert Mueller. Mark Joseph Stern wrote in Slate.com that Trump may be sending a signal to the witnesses Special Prosecutor Robert Mueller will be calling in his investigation of possible collusion between Russia and the Trump campaign.
Comey, the man Brooks referred to as “a superb institutionalist” was fired by President Trump, apparently for not being loyal enough. Trump wanted to make sure The FBI director was “on the team”—was part of the tribe—and Comey wouldn’t make that commitment. Special Counsel Mueller was appointed to look into the matter and given that he has very broad powers to collect information and to subpoena witnesses, he could very well make himself a nuisance.
And he does not appear to have a tribal affiliation. And he will be subpoenaing people who do have a tribal affiliation. Are these members of Trump’s tribe going to be required by law to tell the truth in public? Will they have to admit to having broken the law? Will they break the law by refusing to admit that they broke the law?
To all of these speculations, the tribal answer is, “Don’t worry, be happy.” You can do what you need to do and say what you need to say because the pardon that is wielded by the head of your tribe is going to be available to you no matter what. Or, as one writer put it, “The message of the Arpaio pardon to the Mueller witnesses is, “I’ve got your back.”
In these circumstances, a “crime” against the law is just a speed bump provided that it was done on behalf of the tribe. A government of men, you see, and not a government of laws after all.
I know that is where tribalism goes. I don’t know if we are taking large steps in that direction. It looks like it. People who stand up for the integrity of the law will be accused as being members of “the other tribe.” The Tribe of Anti-Trump. That is, after wall, what Capone said to the members of his organization who were not Anti-Ness enough. It is what members of the McCoy Clan said to family members who were not Anti-Hatfield enough. It is what President Nixon meant when he urged the people of his administration to “take one for the team” and go to jail. But he didn’t pardon them.
And Trump should not either.
 This famous feud involved two rural families on the West Virginia-Kentucky border in the years between 1863 and 1891. Wikipedia has a great line about it: “The feud has entered the American folklore lexicon as a metonym for any bitterly feuding rival parties.”