Glenn Thrush
Washington: The three lame-duck Republican senators who narrowly saved Todd Blanche’s confirmation as US attorney-general ended up backing him because they believed he was the only person who had earned enough trust, and enjoyed enough access, to rein in President Donald Trump.
One issue with that calculation: Blanche is a champion of unbridled presidential power.
Time and again during his turbulent nomination process, Blanche made it unmistakably clear that he believes Trump possesses a nearly limitless right to directly control the actions of the Justice Department under Article II of the Constitution. It is an argument that formed the foundation of his strategy as the president’s criminal defence lawyer and is the lodestar of his government service.
Blanche’s confirmation in the predawn hours of Saturday (Washington time) was largely symbolic: as acting attorney general, he could have served indefinitely. But it represented a powerful endorsement by Congress of the philosophy that has guided him under a meddling, demanding boss – that he has a constitutional obligation to execute every lawful White House order, even if it shatters long-standing policy and rule-of-law norms, or contradicts what he thinks is right.
He articulated that view from the moment he took over as acting attorney-general in April, telling reporters that Trump had “the right” and “duty” to order up investigations of people he targets. During his confirmation, both in public and in private conversations, Blanche sidestepped questions over whether actions Trump ordered were right, saying only that Trump had the right to do them.
Barbara McQuade, a University of Michigan Law School professor and former federal prosecutor, said this marked a major break from past administrations. “Just because a president can control the Justice Department does not mean he should,” she said. “Since Watergate, America has prized a Justice Department that is independent from partisan politics.”
While Trump and allies such as Blanche have repeatedly accused the Biden White House of ordering up prosecutorial hit jobs against Republicans, they have provided little evidence to support the kind of direct interventions that have become commonplace in Trump’s second term.
In a recent interview, former president Barack Obama said he followed a broad rule of remaining at a distance from the Justice Department to protect its independence, even though he was not legally required to do so.
“The White House shouldn’t be able to direct the attorney-general to go around prosecuting whoever the president wants to prosecute,” he said. “The idea is that the attorney-general is the people’s lawyer. It’s not the president’s consiglieri.”
Trump has a different view. Case in point: late on Monday, he browbeat US Attorney Jeanine Pirro for withdrawing the indictment of a man accused of defacing the Lincoln Memorial Reflecting Pool. While the melodramatic showdown was big news, the fact that the president was issuing marching orders to a federal prosecutor was so typical under this administration that it was not noted in most of the coverage.
During Blanche’s confirmation hearing, Democratic senator Chris Coons asked whether the department he was running is “independent from the White House?”
Blanche’s reply: “Article II of the Constitution gives the power of the executive to President Trump.”
When Coons followed up by asking if he would resign if Trump directed him to do something illegal or unethical, Blanche said: “That will never happen. But yes, if it were to happen, I’m not going to violate my oath to the Constitution.”
While many Republicans raised questions about Blanche’s actions and even his independence during his confirmation, few were willing to withhold, or even leverage, their votes to challenge the boss-employee dynamic Trump has imposed on the department.
“Ultimately, decisions are made by the president,” said Republican senator Bill Cassidy, who announced in a floor speech on Friday that he would deliver the decisive vote for Blanche’s confirmation.
The adviser Cassidy consulted before making up his mind was notable. During his speech, he quoted extensively from conversations with William Barr, Trump’s attorney-general in his first term who articulated an expansive view of presidential power in a 2018 memo. Barr quit two years later when pressured by Trump to help undermine confidence in the 2020 election.
Barr counselled Cassidy to support Blanche in the belief that he could quietly talk the president out of bad ideas, even though Barr quit rather than comply with Trump’s demands to investigate an election Barr found had been fairly conducted.
Blanche’s experience as Trump’s private lawyer was not a reason to oppose him, Barr told Cassidy – but an asset. It gave Blanche the capacity to “have tough conversations” and confront Trump with “difficult truths” that could change his mind, Barr said to him.
Not every Republican bought in to this job description of an attorney-general.
Two Republican women, senators Susan Collins of Maine and Lisa Murkowksi of Alaska, said they would vote no on Blanche precisely because he had been unwilling to speak truth to Trump’s power or have enough tough conversations with him.
Collins, the first Republican to oppose Blanche, said he had taken several actions “that have further eroded the department’s independence”, including his sign-off on tax protections for the president and his family and the attempted indictments of Democratic lawmakers who criticised Trump.
Early on Friday, Murkowski, a consistent and plainspoken Republican critic of Trump, described her no vote as a moment of major historic consequence – an opportunity to both demonstrate the chamber’s dissatisfaction with Blanche’s obeisance and reclaim the Senate’s authority to influence the department’s direction.
“The country needs an attorney-general who will check the worst impulses of this administration,” Murkowski said on Friday. “I hope Mr Blanche is able to achieve that, if confirmed, but I simply do not have confidence that will be the case.”
Shortly after, Cassidy took to the floor to offer Blanche his support.
The floor fight over Blanche was preceded by a clash in the Senate Judiciary Committee that followed a similar trajectory.
Two lame-duck senators, Republicans John Cornyn and Thom Tillis, briefly withheld their support on the Senate judiciary committee over Blanche’s role in a deal to resolve Trump’s lawsuit against the IRS. The ensuing agreement created a $US1.8 billion ($2.5 billion) fund to compensate purported victims of Biden-era abuses at the department and granted Trump sweeping immunity from tax investigations.
Both made it clear, from the start, that they liked Blanche and did not consider his reluctance to challenge Trump to be disqualifying.
They simply wanted him to put in writing his verbal commitment to kill the fund and to include modest limits on the tax provision. Blanche was amenable, but the White House resisted, and Trump threatened to temporarily withdraw Blanche’s nomination until the two lawmakers were out of office.
The president eventually relented, clearing the way for a vote on the floor. But the episode underscored, in the view of critics, the lopsided power dynamic inherent in the partnership between Trump and Blanche.
