The High Stakes of the Blanche Nomination
The Senate’s responsibility far exceeds the questions about this particular nominee
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When asked about President Trump’s nomination of acting Attorney General Todd Blanche to become a confirmed AG, Republican Senate Majority Leader John Thune would not predict confirmation in “an environment where nothing is a safe or sure bet.” He did, however, note that “most of our members are pretty deferential to who the president wants in these key positions,” and then added, “He’s already serving in the role . . . and clearly has experience in it.” This response suggests that standard deference will apply in the Blanche nomination, complicated only by conflict between the president and Congress.
This is the wrong approach for the Senate to take.
Donald Trump has established a distinctive model for the operation of the Department of Justice and the role of the AG, one that he now seeks to validate by putting Blanche forward for confirmation. The implications for both this and future administrations cannot be understood solely by examining Blanche’s specific decisions as acting leader. The issue facing Congress is more profoundly institutional in character: It is about the gutting of ethical rules and procedures in place to protect against conflicts of interest in the management of the Justice Department.
Trump is not the first president to select individuals with personal or political ties to the president to lead the Justice Department and run the department with less, rather than more, distance from the White House. But he has taken this model further, more aggressively and openly, than any of his predecessors. His first step was to signify and ensure full presidential control by staffing the department at senior levels with lawyers from his personal legal defense team. The Senate confirmed all these nominees.
What remained to secure a modicum of independence were recusal rules. Blanche and Trump’s other picks to run the department would presumably remove themselves from participation in or oversight of cases or matters that, in light of their prior personal service to the president, would enmesh them in clear conflicts of interest. In Blanche’s case, this history of personal representations is extensive and includes the federal Jan. 6 prosecution, the Mar-a-Lago classified documents case, and the Manhattan District Attorney’s business records prosecution.
Blanche’s tenure as deputy and now acting AG has shown how the rules and the process for enforcing the recusal rules were neutered.
First, in his confirmation hearing as deputy AG, Blanche evasively addressed questions about the conflict of issues questions raised by his personal representations of the president. He stated repeatedly that “in the event of any potential conflict of interest, I will consult with the appropriate Department of Justice ethics officials and act consistent with governing regulations.” Blanche did not commit to abiding by the counsel of “appropriate Department of Justice ethics officials,” only to “consult with them.” He did not pledge to comply with existing ethics rules, only to “act consistent with” them—whatever he might have meant. When pressed repeatedly on how he would exercise any discretion he possessed to recuse himself from involvement in matters related to this representation of the president, he would not pledge to exercise this discretion more in favor of recusal than not.
Congress let this all go by and confirmed him as deputy AG. Blanche promptly supported, and now runs, the president’s program of retribution and weaponization, which is rooted in Trump’s rage over the prosecutions in which Blanche was his lead defense counsel. He also handled the controversial settlement by which Trump has sought to obtain immunity from any federal tax-related claims (through at least May 19 of this year).
The Justice Department claims that Blanche recused himself “from many cases” but will not disclose which ones. There have been reports that he recused himself from a potential criminal investigation of E. Jean Carroll, who successfully sued Trump for both sexual assault and libel. Blanche was a member of the team that appealed the verdicts. But the U.S. attorney for the Northern District of Illinois has denied on the record that his office is planning for or conducting this investigation.
The more clearly established disregard of conflicts relating to Trump’s personal life is Blanche’s direct, personal involvement in the Epstein case. For two days, he interviewed a key witness, Epstein’s close associate Ghislaine Maxwell, who was convicted and is now in prison for sex trafficking. Following the interview, Maxwell was moved from a low-security prison in Florida to a minimum-security facility in Texas.
Second, with the president’s help, Blanche rid himself of the burdens of unwanted advice from DOJ ethics officials. Not long after he was confirmed, the head of DOJ ethics compliance reportedly advised him that he and the other of Trump’s personal attorneys in charge of the department had to recuse themselves from matters related to their personal representations of Trump. Shortly thereafter, this official was dismissed. The president also fired the Director of the Office of Government Ethics. After a series of Vacancy Act designations, the position is now unfilled, and Trump has not nominated a new director.
The Trump administration has effectively disabled the entire executive branch ethics advisory and enforcement process.
We do not know whether Blanche, as he pledged in his confirmation hearing, “consults” with officials who have any responsibility for ethical guidance. We do not know the degree to which any advice given is independent—or geared to providing ample running room for Blanche to do as the president desires. What is known from the public record of the last year and a half provides no basis for reassurance.
Why, if Trump has picked loyalists for the roles, do the recusal rules matter? They matter because they function as a fundamental limit on the extent to which those with responsibility over criminal law enforcement depart from, in Justice Robert Jackson’s famous words, “the spirit of fair play and decency” expected of federal prosecutors. Recusals reflect an understanding that while those with great power may act unwisely or wrongly, there are circumstances in which they should not act in the case at all, because they have specific interests or commitments that render them incapable, in fact or in appearance, of impartiality. Prosecutors may be motivated to perform unethically for other reasons—among them, the pressures exerted by ambition, politics, or ideology. Conflicts of interest do not require inquiry into motive but presume that the official cannot escape the danger of decision-making bias or the suspicion of it.
Recusals matter especially where department appointees are chosen on the basis of prior personal or political ties and service to the president. They serve as a last line of defense against the complete abandonment of a commitment to impartiality in both fact and appearance. These rules arise out of a core ethical requirement, which the department professes to follow, that “Employees shall act impartially and not give preferential treatment to any private organization or individual” and “shall endeavor to avoid any actions creating the appearance” of the violation of these and other ethical standards.
Todd Blanche’s service in the Department of Justice in Trump 2.0 cannot be squared with these standards.
The source of these conflicts is not just a question of choices that Blanche has made. It is a frontal challenge to long-standing ethical standards and the procedures by which they are applied and enforced. These are the larger issues raised by the Blanche nomination.
The Senate is responsible for the sorry ethical state of affairs at DOJ, having looked the other way when confirming Blanche the first time. The question now is whether senators will take up the challenge Trump has thrown down.