Before diving into another fiasco reminiscent of the Matt Gaetz nomination, he and his transition team need to think this through carefully.
Before diving into another fiasco reminiscent of the Matt Gaetz nomination, he and his transition team need to think this through carefully.
M att Gaetz’s withdrawal was inevitable — a futile as well as foolish unforced error. The revelations were bad and getting worse, and even President-elect Trump was reportedly confiding in advisers that Gaetz probably wouldn’t be the next attorney general.
As the president-elect and his transition team consider candidates to be the new nominee, here’s some unsolicited advice: President Trump must nominate an AG who has not served as his private lawyer.
The president-elect justifiably feels burned by the Justice Department and the FBI. He wants loyalists in those agencies and, it appears, everyplace else. There is nothing wrong with lawful loyalty, something every president has a reasonable expectation to get from his nominees. But in the Justice Department particularly, attorney ethics and conflict-of-interest rules apply. In litigation, those standards will be enforced by the courts. If there is an investigation or prosecution implicating Trump — which is what the president-elect appears to fear most — DOJ officials who have formerly been in an attorney–client relationship with the president will be forced to recuse themselves from such a matter.
Following the now withdrawn Gaetz nomination, Trump’s next top picks for the Justice Department are three of his private defense lawyers, Todd Blanche for deputy attorney general, Emil Bove as principal associate deputy attorney general, and John Sauer for solicitor general.
Excluding for a moment the complications caused by their former (indeed, current) representation of the president-elect, and some dubious positions this relationship led them to take in those criminal cases, these three experienced lawyers appear to be qualified nominees. Blanche is a former federal prosecutor (for years in my old haunts, the U.S. Attorney’s Office for Southern District of New York). Bove, another former SDNY prosecutor and federal-court law clerk, is a partner in Blanche’s law firm and joined him in defending Trump against the farce of a prosecution by Manhattan district attorney Alvin Bragg. Sauer, who won the immunity case for Trump in the Supreme Court, is a Rhodes Scholar who later graduated from Harvard Law School with honors, clerked for the late, great Justice Antonin Scalia and former Circuit Judge Michael Luttig, and served as solicitor general of Missouri (appointed by now-senator Josh Hawley, then the state’s attorney general).
They’ll all face some tough interrogation from Democrats. Sauer, in particular, will have to answer for seeking to join Missouri to Texas’s absurd 2020 “stop the steal” lawsuit, to which the Supreme Court gave the back of the hand. But bear in mind, confirmation is a political process, not a legal one. Republicans will control the Senate by a six-seat margin. As I’ve previously noted, the now-withdrawn Gaetz was one of nearly 130 House Republicans — about two-thirds of the caucus — who joined the Texas lawsuit in 2020. This is the price of admission in today’s Trump-dominated GOP, and Senate Republicans are not going to deny confirmation to anyone — including Gaetz and Sauer — over that alone.
Now, however, let’s get back to those close Trump ties and the legal complications they portend. These lawyers are going to be more vulnerable than other nominees to the Democrats’ familiar charge that a DOJ nominee will prioritize loyalty to the president over the Constitution (a concern that somehow evaporates when a Democrat is poised to enter the White House).
Remember Jeff Sessions?
The longtime former senator was Trump’s first AG in 2017–18. Sessions signed his Trump World death warrant in 2017 when he voluntarily recused himself from the DOJ’s Trump-Russia collusion investigation. As I argued at the time, I didn’t believe it was necessary for Sessions to do that. Having served on the Senate Judiciary Committee for years, Sessions understandably took umbrage at the suggestion by committee Democrats that, as a 2016 Trump-campaign surrogate, he had lied to Congress about his (and by extension, the campaign’s) supposed covert contacts with Russia. With his honor impugned, Sessions heeded the advice of DOJ ethics advisers (including Obama-Biden administration hires) that he wall himself off from the collusion probe.
This was unnecessary because that probe was essentially a counterintelligence investigation (i.e., an intelligence-gathering exercise in support of the president’s national-security duties, not a legal proceeding in vindication of the rule of law). Government lawyers are required by ethics rules to recuse from litigation matters when they have conflicts of interest that give their participation the appearance of impropriety. An AG needn’t recuse from executive branch intelligence-gathering done to protect the United States from hostile foreign powers. Hence, I thought Sessions should decline to recuse, with the proviso that if individual criminal prosecutions arose out of the Russia investigation (such as the one involving retired Army general Michael Flynn, briefly Trump’s first national security adviser), he could decide on a case-by-case basis whether to recuse from those narrow matters. (I am not implying that Sessions would have needed to recuse from the Flynn case; I’m merely outlining how a more exacting analysis might have worked.)
Recusal is sometimes a difficult area of law because conflicts can be hypothetical, contingent on developments that may never happen. And there is looseness in the joints of the “appearance of impropriety” standard, to be sure.
But while Sessions’s conflict was hypothetical at most, and his recusal an overabundance of caution, there is nothing hypothetical about the scenario of a lawyer being in a position antagonistic to his or her former client. If Trump were to come under investigation by the FBI, a district U.S. attorney, or some other arm of the Justice Department, I don’t see how Blanche, Bove, or Sauer could participate in that matter, especially including any court prosecution that arose out of it.
Notwithstanding my analysis of the Sessions situation, I tend to take a hard view on conflicts. I don’t see why a court should indulge a patent conflict when there are countless conflict-free lawyers who could provide competent representation in a case. I do not believe conflicts based on prior representations are waivable, and I have often found that efforts to try waiving them make a mockery of legal proceedings (besides risking reversal on appeal).
In any event, if Trump is accused of wrongdoing (and Democrats spent four years doing that the last time round), there won’t just be immense political pressure on DOJ leadership to saddle the president with a special counsel (or some other kind of quasi-independent prosecutor). There will also be extraordinary legal pressure. It will be forcefully contended that Trump cannot be investigated by a Justice Department whose top officials owe him a professional duty of fealty and attorney–client confidentiality because they previously represented him.
For his own good, Trump needs another Bill Barr (having unfortunately burned his bridges with the genuine article). That is, he needs as AG a strong, savvy lawyer and veteran prosecutor who knows the Justice Department inside out and who will not be intimidated by career DOJ lawyers, some of whom — as we’ve seen in the past — are activist Democrats unwilling or unable to check their politics at the office door. And it would be a profound mistake for Trump to choose as his AG yet another lawyer who has served as his personal attorney in prior matters — in particular, the lawfare investigations.
Trump may not want to hear this, but I’m saying it as someone who’d like to see him succeed. He should be prudently fortifying his defenses against administrative-state abuses of power. On his current trajectory, he’s setting himself up to be rendered defenseless.
Think about it this way: Is Trump trying to tempt Jack Smith and the Biden-Harris DOJ into changing their minds and keeping the anti-Trump lawfare cases viable?
As we’ve detailed, it’s likely that on December 2, Smith will be formally shutting down his lawfare prosecutions: filing a motion to dismiss the Washington, D.C., election-interference indictment and alerting the Eleventh Circuit that the government is dropping its appeal of the Florida federal court’s dismissal of the Mar-a-Lago documents indictment. I’m still confident that this will happen — mainly because I continue to believe that President Biden is going to pardon his son, Hunter, and calculates (with good reason) that that will go over better if his administration also sweeps aside the criminal cases it has brought against Trump.
But I have to think that Smith and the Democrats are tempted to persist in the Trump prosecutions. If the cases are not dismissed, they could argue that Blanche, Bove, and Sauer, Trump’s lawyers in the criminal prosecutions, are disqualified from participating in those cases as government lawyers. Rule 1.9 of the American Bar Association’s Model Rules of Professional Conduct bar a lawyer who has formerly represented a client in a matter from switching sides in the matter or otherwise representing a party hostile to the former client’s interests. This means that you can’t be a prosecutor in a case in which you previously represented the defendant. (The law takes this point sufficiently seriously that there are criminal provisions barring former government lawyers and officials from working on behalf of private parties in matters in which they previously worked on behalf of the government.)
In the end, Smith would be fired — by Trump himself, if necessary — and the cases against Trump would be dismissed. But that would not be before the media–Democratic complex enmeshed Trump’s Justice Department appointees — formerly his criminal-defense lawyers — in an ethics scandal. If Trump wants to hit the ground running on Day One of his new administration, he’s got to avoid such unforced errors that give Democrats controversies to rally around.
Before diving into another fiasco reminiscent of the Matt Gaetz nomination, President-elect Trump and his transition team need to think this through carefully. For his own protection, Trump needs an attorney general and other top DOJ officials who will not be vulnerable to charges that they are disqualified from participating in matters of great importance to the administration — including any investigations, whether fabricated or real, of the new president.