The conflict of interest of its members could not be any clearer.
The conflict of interest of its members could not be any clearer.
This is the fifth of seven posts on Attorney General Pam Bondi’s “Weaponization Working Group.” (Here are the first, second, third, and fourth posts.)
It should be obvious enough that you can’t end the weaponization of federal law enforcement by weaponizing federal law enforcement — that is, by targeting people rather than crimes, and by transforming the Department of Justice into a political messaging shop whose core mission is to peddle a partisan revisionist history of the Capitol riot and the investigations of Donald Trump, while reporting regularly to the Trump White House on its progress. But there is an additional, blatant complication for the working group: staffing.
According to her recent directive, AG Bondi will run the Weaponization Working Group. To assist her as members, she has assigned, among others, the Office of the Deputy Attorney General, meaning DAG nominee Todd Blanche and his principal adviser, Emil Bove (currently the acting DAG and maestro of the Eric Adams mess); and Edward Martin, the interim U.S. attorney for the District of Columbia (whom we’ll look at in more depth in the next post). The assignment of these top DOJ lawyers to this working group raises significant ethical problems.
Other than to politicize what is supposed to be the DOJ’s nonpolitical law enforcement mission, there was no reason for the attorney general to establish this working group. (There is a right way to combat the due process travesties of lawfare, which we’ll discuss in the final post of this series.) When you take an ill-conceived action for the wrong reasons, unforced errors are inevitable. That explains the otherwise baffling scenario in which Bondi (a highly experienced prosecutor, although new to the federal system) announced the Weaponization Working Group — obviously, because that’s what the president wanted announced — prior to Blanche’s confirmation hearing, thereby gifting Senate Judiciary Committee Democrats with ammunition to grill him. As night follows day, they exploited it. Republicans have the votes to confirm Blanche but, again, why help Democrats sow the seeds of the public case they are already building against the Trump DOJ?
Let’s turn to Blanche and Bove.
They are experienced federal prosecutors who spent a number of years in the Manhattan U.S. attorney’s office, known as the Southern District of New York (SDNY). Bove chose to go to war with SDNY last week so the administration could enjoy, for what will be no more than a few months, the dubious benefits of cooperation from New York City’s erratic, ineffective Democratic mayor, Eric Adams. The corruption case against Adams was convincingly endorsed by Trump-appointed interim U.S. attorney Danielle Sassoon, whose resignation (along with that of several others) Bove induced. In private practice, Blanche and Bove became law partners. In that connection, they were retained as now–President Trump’s personal criminal-defense attorneys to fight off the Democrats’ lawfare campaign.
That has salient professional ramifications. Blanche and Bove should be recused from any Justice Department inquiries arising out of the prosecutions of Trump.
The problem here is not mere bias — any executive officer would be expected to be predisposed in favor of the president who appointed him; and with the incumbent president, unstinting loyalty is the top qualification for any important administration post. The problem for Blanche and Bove is the well-known ethical rules that bind members of the legal profession.
Lawyers have a continuing duty of fealty to former clients. Blanche and Bove therefore have a continuing duty to avoid taking positions detrimental to the interests of Trump (who, again, is actively appealing the state criminal case in which Blanche and Bove represented him). Yet, because they are now Justice Department prosecutors, Blanche and Bove owe the government a defense of the Justice Department’s conduct — in its prosecutions of Trump and its cooperation with state prosecutors in their cases against Trump — if such a defense can be made in good faith as a matter of law, not politics.
Understand: It would be ethically valid, even if factually inaccurate, for you, or me, or other observers, or even other federal prosecutors favorably disposed toward the Trump political agenda, to conclude that there is no defending the politicized Justice Department’s actions circa 2021–24. But such a conclusion cannot legitimately be drawn from within the Justice Department by Trump’s own personal lawyers. They are in no position to assess the DOJ’s actions because of the professional obligations they still owe to the president.
Consequently, Blanche and Bove must not represent the government in an investigation in which their duty to the Justice Department is adverse to their duty to Trump. That would be a patent conflict of interest. Government lawyers are required by federal law to abide by ethical rules in the states where they are admitted to practice — including the rules about avoiding conflicts of interest. Moreover, federal regulations require government officials to recuse themselves from matters about which reasonable people could question their objectivity because they have “covered relationships” (such as an attorney-client relationship) with participants in the matter.
It could not be clearer, then, that Blanche and Bove cannot properly participate as Justice Department prosecutors in any matter focused on Trump’s conduct and Trump’s treatment by Justice Department prosecutors while Blanche and Bove were representing Trump as defense lawyers.
To be clear, Blanche is a fine attorney, he is not yet in a DOJ position (he’ll likely be confirmed in the next few days), and to my knowledge he has not violated any ethical rules. At his confirmation hearing, he was adamant that he would refrain from participation in matters where his work as a defense lawyer would create conflicts of interest. That will make the working group a challenge for him — it’s already clear that the working group is a political project under the guise of purging politics from law enforcement. The unnecessary creation of the working group will increase the scrutiny on Blanche in what is a very tough job. Not only will Democrats on Capitol Hill be watching; the Lawyer Left legions will be poised to file grievances with bar committees, accusing Blanche if there is the slightest hint of an ethical misstep.
Bove is a good lawyer, too, but he seems more than willing to play hatchet man. I detailed this propensity, here and here, regarding Bove’s central role in depicting the Trump DOJ’s dropping of the corruption case against Adams as the DOJ’s righteous rejection of a “politically motivated” prosecution rather than a politically motivated favor the president is doing for a biddable and potentially useful Democratic politician. Frankly, I’m revolted by Bove’s suggestion, apparently blessed by Bondi, that the professional malfeasance in this episode was U.S. Attorney Sassoon’s honorable resignation, rather than Bove’s own incoherent, internally inconsistent “legal” rationalization for what’s manifestly a political move. I won’t say it violates a particular ethical rule; I will say it’s a politicization of law enforcement of the sort common in the Biden era.
You may recall that candidate Trump’s lawfare narrative held that Biden (or whichever officials and intimates were running Biden’s administration) would covertly induce his Justice Department to do sleazy things out of political motivation, and then the DOJ would try to make these gambits look like legitimate exercises of prosecutorial discretion — e.g., AG Merrick Garland’s sorry attempts to defend the overzealousness of the January 6 probe by falsely claiming that police officers were killed in the riot. How Bove’s behavior in the Adams episode is different in (lack of) principle from that is not obvious to me.
I am reminded, though, that during Trump’s Manhattan criminal trial, Blanche and Bove took positions (e.g., that Trump hadn’t reimbursed Michael Cohen for paying for Stormy Daniels’s silence) that they must have known would hurt Trump legally (there being abundant evidence that Trump had reimbursed Cohen) but that were consonant with Trump’s political campaign rhetoric (that Cohen, the culprit, was flying solo). Trump is a very aggressive taskmaster who pressures his subalterns to take imprudent positions based on his perception of the politics. Those who dare deviate from the script don’t last very long.
While the confirmations of Bondi and Blanche were pending, Bove essentially ran the Justice Department as acting deputy AG (along with acting AG James McHenry). Bove thus took the lead in ordering the FBI to provide names of all personnel who had anything to do with the J6 cases. As we’ve detailed (in the second post in this series), Bove’s order was poorly framed, leading thousands of FBI personnel to fear that they were subjects of a criminal investigation, even though the actions of these mostly low-level employees were ministerial or routine — they were grunts, not decision-makers (and note that they have been praised to the hilt by new FBI director Kash Patel, in his confirmation hearing and in a social-media post following his confirmation on Thursday). And as we’ve detailed, the one upside of Bondi’s weaponization directive it that it walks back Bove’s FBI order in hopes of quelling the gratuitous tumult it caused.
But even this retreat, while necessary, is a problem. If the Trump Justice Department is not going to use the data collected from the FBI to go after low-level employees, then it must be collecting the data to bolster its case for taking action against the top Biden-era FBI and DOJ officials. Many of those officials pursued not only the J6 defendants but President Trump. If that’s how it plays out, Democrats are going to argue that Bove, Trump’s personal lawyer, has been using his privileged Trump DOJ perch to penalize government officials who pursued cases against Trump while Bove represented him — perhaps even to improve Trump’s litigation position in the ongoing appeals of those cases. It barely matters if that’s not true; the ethical issue is the appearance of impropriety (a phrase, ironically, that Bove invoked this week in trying to justify his baseless allegation that the SDNY’s Adams prosecution was “politically motivated”).
Under the circumstances, AG Bondi should be trying to wall off Bove, Blanche, and another Trump private lawyer, D. John Sauer (nominated to be solicitor general) from scenarios in which they’re vulnerable to being accused of ethical missteps. The weaponization directive does the opposite.