The president could get his AG pick confirmed easily, if only he’d give up the slush fund.
The president could get his AG pick confirmed easily, if only he’d give up the slush fund.
T he irony is that Todd Blanche can’t be confirmed for the very reason that he shouldn’t be confirmed: He is willfully running interference for something tawdry that President Trump is insistent on doing under the guise of Justice Department authority, namely, establishing the so-called Anti-Weaponization Fund. An attorney general fit for the job would resign rather than be a part of that.
As I’ve been telling you, despite Blanche’s testimony to the contrary, the slush fund is not dead.
Moreover, a lot of creativity went into its creation, and because the fund is a raid on the Judgment Fund for paying judgments, awards, and compromise settlements against the government, Blanche was an essential participant. In essence, the Anti-Weaponization Fund would be underwritten by nearly 2 billion taxpayer dollars filched from the Judgment Fund, which could then be paid out as “compensation” for Capitol riot defendants and other Trump political allies without any specific congressional appropriations. (For good measure, the scheme — camouflaged as a legal settlement of a lawsuit Trump brought against his own administration, for wrongdoing that occurred during his last administration — also included an attempt by Blanche to immunize Trump, Trump’s elder sons, and Trump’s business empire from tax audits.)
Needless to say, if a Democratic administration had pulled such a stunt, Republicans would be apoplectic. Consider this: The amount of money involved in the “Anti-Weaponization Fund” dwarfs the $24 million in influence-peddling by what Republicans gleefully labeled the “Biden Crime Family” while devoting much of the last Congress to tracing every penny. The point, however, is that the Blanche nomination is in suspended animation because the president does not want to forfeit the fund.
Blanche, of course, is now the acting AG, as well as the Senate-confirmed deputy AG. We’ve been covering the impasse over his nomination to be attorney general (see here, here, and here).
Trump could get Blanche confirmed easily. That is, notwithstanding the plethora of reasons to reject the nomination — the most prominent being to fulfill the Senate’s constitutional obligation to check the president’s abuse of federal law enforcement power — there still would be enough GOP votes to eke Blanche through to confirmation if the president would just allow his acting attorney general to put in writing what Blanche has represented orally: Namely, that the so-called Anti-Weaponization Fund is dead and will not be revived. In exchange for that one, seemingly trifling thing — the top DOJ official simply memorializing his word in writing — Senate Judiciary Committee Republicans would turn a blind eye to all the politicized exploitation of government power of the past 18 months and confirm Blanche, on whose watch it has ensued.
That includes retiring Senators John Cornyn (R., Texas) and Thom Tillis (R., N.C.). Yes, they are winning media and Democratic plaudits for standing up to the president on the slush fund, but they are just as willing as their fellow Republicans to confirm Blanche if he’d produce the desired document.
Publicly, Republicans rationalize that (a) Democrats deserve this comeuppance for the partisan lawfare they vigorously practiced while running the DOJ in the Biden and Obama years, and (b) Blanche, whose professional credentials are sufficient — even if his métier of slavish service to the boss has been amply demonstrated — is the best one could reasonably hope for in a Trump AG given the president’s demand that the DOJ function as his personal and political Roy Cohn. Privately though, Republicans know that the next Democratic administration will use Trump’s doubling-down on lawfare as the rationale to persecute Republicans, conservatives, and other political enemies. Alas, they calculate that in today’s smaller, Trump-dominated and thus rudderless Republican Party, public opposition to the president’s unsavory whims would spell political suicide. Better to keep your head down and go with the flow.
The president has now said he may pull Blanche’s nomination. This has always been an option: As Ed Whelan has explained, Blanche is not just an acting department head (generally subject to a 210-day statutory limit) but the Senate-confirmed deputy AG; in the event of a vacancy in the AG post, the deputy AG, by law, wields the same power as a Senate-confirmed AG. Hence, it has never been necessary to get into a confirmation battle — one that Republicans would have preferred to avoid because the Trump DOJ’s lawfare is a driver of Trump’s unpopularity, which in turn is dimming Republican midterm prospects. The confirmation battle has been brought on anyway because Blanche wants to be the full-fledged AG and Trump likes to demonstrate his control of the Republican Party — and, from the beginning of his second term has been openly contemptuous of the Senate’s constitutional advice-and-consent function. So the president has now floated the idea that the Blanche nomination could be tabled until Cornyn and Tillis are gone, then revived in the next Congress.
Naturally, it’s a rash plan. Even if Republicans maintain control of the Senate next year, it will be by an even narrower margin than the current 53–47. Indeed, it’s entirely possible, and maybe likely, that Cornyn and Tillis will be replaced by Democrats. (The Trump-backed nominees are trailing in both Texas and North Carolina.) Democrats are likely to take control of the House and begin aggressive public hearings on the DOJ’s performance under Blanche’s stewardship. By autumn, that will include Blanche’s wayward and high-profile prosecution of the James Comey seashell caper, which is shaping up to be a debacle (I’ll deal with that separately in the coming days). Suffice it to say: The climate for getting Blanche confirmed is surely more favorable now than it will be in six months.
The press is portraying Trump’s pull-the-nomination plan as par for the course of Trump vindictiveness and pettiness: He can’t bring himself to take an action that would be portrayed as a political win for Cornyn and Tillis over him. I don’t quarrel with that framing, at least as part of the president’s motivation. Nevertheless, on the principle that the simplest explanation is usually the best explanation: Trump wants his slush fund.
Notice that in the reporting, it’s said that Blanche is negotiating with Cornyn and Tillis over something Blanche himself or some other authorized DOJ official can put in writing that could be sold publicly as an enforceable concession that the Anti-Weaponization Fund is dead and buried. But as I’ve explained, that’s not good enough under the settlement agreement that created the fund. The agreement (at p. 4, para. VIII) explicitly and unambiguously states that any modification has to be put in writing and signed by the parties — and that includes Trump, the plaintiff in the lawsuit.
Blanche and even the two anti-fund senators are conducting themselves as if there is something the DOJ could write down that would make the whole thing go away. No one appears to be talking about the possibility of Trump signing a modification agreement that rescinds the fund — it seems that’s inconceivable.
There’s a reason for this. The collusive lawsuit is a farce. The illegal leaking of the tax information of Trump and thousands of others occurred when Trump controlled the IRS. Trump could have sued during the Biden administration, but he waited until he once again controlled the IRS . . . and the DOJ — i.e., until he could control both sides of the case. By then, Trump’s claim was time-barred as well as ridiculous — i.e., Trump was seeking $10 billion in damages when, if he had brought a timely claim, it would have been worth a bare fraction of that amount. (The controlling tax code provision, Section 7431(c), presumes damages of just $1,000 for each act of unauthorized disclosure.)
Unlike its aggressive response against other plaintiffs whose tax information was illegally leaked, the DOJ — supposedly representing the public interest, not Trump — did not assert its solid defenses when its boss became a plaintiff. Those defenses would have defeated Trump’s claim. Instead, the Trump DOJ concocted a settlement in which an “Anti-Weaponization Fund” of $1.776 billion would be drawn from the treasury and paid to Trump’s favored petitioners, all without a specific congressional appropriation. (The money was to be taken from the shadowy Judgment Fund, a permanent, indefinite appropriation Congress has provided since 1956 to pay judgments against the government, including those the attorney general agrees to pay in the public interest.)
Elaborate planning went into converting a collusive lawsuit that was worth next to nothing (if that) into a nearly $2 billion pot of taxpayer funds unilaterally controlled by the president. Sure, the president doesn’t want to be seen as losing a public fight against political foes — Cornyn and Tillis — whom he thought he had already vanquished. But mainly, he wants the money. Even as Blanche claimed the fund was dead, Trump publicly stated that he’d like to proceed with it. In the end, he’d rather pull Blanche’s nomination than sign something — or let Blanche sign something — that kills the slush fund.