The New York Times has predictably come out against the Blanche nomination. It’s also predictably unpersuasive.
The Times starts with some throat-clearing to establish its good faith in the discussion. “President Trump has every right to select an attorney general who shares his policy views,” it observes. It goes on to explain that Trump ran on “a platform skeptical of environmental regulation, opposed to racial preferences and supportive of tough immigration enforcement, among other conservative policies” and therefore “his attorney general will presumably share those views and lead a Justice Department that advocates them.” After all, “Elections have consequences.”
They don’t believe any of this. Don’t take my word for it, of course. Instead consult their highly critical editorial from December 2018 when Trump nominated Bill Barr to be attorney general. What were Barr’s offenses? Embracing the unitary executive theory, supporting aggressive charging decisions for drug crimes and leaks, praising aggressive enforcement of the immigration laws, and defending religious liberty. So much for the president having a right to select an attorney general who shares his policy views. I very much doubt that a pure “elections have consequences” pick like Andrew Ferguson or Jay Clayton would get a ringing endorsement from the Times unless and until they committed to open both our borders and our prisons.
The Times predictably turns to mau-mauing Senate Republicans, calling the Blanche nomination a “character test.” Well, forgive Senate Republicans if they don’t want to be lectured on character by an organ that forced out its opinion editor for having dared to publish an op-ed by Tom Cotton, now the chairman on the Senate Republican Conference.
The fact is that, while it’s possible that senators like Bill Cassidy and Lisa Murkowski care what the New York Times has to say about their character, I’m skeptical as to the rest. Thom Tillis and John Cornyn have declared independence from the administration in their own ways, but they still know bad faith when they see it. Mitch McConnell is clearly enjoying his ability to vote his conscience, but that conscience never was and never will be aligned with the liberals at the Times. Rand Paul is sort of in the opposite position of the Times: He doesn’t like the administration’s policy priorities (see his vote against Barr) but, has long held a soft spot for the president’s baser instincts (see his aggressive defense of Trump during both impeachments). And Susan Collins knows full well that the Times is in the process of converting itself into a Schumer-aligned super PAC between now and November.
As to their four arguments, they all fall short.
The Times claims that Blanche “has celebrated the Jan. 6 rioters who violently attacked police officers and the Capitol.” They’re smart to lead with this because it’s the issue on which Tillis has been most outspoken and where the most political danger actually lies for Blanche. But their example is silly. They quote him saying at a CPAC event, “If you look at what happened to the men and women convicted because of Jan. 6, by 5 p.m. on Jan. 20, every one of them was either pardoned or had their sentence commuted, OK?” That’s not celebrating January 6, as evidenced by his very next sentence: “So when folks say you’ve done nothing, I say you have a very short memory.”
I didn’t like the January 6 pardons and I still don’t. Yes, it was preposterous for Merrick Garland to put more resources into prosecuting that riot than DOJ ever put into fighting the Cosa Nostra but that didn’t justify blanket pardons for cop-attackers. It’s not at all clear to me, however, that mine is a view shared by most Republicans — let alone those who attend CPAC events in Texas. In context it’s clear that Blanche is simply explaining to an audience of conservative activists that the Trump administration delivered on one of their priorities. (Spend any time with conservative activists and you know that the prevalent attitude is, “Yeah, but what have you done for me lately?”) That’s not a celebration; it’s an argument.
Stylistically, the tell here that you should tread cautiously is the care the Times takes to refer to January 6 as a “riot” and not — as they did when opposing Trump — an “insurrection.” This is advocacy aimed at an audience and not agitprop for a base.
The Times’ second objection is that Blanche supposedly misled Congress when he promised that the DOJ would not conduct politically motivated investigations. Optically, this seems like it could be a problem because it’s conventional wisdom that the Trump DOJ prosecutes its enemies, but when you look into the evidence provided, the case presented is less clear. Its linked article on “sham prosecutions,” for example, starts by explaining how Blanche sidelined Ed Martin, the avatar of the president’s retribution campaign. It also quotes Blanche at some length explaining the hypocrisy of people silently accepting Garland’s attacks on Biden’s political enemies (Trump in particular) while complaining bitterly about Bondi’s attacks on Trump’s.
The fact is that in the first Trump administration, he decided to adhere to “norms” and not prosecute, say, James Comey, for his leaks. A lot of good that did him. It’s therefore unsurprising that the current administration isn’t all that worried about taking actions that “don’t look political” given recent Democratic behavior. Pedants deride this thinking as “tu quoque” while the pious call it “whataboutism.” But lawyers recognize it as the equitable principle of “unclean hands” while the Queens-native president knows it as “don’t be a chump.” As with the “weaponization fund” the Democrats established a set of rules that apply only to them and that they don’t want to change. Blanche and his allies are simply playing by those same rules. As I’ve argued in the context of the “weaponization fund,” those rules should change but they should change for everyone.
The Times then claims that Blanche “has violated Justice Department ethics standards.” Nonsense. Its argument is that Blanche — like all DOJ officers — attended ethics indoctrination and signed an ethics pledge whereby he said he’d recuse from cases involving his former clients for a year. The Times and “a former ethics official” talking to CNN think this means he needs to recuse from anything involving Donald Trump. But the DOJ clarified what this actually means to CNN: “To the extent DOJ is investigating something related to the President for which Todd was previously representing him, then hypothetically yes, he would recuse.” That’s the right standard; what the Times is suggesting is unworkable and preposterous — Donald Trump, Blanche’s former client, is his boss! Furthermore, as acting attorney general, it’s Blanche who has the final word on ethics decisions. Career staff offer him advice, but he makes the decision. A senior political appointee cannot be answerable to career flunkies.
The last argument is Watergate, the true last refuge of scoundrels. Blanche, we are told, has “helped undermine its post-Watergate commitment to independence.” As I have explained before, this was always a ridiculous hypocrisy pushed by the left. Even going back to the Watergate era, why was DOJ “independence” necessary in the wake of Richard Nixon but not when John F. Kennedy literally handed the Department over to his unqualified little brother or when Lyndon Johnson wiretapped the Goldwater campaign? Democratic Departments of Justice don’t need direction from the White House because in the vast majority of cases the liberal career staff know what’s expected of them. Republican Departments of Justice are the ones that get stymied without active political control.
This is simply the Times using Blanche to smuggle in broadly anti-Republican views on executive power. When I worked in the last Trump Justice Department, then-DAG Rod Rosenstein used to bring in distinguished speakers for the political appointees to hear from. One was a former attorney general from 25 years earlier, Bill Barr. He explained to us that it was political appointees who work for the president, the president was elected by the people, and this gives the DOJ political legitimacy. The DOJ working outside of that line of democratic accountability would, in fact, be illegitimate.
Having just come from the Senate where I had spent months fighting tooth and nail against “protecting” the Mueller investigation, the talk was manna from heaven and stuck with me. But it was the orthodox view of conservative Republicans after Watergate, supported in places like Scalia’s Morrison v. Olson dissent and the work of giants like Ed Meese and Dick Cheney. At the end of the day, Senate Republicans should take their cues on executive power from the likes of Barr, Scalia, Meese, and Cheney, and not Jimmy Carter, Merrick Garland, and the editors of the New York Times.
The most surprising thing about the Times editorial is the extent to which it is targeted advocacy. From its arguments to its language, it is an obvious attempt to appeal to the Republican senators who will decide the fate of Blanche’s nomination and not the suburban wine-moms who seem to dominate its “resistance” base. The Trump administration and Blanche himself would be wise to take note as they make their case. It’s those senators Blanche will need to persuade and not the viewers of Steve Bannon’s War Room or the attendees of CPAC-Hungary.