As the confirmation process continues for Todd Blanche to be attorney general, much discussion has involved lingering objections from Senators Thom Tillis and John Cornyn. Cornyn, in particular, seems to want resolution of issues that came to the fore in the odd sanctions order and opinion issued by Judge Kathleen Williams in Miami on July 13. It seems like there should be a relatively straightforward path here for Cornyn and Blanche.
To begin with, the opinion is clearly a political hit job on Blanche. The timing is suspicious — it came out two days before Blanche’s hearing. She also took numerous swipes at Blanche without the Department of Justice ever having appeared in the case. Indeed, her prior order was expressly addressed only to plaintiffs, so she seems to have gone out of her way to attack Blanche here.
More tellingly still, the opinion includes the kinds of errors that would be caught with apparently neglected proofreading. For example, on page 30 she cites “Keepseagle v. Perdue, 856 F.3d 1039, 1058 (D.D.C. 2017) (Rogers, J., dissenting).” Never mind that the opinion she cites was from the D.C. Circuit not the D.C. District, the dissent in Keepseagle was by the staunch conservative Judge Janice Rogers Brown (Brown, J.) not the ultra-liberal Judge Judith Rogers (Rogers, J.), who wasn’t even on the panel. On page 34 she refers to “President Trump and his lawyers — one of whom was former White House Counsel.” Come again? I assume she means Stanley Woodward, who worked in the White House but was not the White House counsel.
In other words, it was a rush job, and the rush job got out just in time for the hearing. What a coincidence.
The primary delict identified and on which its sanctions are based is a lack of adversity in the litigation. This is essentially some rhetorical jujitsu turning the unitary executive against Trump. Trump v. Slaughter features prominently, as does Trump’s early executive order taking control of DOJ. “Live by the unitary executive; die by the unitary executive,” in short.
But there’s an error at the heart of the analysis, namely the refusal to accept the possibility that the president has official and unofficial aspects to his person. It’s an elementary aspect of nearly all government litigation, so it’s not that hard to conceptualize. Even in the presidential immunity case, the Supreme Court was careful to clarify that it applies to his official acts. (“The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.”)
Just as the president is theoretically liable for his unofficial acts, why can’t he litigate in his unofficial capacity? The president rarely does, but it’s not clear that he can’t. Let’s say that on one of Trump’s regular Walter Reed visits the doctor turns out to be drunk and prescribes him the wrong drug, thereby doing significant damage to his health. Or — according to my law school torts professor, this sort of thing actually happens in the VA — they accidentally amputate one of his legs. Can he not sue under the FTCA due to a lack of adversity? That seems hard to believe.
Let’s say the president and Blanche were to play golf. The president can fire Blanche at any time for any reason — including for putting too well. Does that mean their round of golf lacks adversity and isn’t real? Of course not. Just because the president has broad supervisory control of the attorney general doesn’t mean that he necessarily exercises that control when his official duties aren’t implicated.
Where the opinion gets interesting was where John Cornyn seems to have taken notice of it: The settlement fund and the purported IRS release for Trump. Williams seems to have noticed a potential issue with the fund that Cornyn has picked up on. Her concern with the release, though, is less persuasive.
Williams notes that Blanche has said the weaponization fund is dead. But the fund derives from a settlement agreement, in which case that decision may not be up to him. Yes, setting up the mechanics of the fund are up to him (and entrusted to him by the settlement), and Blanche has said he won’t do it, but a settlement is a contract, and contracts bind both parties. That contract says the fund will be set up and how. One party cannot just abrogate a contract unilaterally; that’s normally called breach.
What, then, is to stop the president or his family from suing later to compel performance? There isn’t an obvious answer to that question, and the possibility is not unthinkable. Based on recent reporting, this seems to be where Cornyn is spun up.
The solution would seem to be for the parties to agree to abrogate the contract — the DOJ on one side, and the president’s lawyers on the other. This could also help to demonstrate the adversity Williams says they lack.
Perhaps there is some risk in doing this when Williams is firing off bar referrals on the matter and enjoining them from even referring to the settlement or whatever. But it strains belief to think she could somehow grow more hostile to the parties here. If the fund is really dead and senators want to be sure a zombie fund won’t return, this is the way to do it.
The IRS problem that Williams identifies is less persuasive. Williams notes that this was a unilateral action taken by Blanche, not an agreement like the settlement. There’s a statutory basis for him to do it, sure, but in the final analysis this is just an exercise in prosecutorial discretion. It’s essentially IRS DACA for Trump.
Maybe that’s bad policy, but it’s also a recognition of reality. Guess what: Trump won’t be getting audited so long as he’s president. He doesn’t actually need Todd Blanche to say it. It’s simply not going to happen.
At the same time, Trump, his family, and everyone he’s ever talked to or looked at are all getting audited the minute there’s a Democratic president. That’s also reality. Perhaps Trump will try to use his release to get out of any audits, but how have these kinds of cases tended to go for him? No judge is going to construe this favorably or broadly for Trump or his affiliates because judges don’t construe things favorably or broadly for Trump or his affiliates. Beyond that, is he going to argue he had a reliance interest in not getting investigated for past conduct? Is he going to argue that the “unrelease” violated the APA (like DACA rescission supposedly did)? Even Sullivan & Cromwell will have their hands full with those arguments. In other words, the release is worth the paper it’s printed on.
You can see why Cornyn thinks that looks bad (Williams made sure of that), but it doesn’t really matter. Whether or not the president gets audited is, at this point, a question of electoral politics, not DOJ policy. Fighting over this is fighting over whether to immunize angels from audits while dancing on the head of a pin. The juice just isn’t worth the squeeze.