Last week I argued that Republican Senators should always follow Judge Mukasey’s wise advice to ask “compared to what?” when evaluating Todd Blanche. Given all the givens of a Trump DOJ, I concluded that, from my perspective, confirming Blanche is the best way to effectuate Republican policy goals at the Department. Critics of Blanche argue that Republicans should vote against him because Trump has directed his DOJ to violate its norms with Blanche’s acquiescence or support. Congress, the argument goes, has an obligation to right the ship at DOJ and confirming principal officers is a tool in so doing. This argument misapprehends the nature of congressional power and its possible application in the case of the Blanche nomination.
As a general matter, senators have power, and they have influence. Power involves actually doing things and ultimately comes down to enacting or preventing legislative acts. Influence involves using legislative stature to achieve outcomes from others. Both are important, and in today’s Senate, the difficulty in passing legislation has made influence more pronounced.
To take a concrete example, when Mitch McConnell told Donald Trump he needed to nominate Amy Barrett for the Ginsburg seat, that was McConnell wielding influence. On the other hand, when McConnell brought Justin Walker to meet Trump during a meeting about the Ukraine impeachment, that was an exercise in power. McConnell’s line that senators need to decide if they want to make a point or make a law is, ultimately, about the difference between building influence and accumulating power.
What happened with the weaponization fund was an exercise in power. News of the fund happened to break when the Senate was also considering budget reconciliation to fund border enforcement — a top administration priority. It was the threat of not giving the administration the money it would need to effectuate its immigration policies that got the weaponization fund pulled.
It was the same story with the Jerome Powell investigation. Thom Tillis, sitting on the Banking Committee, had an effective veto over Kevin Warsh’s nomination to run the Federal Reserve. The Warsh nomination was an administration priority, so Tillis used his power (again, defined as the ability to stop something legislatively) to get the outcome he wanted (no more Powell investigation).
The word “leverage” comes from the word “lever.” You push one side of the lever, and the other end moves. A common mistake by conservative-activist types is to assume that senatorial power in and of itself is “leverage.” Name your terrible Biden policy and odds are there are tweets from the usual suspects with nice offices near the Capitol saying it could be stopped if only Senate Republicans had “used their leverage.” It’s almost never right because actual leverage requires a mechanical relationship between the cause and the effect.
I used to explain this to new senior staff in the Senate when I’d warn them against “blanket holds” or the practice of preventing unanimous consent on categories of nominees. Even the lowliest senator possesses the power to block unanimous consent. Traditionally, this translated into a power to stop low-level nominees. That power is useful when used as actual leverage, which is to say to achieve a discrete and plausible policy outcome.
For example, Ted Cruz held up the nomination of Biden’s nominee to run DOJ’s Office of Legislative Affairs, Carlos Uriarte, because Cruz wasn’t given answers on how DOJ was handling the protests at the homes of Supreme Court justices, which were per se forbidden by federal statute. I conveyed this demand to DOJ, and they promised Cruz a briefing on that topic if he lifted the hold, which he did. That was an exercise of power for leverage.
On the other hand, then-Senator JD Vance blocked all U.S. attorney nominees until the Biden administration stopped persecuting Donald Trump with lawfare. The connection between the two was conceptual at best. Or to carry forward the metaphor, the load being lifted far outweighed the strength of the lever. The move didn’t work, and the lawfare continued. It was not an exercise in power.
Blocking Blanche because one doesn’t like what DOJ is doing is more like what Vance did than what Cruz did. (Whereas blocking Warsh to stop the Powell investigation was more like what Cruz did than what Vance did.) There’s not actually leverage. What’s the effect that blocking Blanche will cause? Blanche will keep doing his job regardless (although more on this in a minute). Nothing at DOJ will actually change.
Which is to say that blocking Blanche is not actually an exercise in the Senate’s power because it has no material effect on DOJ. To go back to the McConnell line, it’s not making a law because policy at DOJ won’t change. It’s making a point. It’s the Animal House theory of legislation — a futile, stupid gesture on somebody’s part.
Furthermore, there is reason to think that the policy interests of those concerned about DOJ will be better served with Blanche as actual attorney general than acting for the foreseeable future. I hinted at this before, but let me unpack it.
If Blanche is stopped, yes, he can probably serve as acting attorney general for the foreseeable future. But as we’ve seen under Trump, actings come and go. Blanche will be constantly looking around corners for a Brutus or a Cassius trying to take his job by rising in the president’s good graces. Contrary to popular opinion, there are many such people. The standard for being an acting attorney general is flexible. Remember acting attorney general Matt Whitaker? Biden’s first acting attorney general was in charge of the DOJ library.
Trump has options. For example, the president has high regard for Judge Jeanine Pirro, now U.S. attorney in the District of Columbia. Miami U.S. attorney Jason Quiñones is a favorite of Mike Davis and is leading the revenge campaign against the Biden regime. Harmeet Dhillon has been charging hard and is an effective social-media advocate for the administration. Colin McDonald’s fraud work may be the administration’s most popular initiative. I strongly suspect that Ed Martin himself would be eligible for the job.
The point isn’t to compare these alternatives to Blanche — although I assume Senate Republicans would have a collective aneurysm at acting attorney general Martin. The point is that the existence of alternatives would make Blanche’s incentive one of total loyalty to the president’s every whim. No ballroom brief edits will be rejected if the next guy is waiting to call the boss at Mar-a-Lago and point it out.
The same applies to the critically important DAG position, where duties are currently divided between McDonald and the superlative Trent McCotter. It’s not like either of them is going to “push back” against the president in the way DOJ purists expect. But if it’s a constant competition to get and keep the acting job, the incentive will be to do the kind of work Senate Republicans don’t like only with gusto.
That’s the governing choice Senate Republicans need to make. It’s not an abstract question about bringing DOJ in line with how they think it should be run. The actual question is whether they want to make a theoretical point and thereby leave intact incentive and organizational structures that support freebase Trumpism. Or do they want to put officers in place who know their business and will have some breathing room to exercise their best judgment?
With an understanding of how Senate power actually works, that’s the choice in front of Senate Republicans. Properly considered, it’s not an especially hard one.