Donald Trump announced today that he will nominate Deputy Attorney General Todd Blanche to be Attorney General. For reasons I won’t belabor now, I think that Blanche has proven himself to be an utter hack and that he does not deserve to be confirmed as Attorney General. But the reality is that even if he is not confirmed, he can continue to run DOJ indefinitely:
1. Section 508 of Title 28 provides a specific alternative to the Federal Vacancies Reform Act for the office of Attorney General. It states that when the Attorney General position is vacant, “the Deputy Attorney General may exercise all the duties of that office”—i.e., to serve as Acting Attorney General. (You might quibble that the “Acting” title is improper because section 508(a) doesn’t use act or its variants. I will set that aside here as a metaphysical objection of no practical consequence.)
On initial review at least, I think that the best reading of section 508 is that it places no limit on how long the Deputy AG may serve as Acting AG. (To be sure, the second clause of section 508(a) refers to the provision of the FVRA codified at 5 U.S.C. § 3345. I’m not going to get into the weeds here, but I believe that reference serves merely to avoid anyone’s rival claim to be Acting AG under the FVRA. I don’t think that it imports the time limits under 5 U.S.C. § 3346. And I’m confident that DOJ’s Office of Legal Counsel would take that position.)
2. Blanche would separately qualify as Acting Attorney General under the FVRA, and his service in that FVRA capacity would be subject to the time limits in section 3346. But section 3346(a)(2) provides that a person serving as an acting officer may continue to serve in that capacity “for the period that the nomination is pending in the Senate.” Plus, even if Democrats were to force the return of Blanche’s nomination (or the Senate were to reject his nomination), he could serve as Acting AG for 210 days after the return (or rejection), and, if Trump were to renominate him during that 210-day period, he could serve “for the period that the [second] nomination is pending in the Senate” or for 210 days after it is rejected, withdrawn, or returned.
It’s very easy to see how those time periods could consume the remaining 2-1/2 years of Trump’s term.
3. Apart from the above authorities, Blanche in his capacity as Deputy Attorney General has all, or virtually all, of the powers of the Attorney General (pursuant to an Attorney General regulation delegating authority to the Deputy). So even if the section 508 authority were subject to the FVRA time limits and even if those time limits somehow expired, Blanche could continue to run DOJ as Deputy Attorney General.
In sum, the White House will have no genuine cause for complaint if the Senate does not confirm Blanche’s nomination, as one way or another Blanche can continue running DOJ. What senators can do—and, given Blanche’s performance as Deputy AG, should do—is avoid giving him the imprimatur of Senate confirmation.