Blanche’s eleventh-hour orders are illusory, but holdout senators have agreed to play along.
I’ve already had plenty to say about the farce that has been Todd Blanche’s confirmation proceeding in the Senate Judiciary Committee (here, here, here, here, and here). Now it has a fitting capstone: the eleventh-hour Republican deal to save the nomination, about which our Charles Hilu reported yesterday.
Blanche, currently the deputy attorney general and acting AG, has of course been nominated by President Trump to be the full-fledged AG. The orders Blanche issued late on Sunday, to seal the deal with Republicans whose votes he needs to survive today’s committee vote, are flimflam.
Two committee Republicans, Senators John Cornyn (Texas) and Thom Tillis (N.C.), put up what turned out to be illusory resistance to the nomination, based on Blanche’s intransigence (translation: Trump’s intransigence) regarding the president’s desired slush fund for payoffs to Capitol riot defendants and assorted cronies (the “Anti-Weaponization Fund”). Since the two senators were incisive enough to grasp the patent emptiness of Blanche’s oral protestations that the fund was dead and that the illegal tax-audit immunity for Trump was nearly unlimited in scope, then they surely know that Blanche’s Sunday night directives are equally wanting. And yet, all concerned have agreed to pretend that the directives have real teeth — Cornyn and Tillis so they can pose as having won concessions, Blanche and the White House so they can get the nomination over the finish line.
I was surprised to hear that, in an X post on Saturday, Senator Cornyn had recommended one of my pieces on this misadventure. While I’ve given Cornyn and Tillis credit for at least partial pushback on the “settlement agreement” forged in the president’s collusive lawsuit against his own IRS — for misconduct that occurred during his own (first) administration — I’ve also observed that the two senators were only marginally preferable to their fellow committee Republicans. While the latter have been poised to rubber-stamp the nomination, Cornyn and Tillis have miniaturized the Trump Justice Department’s immense record of abusing power on Blanche’s watch as if the collusive lawsuit were the only demerit.
Even in doing that, moreover, they were minimizing just how appalling the collusive lawsuit is. Its IRS-audit-immunity term is at least as bad as the slush fund because it is flatly illegal and a sweeping benefit Blanche gave to his former client in a matter in which Blanche had a patent conflict of interest and should have recused himself. Yet the senators’ pushback on the immunity agreement was merely that it was worded so broadly (in the document that Blanche signed on behalf of the government) that it could be read to offer prospective as well as retrospective coverage (i.e., Trump, his elder sons, and the hundreds of businesses associated with the Trump organization could avoid audits ad infinitum).
In point of fact, to repeat what I’ve elsewhere opined: (1) As acting AG, Blanche did not have authority to direct the IRS not to audit the Trumps; (2) since he was acting as Trump’s agent, and Trump is barred by statute from petitioning the IRS to refrain from auditing, Blanche, too, was barred from doing so; and (3) the lawsuit brought by Trump as a pretext for the audit immunity (and the “Anti-Weaponization Fund”) was meritless and the government had significant defenses to it (statute of limitations and IRS immunity for the misconduct of a contractor). On that last point, it was absurd for Trump to claim $10 billion in damages, and it was just as absurd for Blanche to settle the bogus claim for astonishingly valuable consideration (the audit immunity plus the $1.776 billion fund) when the controlling statute presumes damages of just $1,000 for each instance of illegally disclosing taxpayer information. If the IRS audits the Trumps in the future, I don’t believe the wayward settlement agreement will support an immunity claim.
All that aside, the express, unambiguous text of the settlement agreement states that no modification of the agreement is effective unless it is in a writing signed by all the parties to the agreement — as I pointed out in the piece that Senator Cornyn cited. Cornyn had a long and distinguished career as a lawyer, including his service as a justice of the Texas Supreme Court and as the state’s attorney general. He knows that the Justice Department, even at the AG level, may not unilaterally void or modify an agreement by which the Justice Department previously agreed the United States would be bound.
By the terms of the settlement agreement, Blanche cannot rescind the fund or modify the audit-immunity term (a separate document that is explicitly incorporated in the main agreement) unless the plaintiff who benefited from these terms (at the “cost” of dropping his risible $10 billion lawsuit) signs off on such a modification (at least by having his plaintiff’s lawyer, who signed the settlement agreement, sign such a modification). Cornyn and Tillis can crow all they want about a written concession by Blanche that the DOJ considers the fund null and void, but the concession is meaningless unless Trump signs (or has his attorney sign) a modification to that effect.
Everybody knows that’s not going to happen, because Trump makes no secret of the fact that he wants the fund, or its equivalent, to go into effect. And if the president decides to reinstate such a fund the day after Blanche is confirmed, Blanche will reinstate it — bet on it. Blanche has repeatedly testified — most noticeably when pressed on corrupt pardons — that if the president desires to exercise executive power that he undoubtedly has, Blanche sees his duty as AG to effectuate the president’s desire and not to question whether the exercise of power is abusive.
And therein lies the problem. When the Republican Party was the political right’s vehicle, at whose center were conservative defenders of the Constitution, its members of Congress prioritized the Article I branch’s obligation to check executive abuse of power. This was understood to be vital to the separation of powers and to liberty, the bedrocks of our governing framework.
By contrast, for today’s smaller, MAGA-dominated Republican Party — in which constitutional conservatives are deemed RINOs and government intrusions in and control of the economy are all the rage — dissent against executive lawlessness and abuses of power is condemnable disloyalty. The Constitution is no longer the measure of fidelity. So Republicans now say, “Look, Trump is Trump, there’s no stopping him from breaking norms, rules, and even laws. So, aren’t we better off with a qualified Blanche who might occasionally exercise some positive influence than with some unqualified lackey?” It apparently doesn’t register that the Senate is vested with the constitutional muscles to say, “Mr. President, we are not going to tolerate gross abuses of power. You get no nominees and no financial support unless and until you mend your ways.” (At least it doesn’t register now. But will anyone listen to them when they suddenly remember the lines the minute a Democrat takes the Oval Office?)
The Senate and the House also have the constitutional muscles to ensure that no taxpayer money is awarded to people — including those who assaulted police and vandalized the Capitol — who have already been pardoned by the president. That would take legislation, however. The Republican position on that is either to block it when Democrats propose it or — as does Tillis — to propose it in combination with poison pills that Democrats are certain to oppose (such as more funding for DOJ anti-fraud initiatives that Trump opponents fear will be weaponized against them).
In the absence of legislation, as all Senate Republicans well know, the anti-weaponization fund can be revived at any time under whatever name. More to the point, there would be nothing stopping Trump and Blanche from achieving the same outcome by encouraging January 6 defendants to sue the government, then settling with them by paying generous awards out of the bottomless Judgment Fund.
In the meantime, the bare Republican majority is scheduled to eke the AG nomination out of the Judiciary Committee this morning, with Senators Cornyn and Tillis joining their GOP colleagues in effectively endorsing the DOJ’s 18-month performance with Blanche at the helm.
Author’s note: I’ve edited this post to clarify that (1) the tax audit immunity in the settlement agreement was nearly unlimited (as the rest of the post makes clear), not “limited,” as the post incorrectly said; and (2) the parties in the Trump lawsuit against the IRS included the president’s elder sons (Don Jr. and Eric), not all three of his sons.