It now seems as if acting Attorney General Todd Blanche is prepared to do pretty much anything for Donald Trump, having carried that ethos from his previous job as Trump’s personal attorney into his current position heading up the Department of Justice. Oddly enough, his history of absolute fealty to the person of this president-slash-emperor could prove a hindrance in his quest to be confirmed as the next attorney general of the United States. For at least some Senate Republicans, a scintilla of independence may still be a job requirement. On this week’s Amicus podcast, Dahlia Lithwick interviewed veteran federal prosecutor and MS NOW legal analyst Andrew Weissmann. Weissmann served as a lead prosecutor in Robert S. Mueller’s special counsel’s office from 2017–19 and as chief of the Fraud Section at the DOJ from 2015–19. His new book, Liar’s Kingdom: How to Stop Trump’s Deceit and Save America, came out three weeks ago and became an instant New York Times bestseller. Part of their conversation, which has been edited and condensed for clarity, appears below.
Dahlia Lithwick: Donald Trump announced at a private dinner last Wednesday that Todd Blanche will be the next attorney general, so no more acting AG. This is a position Blanche has been serving in for two months, since Pam Bondi left the building. We’ve got two months of data about the kind of AG he might be. What have we learned, and what does it change in terms of his confirmation battle?
Andrew Weissmann: I’ve been thinking about what that confirmation battle might look like, because we have not just the two months of data where Blanche has been in control of the Department of Justice, but, before that, when he was the right hand to Bondi and, according to her, also the principal person dealing with the Epstein files.
There are two stories there. There’s a story about corruption, about what he’s willing to do, the complicity he is willing to engage in for the president. The other is a question of competence. Here is somebody who has made a series of serious missteps. The slush fund is just the latest. Let’s not forget that they announced they’re doing this $2 billion fictitious settlement, then, after they get pushback and the judge overseeing the case says she wants to hear from them—which, by the way, is still pending—about why this is not fraud upon the court, they essentially say, “Never mind!” Whatever you could say about Bill Barr and what he was willing to do, he was extraordinarily smart, and he played chess, not checkers.
I think, with Blanche, there’s such an array of things to ask him about. The only question is whether senators will be effective in asking those questions. But if they get their act together, this could be a way to highlight how much the rule of law has been undermined in the Trump administration.
It’s interesting, because when I think back to Barr, I think of somebody who was willing to give Trump, what, 85, 90 percent of what he wanted? Bondi was willing to give him 92 percent of what he wanted. That wasn’t enough. Now we’ve got Blanche, who, I don’t know if it’s 98, 99, or 100 percent. Thus far, we’ve thought of that level of “Whatever the boss wants” deference to the president as cost free. The question is, does there become some meaningful cost for Republican senators? Some of them squawked about the slush fund in ways that took me by surprise. Is there some cost to being the guy who says yes to absolutely everything? The fund came out of the DOJ. Blanche was a staunch advocate—and the fund reportedly blindsided even folks at the White House, who also give Trump 100 percent of what he wants.
Yet last week we heard Blanche tell Congress the fund is off the table but also refuse to put that in writing. Then, Republican senators blocked efforts to legally ban the fund in last Thursday’s vote-orama. Is this over?
Let me just give the strict legal answer, and maybe we can pan out from there. The slush fund was created to settle a lawsuit where Trump brought a civil case for $10 billion. Even Trump said, when he brought the original case, that it was odd, because he’s both the plaintiff and the defendant. Clearly, I think Congress should pass a law that says: You know what? When you’re president of the United States, you cannot bring a civil suit against an agency you control. If you have a civil claim, wait till you’re no longer president. That seems like an obvious, easy fix, and Congress has that power. That’s what Congress should be doing. It shouldn’t be thinking in this small-ball way about passing a law that the slush fund can’t exist. No. Let’s deal with the power of the presidency here. No president has ever done it, because no president should do it.
The federal judge overseeing the case has reopened the matter and now says she wants to hear, by Friday, why this is not all a fraud on the court. The idea being: This isn’t actually a real lawsuit, and in cases where the same kind of claims have been made, the IRS has defended those cases and asserted all sorts of defenses. The IRS didn’t do that here. The most obvious defense to the case was that it was brought too late; it should have been brought within two years, and how much money would Trump be owed if this were a true lawsuit? That would be zero. As I have joked, I do not do math in public, but even I will tell you that zero is less than $1.776 billion.
Even the amount $1.776 billion tells you that this is not a legitimate settlement, because a settlement is supposed to be a figure that is tethered to the damage or harm to the person. You’re telling me that a leak of Donald Trump’s tax-return information cost him $1.776 billion, and it just happens to be that number?
The president got two things out of this purported settlement. The other thing he got was this broad civil release, and that is staying intact. There was the $1.776 billion settlement, which he was going to use to create this alleged anti-weaponization fund, but then he got this broad civil release for himself, his family, his companies. But he’s facing pushback. Now that he has to give up something, what does he give up? The money for other people, even though it’s $1.776 billion, yeah, that can go. The part for him, that stays. We’re supposed to believe that this is still a legitimate settlement between two adverse parties? I think the judge on this case is going to have a field day in finding that this is something that was collusive, that there was no real bargaining between the DOJ and the IRS and Trump. The plaintiff is the defendant. The defendant is the plaintiff. This story is not over legally in terms of what the judge is going to do and what additional findings could be made about what happened here and the factual record.
David H. Gans
How Congress Can Pass a New Voting Rights Act Despite the Supreme Court
Read More
I think this is akin to the administration stealing money from the taxpayers. Step 1 is stealing the money. Step 2 is using it for criminals and relabeling them victims. It’s just that second step that Congress is saying shouldn’t happen. It’s that second step that Blanche now says they’re not going to do as a big slush fund. But they can still dribble money out to these people in the way they did with Michael Flynn and Carter Page. My analogy is that it’s a little bit like Immigration and Customs Enforcement. ICE is still doing the exact same stuff that caused the uproar in Minnesota, but it’s doing it in a quieter way so it doesn’t get bad press. And here, if you dribble out this money individually to people making claims, like they did with Flynn and Page—and, now, with all sorts of Jan. 6 people—they can still get the money to these people with the same deleterious effect, but without causing an outcry in public and on Capitol Hill.
You’ve said the judge has promised to scrutinize this. What recourse does she have? Can she really hold them to account in some way? And I guess the same question, different verse, but this question of the blanket immunity from scrutiny for the Trump family and their taxes. Is there a path to challenging that in court and winning?
So the easy question to answer is the legitimacy of the piece of paper Blanche signed—he is the only one who signed it—which is this broad civil release. I think that is not worth the paper it’s printed on. If you have a legitimate administration in office in the future, whether Republican, Democratic, independent—anybody who cares about the rule of law in the next executive branch—they can open a tax investigation into all of the things Trump purports to say was released. So if they think Trump, his companies, or his family still owes money, they can still investigate, and Trump would have to say, “No, no, no, I have this piece of paper! Look at this piece of paper that my attorney general, aka the person formerly known as my defense lawyer, Todd Blanche, signed!” And there would be a hearing where the judge would decide whether that was the product of fraud, essentially the same kind of thing that we’re talking about that the federal judge is currently looking into.
-
Spencer Pratt Has Now Defined His Legacy. It’s Not Pretty.
-
Republicans Have the Chance to Do the Funniest Thing Ever With Todd Blanche’s Nomination
With respect to what the judge could do now, I think that is a really interesting question, because it goes to one of the things that Blanche really screwed up on here, which is: They brought this case in a court. Trump brought this $10 billion case to court. The argument for why this was collusive is, well, you could have just engaged in a private settlement where Trump submits a letter that says, “I have this claim,” then the DOJ promises to resolve it, but you never really go to court. That can happen in civil litigation: Sometimes you have a private agreement, where both sides agree that they want to get rid of the case before they make a federal case out of it. If they had done that, no court would have been involved. But why did they not do that? They didn’t do that because they wanted to have the trappings and the veneer of making it look as if it were a real federal case. You heard the president talk about how he was really hurt. And then you have Blanche talking about how this is a settlement, it’s traditional, and we do this all the time in settlements. They wanted to be able to cloak this in the air of legitimacy, when it has nothing to do with what a real lawsuit would look like. But because they did that, it gave the judge a hook to say, We’re not going to be a party to it.
Now the question is, what’s the judge going to do about it? What the judge could do, and this is yet another thing Blanche can be questioned about at his confirmation hearing, is say, “I think what the lawyers did here is improper, and I am referring it to the Bar Association.” There’s something that’s gotten very little attention, but that Mary McCord and I have tried to shine a light on on our podcast: A few weeks ago, Blanche, on behalf of the DOJ, filed a brief in Washington stating that bar associations should have no jurisdiction over attorneys at the DOJ. The remedy we’re talking about that the court could impose is one that Blanche is saying shouldn’t exist. As somebody who was at the DOJ for 21 years, I find that to be anathema to how I thought about public service. If you don’t want public scrutiny, and you don’t want to be held to a high ethical standard, don’t take the job!
