Some Question for Todd Blanche’s Upcoming Confirmation Hearing

It’s hard to think of a better illustration of the dramatic changes that our President has wrought in the world of law and lawyering than the (still-very-much-unfinished) Todd Blanche story.  Blanche’s actions since being named Acting A.G. – the risible Comey indictment (“SeashellGate”?)[1], the “Anti-Weaponization” slush fund for Trump’s cronies and January 6 insurrectionists that even Trump’s long-time supporters couldn’t stomach,[2] the waiver of claims against the President of the United States (his boss) that he forgot to include in the Settlement Agreement the DOJ had negotiated[3](!) – would surely, in earlier times, have gotten him fired, and possibly sanctioned or worse for having perpetrated a fraud on the court.[4]

Instead, it earned him a promotion.  To paraphrase Vince Lombardi, loyalty isn’t everything, it’s the only thing.

But the good news is that the nomination will allow the Senate Judiciary Committee to ask Blanche some questions at his confirmation hearings.  Here are some questions that I’d like Blanche to answer:

1. Were you involved in the negotiations leading up to the May 18 “Settlement Agreement” between the President and the I.R.S.?  And/or the drafting of the Settlement Agreement itself?
   1. If you were not involved, were you briefed beforehand on the deal that was being struck?
   2. If you were involved, in what capacity were you acting – as counsel to the I.R.S.?
      1. Were you concerned about potential conflicts of interest in such a scenario, given that (a) before you became Acting AG you were the President’s personal lawyer, and (b) as Acting A.G. the President – your adversary in the action – is your direct superior and can fire you at will?
   3. Before the Plaintiffs voluntarily dismissed their claims in the Florida case, the Court had ordered special briefing on the question of whether there was a “case or controversy” in the action. Briefs were due in less than a week after Plaintiffs’ motion to have the claim dismissed was filed.  Presumably, the DOJ was hard at work preparing its briefs on the question.  What position was the DOJ going to take on behalf of its client (the IRS) on the matter? Was there, or was there not, a justiciable “case or controversy”?
   4. You didn’t sign the Settlement Agreement (although it was signed on behalf of the United States by your deputy, Assistant A.G. Woodward). Why not?
   5. When did you become aware that the parties had negotiated a provision pursuant to which the IRS would waive all of its claims against Mr. Trump that may have accrued up to that point in time?
   6. Do you know why the Settlement Agreement did not include any waiver of IRS claims? Was that just an oversight?  On whose part?  Is your order of May 19 an attempt to correct that oversight?
   7. The Settlement Agreement states that Mr. Trump and the other Plaintiffs will receive “a formal apology from the United States,”and that this was their “sole and complete relief” in the case. [Sec. III(A)]  But that would suggest that the IRS’ waiver was not part of the settlement between the parties. Is that correct?
   8. But if the waiver was not part of the settlement between the IRS and Mr. Trump, then what authorizes you to include it in your May 19 Order?
      1. If I promise to stop asking you uncomfortable questions about your behavior as Acting Attorney General, will you give me a waiver of all claims the IRS might have against me? And putting aside whether you’d like to do that – do you seriously believe that you are authorized to grant me such a waiver on behalf of the United States?   Please explain.
   9. The Settlement Agreement states that “the corpus of the Anti-Weaponization Fund’s funding does not represent the value of any current claim by Plaintiffs, but rather is based on the projected value of future claimaints’ claims.” On May 18, the DOJ announced that the fund would receive $1.776 billion. Although you have backtracked on this point and declared that the DOJ is not moving forward with the Anti-Weaponization Fund, I am just curious – was this actually “the projected value of future claimants’ claims”?  You must have some worksheets and/or calculations to back that up, yes?  May we see them?

[1] See Eugene’s takedown of the charges against Comey here.

[2]  See my earlier postings here, here, and here.

[3] Seriously. You can see for yourself that the IRS did not waive any claims against Trump in the Settlement Agreement. That waiver was granted in the special “Order” Blanche issued on the following day.

Why wasn’t it included in the Settlement Agreement?  The only explanation I can come up with is that the lawyers simply forgot to include it.  Maybe they got confused; the Settlement Agreement does have a “waiver of claims” clause (see Sec III(B)) – but that one goes in the opposite direction! Plaintiffs are waiving their claims against the IRS!

You can imagine the scene:

Blanche: “Did you put that waiver into the Settlement Agreement?”

Lawyer in Charge of Drafting Settlement Agreement:  “We sure did!”

That kind of thing would get a first-year associate fired.  But Mr. Blanche has turned it into nomination to be our next Attorney General.

[4] We will learn, I hope, a great deal more on this score shortly.  Judge Williams, in the SD FL case, has asked for briefing, due this Friday, on possible collusive conduct by the two parties in this case, and I suspect she will hold at least one public hearing on the matter as well.  The long and the short of the allegation is that the two sides – Trump on one side, the IRS on the other – agreed that Trump would file a phony lawsuit against the IRS, that he would voluntarily dismiss his claims before the IRS had to answer the claims, and the parties would announce that they had “settled” the case.  This would enable them to get their hands on the DOJ’s “settlement fund,” without any of that nasty Congressional oversight or approval.