Todd Blanche for Attorney General?

Todd Blanche should not be the Attorney General of the United States, though it appears he is about to assume that office thanks to 50 Republican Senators* who are, it seems, going to confirm him for that position.

*As far as I am aware, Susan Collins is the only Republican Senator who has declared that she will vote against Blanche’s nomination.

Senators Cronyn and Tillis withdrew their opposition when Blanche issued an order formally rescinding his earlier order setting up an “Anti-Weaponization Fund” as part of the “Settlement Agreement” reached between the IRS and our President, and limiting the “immunity” from tax liability granted to Trump and his children and associates by declaring that it only “applies retroactiviely.”

The idea that this somehow is sufficient to warrant an appointment to be the chief federal law enforcement officer truly boggles the mind. The Settlement Agreement and the Anti-Weaponization Fund weren’t just bad ideas; they were an attempt to perpetrate a fraud on the court and the American taxpayers, “ignor[ing] ethical norms, court rules, and legal authority to manipulate the judicial process [in order to] gild their efforts to gain unprecedented access to the public fisc with the patina of legitimacy.”

Those are not my words; they are the words of Judge Kathleen Williams of SD Florida, in her July 13th Order imposing sanctions on the parties (our President and the I.R.S.) and the attorneys involved in the case (including Acting AG Blanche and Associate AG Stanley Woodward, as well as Daniel Epstein, signatory to the bogus “Settlement Agreement” as Counsel for the Plaintiffs).

More excerpts from Judge Williams’ opinion are included below. Though her opinion is long (56 pages) and detailed, in the end she doesn’t really uncover anything that wasn’t already obvious to anyone who followed the whole “Settlement” shitshow at all closely:

“This action was never about a party seeking judicial resolution of a legal issue or a factual dispute. The nature of the suit itself and the conduct of the Parties and counsel from its filing make plain that this was an attempt to use the Court to provide some legitimacy to an agreement to confer immunity to people and entities affiliated with the President and to earmark billions of dollars from American taxpayers to redress grievances not defined in the law. . . .”

“This lawsuit was not brought to vindicate rights; it was brought to manipulate the judicial process to pursue benefits unavailable in litigation because the Parties were not adverse” . . . . 

“Plaintiffs improperly employed this lawsuit to justify a particular award in this matter—access to taxpayer funds and exemption from audits and other investigations—which was accomplished by leveraging control over Defendants. . . The Parties used the existence of federal litigation as a means of conferring legitimacy upon a course of action that they were unwilling to subject to judicial review. The context of the “settlement,” the relationships of the people involved in negotiating and approving it, the ethical implications of their conduct, and the Parties’ swift efforts to dismiss this case after the Court raised fundamental jurisdictional questions all support this conclusion. Accordingly, the Court expressly finds that Plaintiffs acted in bad faith.

Todd Blanche was a major participant in this fraudulent scheme (and was probably the one who dreamed it up).**

**Part of Judge Williams’ sanctions order directed “the Clerk of Court to mail a copy of this Order to the State Bar of New York, of which Acting Attorney General Blanche is a member (No. 4192456), [and] where disciplinary proceedings are currently ongoing.” As far as I am aware, Blanche has not indicated that he will appeal, nor has he formally contested any of Judge Williams’ findings.

We could perhaps have a reasonable disagreement about whether this would disqualify him for, say, appointment as Ambassador to Luxembourg, or Assistant Undersecretary of Commerce. But Attorney General of the United States?

With all due respect to Sens. Cronyn and Tillis, rescinding the Slush Fund Order** doesn’t change the historical facts: this is the man who tried his best to defraud the federal court and, unltimately, the American people. Surely, the one job in the United States for which he is not qualified is the one the Senate is, unless a few more Republicans can find their backbones, about to give him.

Excerpts from Judge Williams’ Order [full-text here]

“The Complaint purports to present a controversy between Plaintiffs—President Donald J. Trump, Donald J. Trump Jr., Eric Trump, and the Trump Organization, LLC— and Defendants—the Internal Revenue Service and United States Treasury Department—claiming Defendants caused Plaintiffs reputational and financial harm for which they now seek “at least $10,000.000,000.00.” At first glance, the Complaint seemingly satisfies Article III by establishing causes of action “arising under . . . the laws of the United States[.]” However, closer examination reveals that a justiciable case or controversy is absent; Plaintiffs and Defendants are not adverse, because one party controls this litigation.

Plaintiffs improperly employed this lawsuit to justify a particular award in this matter—access to taxpayer funds and exemption from audits and other investigations—which was accomplished by leveraging control over Defendants. . . .

“[Plaintiffs] filed a multibillion-dollar lawsuit asserting claims that they knew, or should have known, were time-barred and for an amount of damages unsupported by facts or law. Plaintiffs could make no connection between the billions of dollars they sought, and the recovery authorized under the governing statute. See 26 U.S.C. § 7431(c)(1). Generally, the “central purpose” of a lawsuit must be to “vindicate rights through the judicial process.” This lawsuit was not brought to vindicate rights; it was brought to manipulate the judicial process to pursue benefits unavailable in litigation because the Parties were not adverse.

The Parties used the existence of federal litigation as a means of conferring legitimacy upon a course of action that they were unwilling to subject to judicial review. The context of the “settlement,” the relationships of the people involved in negotiating and approving it, the ethical implications of their conduct, and the Parties’ swift efforts to dismiss this case after the Court raised fundamental jurisdictional questions all support this conclusion. Accordingly, the Court expressly finds that Plaintiffs acted in bad faith.

These facts lead to the inexorable conclusion that the “settlement” terms, the individuals who signed the “settlement” as well as the putative beneficiaries of the “settlement,” demonstrate a shared, unitary interest. And the unilateral revision and renunciation of the “Fund” component of the “settlement” demonstrate the fact that all Parties were aligned, and ultimately, undifferentiated. This action was never about a party seeking judicial resolution of a legal issue or a factual dispute. The nature of the suit itself and the conduct of the Parties and counsel from its filing make plain that this was an attempt to use the Court to provide some legitimacy to an agreement to confer immunity to people and entities affiliated with the President and to earmark billions of dollars from American taxpayers to redress grievances not defined in the law.

Defendants chose not to “advance an interpretation of the law as the position of the United States that contravenes” President Trump’s opinion regarding this lawsuit. See Executive Order § 7. It is clear that obeisance to the mandate of his Executive Order has been fulfilled by Defendants’ actions (or more accurately, inaction) in this case. Therefore, not only does the Executive Order demonstrate President Trump’s espoused control over Defendants’ conduct generally in litigation, it also demonstrates President Trump’s actual control in this litigation.

Second, the “settlement agreement” is signed on behalf of Defendants by Stanley Woodward, Jr., the current Associate Attorney General at the DOJ, and Acting Attorney General Blanche. Before he went to the DOJ, Associate Attorney General Woodward represented several individuals charged in connection with the events of January 6, 2021, at the United States Capitol. He also represented Walt Nauta, who was President Trump’s personal aide and a co-defendant in the criminal matter involving the return of classified documents at Mar-a-Lago. Before his appointment to the DOJ, Acting Attorney General Blanche served as President Trump’s personal criminal defense attorney in several high-profile matters.

The gravamen of the “settlement agreement” is to fund claims premised on events including those arising from, inter alia, the Mar-a-Lago Documents Case and the events of January 6, 2021. Indeed, these two cases have been referenced as quintessential Anti-Weaponization and Lawfare claims. Instead of either recusing because of their previous representations or vigorously defending this lawsuit as required to do so by DOJ policies and procedures, these lawyers agreed to a “settlement” involving a staggering amount of money potentially benefitting former clients.

Moreover, the Release Order, signed only by Acting Attorney General Blanche, extends a blanket grant of immunity to all Plaintiffs and their families and “affiliates,” and precludes all “current or possible” investigations or actions before any other agencies or departments. The Release Order also purports to bar the IRS from conducting any future tax audits of President Trump, his sons, and their entities. This provision directly contravenes 26 U.S.C. § 7217, titled “Prohibition on executive branch influence over taxpayer audits and other investigations,” which states: It shall be unlawful for any applicable person to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer. The explicit text of this statute prohibits President Trump and his lawyers—one of whom was former White House Counsel—from asking for or promoting termination of an audit directed toward him.

In dismissing the non-parties’ claims of collusion, Plaintiffs reveal the true position of the Parties and say the quiet part out loud: “Regardless of whether Plaintiffs had ever filed this action, the Government and Plaintiffs still had the power to resolve all disputes between the parties.” The power to resolve was never a question before this Court. Whether Executive Branch actors can privately agree to give themselves and their former clients blanket immunities and billions of dollars in tax monies for legally undefined grievances was never an issue advanced to this Court. The question is whether the Parties could do so by claiming to be adverse and engaging the legitimacy of a court proceeding. The answer is a resounding “no”: the Lead Plaintiff and the Government are one, a fully realized unitary interest.

And because this fact was so obvious and so insurmountable, the Court finds that this matter was brought for an improper purpose—to gain the imprimatur of judicial legitimacy for a “settlement” that had no viable basis in law or fact. As was observed in another matter brought in this District, “this case is part of Mr. Trump’s pattern of misusing the courts to serve political purposes.”

Rule 11 sanctions are appropriate here. . . . The Parties (President Donald J. Trump, Donald J. Trump, Jr., Eric Trump, and the Trump Organization, and the Internal Revenue Service and the United States Department of the Treasury) are prohibited from referring to the purported “settlement agreement,” or using, offering, admitting, or citing any of its provisions in any judicial, administrative, regulatory, arbitration, or any other official proceeding as evidence of a “settlement” reached in this matter.

The key to unlocking a court’s inherent power is a finding of bad faith.” Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998) (citations omitted). This is a subjective standard. Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1223 (11th Cir. 2017) (“As a starting point, the inherent-powers standard is a subjective bad-faith standard.”). “Once unlocked, the power carries with it the authority to assess attorney’s fees as a sanction for bad faith conduct.”  Bad faith is present if a court determines “that fraud has been practiced upon it, or that the very temple of justice has been defiled,” or where a party is responsible for “delaying or disrupting the litigation[.]”

The conduct of the Parties triggers the Court’s inherent authority. The Parties used the existence of federal litigation as a means of conferring legitimacy upon a course of action that they were unwilling to subject to judicial review. The context of the “settlement,” the relationships of the people involved in negotiating and approving it, the ethical implications of their conduct, and the Parties’ swift efforts to dismiss this case after the Court raised fundamental jurisdictional questions all support this conclusion. Accordingly, the Court expressly finds that Plaintiffs acted in bad faith. . . .

[T]he Clerk of Court is DIRECTED to mail a copy of this Order to the State Bar of New York, of which Acting Attorney General Blanche is a member (No. 4192456), AND to the District of Columbia Bar, of which Associate Attorney General Woodward is a member (No. 997320), where disciplinary proceedings are currently ongoing.