Attorneys general are not “independent” of the president; rather, they are fully subject to the president’s direction and control. Importantly, however, they owe their highest allegiance not to the president but to the Constitution and the courts. When a presidential directive clearly conflicts with those legal and ethical obligations, they cannot comply with it. Unfortunately, there’s little reason for confidence that Attorney General Blanche will draw this line.
Attorney General Todd Blanche created quite a stir on Meet the Press last Sunday when he refused to “pledge that the Justice Department will always act independently of the White House.” He responded:
“Well, there’s a big difference between saying we will always do our job and investigate any case and act independently of the White House—no, I’m not going to pledge that. And no attorney general should ever pledge that.”
Blanche is, of course, right in the sense that the attorney general is not some sort of independent actor within the executive branch who is not wholly subordinate to the president and fully subject to his direction. Like all cabinet members, the attorney general serves at the pleasure of the president, owes the president a general duty of loyal and faithful service, and is removable by the president for disregarding a presidential order or for any other reason or no reason at all.
The notion that the attorney general and the Justice Department should operate somewhat at arms-length from the White House and with some degree of independence on certain matters arose most dramatically in the Watergate era “Saturday Night Massacre” when the attorney general and deputy attorney general resigned rather than comply with President Nixon’s order to fire Watergate Special Prosecutor Archibald Cox. It became the norm in subsequent administrations.
However, it is (was) just an internal norm–one of many President Trump has blown through in his second term. Trump treats the attorney general and the Justice Department like a private law firm that exists to serve his personal interests. He does not hesitate to enlist them to attack his perceived enemies, assist those he favors, and otherwise indulge his wishes.
Nevertheless, the fact that the attorney general is fully subject to the president’s authority and direction does not require rote compliance with every presidential demand. Attorneys general take no oath of fealty to the president. They do take the statutorily prescribed oath for officers of the United States to support and defend the Constitution. They are also subject to ethical requirements as members of the bar and officers of the court. These include obligations of candor and good faith in dealing with the judiciary and refraining from the conduct of frivolous litigation.
While Blanche effectively rebutted the suggestion that he enjoyed a special form of independence from the president, he was evasive and unpersuasive when addressing questions about potential tension between his role as a loyal Trump subordinate and his paramount constitutional and ethical responsibilities. He assured the interviewer that Trump would never ask him to do anything illegal or unethical, adding:
“[T]here is this extraordinarily false narrative that the president wakes up in the morning and calls me and says, ‘Todd, go prosecute X or Y.’ He does not do that. He has never done that. He will never do that.”
But Trump did exactly that with Blanche’s predecessor, Pam Bondi, pressuring her to indict specific individuals and apparently firing her for moving too slowly. Why should anyone expect Trump to treat Blanche differently?
Furthermore, Blanche’s own actions create serious doubt that he would resist if Trump did the same to him. See, for example, his risible indictment of James Comey for allegedly threatening Trump by briefly posting a photo of seashells forming “86 47.” Blanche also filed a motion in the White House ballroom case written in Trumpspeak that reads more like a Truth Social post than a legal document.
Most notably, Blanche played a central role in the notorious “settlement” of Trump’s lawsuit against the IRS that barred the agency from pursuing tax claims against Trump and his family and attempted to create a $1.776 billion “anti-weaponization fund.” The settlement was widely condemned as collusive and fraudulent. The judge assigned to the lawsuit, which was withdrawn to prevent further scrutiny, denounced it in a scathing order as an exercise in bad faith “that had no viable basis in law or fact.” She forwarded her order to the New York Bar, of which Blanche is a member. Apart from its other outrages, the proposed anti-weaponization fund was a blatantly unconstitutional violation of Congress’s power of the purse.
More generally, Blanche has served as deputy attorney general since early in Trump’s second term and presided along with Bondi over a shocking decline in the integrity of the Justice Department. Its attorneys have repeatedly stonewalled and misled federal judges and even engaged in outright defiance of their orders at times, thereby undermining their traditional credibility with the courts. Many experienced attorneys have headed for the exits.[1]See here, here, here, here, here, here, here, and here.
There is nothing wrong with an attorney general forcefully supporting a president’s policy agenda and pushing the envelope with novel and aggressive legal arguments. In fact, this is standard practice today. However, Trump’s Justice Department seems to regularly go beyond reasonable and ethical limits. Blanche is more polished than Bondi and lacks her outlandishly sycophantic and performatively combative persona, but he seems just as willing to do whatever Trump wants.