Attorney General Todd Blanche
On Saturday, Donald Trump ordered the Justice Department to investigate members of Congress for the offense of proposing to impeach his attorney general and secretary of defense. He branded the talk “extortion at the highest level” and announced, “I am ordering the Department of Justice to look into this criminal act, immediately!”
We can expect the Department to fall into line dutifully, because Attorney General Todd Blanche has already demonstrated his eagerness to convert federal prosecution into a weapon against the president’s enemies, wielded without regard to the facts, the law, or the commission of any crime. He said as much yet again Sunday in an interview with CNN’s Dana Bash that should live on in infamy.
That practice stands atop the list of Trump 2.0’s manifold abuses of democracy and departures from constitutionalism and the rule of law. It follows that Blanche stands atop the list of Trump officials whom the incoming Democrats must aim to remove from office.
It is high time to impeach Todd Blanche.
With the House gavel in January comes a choice of priorities. This administration has repeatedly subverted the constitutional structure of checks and balances; bungled foreign policy, including through illegal misadventures, in ways that have profoundly undermined the national interest; and enriched the president and his allies at public expense.
These grievous offenses—all departures from the essential Article II command that the president “take Care that the Laws be faithfully executed”—require staunch investigation, oversight, and remedy. But the first order of business is to reaffirm the rule of law and democracy, and to strike back against the most virulent attacks on them.
The essential distinction that should lead Rep. Jamie Raskin (D-MD), the incoming House Judiciary Committee chair, and the new majority to vote out articles of impeachment against Blanche is between abuses of executive power on the one hand and the embrace of authoritarianism and the negation of the constitutional rule of law on the other.
For the last 20 months, the Department of Justice has gone well beyond flirting with authoritarianism. It has become an authoritarian enclave of government, full stop. The practices that Blanche has embraced do not happen in a democracy; they define authoritarian rule. Raskin, who has vowed to investigate Blanche, put it plainly: the Department of Justice has become “an instrument of revenge, political revenge for the president”
Representative Hank Johnson has stated the umbrella case: Blanche’s offenses, he says, “demand that he be impeached and convicted and removed from office.” The menu of possible articles runs long: championing Trump’s $1.776 billion IRS slush fund until senators made him kill it; illegal firings, including Maurene Comey’s, as a federal judge ruled last week; an early push, with his deputy Emil Bove—now, incredibly, a federal appellate judge—to ship immigrants out of the country in violation of Judge Boasberg’s order; a sit-down with Ghislaine Maxwell not long before she landed in a minimum-security camp.
Yet if I were drafting the articles, I’d opt to set aside for the time being all those horrendous abuses in the sycophantic service of Donald Trump and advance a single count: that Blanche has wielded the power of federal prosecution to punish the president’s enemies. The House impeached Trump himself on a single article in 2021.
As Vladimir Putin’s persecution of Alexei Navalny shows, a single instance defines a regime’s tyrannical character, and a single instance would justify impeachment and removal. With Blanche, we have a long and growing list: James Comey, three times over. Letitia James. Cassidy Hutchinson. The Six Democratic lawmakers.
A one-count article of impeachment reduces the overall firepower of the case against Blanche, but it trains Congress’s and the nation’s focus on reprisal prosecutions, the practice of Trump 2.0 that is the singular paradigm of authoritarianism. Four reasons make the reprisal count the right one.
First, reprisal prosecutions don’t merely abuse power; they violate the Constitution in and of themselves. The Supreme Court has called it “a due process violation of the most basic sort” to punish someone for doing what the law allows. When the charges are brought in retaliation for protected speech, as with Comey or the six Democratic lawmakers, the prosecution violates the First Amendment as well.
Second, reprisal prosecutions are designed to cow dissent more broadly. Blanche’s prominent targets—a former FBI director, a witness who testified to Congress about Trump’s actions on January 6, lawmakers who reminded troops of their duty to disobey illegal orders—cast a broad shadow over other political critics. Along with immiserating political adversaries, that is the point. Each case warns every potential critic, witness, and whistleblower to keep quiet or face criminal prosecution. And because a reprisal prosecution does its damage before any judge rules, and prosecutors enjoy absolute immunity from damages, the courts can’t undo it. Impeachment is the one remedy that reaches the responsible official.
Third, Blanche has combined his indulgence of autocracy with misrepresentations to the American people. He assured a national TV audience that the Justice Department would “prosecute without fear or any sort of favor. And that’s what every Department of Justice should do.” Precisely the opposite has been true: the Department has imposed fear on political enemies and favors on political friends. His Orwellian denial of the self-evident facts is itself strong proof that Blanche knows exactly the gravity of the transgressions he has greenlighted.
Fourth, and most important, prosecuting the leader’s enemies on manufactured or nonexistent charges is the bright line between democracy and autocracy. It’s the unmistakable mark of authoritarianism. And take no comfort that the prosecutions have so far failed. Kafka’s Josef K. never receives a verdict either; the process itself is the punishment.
Compare Blanche with Defense Secretary Pete Hegseth, whose impeachment Rep.Thomas Massie (R-KY) may force to a vote as early as this week. Massie’s eight articles charge Hegseth with waging war in Iran in defiance of the War Powers Resolution, with a strike that killed more than 150 people at a girls’ school in Minab, and with boat strikes that have killed at least 221 people and may well have been war crimes.
It’s an odious list that advances a strong case for impeachment. But it consists largely of abuses of democratic rule, not negation of it. Democracies aren’t immune from transgressing the law of war, and there is by now an extended history of military engagements that Congress never authorized. The core case against Hegseth is that he’s a flaming asshole, a terrible, arrogant secretary of defense whose tenure has sharply undermined the national interest. This is the man who boasted of “maximum lethality, not tepid legality.”
The exception proves the rule. Massie’s sixth article charges Hegseth with threatening Senator Mark Kelly with prosecution for telling service members they may refuse illegal orders. Of the eight counts, it’s the only one that smells of Moscow. And Blanche’s Justice Department took the next step: it tried to indict Kelly and five colleagues over that same video.
Now picture a Senate trial of Blanche on a single count of reprisal prosecutions. The charge is clean. There’s no obscuring or evading it.
What might Blanche possibly say in his own defense? That he never undertook reprisal prosecutions? Fat chance: he not only saluted and discharged the orders; he defended them publicly as a legitimate exercise of Trump’s Article II powers.
That Trump told him to? That’s the defense Lt. William Calley offered for My Lai during the Vietnam era, and the military courts rejected it: an order to do something plainly unlawful binds no one. Sorry, but Blanche isn’t a 24-year-old lieutenant in a jungle. He’s the attorney general, who swore to support and defend the Constitution, not to blindly obey the president.
In October 1973, when Richard Nixon ordered Elliot Richardson to fire Archibald Cox, Richardson resigned rather than comply, and William Ruckelshaus followed him out the door. That’s what an attorney general in a democracy does with an illegal order.
That he did it, but it was Trump’s right to order it? Blanche has tried that one before. He famously declined to pledge independence from the White House, saying “no attorney general should ever pledge that.”
In fact, no attorney general should ever pledge to follow a president blindly into the dark corner of reprisal prosecutions. To acquit Blanche on that ground, the Senate would have to ratify an authoritarian detour he engineered.
Nor would resignation save him. In 1876, Secretary of War William Belknap quit hours before the House vote; the House impeached him anyway, and the Senate tried him.
Conviction takes 67 votes. The Democrats will hold at least 54 seats, and up to 56 seats if Mary Peltola and Scott Colom pull it out in Alaska and Mississippi, which, as of this writing, is the way both races are trending. Lisa Murkowski is the only remaining Republican Senator who voted to convict Trump in 2021. Murkowski also voted against Blanche’s confirmation.
A conviction is by no means assured, but neither can it be completely ruled out. There will be 19 Republican Senators in cycle in the next Congress. Standing by Blanche, who after Trump has done more than anyone to corrupt the rule of law, may be bad politics and, if they privately believe Blanche should be removed, a failure of principle. Either way, a trial would lay the record before the country.
The American system has absorbed many abuses of power and strains on the rule of law under Trump 2.0. The criminal prosecution of innocent people because they are the president’s political enemies is something else: not a strain but a break. Justice without fear or favor—the Department’s own maxim—is no mere aspiration. It is the sine qua non of the rule of law. The new Congress’s first responsibility should be to reject Blanche’s crass and corrupt embrace of the rule of tyrants.
Harry Litman is a former United States Attorney and the executive producer and host of the Talking Feds podcast. He has taught law at UCLA, Berkeley, and Georgetown and served as a deputy assistant attorney general in the Clinton Administration. Please consider subscribing to Talking Feds on Substack.
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