Acting Attorney General Todd Blanche went before Congress for a budget hearing. His testimony became a portrait of institutional collapse.
Blanche’s appearance on Tuesday touched off a political storm over the nearly $1.8 billion fund that could benefit President Donald Trump’s political allies — a controversy serious enough that Blanche returned to the Hill on Thursday to privately brief Republican senators. Even as the political battle rages, however, the fight over the fund should not obscure the larger issue Blanche’s testimony exposed: what the Department of Justice now appears to stand for.
Blanche did little to quell concerns that the Justice Department is no longer an independent law enforcement agency charged with serving the public interest but, increasingly, a legal apparatus organized around Trump’s grievances, allies and personal history.
The most revealing issue — the one that has been roiling Washington this week — was the nearly $1.8 billion “Anti-Weaponization Fund,” created as part of a settlement related to Trump’s lawsuit over leaked tax records. The fund is supposed to compensate people who say they were politically targeted by prior Justice Departments. But under questioning from lawmakers, Blanche declined to rule out payments to people who had been convicted of assaulting police officers at the U.S. Capitol on Jan. 6, 2021. He also declined to say that Trump campaign donors would be excluded from accessing the fund, which will be administered by a five-member commission appointed by Blanche.
It was enough to make Republican Sen. Mitch McConnell, the former longtime majority leader, declare: “So the nation’s top law enforcement official is asking for a slush fund to pay people who assault cops? Utterly stupid, morally wrong — take your pick.”
The fund cannot be viewed in isolation from the settlement that produced it: the agreement that was expanded to bar the IRS from pursuing future tax claims against Trump, his family and his businesses. In other words, a dispute arising from the disclosure of Trump’s tax records produced both a massive taxpayer-funded compensation structure for alleged victims of “weaponization” and protections against the president’s own tax exposure.
The resignation of the Treasury Department’s top lawyer is another reason for concern. Brian Morrissey made no statement tying his departure Monday as general counsel to the settlement announced the same day. But one has to wonder if the institutional guardrails are holding when an unprecedented settlement — of a potentially dubious legal case — that personally benefits the sitting president and creates a nearly $1.8 billion fund to benefit his political allies is also accompanied by the departure of a senior government lawyer.
Blanche’s testimony did little to quell concerns that the Justice Department is no longer an independent law enforcement agency charged with serving the public interest but, increasingly, a legal apparatus organized around Trump’s grievances, allies and personal history.
Now, to be clear, there are real cases of government overreach. People’s lives can be profoundly damaged by abusive investigations, excessive charging decisions, improper leaks and prosecutions that should never have been brought. I have worked on both sides of the criminal justice system — first as a prosecutor and now as a defense lawyer representing individuals and companies facing government investigation and prosecution — and I do not dismiss those concerns.
But a serious response to government misconduct should begin with standards that do not depend on who is in power. It should strengthen disclosure obligations, inspector general review, judicial oversight, sanctions for misconduct and remedies for unconstitutional conduct. It should not leave the country guessing whether political allies, campaign donors or others with privileged access to the administration might receive taxpayer-funded payments through a process designed by the president’s own Justice Department leadership.
A neutral reform protects the politically powerless as well as the politically connected. It applies across administrations. It does not depend on whether a claimant’s story fits the incumbent president’s preferred account of persecution.
Blanche’s defenders may say the fund is open to anyone. But formal availability is not the same as neutrality. Similarly, “weaponization” may be potent political language, but it is not alone a legal test. If eligibility turns on whether a politically appointed commission accepts that someone was the victim of “lawfare,” the fund risks becoming a government-backed system for ratifying political grievance.
It cannot be forgotten that before Trump appointed Blanche to the Justice Department, Blanche was Trump’s personal criminal defense lawyer. He now leads the department responsible for decisions that repeatedly intersect with Trump’s interests, adversaries and political mythology. “You are acting today like the president’s personal attorney, and that’s the whole problem,” Sen. Chris Van Hollen noted Tuesday. This is not a role for dual responsibilities. The attorney general does not serve as the president’s private advocate inside the federal government. The attorney general represents the United States.
That distinction is essential because so much of the Justice Department’s power depends on discretion. Prosecutors decide what to investigate, what to charge or settle, what to disclose, and what to decline. The rule of law functions because the public believes those decisions are being made according to law, evidence and institutional duty. Once loyalty becomes the perceived organizing principle, every exercise of discretion begins to look suspect.
Blanche had an opportunity to restore confidence. He could have said that no one who assaulted police officers on Jan. 6 would receive money from the fund. He could have said that political donors would be excluded to avoid even the appearance of favoritism. He could have insisted that any compensation program be governed by objective criteria, independent review and real transparency.
He also could have explained why a lawsuit involving the president’s own tax records should generate a sweeping compensation fund for others, why any tax-related protections for Trump and his family were appropriate, and what independent review supported those extraordinary terms.
He did none of that.
The omission is what made Blanche’s testimony so revealing. The danger is not only that the Justice Department might be used to punish Trump’s enemies. It is also that the department might be used to reward his allies while describing that project in the language of fairness and reform.
Tuesday’s hearing was supposed to be about appropriations. It became a warning. The answer to government abuse cannot be a compensation system that appears designed to reward political loyalty rather than vindicate neutral principles of justice. The rule of law depends on officials willing to draw lines in public, especially when those lines inconvenience the president who appointed them.
Duncan Levin is a criminal defense attorney and former federal prosecutor who serves as a Lecturer on Law at Harvard Law School and is a frequent contributor to MS NOW.