Todd Blanche Could Be In The Driver’s Seat At The Justice Department For A While

Acting Attorney General Todd Blanche could run the Justice Department for months to come — even if Donald Trump doesn’t nominate him to the top post.

A potential loophole in the federal law that governs temporary appointments creates the possibility that Blanche, in his acting capacity, could essentially take over as the nation’s top law enforcement officer if Trump chooses to bypass the Senate confirmation process, as he’s done for other top federal prosecutors.

There is a dispute among experts about the legality of the move, and it’s unclear whether Trump will take this route or formally nominate Blanche — or anyone else — to the top job.

Though several others are vying for the AG post, it appears to be Blanche’s to lose. "He's doing everything that he's supposed to do, racking up wins,” a senior White House official told POLITICO last week.

The official, granted anonymity to discuss personnel issues, pointed to Blanche’s Tuesday announcement of the indictment of the Southern Poverty Law Center, which is facing fraud charges, calling it “a huge win” and “one of the most significant things that DOJ has done during this term.” Blanche was by Trump’s side Saturday at a late-night White House press briefing following a shooting at the White House Correspondents’ Dinner, and on Sunday morning he appeared on news shows, saying of the incident: “The system worked. We were safe, President Trump was safe.”

“As long as he keeps moving forward in the right direction and racking up wins, everything will take care of itself,” the official said.

Not necessarily. One federal statute allowing the president to rely on an acting attorney general, the Federal Vacancies Reform Act, authorizes the president to keep an acting attorney general in place for 210 days. That means Blanche’s clock runs out on Oct. 29 — five days before the midterm elections.

Trump could extend Blanche’s temporary tenure past the 210-day limit if he nominates someone — including Blanche himself — to the job permanently. But Blanche could face a challenging confirmation process, especially after the midterms. Blanche, Trump’s former personal lawyer, has come under scrutiny over his loyalty to the president and controversial handling of the release of the Epstein files. If his — or any other — nomination fails, he could simply continue to occupy the acting attorney general post while a second nomination is pending.

Asked last week about Blanche’s tenure at the Justice Department, White House spokesperson Abigail Jackson said Trump has a “great relationship” with him and “is very pleased with the job he’s doing so far.”

“Todd Blanche is an American patriot who fearlessly fought against the Democrats’ unprecedented lawfare campaign on behalf of President Trump,” she said.

A representative for the Justice Department did not respond to a request for comment. Blanche has previously said he’d take the top job if Trump offered it.

“If he chooses to nominate me, that’s an honor. If he chooses to nominate somebody else and I go back to being the DAG, that’s an honor,” Blanche said earlier this month.

Blanche, who served as the deputy attorney general before becoming acting AG, could stay in power via a different statute: the Attorney General Succession Act, which authorizes the deputy attorney general to exercise the duties of the attorney general’s office if the post is vacant. There is a dispute among legal experts, however, about whether the 210-day limit applies to that statute.

Nina Mendelson, a professor at the University of Michigan Law School, said the statute “is best read, in my view, to implicitly adopt the 210 day time limit.”

“The President cannot legally rely indefinitely on an acting Attorney General,” she wrote in an email. She added that “Blanche may well face legal challenges,” noting that there were lawsuits challenging the service of Matthew Whitaker, who served as acting attorney general in the first Trump administration, and that there have been “many lawsuits involving long-serving officials claiming to be ‘actings’ at other agencies.”

But Anne Joseph O’Connell, a Stanford Law School professor, said the statute does not impose time limits and that Blanche could serve the remainder of Trump’s term without Senate confirmation.

She pointed out that during Joe Biden’s presidency, Julie Su served as acting Labor secretary under a Labor Department succession provision for nearly two years. Su was dubbed Biden’s “forever nominee.”

The Trump administration has embraced workarounds to Senate confirmation in other offices, most notably within U.S. attorney offices around the country, where at least 10 are being led indefinitely by the person in the No. 2 role.

And Trump has disclosed his preference for acting Cabinet officials. At one point in 2019, during his first term, one quarter of his Cabinet members were serving in an acting capacity.

"I like acting,” Trump told reporters at the time. “It gives me more flexibility. Do you understand that? I like acting.”