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A
Alexander Hamilton writes about this in the Federalist Papers. He says the confirmation process should work as a silent check because the president would be ashamed to bring forward somebody who would serve as an obsequious tool of his pleasure.
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Welcome to the second episode of Is THIS Really Legal? I'm your host, Liz Oyer. The president has nominated a new Attorney General, Todd Blanche, who is currently the Acting Attorney General and also the Deputy Attorney General. Blanche has been nominated to serve as Attorney General on a permanent basis. He's also the president's former personal lawyer. So is this really legal? That's what I'm going to be talking about with my guest today, Greg Nunziota. Greg is the Executive Director of the Society for the Rule of Law Institute, which is a non profit, nonpartisan organization dedicated to defending the rule of law and the Constitution. Greg previously worked on Capitol Hill for many years. He's been chief nominations counsel for the Senate Judiciary Committee. He worked on the confirmations of two Supreme Court Justices and many others. And that's what I want to tap into today. Greg, thank you so much for joining me.
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A
Thanks, Liz. Happy to be here.
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B
So just about two weeks from now, the Senate is going to hold a confirmation hearing for Todd Blanche, who the president has nominated to serve as the next Attorney General of the United States. Blanche has actually gone through this process before. Just last year, when the president nominated him to serve as Deputy Attorney General, the Senate confirmed him by a vote of 52 to 46. So I want to take this opportunity to talk with you, Greg, about how the confirmation process works in general and then about what we can expect to see happen with Todd Blanche. Just to orient everybody, today's topic ties into a part of the Constitution called the Appointments Clause. The Appointments Clause is in Article 2, which outlines the powers of the President. It gives the president the power to appoint certain high level government officials, but it's kind of a conditional power because it says he's also required to seek the advice and consent of the Senate. Essentially, the president gets to nominate candidates, but the Senate can approve or disapprove of them. Do I have that basically right, Greg?
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A
Yeah, that's exactly right. And it's a really important part of our constitutional system. And you know, we're talking right around July 4th and the anniversary of the Declaration of Independence. And, you know, it's easy to forget kind of all the particulars of the grievances of the revolutionary generation. You know, they had these beautiful words at the start of the Declaration about human dignity and the rights we are endowed with, but they also had very particular concerns with how the king had governed the colonies. And one of the biggest ones they had was that he had appointed loyalists, essentially people who, who owed their allegiance to him more than to the rule of law, or certainly more to the well being of the colonists, to govern in his stead here through royal governors and through direct appointments from the king. So when the Constitutional Convention met and they were designing this new executive branch and they were creating a stronger executive than they had had since they lost the monarch, they had a lot of concerns about avoiding recreating the kind of monarchy they've rebelled against. And one of the. The key parts of that was making sure they did not create a president that had this unilateral power to fill powerful offices with political loyalists or people who were unqualified or of unfit character. So they came to this compromise, which is the Appointments Clause we know that you described. And the President gets to choose his people in general, but the Senate has the obligation to review them and see if these appointments are in the public interest, essentially. And there's different tests, different senators could apply, but they have to vote to confirm a nominee to key executive branch positions or to the judiciary. And without their assent, those people do not get seated or get their appointments, and the President's obligated to make another choice.
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B
So, as with many parts of the Constitution, the words are pretty vague. The Appointments Clause talks about the advice and consent of the Senate, and that is literally all it says about what the role of the Senate is. It has evolved into this very rigorous process that involves vetting of nominees, this public hearing which we'll talk about in various other parts of the process. There are only certain portions of it, I think, that the public can, can inspect because much of it happens behind closed doors. So based on your experience working as an insider in this process, can you describe what the advice and consent of the Senate actually looks like as a brass tax process in our constitutional democracy?
- [04:57]
A
Sure, yeah. It's certainly evolved over time. I mean, there are times sort of in the early days of the Republic, where even Supreme Court justices are nominated and confirmed in the same day. Sometimes before the nominee, the justice even knew they had been nominated, they had been confirmed. And it's certainly not like that now. We have a much more structured process. And, you know, different senators have different views about how it should work. They apply different tests, but, you know, sort of in general. And there is certainly a lot of preparatory work that happens at the White House and in the executive branch when they're selecting nominees to the judiciary or to cabinet positions or other important roles. They do a vet of the nomination of the prospective nominee. They look at their public records and they look into their private background as well. This comes up sometimes in controversial nominations. There's an FBI investigation into the nominee. And that FBI investigation is sometimes misunderstood. People talk about an FBI report. It's not a report, it's a compilation of information. So I just want to talk about this a little bit because this is probably the most closed door thing that happens. It happens with all the nominations that go to the Senate. The nominee is asked to fill out a form where they say every place they've lived, every place they've worked and things like this. And the FBI uses that as a roadmap to go out and gather information. And they interview the nominee's neighbors. And usually when they interview the neighbor, they ask for recommendations for other people to speak to. So they go a few steps out from where the nominee may have started with where the nomination started and the information they had from the nominee and they compile a big binder. So this isn't a report. It's a record of financial activity, any criminal background, conversations with neighbors, former colleagues, ex spouses. And this goes all to character, to financial probiety, to maybe a drug and alcohol record, emotional background, loyalty to the United States record on racial kind of issues and whether they've ever shown prejudice in their life. So the Senate has all that information and that is typically handled confidentially. And as the confirmation process has gotten so partisan, you mentioned Todd Blanche's first confirmation vote was pretty close, pretty partisan. That's really typical these days, I think, unfortunately for important nominations. But this part of the process, the background process, typically works really well in a bipartisan fashion. There's only a handful of Senate staffers who have the security clearance and the permission to review those FBI files. And in my experience working on hundreds of nominations, I never saw that information leak publicly. I never saw I was doing this as a Republican counsel for Republican nominees, working with my Democratic colleagues who had access to very private information about nominees. And it just never became public when it was an issue. Republicans and Democrats worked together to talk to the nominee. And sometimes the nominee would withdraw if kind of what we had discovered we thought was incompatible with their role. So this is really a process that I think works really well and folks aren't that familiar with. And this is all before the confirmation hearings. The confirmation hearings.
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B
Who actually has to go through this extensive vetting process? It's not all Government employees. It's not even all presidentially selected officials, like, what types of government officials have to go through this incredibly rigorous process, which sounds very time consuming and it sounds like it's probably very expensive.
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A
It is time consuming and expensive. Yeah. So certainly all, certainly judicial nominees who are, it's a lifetime job and that is a confirmation that is not easy to take back. And there is sort of a, I think really everybody who goes through Senate confirmation, which is still a pretty substantial number, gets this sort of treatment to some degree. I think that the background work and the background investigation is deeper and longer for more senior positions. You know, so somebody, you know, might, might have a job as a U.S. attorney and then rise up to Assistant Attorney General someday and then Attorney General of the United States and kind of each of those reviews is likely to be more searching than the last. So there is some sort of calibration of resources to the significance of the role.
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B
So once this investigation is complete, if it comes back with no red flags, nothing too interesting, you've found a pretty, pretty boring person with no checkered past what happens next to their candidacy.
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A
So you know, they will, they will start moving forward, forward towards this confirmation hearing that you know about. On more significant nominations, there's often private meetings with senators, which sometimes people refer to them as courtesy visits, which kind of suggests that it's tea and crumpets and all social. But these can be very consequential. I mean, often nominations that might have trouble, their futures are decided in these courtesy meetings where senators privately, without cameras present can push the nominees on issues of the senator's concern. And again, this is also something that's kind of calibrated by the significance of the role. A Supreme Court judicial nominee might meet with nearly every senator privately. More commonly, a nominee, an executive branch nominee might just meet with a handful senators that have particular concerns, leadership centers or in leadership or on the Judiciary
- [10:49]
B
Committee and those with the public. I think those meetings, they sound sort of suspicious and frustrating when we hear about these private meetings like such and such. Nominee went up to the Hill and met privately with Senators, and now the senators concerns are addressed and they plan to vote for the nominee is sort of a narrative that we sometimes hear in the news. Why are these closed door meetings appropriate? I mean, why shouldn't these nominees who are being put in positions that serve the American people be accountable to the public? Why shouldn't they be required to disclose the contents of these meetings that they're having privately with senators if they are being considered for positions that are essentially public offices.
- [11:36]
A
You know, I'll tell you, I have truly conflicting feelings about this because I understand why the public would want to see all of this. But I also sort of, in my experience on the Hill, have found, for better or for worse, often the presence of cameras and public scrutiny can, especially around traditional nominations that take on a real partisan cast to the question. The presence of public view can lock senators in to kind of a to party loyalty and performance. And in private, the senators are more comfortable asking some questions that might be seen as disloyal to party, and it gives the senator an opportunity to just candidly ask questions that they might not want to ask in front of a camera. So I understand why the public might be frustrated with that, but I think a lot of good often comes out of it.
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B
Well, so let me sort of transition to talking about the confirmation hearing, which is the part of this procedure that the, the public gets to see because there are cameras in the room. You know, it's questions being asked by the senators who are on the relevant committee of the nominee. The nominee is answering under oath, is that right? So they're subject to penalties of perjury. And the questions that come from the senators, they come from both sides. And sometimes they're substantive, but sometimes it looks like they're putting on a performance that's not really designed to get at any factual information. And at the same time, sometimes the nominee who's answering the questions is pretty evasive or vague or will cite various reasons why they can't give a direct answer. And I think that that causes sometimes members of the public like myself, who may be watching these hearings to wonder, are they really useful? Is there really any value to going through what looks sometimes very performative as part of this confirmation process? I mean, as somebody who's worked on them from the inside, do you think they're generally useful? Is this a good process?
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A
So I think the executive branch nominees and the judicial branch nominees are a little bit different. The judicial branch nominees, Supreme Court nominees in particular, are really now famously practiced and not answering questions, and that is tremendously frustrating. They have an excuse which has some weight to it, which is that it's inappropriate for a judge to be kind of promising how they might rule or indicating how they'd rule on a case. But I think that goes much further, or the practice of it goes much further than it need to go. I don't see any reason why a judicial nominee can't, for instance, answer how they would have decided a case that had already been decided by the Supreme Court, if they were there at that time on that record, because they're never going to face that decision presented in that way again. Now there's a precedent, it would be different parties, different facts. And I think we could learn a lot from those questions, but they don't answer it. And there's kind of a now a bipartisan kind of commitment to avoiding it. You sort of famously, Supreme Court Justice Eleanor Kagan, when she was a professor, a law professor, wrote an article about how judicial nominees need to answer questions in greater depth than once she was the Supreme Court nominee. She said she reconsidered the wisdom of that article and thought it was better to not answer fully. I don't think executive branch nominees have nearly that much leeway or that much excuse. They shouldn't be given permission to take that kind of closed response to the questions. But you asked if these are still useful. I think the hearings are still useful even if we don't get much from the nominee, if only because they are moments that sort of center America on some of these questions. And it gets us thinking with respect to the Supreme Court, thinking about why the Supreme Court matters and what kind of justices we want, even if we don't learn a lot from the judicial nominee in the hearing. But in the executive branch case, I think it's actually really important. I think they should and can answer more fully. I think it's important for senators to get nominees on the record and to have them make commitments. When I worked for Senator Specter on the Judiciary Committee during the Bush administrations, we would always ask DOJ nominees in particular to commit to Senate oversight, to answering questions, to coming up to the Hill, to transparency in the programs that they supervise. And they should. The executive branch should be cooperative with oversight. But it's helpful to get the nominee on the record, as you say, under oath and under penalty of perjury, making those kinds of commitments. So there's that perspective. Locking them in is useful. I think you do learn more about them and their priorities, and you can go back and try to hold them to their testimony. And then what often happens and what is happening with Blanche, deeper into administration, you frequently have hearings for people who want promotions of some kind. And then the hearing becomes kind of two things. An oversight hearing, which they the Senate Judiciary Committee in this instant instance, will have oversight hearings. Oversight hearings are just where the Senate calls heads of agencies before the Senate to explain how they're spending government money and how they're managing programs that the Congress has authorized. So when you have someone who wants a promotion, is nominated for a promotion. You're both evaluating them for their role in this office to which they've been nominated, but also taking the opportunity to really question them about how they've been performing in the role that they have. And it's, I think it's a really powerful moment and a time where the Senate, if it wants to do its really important constitutional job of oversight and of checking the executive. That's a real moment of leverage. And it's too bad that too many senators increasingly see their job as defending the White House and the administration if they share the same party, because that's not how the founders saw it. I mean, this is supposed to be a moment where Congress really has leverage over the executive and really can hold it to account and hold it to the law to which it's meant to be executing.
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B
Well, you talked about making commitments to the senators as one way that this can be useful, getting people on the record, you said, and committing to certain things. I think that from where many of us sit, those commitments sometimes look like things that are being said just to get the job. And then once the nominee has the job, they don't necessarily honor those commitments. I think that that's something that we've seen with judges on occasion. I mean, judges have lifetime appointment and they may say one thing in a confirmation hearing, and they may do something differently, but they've still got the job for life. I can remember a couple of Supreme Court justices who have said things to satisfy senators who needed to provide crit votes about whether they would or would not overturn settled precedent of the court. And then they got on the bench and they did something that looked very different from what they said in order to get confirmed. And I'm wondering, is there any accountability if that happens? If somebody says in a confirmation hearing, no, I'm not going to overturn the settled precedent of the court. And then a few years later, if they have the opportunity to do that and they do exactly what they said they wouldn't do in their confirmation hearing.
- [19:22]
A
Yeah, for judges, it's complicated. And, you know, I think there's certainly instances that fall into the kind of category you paint, and I can name some on both sides. I mean, certainly there's lots of. There's lots of examples of that that I think Democrats are upset with with Republican nominees, you know, particularly on abortion jurisprudence. I think Republicans have the same case that they make with Democratic nominees on some Second Amendment cases. But judges tend to be clever about that. And if you look at how they testify, they don't quite promise. They say things like, I accept that precedent. That's an established precedent of the court entitled to deep respect. And they don't quite promise. So, you know, if they did make a promise, you know, I think we'd be like an explicit promise. You'd be in a bit of a difficult territory, both at the moment of the promise, because is that appropriate, and then later when you see a different kind of judging. So I don't know. I mean, it's a lifetime appointment. It's very difficult to go back once you've confirmed a judicial nominee. I think the executive branch is different, and it's much easier to hold them to their testimony and if nothing else, to really make an elevation and a new confirmation hearing painful for them. And it should be. I mean, I think in this case, with the Blanche nomination coming up, you're going to hear from senators who are going to ask him about commitments he made as a deputy attorney general nominee to not politicize the Justice Department, when certainly there is the perception that he may have done so.
- [21:17]
B
In a situation like we have now, where the president's party controls the Senate, the confirmation process is generally much easier for the President. It's easier for the president to get their nominees through if their party has a majority in the Senate, because at the end of the day, it's all about votes. You just need to get the number of votes that you need to get your nominees confirmed. Is there anything that the minority party can do to resist or try to push back on nominees that they really believe are unqualified, even when they don't have the votes to sink that nomination?
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A
I mean, it's certainly really, really hard. And when I started in the Senate, we had filibusters, so that was different. I mean, it was until fairly recently the case that you needed 60 votes for confirmation if the minority party chose to filibuster. And I think that was a better world. You know, when I came to Washington, Republicans were very upset that Democrats were filibustering kind of routinely on nominations. And I think we were right to be upset. But we see the downside of getting rid of the filibuster, unfortunately. I think with a lot of things in the legislature, procedural rights for the minority are really important, and our government works better when we have them, but only so long as the minority has some prudence and discretion with when they use those tools, if they insist on using them routinely, ultimately we're a majoritarian country and they're going to get tossed overside. And that's what happened with the filibuster. I think it's really too bad. I mean, I think we should want judges and we should want executive branch nominees that could get 60 votes. But that requires a world in which Republicans are willing to, to not filibuster Democratic nominees and vice versa, are even willing to give affirmative votes to nominees of the other party. And that's increasingly not the case. I mean, we just, we want to. When you're thinking about our system, our founders didn't anticipate political parties. They didn't think we'd have that. They thought that senators would be making these decisions kind of on their own conscience and the interest of their state and the interest of the Senate, not out of loyalty or rote opposition to the President, just based on party identification. So it creates a real problem. I mean, this system would work so much better if partisan obligations weren't felt so strongly. But back to the reality of where we are without the filibuster, Senators still have individual powers. They can slow things down a great deal, and particularly with lower. So this is getting maybe way too weedy and Senate procedural, but senators have the ability to slow down nominations processes and eat up a lot of Senate floor time before a confirmation occurs. For the White House and for the majority party, if it's the same as the White House, they're willing to spend that time for really high level nominees. So kind of throwing sand in the gears for an attorney General nomination. It doesn't help the minority party that much. But with lower level nominees that aren't huge priorities for the White House and for the Senate majority, just by slowing things down and putting in procedural hurdles, the minority party can get a lot of leverage and get the White House to cut some deals on one thing or another and sometimes totally unrelated deals on legislation or oversight of some unrelated program. So there is some leverage still left in that. And then with that more high profile nominee, I mean, they do have their time and they do have the opportunity to tell a story through the confirmation hearing in particular. And ultimately to win though, they need that story to appeal to some members of the majority party. And that can be really, really, really hard. And just politically, as a practical matter, too often, I think the senators of the minority party who want to defeat a nomination tell a narrative that appeals to fellow members of their party, which doesn't do you any good. At the end of the day. You need to win over. In this instance, if Democrats want to defeat a nomination, they need to win over Republicans, not fellow Democrats and Democratic voters. And similarly, if the parties were reversed and senators have a habit of not doing that well, but it happens, right? I mean, nominations do fail. And even in this administration, we've had nominations that have been floated and withdrawn because of opposition that when minority senators were able to work with and appeal to their colleagues in the majority party who shared some concerns.
- [26:08]
B
Well, what role does the public have to play here? I mean, it seems like there are generally a handful of senators whose votes are viewed as very consequential. And the majority of senators, it seems like we kind of know which way they're going to vote and they don't seem susceptible to persuasion. And that makes much of the public feel like they don't really have a say in these incredibly consequential positions. I mean, the attorney general is somebody who's making national policy related to law enforcement and prosecution. Supreme Court justices are going to serve for potentially a generation in these very important roles. Is there anything that citizens can do to make their voices heard, even if they have a representative or a senator who's not likely to be persuadable in changing their vote?
- [26:56]
A
You know, I. I think so. I mean, you know, we live in a very polarized time where most senators feel like most votes don't change, but there is still a responsiveness to what the people think. Nominations that become popularly controversial will make senators at least second give some thought to their decision on how to vote and not just cast a vote routinely, just by rote, according to partisan id. It's true that you want to target the senators who are most persuadable, and that's only a handful. But calling their offices, writing them letters, talking to the public about them is really important, I think, particularly those senators. Americans, I think in the abstract, we all want our legislators, our senators, to be brave and put country above party and principles first. But we don't often actually really act that way as voters. You know, as voters, we tend to be kind of reliable partisan voters. And, you know, we need to think about changing the incentives of senators. I think a lot of senators, a senator contemplating voting against the nominee of a president of their party knows they're going to get a lot of guff from their voters and a lot of blowback and maybe don't see a lot of reward. So, I mean, I really think as just as people, we should really lift up senators who do the right thing and do something brave because they're taking real risk and we don't celebrate political courage in this country the way maybe we once did. And I think that's really, really an important thing to do.
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B
Do the senators really care about phone calls or emails from their constituents or people who aren't their constituents who want to weigh in on a nomination that that's going to be very consequential for our country?
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A
They care about phone calls and letters from their constituents, certainly. I mean, I think most senators I know, every senator I worked for, wanted to know what they were hearing from the state. They care less from out of state folks for sure. I think a lot of people who are coming from out of state don't discourage you from making a call or writing a letter
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hurt.
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But you ought to think if you're a citizen who wants to engage about organizations you're involved with that may have other members or other arms sort of in the relevant state so that, you know, that could be a veterans group or a faith based group or lots of us as Americans participate in organizations that connect us to other people who are in the state we want to reach. And working through those groups can be really important.
- [29:43]
B
So I was doing a little bit of research to prepare for this conversation and I learned, and this seems just so hard to imagine now that Janet Reno, who was the first female attorney general under Bill Clinton, I believe she was confirmed in 1993, was confirmed by a vote of 98 to 0, which is just absolutely astounding to think that somebody who is going for the highest office at the Justice Department could be unanimously confirmed, confirmed. What is your sense of what has happened politically over the last 30 years that has made it so impossible to imagine that someone who is a candidate for attorney general could be unanimously confirmed by the Senate?
- [30:26]
A
You know, I wish, I don't know. You know, there's a lot of one way ratchet in Washington where kind of each, each successive nominations fight where one party feels like they were mistreated by the other, gives that party justification to pay it back at least as badly the next time. And there's been a real downhill slide. I mean, it should be that way, I think. You know, I think particularly maybe judges are a different question. They serve for life. It's not a partisan role. But I actually do think the senators should and used to give deference to the president on who he picks to fill out his team. The idea of the confirmation process for the executive branch is not for the Senate to have an equal say. It's for the Senate to make sure the president only chooses people who have the character, qualifications and competence to do that role. So if, you know, Republicans should not be demanding that a Democrat nominates a Republican to be attorney general or vice versa. You know, the President should be able to pick somebody who shares his political worldview, his policy worldview, but that person should have the qualifications, the character and the competence to perform that job. And we should be able to find people like that to be Cabinet secretaries. So, like, this is a world that existed not that long ago where senators thought that they owed the President a fair amount of discretion in choosing nominations, so long as there wasn't a character problem, a background check problem. You know, Bill Clinton did have trouble with his first attorney general pick because of perceived ethics problems in the background. But absent that, senators should give the President that kind of discretion to choose somebody that fills out his or her team well. And unfortunately, we've gotten away from that, and it's become easier. Politics just always oppose what the President of your other party, of the other party wants. And that's really not good for the country. I mean, we should want every president to have a team that he or she trusts, so long as those individuals are people who honor their oath of office, put the law above politics and above personal service to the President and that sort of thing.
- [33:01]
B
Well, you wrote a letter on behalf of the Society for the Rule of Law Institute to the chairman and the ranking member of the Senate Judiciary Committee explaining your opposition to Todd Blanche's confirmation as Attorney General. Can you share what are your primary concerns about Todd Blanche?
- [33:21]
A
I mean, I think so. Exactly where I suppose I left off. The role of Attorney General is an extremely important role. The Justice Department is sort of the keystone of or a keystone of the rule of law in our country. It needs to be run by somebody who puts the law and the Constitution first, who resists inappropriate, unlawful, corrupt political pressure. Alexander Hamilton writes about this in the Federalist papers. I think it's 76, you know, where he says the confirmation process should work as a silent check because the President would never be so, you know, he'd be ashamed to bring forward somebody who would serve as an obsequious tool of his pleasure or loyalists. And this is. This president is clearly not ashamed of that. But I think this nomination is a real test of the confirmation process entirely in the seventh role. Entirely. I mean, this is what it's for to prevent nominations like this. And I think that it was important that my former law professor, Jack Goldsmith, who's at Harvard now, he was at the head of the Office of Legal Policy, and the Bush administration, said recently that this confirmation hearing, this confirmation process is not just a question of whether the Senate will confirm a new attorney general. It's whether the Senate will ratify what's been done to the department over the last 18 months, particularly its corruption in purpose. I just think this is just an extremely momentous test for the Senate. We have lots of other problems concerning the Vacancies act and related authorities which probably allow Mr. Blanche to continue to lead the department even if the Senate doesn't confirm him. But the Senate absolutely should not be ratifying what he has done to this department. And if nothing else, they really should be asking him some very, very tough questions in a couple weeks.
- [35:31]
B
So Todd Blanche has been up on the Hill meeting with Republican senators, including some of the ones who are viewed as crucial votes that he needs to win. He's met with Thom Tillis and Susan Collins and some others. And generally, these senators are coming out of those meetings with Blanche saying that their concerns have been addressed. What do you think he is saying?
- [35:51]
A
Look, I think that there is a lot of pressure to support the nominee of your president, of your party's president for high office. The easiest way and the most common way that senators are persuaded to oppose a nominee of their party as president is if there's a personal character issue or a real qualification issue. And, and look, Deputy Attorney General, acting Attorney General. Blanche is a serious lawyer with a real, you know, he's got good credentials and he presents well. And I think he's, he's, he's able to show senators that he has at least threshold qualifications. So I think there's maybe some level of just. Well, Blanche is a serious lawyer. I know him. He's telling me that, that if I'm concerned about anything, I could always call him and he'll try to work it out. And, you know, I think that's giving senators maybe an excuse to not do the right but harder thing. So I think that's broadly the dynamic, and Senators need to be made to understand how important this is. I mean, like, it's one thing to defer to the President on his nomination choices with respect to policy. I think they should. It's quite another thing to defer on character and whether this person will perform the role consistent with the needs of the country, the Constitution, the law and their oath. I don't think you should. I don't think the Senate should defer to the President's judgment of that prospectively. But in this case, it's not even doing that. We have a record. So this is not saying, well, we'll hope for the best. He's made assurances that he will not politicize his Justice Department. His background is sketchy, but like, fingers crossed, maybe, you know, maybe he can live up to what he's telling us. We've seen how he's going to run the Justice Department, and it's been run in a way that is just unprecedentedly corrupt. And I think that the degradation in capabilities is something that we've not talked about enough either. I mean, the Justice Department is important in our country in so many ways in national security and fiscal security and litigation over economic interests, the environmental concerns, natural resources. And to have a department hemorrhaging talent the way this one has, desperate to try to find new staff, is a real problem for our country in ways that we've not seen yet. We haven't seen the full fruit bear born of that tree yet. And Todd Blanche has created the situation. So, I mean, I just, I think it's really important for Senators to get out of maybe this natural deference to the President and realize what they're being asked to sign off on here.
- [38:47]
B
What do you think are the top three or four things that Senators should be asking Blanche about? I understand that they each have five minutes at these hearings to ask questions, so they're kind of time pressured. They probably can't ask about everything that they might want to. They probably have to plan in advance and coordinate the use of their time to cover all the of the relevant topics. What do you think are the top key issues that Blanche should be asked about at his upcoming confirmation hearing?
- [39:13]
A
I mean, the list is long and lots of senators will have different priorities. I should also say, just as part of the confirmation process, which we have not mentioned after the hearing, there are also written questions and sometimes there's multiple rounds of those. And those also, you know, sort of are kind of treated under penalty of perjury, their representations to the Senate, which, if not truthful, are subject to criminal prosecution. But. I think the senators ought to ask a lot about this absolutely outrageous plan and kind of secularly sacrilegious plan, given that it was to create a 1776, $1,776,000,000 fund to pay off the President's allies and criminals, including those who attacked the Capitol. And Ty Blanche's involvement in that, in that really just unprecedented scheme, ought to be fleshed out at much greater detail, as well as the sort of the corollary to that which is shielding the President and his family from IRS and other scrutiny and if he, as Attorney General, thought it was his job to structure something like that, there's almost no telling where he would draw the line and where he would say no. To a president, it doesn't seem like there is such a line. So I would really want to go deeper in that. I would also want to talk about some of the particular prosecutions and investigations that the department made over the objection of prosecutors, including prosecutors appointed by the President, and Blanche's particular direct involvement in that. It is a terrifying thing to be a target of the federal government or to be arrested or to have to retain counsel or to be indicted. And we should take no comfort in the fact that our jury system is saving us from this. I mean, the experience these folks are going through is really terrifying. And the way it chills people who've maybe not spoken up and the way it's affected kind of our entire civic culture is inexcusable. So I would really want to talk about these things. I know, I'm sure a lot of other senators, a lot of senators are going to want to talk about Epstein and his involvement in that and the transfer of Maxwell to a lower security prison. This private meeting that happened, I think that maybe has a lot of public resonance, but I would most want to talk about really the nakedly political decisions made over criminal prosecutions because I think it's just so incompatible with the office of the Attorney General. It to me is not only a reason to not confirm him, it's a reason to impeach him. So I would dwell myself on that.
- [42:18]
B
Well, I'm guessing that we're going to hear a little bit of all of that from different senators on both sides. We'll hear different questions that address all of those things. I don't know if there will be enough time to satisfactorily cover any one of those issues in this particular format.
- [42:32]
A
If I could choose one thing to do differently about the confirmation process is I would get rid of this habit we have now where each senator is five minutes and it goes back and forth from Republican to a Democrat and there's no coherence. And sometimes like one senator is finally getting close, one senator is really good at cross examining and is pushing the nominee into a corner and then they get a break and it's the next senator who's a friendly one, typically. And then when it goes back to the opposite party, that senator wants to go in a totally different direction. I mean, it's a really bad way to get to the truth. And we used to have a Thing in this country where we would have just a lawyer for each side lead questioning and have much longer time to go with questioning. We got away from it because we're in a television age and senators want to be on camera and in the local news. But that's really effective. And if folks may remember, some of this happened with outside counsel doing extended questioning during the Kavanaugh hearings on the phase that dealt with the allegations against him of misconduct. And it was just much more effective than senators doing these five minute rounds. And you could have some hybrid of that. You could have staff counsel have a 20 minute block and then have senators have. Turns out it would just be really, really much more productive, I think, and much more revealing. And I don't just say that because I was once a staff attorney to the committee, but I do think having a non politician and just a lawyer questioning a nominee for long enough to really ask the hard follow up questions before the subject has changed would be very, a very salutary change to the process.
- [44:10]
B
I think that's a great idea, Greg. I mean, as somebody who was a trial lawyer for much of my career, I find it incredibly frustrating to watch some of these folks and I think like you guys are lawyers, right? Yet you cannot seem to get to a point or a question and you're running out of time. So I would love to see a different format that lends itself to more meaningful questioning. My last question for you before I let you go is what do you think is going to happen? What is your polymarket prediction about what is going to happen with Blanche's confirmation? Do you think he'll get confirmed by the Senate? Do you think he'll be voted out of committee? Do you think he'll, he'll be voted out of the committee and be confirmed? What do you expect we might see here?
- [44:50]
A
Yeah, I mean, I hate to predict anything. Look, certainly the smart money is on him getting confirmed. And we've seen really questionable nominees get confirmed by this Senate. And I think that's especially, it's especially likely, ironically, with the most important nominees. But things in nominations can go south quickly and all at once, unexpectedly. There can be a moment in a hearing, there can be a revelation in the press, there can be a decision the nominee who is currently serving in government makes that fundamentally changes the calculus. I mean, I was nominations counsel to the Judiciary Committee during the Harriet Myers nomination. And that was, I mean it was the President's nominee. It was a high priority for him. She was his friend and White House counsel. And it seemed Inevitable until all of a sudden it wasn't. And, you know, in kind of 72 hours, it fell apart and she withdrew her nomination. So you never know. So I would. The odds are on his confirmation, but I don't think it's done. A record should be made about what has been done to the department, what has been done to American citizens by the department at Blanche's behest, and hopefully, you know, know, begin to chart a path for repairing these things when we can, if it's not tomorrow, sometime in the future.
- [46:21]
B
Well, I know I said that was my last question, Greg, but I can't resist one final question, which is if Blanche's nomination were to fail, would he still be the deputy attorney General?
- [46:31]
A
Yeah, I think so. I think so. Which is very. It's a very curious thing, and I probably should have looked at it more closely before we sat down, but I think that's right. I mean, I think he keeps serving and the deputy attorney General has basically all the powers of the attorney general. Not that long ago, in an analogous situation, the person would resign after such a public rebuke. That kind of would have been standard practice in Washington. I'm not sure we're in those kinds of times anymore where there's a sense of responsibility or accountability or shame that would come. But, yeah, I would think he would likely still stay running the department. But I think an important message would have been sent by the Senate, and I really hope the senators who have not yet committed really think about what they're doing and what they're saying in this vote. And there's lots of details. I encourage people to read our letter to the committee and to read all they can about what's happened at the Justice Department under Ty Blanche's leadership and follow the hearings that are coming up.
- [47:35]
B
Yeah, it's a great letter that you prepared, and it's on your substack. Right. People can find it on the Checks and Balances substack. And you've also got a Checks and Balances podcast now, and folks can check out more from Greg there. I am hoping to have you back on the podcast after the confirmation hearing, which, for folks who are listening, is July 15th and 16th. And it is going to be must, must watch TV, at least in my house. And I'd love to talk more about this after.
- [48:04]
A
Oh, yeah, and one other thing I should say on the attorney general hearings, and I think, I think this just happens, at least in the judiciary category with Supreme Court nominees and with attorney General nominees, there's a custom where the committee also hears from outside witnesses to speak about the nominee. So that'll probably be on the second day. I don't think they've announced yet who they're calling, but it'll be interesting to see who Republicans and Democrats want to hear from as part of the process. But yeah, I would love to be back to talk about it. I would love to have you on Checks and Balances podcast to talk about pardons and the many other things you are wise about. So thank you so much.
- [48:40]
B
Lots to keep an eye on these days. Thanks so much for your time, Greg. This was a great conversation.
- [48:45]
A
Thank you. I enjoyed it.