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 job.
A potential loophole in federal law governing temporary appointments creates the possibility that if Trump chooses to bypass the Senate confirmation process, Blanche, in her acting capacity, could essentially take over as the nation’s top law enforcement official, as she has done for other top federal prosecutors.
There is controversy among experts over the legality of the move, and it is unclear whether Trump will take this route or formally nominate Blanche – or anyone else – for the top job.
Although several others are competing for the AG position, it appears that Blanche will lose. “He’s doing everything he should be doing, winning,” a senior White House official told Politico last week.
The official, granting anonymity to discuss personnel issues, pointed to Blanch’s announcement Tuesday of the indictment of the Southern Poverty Law Center, which faces fraud charges, calling it “a major victory” and “one of the most significant actions the DOJ has taken this term.” Blanche was by Trump’s side at a late-night White House press briefing following the shooting at the White House correspondents’ dinner, and on Sunday morning she appeared on news shows, saying about the incident: “The system worked. We were safe, President Trump was safe.”
“As long as he keeps moving in the right direction and keeps winning, everything will fall into place,” the official said.
not necessarily. One federal statute that allows the President to appoint an acting Attorney General, the Federal Vacancies Reform Act, authorizes the President to hold an Acting Attorney General in office for 210 days. That means Blanche’s clock will expire on October 29, five days before the midterm elections.
Trump could extend Blanche’s temporary tenure beyond the 210-day limit if he nominates someone — including Blanche herself — to the job permanently. But Blanche may face a challenging confirmation process, especially after the midterms. Blanch, Trump’s former personal attorney, has come under scrutiny over his loyalty to the president and his controversial handling of the release of the Epstein files. If his – or any other – nomination fails, he may remain in office as Acting Attorney General while another nomination is pending.
Asked last week about Blanche’s tenure at the Justice Department, White House spokeswoman Abigail Jackson said Trump has a “great relationship” with her and is “very pleased with the job she’s doing so far.”
“Todd Blanch is an American patriot who fought fearlessly against the Democrats’ unprecedented legislative campaign on President Trump’s behalf,” he said.
A representative for the Justice Department did not respond to a request for comment. Blanche had previously said that if Trump offered him the top job he would accept it.
“If he chooses to nominate me, it’s an honor. If he chooses to nominate someone else and I go back as DAG, it’s an honor,” Blanche said earlier this month.
Blanch, who served as deputy attorney general before becoming acting AG, can remain in power through a separate statute: the Attorney General Succession Act, which authorizes a deputy attorney general to perform the duties of the office of attorney general if the position becomes vacant. However, there is controversy among legal experts as to whether the 210-day limit applies to that statute.
“In my view, the statute is best read to explicitly adopt the 210-day deadline,” said Nina Mendelson, a professor at the University of Michigan Law School.
“The President cannot legally rely on an acting Attorney General indefinitely,” he wrote in an email. He added that “Blanche may face legal challenges,” noting that there were lawsuits challenging the service of Matthew Whitaker, who previously served as acting attorney general in the Trump administration, and “there have been several lawsuits involving long-serving officials claiming to be ‘acting’ at other agencies.”
But Stanford Law School professor Anne Joseph O’Connell said the statute does not impose a term limit and Blanche can serve out the remainder of Trump’s term without Senate confirmation.
He pointed out that during Joe Biden’s presidency, Julie Su served as the acting Secretary of Labor under the succession provision of the Department of Labor for nearly two years. Su was declared Biden’s “Forever Named.”
The Trump administration has adopted solutions requiring Senate confirmation in other offices, notably U.S. attorneys’ offices across the country, where at least 10 are being led indefinitely by the person in the No. 2 role.
And Trump has revealed his preference for acting Cabinet officials. At one point in 2019, during his first term, a quarter of his cabinet members served in an executive capacity.
“I love acting,” Trump said. told reporters at the time. “It gives me more flexibility. Do you understand that? I love acting.”
