Todd Blanche Escalates the Abuses at the Justice Department

The acting AG auditions for the permanent job

It’s been less than a month since Trump fired Attorney General Pam Bondi. As I wrote in my last post, Bondi left the reputation and integrity of the Justice Department in ruins. Under her leadership, the Department became simply a political arm of the White House. She used the DOJ to pursue Trump’s political agenda, punish his enemies, and reward his friends, abandoning any regard for the rule of law.

Pam Bondi's Legacy of Destruction

As I also noted in that post, “While Bondi’s ouster is good news, there is no reason to expect that things will dramatically improve at the Justice Department.” Unfortunately that prediction has proven to be correct. Trump named Todd Blanche, Bondi’s Deputy and Trump’s former criminal defense attorney, to be the acting Attorney General. Since then, Blanche has been aggressively auditioning for the permanent gig. If anything, his abuses in the past few weeks are even worse than Bondi’s.

Acting Attorney General Todd Blanche (Chip Somodevilla/Getty Images)

Trump’s Public Enemy #1: Jim Comey

One reason for Bondi’s sacking reportedly was Trump’s anger that she had not been more aggressive about prosecuting his political foes. Blanche acted quickly to appease the boss on that score.

On Tuesday Blanche announced a new criminal indictment of former FBI Director James Comey. Comey, of course, has been a leading Trump enemy and bogeyman in the MAGA world ever since his role in the investigation of Russian efforts to influence the 2016 presidential election in Trump’s favor.

Last fall, the Justice Department indicted Comey on flimsy charges of allegedly lying to Congress. That case was brought by the ill-fated Lindsey Halligan, whom Trump installed as the U.S. Attorney in the Eastern District of Virginia after the career prosecutor serving in that role declined to pursue the case.

That prosecution quickly fell apart. A judge ultimately dismissed the case on the grounds that Halligan’s appointment was unlawful. But the prosecution faced many other problems as well, including allegations that Halligan had misled the grand jury, that the prosecution was vindictive, and that there was no actual evidence Comey had lied.

The Comey Prosecution is Imploding

The New Comey Indictment

Now, under Blanche, Trump’s Justice Department is taking another shot at Comey – and this new prosecution is so ridiculous it makes the first Comey case look like a model of reasoned jurisprudence by comparison.

The indictment in the Eastern District of North Carolina charges Comey with one count of threatening to kill or do bodily harm to the president and one count of transmitting that threat in interstate commerce. The charges are based on an Instagram post Comey made nearly a year ago, showing seashells on the beach arranged to spell out “86 47”. He posted the picture with the comment, “Cool shell formation on my beach walk.”

The indictment charges that a reasonable person familiar with the circumstances would interpret this post as a “serious expression of an intent to do harm to the President of the United States.”

This case is a joke, although there’s nothing funny about the abuse of power that it represents. Does anyone honestly look at this post and think, “Gosh, the former FBI Director is threatening to kill the president!” I doubt even most of those inside the MAGA bubble truly believe that. They are simply using their fake outrage to attack Comey.

Let’s begin with what it means to “86” something. (The “47” is supposed to refer to Trump, as the 47th president.) As many commentators have pointed out, and as a quick Google search will reveal, the most common definition is that to 86 someone means to get rid of them or kick them out, as with a drunken patron in a restaurant. The phrase “86 47” is most reasonably interpreted as a call to get rid of Trump by kicking him out of office.

Even if you grant that in some circles to “86” someone means to kill them, prosecutors would have to prove beyond a reasonable doubt that Comey knew that and that it was his intent to convey such a threat. After Trump and his allies complained the phrase could be interpreted as a call to violence, Comey took down the post, saying that was not his intent and that he opposes violence of any kind.

Look, Comey is no Trump fan. But good luck proving to a unanimous jury that the former Director of the FBI and Deputy Attorney General, who devoted most of his career to protecting the rule of law, was issuing a public call – on Instagram, no less – to assassinate the president.

It’s not enough if one possible interpretation of “86” is to kill someone. If there are other, more common interpretations as well, that’s a reasonable doubt right there. Assuming Comey would testify (as seems likely) and say he intended simply a political message, how do prosecutors prove otherwise?

But let’s assume the absolute worst case for Comey: that he indeed meant this to be a call for someone to assassinate the president, and that prosecutors can prove that was his intent. That would still be protected speech under the First Amendment. People unfortunately engage in violent political rhetoric all the time – the president himself is a prime example. That still falls within the realm of protected speech.

The leading case in this area involves a Vietnam draft protestor who was prosecuted for proclaiming, “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” The Supreme Court held that this kind of heated political rhetoric is still protected speech. True threats have to be much more specific and targeted if they are going to form the basis of criminal charges. Needless to say, Comey’s seashell art, which contains no threatening words at all, does not meet that test.

If you want a more detailed discussion of why this would be protected speech, even if Comey intended it as a call for violence, the folks at Lawfare did a good analysis last May when the incident first occurred.

This case doesn’t pass the laugh test, or the smell test. And anyone who signed off on it wouldn’t pass a first-year criminal law test.

Other Issues With the New Comey Indictment

But perhaps I’m being too hasty. Maybe the reason the government took nearly a year to bring these charges, despite it appearing to be a relatively simple case, is that they were gathering compelling evidence of Comey’s criminal intent. Maybe they have obtained emails or text messages from Comey gloating about the seashell post and his call to have the president assassinated, or have witnesses who heard him bragging about the threat.

We can be confident that’s not the case. If it were, they would have put that evidence in the indictment. Indeed, if this DOJ had a “smoking gun” proving Comey’s intent, you can bet they would be shouting it from the rooftops, no doubt leaking the information even before the case was indicted.

Prosecutors could have issued a more typical “speaking indictment,” setting out their evidence showing that Comey’s true intent was to threaten the president — if they had it. None of that is in here. This is a bare-bones indictment that simply recites the elements of the charges.

Yet another ridiculous aspect of this indictment is that it contains a forfeiture allegation, which says the government will seek to forfeit to the United States any property that constitutes proceeds of this offense. If a fraudster uses the proceeds of his fraud to buy a house or a boat, for example, the government can use forfeiture to seize that property. But what exactly are the “proceeds” of Comey’s seashell picture that the government would seek to forfeit? What are his alleged ill-gotten criminal gains? Are they going to take his seashell collection?

I’ve seen very little discussion thus far of the forfeiture allegation. It makes absolutely no sense. Blanche didn’t explain it at the press conference announcing the indictment. It’s clearly just another way to try to threaten Comey, perhaps by suggesting the government might try somehow to take his North Carolina beach house. But there’s nothing to back up that threat.

If I were Comey’s defense attorney, I’d move the court for review of the grand jury transcripts here. It’s hard to believe that a properly instructed grand jury would have indicted this case. Although going behind an indictment to examine the grand jury proceedings is unusual, this Justice Department has forfeited the right to any presumption that it follows the rules and obeys the law. As with the first Comey prosecution, the judge should examine the grand jury transcripts for possible prosecutorial misconduct.

This case, like the first one, is likely to be thrown out prior to trial. There will be motions to dismiss on multiple grounds. But in the unlikely event it does make it to trial, it’s almost impossible to believe prosecutors will convince a unanimous jury beyond a reasonable doubt that Comey is guilty of threatening the president.

Once again, this is not about prosecuting a legitimate criminal case. It’s about using the justice system to punish one of Trump’s perceived enemies. Even if it does not result in a conviction, of course, such a prosecution results in tremendous emotional and financial harm. And that’s precisely the point.

The Bizarre Motion in the Ballroom Case

Last fall Trump demolished the East Wing of the White House, saying he wanted to build a ballroom in its place. The National Trust for Historic Preservation filed a lawsuit claiming that Trump failed to follow legal requirements and that the project required Congressional authorization. A judge put the work on hold while the lawsuit is pending, although he allowed the underground aspects of the project, which include things like a security bunker, to proceed.

After the attempted shooting at the White House Correspondents’ Dinner last weekend, Trump immediately claimed the incident demonstrated the national security need for a White House ballroom. The Justice Department wrote to the NTHP, insisting they now drop the case and allow the project to proceed. When they declined, DOJ filed a motion with the trial judge asking for a ruling that he would dissolve his injunction if the case were back before him (it is currently on appeal).

This motion appears over Blanche’s name, and it is unlike anything I’ve ever seen. “Cartoonish” is too polite; “unhinged” is more appropriate. This is how it begins:

“The National Trust for Historic Preservation” is a beautiful name, but even their name is FAKE because when they add the words “in the United States” to the National Trust for Historic Preservation, it makes it sound like a Governmental Agency, which it is not. In fact, the United States refused to continue funding it in 2005 because they strongly disagreed with their mission and objectives. They are very bad for our Country. . . . They were asked by the United States Military not to bring this suit because of the Top Secret nature of the important facility being built. . . . But this did not deter them because they suffer from Trump Derangement Syndrome, commonly referred to as TDS, as noted by Democrat Senator John Fetterman, of Pennsylvania, and are represented by the lawyer for Barack Hussein Obama, Gregory Craig.

The pleading goes on in that vein, complete with random capitalizations and exclamation points. The first two pages are a single, run-on paragraph that contains heated political rhetoric and no legal argument. Then there is this gem, near the end:

If any other President had the ability, foresight, or talents necessary, to build this ballroom, which will be one of the greatest, safest, and most secure structures of its kind anywhere in the World, there would never have been a lawsuit. But, because it is DONALD J. TRUMP, a highly successful real estate developer, who has abilities that others don’t, especially those who assume the Office of President, this frivolous and meritless lawsuit was filed. Again, it’s called TRUMP DERANGEMENT SYNDROME.

Does this tone seem familiar? This motion sounds exactly like one of Trump’s Truth Social posts. Perhaps they are just letting him write the legal briefs now.

Needless to say, this social media rhetoric about the lawsuit endangering presidential security is not a legal argument. Even if there were good policy arguments for a White House ballroom, that would not excuse ignoring the legal requirements for undertaking such a project and demolishing a portion of the White House without approval.

Factually, there also are multiple problems with the motion’s claims. It says the White House ballroom is needed so events like the Correspondents’ Dinner can be held in a secure location, but that dinner is put on by a private association and is not a presidential event. Trump didn’t even attend any of the prior dinners under his presidency. There’s no reason to think it would be held at the White House, even if it had a ballroom. In addition, attendance at this year’s dinner was about 2,600 people, while Trump’s ballroom is projected to hold only about 1,000.

Finally, the incident last Saturday does not in fact demonstrate the need for a more secure ballroom on White House grounds. Despite the presence of the President, Vice President, and many senior Cabinet officials, the Secret Service failed to designate the event as a “National Special Security Event,” which would have led to a higher level of security precautions. Even with that apparent failure, the gunman got nowhere near the President and was not even on the same floor of the hotel when he was apprehended. In short, even the more limited security measures in place did the job.

I can’t imagine the judge is going to be impressed by this social media screed masquerading as a legal pleading. It’s a true embarrassment. If anyone in the DOJ leadership is still capable of shame, they should be ashamed. But even if Trump didn’t write it himself, I’m sure he is pleased with the tone.

The More Things Change at DOJ . . .

There are more examples of corrupt steps Blanche has taken to please Trump. He appointed MAGA fixture and former Trump campaign attorney Joe DiGenova to lead the criminal investigation into the so-called “grand conspiracy” – an incoherent theory that Democratic officials, beginning with the Trump/Russia investigation in 2016, engaged in a years-long conspiracy of illegitimate investigations and prosecutions to try to bring down Trump. He asked a court of appeals to throw out the convictions of a dozen members of the Oath Keepers and Proud Boys for their January 6 assault on the Capitol. He announced a highly-unusual civil rights investigation of Cassidy Hutchinson, a star witness in the House January 6 hearings and favorite MAGA target.

Although Blanche was one of Trump’s personal defense attorneys, when he was first appointed to the Justice Department some of his respected former AUSA colleagues held out hope that he might be a moderating influence there. After all, he was trained in the prestigious Southern District of New York; surely he would bring some of those instilled DOJ norms and values with him.

But anyone who held out that hope has been gravely disappointed. For instance, see this exchange between Blanche and Dan Goldman, his former SDNY colleague who is now a Congressman from New York:

So no, things will not be better at the Justice Department post-Bondi. It’s possible they will be even worse. For example, DiGenova has claimed that Bondi’s reluctance to move forward is the reason there are not already indictments in the “grand conspiracy” case. Now that leash, to the extent it really existed, is off.

All signs are that Blanche is actively auditioning for the full-time Attorney General appointment, which requires going along with Trump’s worst impulses. I doubt anyone could make me long for Bondi’s return. But sadly, as expected, it’s clear her departure is not going to lead to any improvement at the Justice Department.