OPINION:
There is perhaps no more dangerous appointment in a constitutional republic than an attorney general who mistakes his obligation to defend the Constitution for a choice to defend the president.
Todd Blanche is demonstrating, with alarming regularity, that he does not understand the difference.
Once President Trump’s skilled personal attorney, Attorney General Blanche now occupies an office whose responsibilities do not include addressing the personal interests, political grievances and wounded vanity of the man who appointed him. Yet he behaves as if he is still sitting across the table from Mr. Trump, preparing another legal defense for his client.
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His performance is not merely embarrassing. It is an assault on the constitutional separation of powers, an affront to the First Amendment and a disquieting demonstration that he is wrong for his job.
Last week, Mr. Blanche threatened Department of Justice investigations and prosecutions of Democratic members of Congress who have announced their intention to investigate the Trump administration.
The president had already demanded that the Justice Department investigate these lawmakers, characterizing their announced oversight activities as extortion and suggesting that they deserved imprisonment. Mr. Blanche, rather than explaining that Congress has an independent constitutional prerogative to investigate the executive branch, reinforced the president’s threats.
Asked whether lawmakers could be investigated or prosecuted, Mr. Blanche suggested that they should be worried and that criminal liability depended on what they say. He even suggested that there might be a criminal offense in threatening administration officials with investigations.
This is an extraordinary proposition coming from the nation’s chief law enforcement officer. Since when did offering to investigate government officials become a crime? Since when did announcing an intention to exercise congressional oversight become grounds for a Justice Department investigation? Since when does the attorney general get to decide that speech displeasing to the president is potentially criminal?
Congress is a coequal branch of government, with constitutionally assigned powers and responsibilities. Those responsibilities include examining the conduct of the executive branch, checking the expenditure of public money, scrutinizing the administration of federal agencies and determining whether laws have been faithfully executed.
Congress cannot intelligently legislate, appropriate funds or exercise its constitutional checks and balances without investigating matters arguably related to those responsibilities.
The Justice Department does not get to decide that an investigation is illegitimate simply because Mr. Trump dislikes its subject or fears its consequences.
Nor do members of Congress lack First Amendment rights. They retain the right to criticize the president, condemn his policies, accuse his administration of misconduct and publicly announce investigations. They may use harsh language. They may be wrong. They may be politically motivated. They may even be obnoxious. None of those characteristics transforms protected political expression into a federal crime.
There is an important distinction between the Justice Department and other executive departments. The Commerce Department, for example, exists to administer almost blindly the policies established by the president and Congress. The attorney general, however, is a lawyer, and the Justice Department exercises extraordinary powers over the liberties of every American.
He and the department’s prosecutors must obey the Constitution, federal statutes, judicial decisions and the rules of professional responsibility. The president’s political preferences do not override those obligations.
The danger is not theoretical. Earlier this year, the Justice Department pursued criminal charges against six Democratic members of Congress because they appeared in a video reminding members of the military that they must refuse unlawful orders. Mr. Trump had ignorantly denounced the lawmakers as traitors and suggested they deserved arrest and even execution.
The Justice Department’s efforts to obtain indictments failed when a federal grand jury refused to bring charges. What a disgraceful spectacle: the nation’s chief law enforcement agency attempting to criminalize legislators for expressing an opinion about the constitutional obligation of military personnel — stopped midstream by ordinary citizens!
Last month, the Justice Department filed a lawsuit seeking to prevent Alaska from certifying its Senate election results if the administration’s preferred candidate lost. The court dismissed the case 10 days later, finding that the government had failed to establish standing, leaving the court without jurisdiction. This was an extraordinary intrusion into state election administration, undertaken on the eve of voting.
These are not isolated examples of aggressive lawyering. They are evidence of a Department of Political Justice increasingly willing to use its enormous institutional power to accommodate presidential grievances. They also make Mr. Blanche’s latest threats against congressional Democrats particularly alarming.
The attorney general’s job is not to protect the president from embarrassment. It is to protect the Constitution.
Mr. Blanche’s oath was to the Constitution, not to Mr. Trump. That oath includes protecting the speech of members of Congress whose words his boss hates and fears. It requires him to defend their right to investigate, criticize, question and hold the executive branch accountable.
A competent attorney general would have told Mr. Trump that his demand for investigations of political opponents could not substitute for evidence of a crime. A fair attorney general would have reminded him that congressional investigation is a constitutional political process, not extortion, and that congressional oversight is not a criminal enterprise. A Constitution-defending attorney general would have underscored Congress’ independence rather than threatening its members.
An intellectually honest attorney general would have resigned rather than violate his oath of office, but Mr. Blanche has demonstrated a disturbing willingness to subordinate legal judgment to presidential anger.
The most frightening thing about an attorney general who threatens legislators is not that he might prosecute them. It is that he might frighten them into silence. That is precisely how constitutional government deteriorates: Not necessarily through the formal abolition of rights, but through the intimidation of those who exercise them.
If Todd Blanche cannot understand that elementary principle, then he is not merely the president’s former attorney. He is an unqualified attorney general, unfit to serve as the nation’s chief law enforcement officer.
Anyone who uses the Department of Justice to assault the constitutional liberties he swore to protect has forfeited the moral and constitutional authority of his office.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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