Call it the “Julie Su precedent.”
And it may allow Todd Blanche to continue serving as acting attorney general for the remainder of President Donald Trump’s term, even if he doesn’t have the votes to be confirmed by the Senate.
Former President Joe Biden and Senate Democrats laid the groundwork for Trump to keep Blanche atop indefinitely when they paved the way for Julie Su to serve as acting secretary of labor for nearly two years without the Senate ever voting on her nomination.
Despite having been confirmed as deputy labor secretary in July 2021, Su lacked the votes to become secretary in 2023. That’s because then-Sens. Joe Manchin (I-W.Va.) and Kyrsten Sinema (I-Ariz.) — who still belonged to the Senate Democratic Caucus at that point — opposed Su’s nomination.
Biden formally nominated Su to succeed Marty Walsh on March 1, 2023, but her nomination lagged for so long that Biden had to renominate her in 2024. All pending nominations get wiped out at the end of each calendar year. Su was cleared by the HELP Committee again, but she couldn’t win confirmation by the full Senate.
Because Su’s nomination was always “pending” before the Senate, she was able to continue serving as acting secretary through the end of Biden’s presidency, a total of 22 months.
Then-Senate Majority Leader Chuck Schumer regularly avoided reporters’ questions about Su’s nomination, saying only that he was working to get her confirmed.
The Government Accountability Office also ruled that Su could stay in place, notwithstanding the 1998 Federal Vacancies Reform Act, which would limit her to seven months. We spoke with legal and procedural experts who believe that GAO would rule the same way on a Blanche nomination.
At the time, several senators feared that the Su situation would set a precedent that would weaken the Senate’s advice-and-consent authority on presidential nominations.
Tables turned. Blanche was officially announced on Tuesday as the acting attorney general. During a news conference at the Justice Department, Blanche nodded to the various possibilities in terms of his job status long-term, saying he doesn’t have any “goals or aspirations.”
“I love working for President Trump. It’s the greatest honor of a lifetime,” Blanche said. “And if President Trump chooses to keep me as acting, that’s an honor. If he chooses to nominate me, that’s an honor. If he chooses to nominate somebody else… that’s an honor.”
We spoke with several GOP senators, including some who serve on the Senate Judiciary Committee. None had direct insight into whether Trump plans to formally nominate Blanche, pick someone new or just leave Blanche in place as the acting AG.
It’s unclear whether Blanche could win Senate confirmation as attorney general. The Senate confirmed Blanche on a party-line vote last year to serve as deputy attorney general. But that was in a much different political environment for Republicans.
There’s also the possibility that Blanche’s nomination wouldn’t even get out of committee. Sen. Thom Tillis (R-N.C.) has vowed that he won’t vote for any nominee who “excused” the Jan. 6 Capitol riot. Tillis is the deciding vote on the Judiciary Committee, and his opposition would sink any Trump nominee.
While there’s no evidence that Blanche excused the Jan. 6 violence or otherwise praised the rioters, Blanche cheered Trump’s pardons of the rioters during an appearance last week at CPAC.
Blanche was Trump’s lead defense attorney in the high-profile criminal prosecutions of the president, including the federal cases centered on his efforts to overturn the 2020 election and the retention of classified documents, as well as the hush-money trial in New York City.
Throughout his tenure as the No. 2 at DOJ, Blanche has come under scrutiny for his handling of the Jeffrey Epstein files, including his private interviews with Ghislaine Maxwell. Maxwell — who is serving a 20-year sentence for conspiring with Epstein to sexually abuse minors — was moved to a minimum-security prison following her meetings with Blanche.
