Senate Democrats’ desire to hold acting Attorney General Todd Blanche’s feet to the fire over the Jeffrey Epstein files and his reasoning behind his sympathetic treatment of Ghislaine Maxwell, could be waylaid by a legal loophole.
According to Politico’s Erica Orden and Eli Stokols, legal scholars are divided on whether Donald Trump can keep Blanche in the acting role past statutory time limits, creating a potential end-run around Senate confirmation battles and Democratic accountability efforts. Trump has multiple pathways to avoid nominating Blanche permanently. By simply declining to submit a nomination, the president can sidestep the contentious confirmation hearing where adversarial Democrats would be lying in wait with a battery of uncomfortable questions. The Federal Vacancies Reform Act provides one avenue but with a deadline, Politico is reporting. The statute authorizes the president to keep an acting attorney general in place for 210 days which means Blanche’s clock runs out on Oct. 29 — five days before the midterm elections. Trump could extend this timeline by then nominating someone — including Blanche himself — to the permanent position. But a second statute opens a much broader loophole. The Attorney General Succession Act authorizes the deputy attorney general to exercise the duties of the attorney general’s office if the post is vacant. There is a dispute among legal experts about whether the 210-day limit applies to that statute. Legal scholars are split on the question’s resolution. One expert told Politico that “The President cannot legally rely indefinitely on an acting Attorney General” and predicted “Blanche may well face legal challenges,” pointing to lawsuits challenging Matthew Whitaker’s service as acting AG during Trump’s first term. But Stanford Law School professor Anne Joseph O’Connell offered a starkly different interpretation. She argued the succession statute contains no time limits, meaning Blanche could serve the remainder of Trump’s term without Senate confirmation. O’Connell cited a precedent: Julie Su served as acting Labor secretary under a Labor Department succession provision for nearly two years during the Biden administration — a tenure critics labeled the “forever nominee” arrangement. Trump has already normalized confirmation workarounds across the government. At least 10 U.S. attorney offices around the country are being led indefinitely by the person in the No. 2 role — a pattern showing the administration’s systematic approach to bypassing Senate oversight, the report noted.
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