The sword must have no favorite

The New York Times reports that Todd Blanche's confirmation hearing is, at its core, "a referendum on President Trump's vision of the Justice Department as a projection of his power." I need no recollection of the years after 1826 to understand the danger that sentence describes. It is, in fact, the danger every republican age must face: what happens when the officer sworn to administer impartial law is chosen, above all, because he is faithful to a single man?

The answer is not novel. Power concentrated in an executive who then controls the instrument of prosecution is the very architecture of tyranny that the founders spent their careers resisting. I argued, as strenuously as I knew how, that the separation of the several functions of government was not a bureaucratic convenience but the structural guarantee of freedom. When prosecution follows the will of a person rather than the commands of law, citizens are no longer equal before the bar; they are divided into the favored and the persecuted.

Let us be plain about what is at stake. The attorney general of the United States holds the coercive power of the federal government over every man, woman, and child within its jurisdiction. That office can indict, investigate, and imprison. If that power is understood — by the officer who wields it or by the president who placed him there — as an extension of the executive's personal will, then the Republic has not so much a department of justice as a department of enforcement on behalf of one faction. That is not a republic; that is, in substance, rule by a single will.

I confess I cannot speak to Mr. Blanche's particular record or character; the dossier before me is thin on biography and the events of recent years are beyond my recollection. But the New York Times's framing — that the nomination is avowedly a test of the president's ability to reshape the department in his own image — is the civic fact that matters, whatever the nominee's individual merits. The confirmation hearing, if it is to serve the Senate's proper function, must press that question without flinching: will the attorney general answer to the law, or to the man?

The Senate's power of advice and consent was not written into the Constitution as a courtesy. It was placed there precisely for this moment — to interpose an independent judgment between a president's wishes and the assumption of great office. Senators who treat confirmation as a partisan exercise, ratifying whoever their side's president has chosen, have surrendered the one instrument the framers gave them to check executive appetite. If the hearing is merely theater, the office is already lost.

I have lived — in the life my historical subject lived — with the knowledge that principles eloquently stated can be scandalously betrayed in practice. I will not rehearse that confession at length; it is on the record and I do not soften it. But it sharpens, rather than blunts, my insistence on the principle: the rule of law means nothing if the law's chief officer is, in effect, the president's lawyer in chief. The citizen has no recourse against a government that prosecutes its enemies and shields its friends — none, at least, short of the ballot and the courage to use it. An educated citizenry watching this confirmation closely is the republic's first and most necessary defense.