The evidence against would-be presidential assassin Cole Tomas Allen is overwhelming. Dozens of people saw him run through the Washington Hilton Hotel – armed with a shotgun, handgun, and six knives – towards the ballroom where President Donald Trump was about to address the White House Correspondents Association. Prosecutors allege that he fired a shot that hit and wounded a Secret Service officer. His mad dash is captured on surveillance video from every conceivable angle, and he was caught at the scene. He confessed, in writing and with specificity, in an email to friends and family.
It’s a case prosecutors cannot conceivably botch — but Acting Attorney General Todd Blanche and DC U.S. Attorney Jeanine Pirro are trying their best to screw it up. The problem is that both Blanche and Pirro have stubbornly refused to recuse themselves from the case, notwithstanding their status as witnesses and intended victims. In the process, they’ve given Allen a sliver of a chance.
At a hearing this week, U.S. District Court Judge Trevor McFadden, a 2017 Trump appointee, twisted logic and common sense to suggest that Blanche and Pirro might not be witnesses because Allen never made it into the ballroom and they didn’t see anything. But they did see something of relevance – the reaction of Secret Service and other security personnel inside the room – and they certainly heard gunshots outside. A person doesn’t necessarily have to see anything to qualify as a witness. Consider, for example, an apartment dweller who hears gunshots and screams through the wall of an adjacent apartment and calls the police. That good Samaritan neighbor is certainly a witness, even without physically seeing anything.
Judge McFadden also voiced skepticism about Blanche and Pirro’s status as victims: “I’d be very surprised if they were victims in any legal sense.” Tell that to Pirro herself, who said to Fox News on May 2, “I was in the line of fire here. I could have been killed.” And in his pre-attack email, Allen was explicit about his intentions: “Administration officials (not including Mr. [Kash] Patel): they are targets, prioritized from highest-ranking to lowest.” (Someday we’ll learn why the shooter exempted Patel. Your guess is as good as mine.) As Acting AG, Blanche would surely make this hit list, fairly high up. Pirro would be lower, but still within the assassin’s parameters. Neither was injured, of course, but they certainly qualify as intended victims, and that’s plenty to necessitate recusal.
Indeed, it is a bedrock principle that anytime a prosecutor is a potential witness or a victim in a given case, he must recuse himself to avoid a conflict of interest, or the appearance of such. A federal statute requires the AG to ensure the recusal of any prosecutor who has a “personal [or] political conflict of interest, or the appearance thereof.” And DOJ’s regulations mandate recusal where the prosecutor could be seen as “less than fully impartial” or “create[s] an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation or prosecution.”
The potential conflicts of interest run deep here. A person who witnessed a crime might well have an emotional reaction to it, which would undermine the prosecutor’s duty to handle every case dispassionately, without fear or favor. That concern is even more pronounced when a prosecutor was an intended victim. As Patel said at a post-arrest press conference, flanked by Blanche and Pirro, “This one hits a little differently. We were all there.” And, of course, any witness could well end up testifying at trial – which would present an obvious mixed incentive if that person is also involved in the prosecution of the same case.
Allen’s defense team has now made a motion to recuse both Blanche and Pirro. When asked last week if she would recuse herself, Pirro replied, “Absolutely not. I mean, there is no way. I mean, that would be like telling witnesses that, you know, you can’t testify at the trial because you were there.” This is nonsense. Witnesses who “were there” certainly can testify – but they can’t also try the case as prosecutors.
Even if Blanche and Pirro aren’t all that concerned with quaint notions of prosecutorial ethics, there’s a tactical problem here for the Justice Department. A proper recusal poses zero downside to the prosecution – but a failure to recuse creates substantial, unnecessary risk.
If Blanche and Pirro were to recuse themselves, the prosecution would carry on unimpeded. Under DOJ policy, Pirro’s entire U.S. Attorney’s Office might need to be recused, as a whole, if the boss steps aside; Judge McFadden opined that recusal of the entire office “would be quite a request.” Perhaps, but “quite a request” doesn’t mean it’s wrong. The country is teeming with federal prosecutors who have deep expertise trying murders and other complex crimes – and this one isn’t especially tricky, given the quality and quantity of the evidence. The Justice Department could simply import a team from the DC-adjacent Eastern District of Virginia, which routinely prosecutes high-stakes terrorism and national security matters. They can handle it, and any of Blanche’s top deputies can take over high-level supervision.
On the flip side, if Blanche and Pirro refuse to recuse (and if the judge denies Allen’s motion to force recusal), then they’ll endanger the entire prosecution. A failure to recuse will certainly give Allen – who has essentially no defense at this point – a legitimate argument on appeal that his prosecution was tainted by conflicts of interest. And, while non-recusal wouldn’t necessitate an automatic reversal of any guilty verdict, federal appeals courts have thrown out convictions based on the improper failure of prosecutors to recuse themselves. Ultimately, non-recusal by Blanche and Pirro will compromise the Justice Department’s fundamental ability to make its case and make a conviction stick.
Of course, the unspoken political downside to Blanche and Pirro is that, if they were to recuse, they could no longer be the public faces of DOJ’s case against the aspiring assassin. And thus far both have made a meal of their post-arrest media tours. Collectively, they’ve held multiple press conferences about the case, posted about it aggressively on social media, and done interviews on CNN, Fox News, and NBC.
And Blanche and Pirro surely understand that Donald Trump – the same guy both are hoping will nominate them to permanent DOJ leadership positions – doesn’t really comprehend, or care much for, the notion of ethics-driven recusals. Recall how former Attorney General Jeff Sessions recused himself from the 2017 Russia investigation and became Trump’s fulltime punching bag as a result. Trump tweeted that Sessions was “scared stiff and Missing in Action” and, later, that “I wish I did” choose somebody else as AG. No way Blanche or Pirro walks down that same road to perdition.
Let’s be real about what’s happening here. Blanche and Pirro are both experienced prosecutors who understand that they should recuse. But then they’d forgo the opportunity to grandstand about the case, and they’d risk pissing off the President who will decide whether to nominate them for big, important jobs. Apparently they’d rather play the politics of personal glory, even if they risk blowing a case against a dangerous assassin who tried to kill the President whose favor they so deeply crave.
