- Aaron Bernstein/Reuters
Amid questions over whether Deputy Attorney General Rod Rosenstein will step down, people have been buzzing about the next person in line to oversee the special counsel who’s investigating Russian meddling in the 2016 election.
Rachel Brand, the associate attorney general, is third in command at the Department of Justice, and she could reportedly take Rosenstein’s job if he resigns.
On Wednesday, The Washington Post reported that Mueller’s investigation into Russian interference in the 2016 election has expanded to include a probe into whether Trump committed obstruction of justice with his firing of former FBI Director James Comey last month. Mueller, the former FBI director, is also investigating whether Trump associates committed financial crimes.
That news came after Trump confidant and Newsmax CEO Chris Ruddy said Trump was considering firing Mueller. This was later supported by a report in The New York Times.
Then in a Friday tweet, Trump appeared to slam Rosenstein, who wrote a May memo cited by Trump and Attorney General Jeff Sessions as the basis for FBI Director James Comey’s firing. Rosenstein also oversees Mueller, making the final calls about personnel, resources, and any prosecutions that would potentially arise from the investigation.
“I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director!” Trump wrote. “Witch Hunt.”
Moments after that tweet, ABC News reported that Rosenstein, who oversees the special counsel since Sessions recused himself in early March from any matters involving the Trump campaign, has privately told his colleagues that he’s considering recusing himself from the investigation.
That’s where Brand comes into focus.
If Rosenstein were to recuse himself, Brand would be next in line to oversee the special counsel, which would elevate her to a highly visible position in Washington.
Sources told ABC News that it was in a meeting with Brand that Rosenstein discussed his possible recusal. He told Brand that she would take over if he were to recuse himself from the matter.
Brand, who was just confirmed to her position last month, has quite the stacked résumé.
A graduate of Harvard Law School, Brand clerked for both Supreme Court Justice Anthony Kennedy and former Massachusetts Supreme Court Justice Charles Fried, who once served as President Ronald Reagan’s solicitor general. A conservative lawyer, Brand worked in private practice before jumping into politics, serving under White House counsel Alberto Gonzales in President George W. Bush’s administration before taking a job in the Justice Department’s Office of Legal Policy.
After her Bush years, Brand worked as the chief counsel for regulatory reform at the US Chamber of Commerce. President Barack Obama then appointed her in 2012 to the Privacy and Civil Liberties Oversight board, which she served as a member until earlier this year. The board is an independent agency within the White House that advises on the privacy and civil liberties aspects of government agencies’ counterterrorism work.
“She’s a top-notch analytic lawyer and really good at figuring out what is the art of the possible,” Neal Katyal, former acting solicitor general under Obama who worked with Brand at the Chamber of Commerce, told The Washington Post after Brand’s confirmation last month. “But the big issue for everyone at the Justice Department right now is how rigorously they’re going to police the rule of law.”
Currently, Brand’s portfolio at the Justice Department includes overseeing civil rights, environmental, and antitrust litigation. Under her purview is managing the lawyers who are arguing in favor of Trump’s controversial travel ban executive order.
“The challenge of her job is that she is responsible for oversight of some of the most politically difficult issues,” Jamie Gorelick, deputy attorney general under Attorney General Janet Reno who worked with Brand in private practice, told the Post. “All of the main places where there are differences between Republicans and Democrats reside in the civil litigation divisions. I think Rachel is well prepared – she’s very smart and very thoughtful – but that’s going to be a very hard job.”
The biggest question facing Brand, if she were to be placed in the role of overseeing Mueller, is what she would do if Trump asked her to fire the special counsel.
Robert Chesney, a University of Texas law professor and co-founder of the Lawfare blog, doesn’t think she would comply with such a request. That could lead Trump to possibly try and avoid such a confrontation “by instead going the ‘nuclear’ route: attempting to directly abolish the Office of Special Counsel altogether,” he told Business Insider in an email.
In a piece for Lawfare, Jack Goldsmith, who worked in Bush’s Office of Legal Counsel, and Benjamin Wittes, senior fellow at Brookings and a close friend of Comey’s, wrote of their admiration for Brand.
“Brand is a conservative lawyer and not everyone agreed with her opinions on the PCLOB, but there is no doubt that she made significant contributions there and was an important voice in the PCLOB’s public output,” the two wrote. “She thus has extensive Justice Department experience and extensive national security experience. She is also intelligent, fair, independent, and tough-minded.”
However, the two wrote that Brand’s lack of experience as a prosecutor and in criminal law may become suddenly relevant if she has to fill Rosenstein’s role. But they said that issue “is a manageable problem.” The tougher task, they added, is “insulating the investigation from the erratic and inappropriate behavior of President Trump.”
“Such insulation is needed for the integrity of the investigation, so that any decisions it may reach about prosecution or exoneration have credibility,” they wrote. “This task will require backbone – and a willingness not to last long in the job.”