And so, with Rod Rosenstein having allegedly told the DoJ’s No. 3 that he may need to follow in Jeff Sessions’ footsteps by recusing himself from the Trump-Russia probe, the question is this: “just who is the DoJ’s No. 3“?
Well, the answer is Rachel Lee Brand.
In some ways, Rachel Lee Brand followed a traditional path toward a high-ranking position in the Justice Department: an internship with her senator, an Ivy League law school, a Supreme Court clerkship, a legal job in the White House.
But Brand’s journey to becoming the first woman to serve as associate attorney general, the Justice Department’s third-highest-ranking official, had some unconventional features. The daughter and granddaughter of Dutch dairy farmers, she and her three siblings grew up in small-town Iowa. Seven years ago, when she went home to visit her family during the tulip festival in Pella, Brand donned her wooden shoes and joined 2,604 others in the town as it set the Guinness world record for the largest Dutch “klompen” dance.
After graduating from the University of Minnesota at Morris in 1995, Brand went to Harvard Law School with an eye toward going into public service. She was a member of the Federalist Society and met future husband Jonathan Cohn, a former Justice Department lawyer, at Harvard when the two attended a Federalist Society student conference. (They have two young sons, both with Dutch names.)
She went on to clerk for Massachusetts Supreme Judicial Court Associate Justice Charles Fried and then Supreme Court Justice Anthony M. Kennedy.
Brand then worked for the firm Cooper, Carvin & Rosenthal (now Cooper & Kirk), which is led by former Reagan administration Justice Department official Charles Cooper. Brand tinkered in politics on Elizabeth Dole’s presidential campaign, and when Bush became president, White House counsel Alberto R. Gonzales hired Brand to work for him.
She moved over to the Justice Department as Bush’s assistant attorney general for the Office of Legal Policy, which develops and implements the department’s significant policy initiatives.
Brand left the Justice Department in 2007, spent three years at WilmerHale and then became the vice president and chief counsel for regulatory litigation for the U.S. Chamber Litigation Center.
Ok, so a couple of things to note here. First, that latter job drew sharp criticism from Democrats at her confirmation hearing.
“She carries a heavily skewed, pro-corporate agenda that would do further harm to the Justice Department and its independence,” Sen. Patrick Leahy said.
Elizabeth Warren added this: “Brand has extensive experience, years of experience, fighting on behalf of the biggest and richest companies in the world.”
But beyond that, do remember that she was confirmed just a month ago:
And as Law360 reminds you:
A number of Democrats originally said they would oppose Brand’s nomination until the DOJ appointed special counsel to handle the probe into Russian interference in the 2016 election. However, following the appointment of former FBI Director Robert Mueller as special counsel on Wednesday night, most Democrats turned to other criticisms.
Well now, Brand may soon be in a position to fire Mueller.
Now consider this from Lawfare:
Watergate teaches several lessons relevant to our current situation. First, even if regulations do not trump the President’s orders, Attorneys General (or those acting in that capacity) may feel compelled to honor their word with respect to the appointment of special prosecutors. Attorney General Richardson and Deputy Attorney General Ruckelshaus resigned with honor because of pledges they made to the Senate as part of their confirmations. Along similar lines, that Deputy Attorney General Rosenstein voluntarily imposed Section 600.7(d)’s “good cause” standard on Mueller’s appointment amounts to something of a promise to the American people about the counsel’s independence. He was not obligated to do so. If asked to fire Mueller, Rosenstein would likely resign.
Second, even if one Acting Attorney General makes that pledge, his successors are not necessarily so bound. The district court in Nader explained that “we are once again confronted with a situation in which the Attorney General voluntarily limited his otherwise broad authority.” It was Richardson, a single officer-holder, who imposed that limitation on himself. To that point, Bork, as acting Attorney General, did not feel duty-bound to honor the promise that his predecessors made to the Senate. Critically, Rosenstein’s decision to impose the “good cause” standard was his, and his alone. He did not even notify the White House in advance. In contrast, Richardson and the Nixon administration worked closely in promulgating the Watergate regulations.
If Rosenstein refused an order to fire Mueller, and instead resigned, the obligation would fall to Rachel Brand, who was recently confirmed as the Associate Attorney General. Brand made no such promises during her Senate confirmation, and may disagree with Rosenstein about the need for an insulated prosecutor.
And a little more incremental color from Reuters:
Finally, remember what Rosenstein said just three days ago when Sen. Susan Collins, R-Maine, during an open Senate Appropriations subcommittee hearing, asked him what he would do if Trump asked him to fire Mueller:
Senator, I’m not going to follow any order unless I believe those are lawful and appropriate orders. Special counsel Mueller may be fired only for good cause, and I am required to put that cause in writing. That’s what I would do. If there were good cause, I would consider it.
If there were not good cause, it wouldn’t matter to me what anybody says.
Any guesses where this is going?…
Here’s the order of succession for reference: