Associate Attorney General Rachel Brand is out. Who is next in line supervising the Mueller investigation?

Rachel Brand used to be the next in line after Deputy Attorney General Rod Rosenstein in supervising the Mueller investigation. The New York Times has just reported that she is resigning after nine months in the job. The question of Rosenstein’s job security has been enormous from the beginning, but it is bigger than ever. The DOJ regulations assign the power to supervise — and to fire — a special counsel to the Attorney General, and Rosenstein is the acting AG on this investigation after Sessions’s recusal.

If Trump fires Rosenstein, or if Rosenstein eventually has to recuse himself, who takes over the supervision of Mueller and the Russia investigation?

First, it is important to note that Brand is a Trump appointee, a former judicial clerk to conservatives Charles Fried and Justice Anthony Kennedy, a conservative veteran of the George W. Bush administration and then the Obama administration. She has a terrific reputation, and many took solace in the fact that if something happened to Rosenstein, she was a reliable back-up. If Trump ordered Rosenstein to fire Mueller, and if Rosenstein resigned instead of following the order, I believed she would either do the same or would find a strong replacement for Mueller. Now I am concerned. And I also wonder about the backstory behind her resignation. Was she forced out? Is this part of a plan to undermine the DOJ’s independence and Rosenstein? It’s no crazy conspiracy theory, considering the handling of the Nunes Memo last week.

Here is Trump’s Executive Order from March 2017 laying out the order of succession in the Department of Justice. I’m following other reporting here and here, and I’m cobbling together my tentative understanding of the order of succession:

  1. Solicitor General Noel Francisco: Former clerk to Judge Luttig and Justice Scalia, a veteran of the George W. Bush administration (Office of Counsel to the President and then OLC in the DOJ), and then litigator in a series of constitutional cases, often on the side of legal/movement conservatives for Republican officials and against the Obama administration (e.g., NLRB v. Canning). This background does not mean Francisco cannot be independent and fair, but it is worth raising questions at a time when President Trump is looking for partisan help to limit Mueller. [Update Feb 9: I’m hearing from friends that Francisco is similar to Brand, which I find reassuring. Update Feb 10: I’m hearing mixed reports on Francisco, plus as a former partner at Jones Day, he may have significant conflicts. Jones Day is deeply intertwined with Trump’s business and his officials.

Historical note: When Nixon ordered the “Saturday Night Massacre,” his Attorney General Elliott Richardson refused, and Nixon fired him (and Asst AG Ruckelshaus). Guess who did the firing of Special Prosecutor Cox? The Solicitor General Robert Bork. Yes, that Bork.

2. Assistant Attorneys General:

A. Makan Delrahim of the Antitrust Division. During the 2016 campaign, he wrote an op-ed in the NY Post, “To Save the Supreme Court, Vote Trump Over Clinton.” Not a great sign. He then shepherded Neil Gorsuch through the Senate.

B. Beth Ann Williams of the Office of Legal Policy.

C. Steven Engel of the Office of Legal Counsel: He was two years ahead of me in law school. He’s very smart, and he seemed like a very reasonable rule-of-law guy. But it is worth noting that John McCain opposed his nomination because of Engel’s role in the George W. Bush administration’s “Torture Memos.” Engel was barely confirmed last year, 51-47.

D. Stephen Boyd of the Office of Legislative Affairs

[No longer in succession: Former U.S. Attorney For the Eastern District of Virginia Dana Boente, now at the FBI]

3. U.S. Attorney For The Eastern District of North Carolina Robert Higdon, Jr.

4. U.S. Attorney For The Northern District of Texas Erin Nealy Cox.

I have no specific reasons to be panicking about these individuals with respect to Mueller. But I am not relieved by this list, either.


Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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