For someone on the job barely a month, Associate Attorney General Rachel Brand was already facing plenty of incoming fire from her critics. Her big problem now: Her ultimate boss, President Donald Trump, could soon be among them.
Senate Democrats who opposed her nomination to the No. 3 job at the Justice Department said her legal career reflected a tendency always to support big business against the little guy, and they questioned her commitment to civil liberties during her years in the department under President George W. Bush. She has a “heavily skewed pro-corporate agenda,” said Senator Patrick Leahy, the Vermont Democrat. The 44-year-old Brand was confirmed to her job on a party-line Senate vote of 52 to 46. Compare that to the overwhelmingly bipartisan 94 to 6 vote for the No. 2 official in the department, Deputy Attorney General Rod Rosenstein.
And now, the Michigan-born, Iowa-raised Brand, the daughter and granddaughter of Dutch dairy farmers, faces the prospect of scrutiny—and criticism—on a scale that few Washington officials could ever imagine.
Suddenly under attack himself by Trump, Rosenstein has suggested he is on the verge of recusing himself from supervision of the investigation led by former FBI Director Robert Mueller, whose pursuit of allegations of collusion between Russia and Trump’s 2016 campaign has apparently enraged the president. On Friday, Trump suggested his relationship with Rosenstein—who named Mueller to the special counsel job—was at a breaking point. “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director!” Trump tweeted. “Witch Hunt.” The tweet came the morning after Rosenstein released a cryptic statement urging Americans to be skeptical of reports sourced to anonymous officials.
Also on Friday, ABC News reported that Rosenstein, a career prosecutor before joining the Trump administration, has privately conferred with Brand about the possibility that she will need to take over the department’s oversight of Mueller, who took over the Trump-Russia investigation when the president fired his successor as FBI director, James Comey. Rosenstein had urged Trump to fire Comey over a separate issue—the bureau’s investigation of Hillary Clinton’s email.
Attorney General Jeff Sessions has already recused himself from the investigation, citing his work on the 2016 Trump campaign. Should Rosenstein step down—or Trump fire him in a fit of pique—Brand is next in line as Mueller’s supervisor. The department had no immediate comment Friday on the prospect that Brand would assume responsibility for the Mueller investigation. But if she gets the assignment and fails to perform as the president sees fit, she might soon also find herself—like Rosenstein and Mueller before her—under siege from Trump’s daily tweetstorms of rage.
Brand has enjoyed a glittering career, one that marked her early for a top job at the Justice Department in a Republican administration. Raised with three siblings on an Iowa farm, she graduated from the University of Minnesota in 1995 and, three years later, from Harvard Law School.
She was active in the Federalist Society, the conservative lawyer’s group that has long been a talent pool for anyone interested in serving in the administration of a Republican president or on the Supreme Court. Brand was part of the legal team representing Bush in the Florida vote recount in 2000. She went on to be hired as a Supreme Court clerk to Justice Anthony M. Kennedy before joining Bush’s Justice Department. There, she helped shepherd the Supreme Court nominations of John Roberts and Samuel Alito.
In 2011, Brand became a top lawyer for the United States Chamber of Commerce, dealing with regulatory issues. It was that job that brought her much of the criticism during her confirmation battle, with Democrats alleging that she had proved herself too willing to do the bidding of large businesses that make up the Chamber’s membership. Senator Elizabeth Warren, the Massachusetts Democrat, who voted to oppose her nomination, said Brand had “years of experience fighting on behalf of the biggest and richest companies in the world.” Senator Pat Leahy said that Brand had “long championed deregulation and the rolling back of vital environmental, consumer and labor regulations protecting the American people.”
Republicans pushed back on the criticism, insisting that Brand had a reputation for integrity and that she was being judged unfairly for simply doing a lawyer’s job. “When she worked at the Chamber, all her advocacy was done to represent the views of her client,” said Senator Charles Grassley, the Iowa Republican who is chairman of the Judiciary Committee. “If you hire a lawyer, they are going to represent your view. We can’t assume an attorney personally believes in what they are advocating on behalf of their clients. Just ask criminal defense lawyers.”
All of which is to say that Brand might be about to walk into a political firestorm like nothing she’s ever experienced—with President Trump pressuring her to close out the Russia “witch hunt” quickly, and Democrats already primed to view her with suspicion.
“Brand is in a very tricky spot,” Harvard Law School professor Jack Goldsmith and Brookings Institution scholar Benjamin Wittes wrote in a joint blog post on Friday. Both men know Brand and “admire her a lot.” But they said they were worried by her lack of experience as a prosecutor “or even a background in criminal law.” They said she might now be confronting the “tough task of insulating the investigation from the erratic and inappropriate behavior of President Trump.”
Rosenstein might welcome turning over the responsibilities to Brand because it would take him out of the immediate line of fire from the White House, especially if Trump follows through on reports that he might order the Justice Department to curtain Mueller’s investigation or fire him.
If Brand took over supervision of Mueller’s inquiry, she would face a dilemma if Trump gave the order—fire the special counsel or, if she refused, face her own dismissal or resignation from the Justice Department. Many legal scholars have drawn a comparison between the situation faced by Rosenstein—and now, possibly, Brand—and the so-called Saturday Night Massacre of 1973, when Attorney General Elliot Richardson and his deputy resigned rather than following President Richard Nixon’s orders to fire Watergate special prosecutor Archibald Cox.
Brand would then face a choice: Will she be like Richardson and Deputy William Ruckelshaus, who left the Nixon administration with their reputations intact? Or will she be the second coming of Robert Bork, the third-in-command whose role in Cox’s firing helped cost him a Supreme Court seat a decade later? Richardson and Ruckelshaus went on to distinguished post-Nixon careers, with both men receiving the Presidential Medal of Freedom from Democratic presidents. Bork was a brilliant legal mind, and contributed a great deal to conservative legal thought over the years—but was despised by the Democrats whose help he needed to reach the heights of the legal profession on the Supreme Court.
It’s a lot for Brand to take in. As Goldsmith and Wittes wisely put it, “this task will require backbone—and a willingness not to last long in the job.”