You might not know the name Rachel Brand now, but you should: She could soon be overseeing the expanding investigation into the Trump team’s ties with Russia.
After Attorney General Jeff Sessions recused himself from the probe, Deputy Attorney General Rod Rosenstein became the person in charge. Rosenstein promptly appointed former FBI Director Robert Mueller as a special counsel responsible for looking into whether the Trump campaign colluded with Russia and whether President Trump himself tried to obstruct justice by firing FBI Director James Comey.
But Rosenstein recently informed his colleagues, including Brand, that he might have to recuse himself from the investigation, according to a report by ABC News. That would leave Brand, the associate attorney general, in charge of a probe that now has Trump squarely in its crosshairs.
Brand, a corporate lawyer who also worked extensively in the Justice Department, could soon find herself charged with making one of the biggest decisions in American political history: whether to pursue criminal charges against a sitting president.
Why would Rosenstein have to recuse himself?
Brand, 44, would only gain that authority if Rosenstein recused himself, but that is becoming a real possibility.
That's because the deputy attorney general could become a potential witness in the investigation. Rosenstein had made the case for firing Comey in a memo made public by the White House. Trump aides first said the memo is what sparked the decision to oust the FBI director, but Trump himself promptly undercut that explanation in an interview with NBC News in which he explicitly said Rosenstein’s memo had nothing to do it.
But regardless of who made the decision to fire the FBI director, Rosenstein is now a person of interest in the investigation because of the memo.
In addition, Trump has also publicly criticized Rosenstein. In a tweet posted Friday morning, the president said called the whole investigation a “witch hunt” and indirectly mentioned Rosenstein. The tweet comes amid reports that Trump may want to fire Mueller, which only Rosenstein is legally able to do.
I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt— Donald J. Trump (@realDonaldTrump) June 16, 2017
Both Trump’s subtle threats and Rosenstein’s involvement in Comey’s firing might lead the deputy AG to recuse himself from the Russia investigation.
Who is Rachel Brand?
If Rosenstein does recuse himself, Brand would take on the role as acting attorney general for all cases pertaining to the Russia probe.
Brand was very recently confirmed as the No. 3 person in the Department of Justice — she’s been acting as the associate attorney general for less than a month. As the associate attorney general, she’s responsible for overseeing the lawyers who deal with civil rights, environmental, and antitrust issues.
Brand has extensive experience in the Justice Department and working in the private sector, focusing primarily on corporate law and antitrust cases. She graduated from Harvard Law School, clerked for Justice Anthony M. Kennedy on the Supreme Court, and previously served as assistant attorney general for the Office of Legal Policy in the Justice Department, according to a Washington Post profile.
But she lacks any background in criminal law, which would be important if she is charged with taking over the Russian investigation, according to Lawfare. She left the Justice Department in 2007 and spent three years at WilmerHale, a law firm that typically represents corporate interests. She then worked as chief counsel for regulatory litigation for the US Chamber Litigation Center, also representing businesses.
During her confirmation hearing in the Senate to become the Justice Department’s associate attorney general, Democrats criticized her for her experience representing corporate interests. This was her response to questions doubting her loyalty:
When I was at the Chamber of Commerce, I had a client, the Chamber of Commerce, and, as a litigator there, my job was to file lawsuits and file amicus briefs on behalf of that client. ... If I’m confirmed to this position, of course, I’ll have a very different role. ... My client will be the United States, and my role will be to serve the public interest and the interest of justice, representing that client as best I can.
Brand could soon decide the future of the FBI’s Trump investigation
If Rosenstein recuses himself, Brand would, at least on paper, become the only person who could fire Mueller.
But according to Jack Goldsmith and Benjamin Wittes at Lawfare, Mueller has the real power in the investigation. The former FBI chief makes the calls on whether the special counsel will indict anyone (though the acting attorney general could provide advice). The acting attorney general can also ask for clarification as to why the special counsel decided to prosecute someone and can review that reasoning. After review, if the acting attorney general thinks the indictment is “inappropriate or unwarranted,” then he or she could block the indictment. So in theory, Brand could overrule Mueller if he wanted to indict someone.
The current probe is one of the most important and politically charged in recent history. We already know the names of most of the players, from Jeff Sessions to Robert Mueller. Rachel Brand could be the next name to know.