WASHINGTON — At her March confirmation hearing in front of the Senate judiciary committee, Associate Attorney General Rachel Brand was asked about privacy rights, mandatory minimum sentences, her commitment to enforcing the Voting Rights Act and several other policy issues.
But she was not asked about the Russia probe.
That’s the very hot potato the former Bush administration lawyer will find herself holding if Deputy Attorney General Rod Rosenstein is fired, resigns or recuses himself from the apparently expanding case. The Justice Department is investigating Kremlin efforts to influence the 2016 election and whether President Trump’s campaign was involved, but now the probe is reportedly looking into whether Trump attempted to obstruct justice by firing FBI Director James Comey.
During the March hearing, the senators repeatedly asked Rosenstein to affirm his commitment to the department’s independent investigation into Russia, and pressed him to commit to appoint a special counsel to lead the probe. Apparently, none of them realized that three months later the deputy attorney general’s position could look so precarious, and that Brand could find herself in charge.
For now, Rosenstein has the ultimate authority over special counsel Robert Mueller’s independent investigation because Attorney General Jeff Sessions recused himself from the probe after it was revealed he had undisclosed contacts with Russia’s ambassador. (Mueller’s probe is independent from the Justice Department, but Rosenstein controls its resources and has the power to fire Mueller if he deems there is good cause.)
But Rosenstein’s future now seems uncertain. Trump tweeted Friday that the Russia probe is a “witch hunt” and complained he is “being investigated for firing the FBI Director by the man who told me to fire the FBI Director!” That’s an apparent dig at Rosenstein, who wrote a memo criticizing Comey’s handling of the Hillary Clinton email probe. After Trump abruptly fired Comey in May, the White House at first attributed the decision to Rosenstein’s recommendation. Later, Trump dismissed that explanation, saying he fired Comey for being a “showboat.” Comey testified under oath that he believes Trump fired him because of the Russia investigation.
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
Trump’s tweet has sparked concerns on the Hill that the president may dismiss Rosenstein as a way to thwart Mueller’s Russia investigation, which now reportedly also includes a personal investigation of Trump for allegedly obstructing justice.
ABC News reported Friday that Rosenstein has acknowledged that he may need to recuse himself from the probe even if Trump does not fire him. He told Brand, the third in command at the Justice Department, that she would be responsible for Mueller’s probe if he recuses himself, according to ABC. The Washington Post reported that Rosenstein sees no reason to recuse himself at this time.
Brand, a former clerk for Supreme Court Justice Anthony Kennedy, is a well-respected conservative lawyer who ran the Justice Department’s Office of Legal Policy under President George W. Bush. The Harvard-educated lawyer is the first woman to hold the No. 3 job at the Justice Department. After leaving the Bush Justice Department, she became the chief counsel for regulatory litigation at the U.S. Chamber of Commerce, a role Democrats have criticized in the past as suggesting a pro-big business slant. She addressed those criticisms in her hearing.
“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,” she said. “If I’m confirmed to this position, of course, I’ll have a very different role, I’ll have a different client. 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.”
During her hearing, Brand was also questioned on her views of the bulk collection of data by the NSA. In the past, she defended the program as a member of the nonpartisan Privacy and Civil Liberties Oversight Board as potentially necessary to thwart terrorist attacks.
Brand, a native Iowan and descendant of Dutch dairy farmers, also spoke of her commitment to the Constitution’s principles of limited federal government and the separation of powers in broad terms. She avoided getting drawn into any political debates, such as when Sen. Sheldon Whitehouse, D-R.I., asked her about whether she believed there was a “public interest” in addressing climate change.
“Senator, I think you’re asking me for a personal judgment on the policy question and I’m not sure that’s relevant to the way I would do my job as a law enforcement official in a law enforcement agency,” she replied.
Though little is known about her thoughts on the Russia probe, lawyer Benjamin Wittes, a close friend of Comey’s, tweeted Friday that he has “confidence” in Brand. Wittes has been a big advocate for the independence of the Russia probe.
I think very highly of Rachel, who is a friend, a patriot, and a person in whom I have confidence.
— Benjamin Wittes (@benjaminwittes) June 16, 2017
If Trump does fire Rosenstein, the Senate Judiciary Committee may not approve a replacement unless he or she vowed not to shut down the special counsel’s investigation, which means Brand could find herself in charge of it for the foreseeable future.
“If the president thinks he can fire Deputy Attorney General Rosenstein and replace him with someone who will shut down the investigation, he’s in for a rude awakening,” Sen. Dianne Feinstein, D-Calif., said in a statement Friday. “Even his staunchest supporters will balk at such a blatant effort to subvert the law.”
Feinstein is the ranking member on the judiciary committee that would approve any Justice Department nominations.
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