Rumor has it that Deputy Attorney General Rod Rosenstein might recuse himself from supervisory responsibility over the investigation being conducted by “special counsel” Robert Mueller. Rosenstein distanced himself from the investigation by appointing an outside lawyer in the first place. The thought of washing his hands completely probably has plenty of appeal.
If Rosenstein does recuse himself, supervisory responsibility will fall to Rachel Brand. As Associate Attorney General, Brand is next in line.
Anticipating the possibility that Brand will inherit this responsibility, anti-Trump forces are already starting to “work” her. That’s clear from this story in Politico by Philip Shenon. He writes:
Brand might be about to walk into a political firestorm like nothing she’s ever experienced—with 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.”
Wittes and Goldsmith are strongly anti-Trump. More on them in a moment.
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.”
This goes beyond “working the refs.” Shenon, Goldsmith, and Wittes are basically saying to Brand: “Nice career you got there; it would a shame if anything happened to it.”
The bias of Wittes and Goldstein goes beyond their anti-Trump sentiment (though that sentiment probably runs deep enough that no more is required). Wittes is a friend of Comey and the slippery former FBI director’s partner in leaking.
Goldsmith worked with Comey in the Bush Justice Department and played an important role in the events that “made” Comey. It was Goldsmith who concluded, contrary to the view of his predecessor as head of DOJ’s Office of Legal Counsel, that the administration’s warrantless surveillance program should not be reauthorized.
This led to the famous showdown at Attorney General Ashcroft’s hospital bed featuring Alberto Gonzales and Andrew Card vs. Comey. Goldsmith was there, alongside Comey. Ashcroft did not sign the reauthorization. The legend of Comey was born.
Clearly, Shenon wasn’t looking to write an objective news story. He wanted to fire a shot across Rachel Brand’s bow, and he knew just whom to consult to accomplish this.
It’s a repeat performance. After Rosenstein wrote a perfectly legitimate memo recommending that Comey be fired, we immediately saw stories in the mainstream media intoning that Rosenstein’s sterling reputation was at serious risk. Wittes was the go-to-guy for this specimen of the genre by the Washington Post.
Almost immediately, as if on cue, Rosenstein appointed Mueller as special counsel.
Shenon, Wittes, and Goldsmith are right when they say that, if Brand gains responsibility for overseeing the special counsel’s investigation, she will face a test of her backbone. But that test will consist as much of resisting pressure of the kind Shenon, Wittes, and Goldsmith are applying as of resisting whatever pressure comes from President Trump.