The Man Who Could Be Tasked With Firing Mueller

While the resignations of Rob Porter and David Sorenson last week were noteworthy, there was another one on Friday that could be even more consequential. After serving only nine months as associate attorney general, Rachel Brand resigned to take a position in the private sector with Walmart. Her position as the third highest-ranking official in the Justice Department made her the most likely person to be tasked with firing special counsel Robert Mueller.

As you might recall, Attorney General Jeff Sessions recused himself from the Russia investigation after it was revealed that he lied about meetings with Ambassador Kislyak. Deputy Attorney General Rod Rosenstein, left in charge of the the investigation, almost immediately proceeded to appoint Mueller as the special counsel. At this point, the president can’t interfere with the probe without going through Rosenstein, who oversees the process.

Given that Trump queried Rosenstein about who he voted for (echoing his request for loyalty from James Comey) and that the Nunes memo was, at least in part, an attempt to impugn his objectivity, we have witnessed the White House inching closer to the possibility of firing the deputy attorney general. Prior to Friday, that would have put Rachel Brand in charge of the Mueller investigation—something that seems to have factored in to her decision to resign.

The Justice Department’s No.3 attorney had been unhappy with her job for months before the department announced her departure on Friday, according to multiple sources close to Associate Attorney General Rachel Brand.

Brand grew frustrated by vacancies at the department and fear she would be asked to oversee the Russia investigation, the sources said.

The Trump administration could nominate a candidate to replace Brand, which would require Senate confirmation. But in the meantime, under the Justice Department’s statute, Brand is replaced in that line of succession by Solicitor General Noel Francisco. That means that it is worth learning a little more about him.

After clerking for Supreme Court Justice Antonin Scalia in 1997, Francisco worked in the private sector. He then served as special counsel to George W. Bush and as legal counsel to the deputy assistant attorney general. Prior to his current position, Francisco worked for a D.C. law firm where he defended former Virginia Governor Bob McDonnell, represented religious institutions in their suit against providing birth control under Obamacare and argued against Obama’s use of recess appointments. In other words, he is a conservative darling when it comes to his legal career.

Rachel Brand is also admired by conservatives. But there is a big difference between her and Francisco. Much like Mueller, Comey, and Rosenstein, Brand has spent her entire career working for the Justice Department, and though her politics might be conservative, she served admirably under both Democrats and Republicans—demonstrating a faithfulness to the rule of law. At this point, we know nothing about Francisco that demonstrates whether or not he shares that commitment.

Given that at least one of the reasons why Brand resigned was to avoid being in the position of having to choose between her fealty to the rule of law and a president who has demonstrated utter contempt for the idea of an independent Justice Department, we might be about to find out where Francisco stands on that question. It’s worth remembering that the last time a solicitor general had to make that call, it didn’t go well.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.