Associate Attorney General, Noel Francisco, Rachel Brand, Robert Bork, Saturday Night Massacre, Solicitor General
By Frank Bowman
Associate Attorney General Rachel Brand, the number 3 official in the Justice Department, resigned today after barely nine months in office to take a position with Walmart. This matters because Ms. Brand would have been the next person in line if: (a) Mr. Trump ordered Deputy Attorney General Rod Rosenstein to fire Special Counsel Robert Mueller, and (b) Rosenstein either refused and resigned or refused and was fired. With Rosenstein gone, Ms. Brand would face the same unpalatable choice. It would seem she does not want to be this generation’s Robert Bork.
For those not up on their Watergate history, Mr. Bork was the Solicitor General at the time President Nixon ordered the firing of Watergate special prosecutor Archibald Cox. Nixon ordered Attorney General Elliot Richardson to fire Cox. Richardson refused and resigned in protest. Nixon then gave the same order to Deputy Attorney General William Ruckelshaus, who also refused and resigned. Whereupon Nixon turned to Robert Bork, who fired Cox.
Although Bork was a brilliant lawyer and one of the leading intellectual lights of the budding conservative movement, he forever bore a Mark of Cain for the firing, particularly after it became clear that Nixon had indeed committed both crimes and impeachable offenses. When he was nominated for the Supreme Court by President Reagan, the nomination failed, partly because of fierce opposition to his criticism of many of the civil rights and criminal procedure precedents set by the Warren and Burger courts, but certainly also because of his role in the “Saturday Night Massacre.”
Ms. Brand’s departure raises several interesting questions:
First, who takes her place in the DOJ hierarchy? Presumably someone will be named acting Associate Attorney General fairly quickly. The AAG plays too large a role in administration of the Department for the job to remain vacant indefinitely. One move the White House might try would be to appoint as acting AAG a Trump loyalist willing to do the dirty deed of immediately firing Mueller. Such a person would have to know that doing so would surely prevent confirmation into the job on a permanent basis, and if rational, would also realize that acting as Trump’s henchman would permanently ostracize him or her from the federal law enforcement community. I doubt there are many such creatures in the middle and upper reaches of the Justice Department.
There is also the possibility that Mr. Trump could insert a political hitman from the outside into the acting AAG position. That is highly unlikely, but not impossible. Under the Federal Vacancies Reform Act of 1998, an acting replacement for a position requiring senate confirmation (which Associate Attorney General does) must either (1) already occupy an advice and consent position (i.e., a position for which he or she was nominated by the president and confirmed by the Senate), or (2) be an employee of the same agency for at least 90 days prior to appointment and have a salary equal to a GS-15 (the highest grade of ordinary civil service rank). This means that an acting replacement for Ms. Brand from outside DOJ would already have to occupy a Senate-confirmed position in some other agency, or be inserted into the Department as a regular employee with the appropriate pay grade 90 days before becoming Acting AAG.
The first option expands the pool of possible acting replacements for Brand from Main Justice political appointees and confirmed U.S. Attorneys to anyone holding an advice and consent position anywhere in the government. The second move would be awkward and transparently obvious, and would take three months to arrange.
Second, so long as the AAG slot remains empty, or the acting AAG refuses to fire Mueller, the next person in line is, once again, the Solicitor General, currently Noel Francisco. I know nothing whatever about Mr. Francisco, other than that he has a distinguished resume as an appellate practitioner. It seems hard to imagine that he would relish becoming this generation’s Robert Bork. The lessons of Watergate for a man in his position are pretty stark. But one never knows.
For a more detailed look at the line of succession after Solicitor General Francisco, see Professor Jed Shugerman’s blog.
The larger message of the Brand departure, and for that matter of the ongoing turmoil at the White House caused by the resignation of staff secretary Rob Porter (and a few hours ago speechwriter David Sorensen) over domestic abuse allegations, is that few quality people are willing to accept high office in the Trump Administration, and those of any integrity, or merely a sense of professional self-preservation, tend to leave fast. One senses that both the reluctance to join the Trump parade and the disposition to leave it are increasing.
The problem for the country is that the federal government is increasingly either unstaffed at senior levels or in the hands of sycophants and second-raters. Sadly, many, perhaps most, of Mr. Trump’s loyal base either don’t know this or have been so indoctrinated by years of right-wing anti-government propaganda that they believe the accelerating deconstruction of the national government is a positive good.
In many ways, the denouement of the Mueller probe is the least of our worries….