Is President Donald Trump trying to fire Deputy Attorney General Rod Rosenstein without actually firing him? That’s the logical inference from the president’s tweet Friday morning asserting that he’s being investigated for firing FBI Director James Comey by the person who told him to fire Comey, namely Rosenstein. The immediate effect of the tweet is to pressure Rosenstein to recuse himself from special counsel Robert Mueller’s investigation. Rosenstein will now have to do so — soon.
Whether Trump has thought it through or not, that will leave Rosenstein’s supervisory obligations in the hands of Associate Attorney General Rachel Brand. She’s a horse of a different color from career prosecutors such as Rosenstein, Comey and Mueller. Brand is more like Trump Supreme Court appointee Neil Gorsuch: a high-powered conservative appellate lawyer who clerked for the U.S. Supreme Court, worked in the George W. Bush administration, and is prominent in Federalist Society circles. Her attitude toward the investigation is likely to be a bit different from Rosenstein’s, more informed by the structure of presidential authority and less by unwritten norms of prosecutorial independence.
Even before Trump commenced his assault on Rosenstein for conflict of interest, it was becoming conceivable that the deputy attorney general would have to recuse himself from supervising Mueller. If Mueller is focused on the Comey firing as a potential obstruction of justice, he would want or maybe need to know the details of how Trump interacted with Rosenstein around that decision.
The facts of whether Trump had already decided to fire Comey before getting Rosenstein to write the memo justifying the firing are unclear and at least partially contested. That would make Rosenstein into an important witness for the Mueller investigation — which would in turn make it difficult for him to be the figure to whom Mueller is supposed to report. Rosenstein acknowledged something like this in a recent meeting, according to reporting by ABC News.
Nonetheless, without Trump’s Twitter barrage, Rosenstein could potentially have refused to recuse himself by saying that Mueller, not he, is doing the investigating. The Department of Justice regulations do after all say that “the Special Counsel shall not be subject to the day-to-day supervision of any official of the Department.”
Rosenstein could have asserted that although the regulations allow the attorney general (here Rosenstein because of Jeff Sessions’s recusal) to ask for explanations of the special counsel’s investigative process, and require periodic reports from the special counsel to the attorney general, he wasn’t going to be supervising Mueller’s investigation.
After Trump’s tweet, that course of action isn’t really available to Rosenstein. Trump not only made a concrete argument that Rosenstein has a conflict of interest, but also deepened that conflict by asserting that firing Comey was Rosenstein’s idea. If firing Comey was indeed obstruction of justice, then, according to Trump’s implicit logic, Rosenstein could be guilty of a crime of obstruction.
So Rosenstein will have to recuse himself. And that leaves Brand as the next highest Senate-confirmed official in the Department of Justice.
Brand might look at the whole affair differently from Rosenstein. She’s well-known among the nation’s legal elite — but she belongs to a different tribe from the former prosecutors at Justice. She’s the kind of person you’d be more likely to hear was appointed to an appeals court than was supervising an investigation of the president.
Brand went to Harvard Law School and clerked for Justice Anthony Kennedy. She worked in the White House counsel’s office under George W. Bush and then ran the office of legal policy at the Department of Justice, where she helped prepare Chief Justice John Roberts and Justice Samuel Alito for their confirmation hearings. During Barack Obama’s presidency, she was a tough regulatory litigator and was named by Obama to his Privacy and Civil Liberties Oversight Board, a mark of bipartisan respect for her intelligence and fairness.
In short, Brand’s a first-class conservative Washington lawyer, but not a prosecutor. Her first instinct therefore is likely to be following the law, not preserving the credibility of prosecutorial institutions and personalities.
That would matter if Trump decides to fire Mueller. Like Rosenstein, Brand wouldn’t fire Mueller without cause, because the Department of Justice regulations say so. But she would also have the conservative perspective on executive branch — which gives the president abundant authority.
Thus, Brand could be expected to inform the president that he could repeal the regulations that protect the special counsel, and then fire Mueller. With the regulations gone, there would be nothing illegal about firing Mueller, whether the order came from Brand or the president.
Not that this is a choice Brand would relish. She’s more than smart enough to know that being the vehicle of such an outrageous presidential act as firing Mueller would have reputational consequences. But she also surely knows that Robert Bork was the Department of Justice official who ultimately fired Watergate investigator Archibald Cox in President Richard Nixon’s Saturday night massacre. And that didn’t stop Bork from later becoming a Supreme Court nominee.
The upshot is that Trump is probably better off with Brand supervising the special counsel’s investigation than Rosenstein. But that doesn’t need to have been the president’s motive. It’s enough that he’s angry with Rosenstein for appointing Mueller in the first place.
The tactic of firing by recusal is a new one. But it’s bound to have consequences.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
To contact the author of this story: • Noah Feldman at firstname.lastname@example.org
To contact the editor responsible for this story: • Stacey Shick at email@example.com