It’s a very long walk, inside the Robert F. Kennedy Department of Justice Building, from Rachel Brand’s fifth-floor office to Rod Rosenstein’s space on the fourth floor. But the more important gap—in relative power—between the associate attorney general and her boss, the deputy attorney general, could shorten in a hurry.
Rosenstein has become an unexpectedly pivotal figure in the Donald Trump-Russia mess. Two weeks after joining the administration, the mild-mannered career prosecutor wrote a three-page memo that the president used to justify firing F.B.I. director James Comey. After Trump, on national television, revealed the memo to be a ruse, Rosenstein responded by appointing special counsel Robert S. Mueller III. Those twists pretty much guarantee that Mueller will eventually call Rosenstein as a witness in the investigation—at which point, goes the conventional wisdom, Rosenstein will recuse himself from all things Russia-related.
But the break could come sooner. “It really depends on Rod’s exact role in the firing of Comey, and what Trump told him,” a Department of Justice insider says. Mueller will also want to know about any communications between Jeff Sessions and Rosenstein regarding the firing, and if he establishes those links through other witnesses, Rosenstein may need to step aside even before he’s scheduled to answer the special counsel’s questions himself.
Or he could be given a shove toward recusal by a summons from the newly energized Senate Judiciary Committee. Its rival, the Senate Intelligence Committee, has been faster out of the investigatory gate, reeling in Comey and Sessions for dramatic, headline-making hearings. This has left Judiciary members from both parties grumbling. Some blame Chuck Grassley, the committee’s chairman, for dragging his feet on behalf of his fellow Republican president; others point at Dianne Feinstein, the ranking Democrat, claiming she isn’t motivated to push for Judiciary hearings because she also sits on Intelligence and therefore has gotten plenty of Russia-related camera time.
“There are lots of frustrations among members that Judiciary hasn’t been involved,” a committee insider says. ”Intel has jurisdiction over some things, like a foreign government hacking the election. But the F.B.I. and obstruction of justice? That all should be Judiciary.”
The impatience has recently surfaced in a couple of ways. Rhode Island Democrat Sheldon Whitehouse, a former federal prosecutor, has loudly speculated that he believes that Michael Flynn, Trump’s short-lived, highly compromised national security director, has already started cooperating with Russia investigators. Dick Durbin, the Illinois Democrat, has been rankled enough to publicly nudge Feinstein that Judiciary needs to “reassert our oversight function.”
On Wednesday, the committee’s leaders met with Mueller to coordinate their probes. Afterward, Grassley proclaimed that Judiciary would now take the Senate lead on allegations of obstruction of justice—which would mean calling Rosenstein, among others, to testify, an appearance that could trigger the deputy A.G.’s recusal.
That would leave the previously obscure, 44-year-old, Dutch-clog-dancing Brand in charge to make what could be administration-toppling decisions. Her legal acumen and fairness have been publicly endorsed by some surprising parties, including Comey’s friend Benjamin Wittes, the co-founder of the blog Lawfare. “She’s smart and has a very good legal and policy mind,” Wittes says. “I have confidence in her as a lawyer and as a person.” Others, noting Brand’s work as a top attorney for the U.S. Chamber of Commerce and her membership in the arch-conservative Federalist Society, aren’t so sure. “She’s seen as a pretty conservative, and for Democratic types, she would not be the ideal person to have in charge,” says Emily Pierce, who served as spokeswoman for Obama administration attorney general,Loretta Lynch.
If Brand’s role increases, she could face some wrenching choices: whether to go along if Trump ever tries to fire Mueller, and, if he doesn’t, what to do when Mueller eventually delivers his report, especially if it recommends criminal charges against high administration officials. “She’s got a good reputation as a solid lawyer, committed to the rule of law,” says Matthew Miller, who was an aide to former attorney general Eric Holder. “But so did Rod Rosenstein. People have a way of sacrificing their good reputation for Donald Trump, for some reason. Hopefully, we’ll never find out how she would handle that test.”
Brand would also be making those decisions in a political atmosphere that’s growing ever more poisonous. So far, the attacks on Mueller’s credibility have been scattershot and seemingly freelance: Trump’s nasty tweets, Sean Hannity’s nightly diatribes. The Washington Post acquired a set of anti-Mueller talking points distributed by the Republican National Committee. Democratic strategists, though, are keeping a wary eye on former House Speaker Newt Gingrich, who within weeks has gone from praising Mueller as a “superb choice” to lobbing grenades at the special counsel. “Look carefully at Mueller, because now it’s not going to be Russia,” Gingrich said Thursday morning on Fox & Friends. “Now it’s going to be a personal vendetta [against Trump].” There have also been stories in the Daily Caller and Breitbart assailing Mueller’s lieutenants for their donations to Democratic candidates. Trump dropped plans to assemble a White House “war room” to push back against the Russia allegations, but are the president and his allies beginning to mount a coordinated effort to undermine the integrity of the Russia investigation? “Could be,” a Democratic operative says. “To the extent that this White House is organized, which is questionable.”
