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If Sessions Gets Canned, Signs Are Pretty Clear Who Will Get The Job Next

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It sure seems like Jeff Sessions‘ days as U.S. Attorney General are numbered. If Trump’s New York Times interview was not enough to drive him out, the President is now doing everything possible to get him to resign, include calling him “beleaguered” and “weak.” Pretty unprecedented, especially considering Jeff Sessions was one of the only Senators who stood by Trump from the beginning and has repeatedly rebuked the Russia probe himself.

Here at LawNewz, we have predicted that it won’t be long before Trump fires Special Counsel Robert Mueller. (Yes, we know, he technically can’t fire Mueller himself, he would have to get a friendly Attorney General to do it for him).  Since Sessions can’t do it since he recused himself from the probe, who will Trump appoint when the inevitable happens and either Sessions resigns or Trump fires him?

There was a rumor yesterday that longtime Trump ally Rudy Giuliani is being considered for the top job. Those reports were quickly debunked when Giuliani declared that he thought that Sessions “made the right decision” by recusing himself. Some pundits have floated Chris Christie. Not only does he have too much recent baggage (Beachgate and Bridgegate), he also prosecuted Jared Kushner‘s father. So Christie is definitely out. It is an understatement to say that attorneys won’t exactly be lining up to get the job.

That’s why I think Trump’s choice will be obvious: Rachel Brand, who now serves as number three at the Department of Justice. There is little doubt that, at the very least, she will become acting AG if Sessions resigns or is fired.

Why? First, she’s got the conservative credentials, loyalty, and the drive to take on the position. In February, she was confirmed by the Senate in a 52 to 46 margin. Plus, Trump won’t be able to find someone else fast enough to take over the position.

Who is she? She attended Harvard Law School and clerked for United States Supreme Court Justice Anthony Kennedy. She served as the top attorney for the United States Chamber of Commerce, and drew some criticism by Democrats at her confirmation hearing for being beholden to corporate interest. However, she has served under both President Bush and President Obama.

In a blog post mostly praising her, Jack Goldsmith and Benjamin Wittes (who know her well) wrote that she has extensive experience. They said she is intelligent, fair, independent, and tough-minded. But, they explained, she lacks the prosecutorial experience or “even a background in criminal law practice” that will  be necessary if she takes over overseeing the Russia probe.

So what would happen next? Wittes and Goldsmith explain:

First, under 28 CFR § 600.6, it appears that Mueller, rather than Brand, will presumptively make the call on any prosecutorial decisions, though Mueller can “[i]nform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities.”  Second, and potentially qualifying the first point, under 28 CFR 600.7(b), Brand can request, when appropriate, “that the Special Counsel provide an explanation for any investigative or prosecutorial step,” and can, after review, “conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”  Third, under under 28 CFR 600.7(c), Brand is the person who can discipline or remove the special counsel “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”

With Trump ramping up his criticism by the hour (literally), changes could be coming, and soon. Stay tuned.

 

 

This is an opinion piece. The views expressed in this article are those of just the author.

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