Rod Rosenstein's Third in Line Just Resigned

The DOJ, FBI and State have been rapidly shedding some top people. And that's mostly good news. The deck is being cleared.

The news that Associate Attorney General Rachel Brand — the third-highest official in the Justice Department — is resigning after a little less than nine months in office to take a position with Walmart set off a double-barreled firestorm on social media Friday night. While assistant associate attorneys general typically do not make headlines, Brand’s departure raises questions about who will succeed her and what her departure (and her replacement’s selection) might portend for the future of special counsel Robert Mueller’s investigation into Russian interference in the 2016 election

The succession question is actually a bit complicated. By default, under an obscure statute known as the the Vacancies Reform Act of 1998, Brand’s temporary successor as the “acting” associate attorney general is her principal deputy, Jesse Panuccio. That same statute would also allow the president to choose someone else to serve as the “acting” AAG on a temporary basis for up to 210 days; the pool of individuals from which the president could draw in this case includes individuals already holding Senate-confirmed positions elsewhere in the executive branch (like EPA administrator Scott Pruitt) or senior civil service lawyers in the Justice Department, specifically.

However, because Panuccio is not Senate-confirmed, he would not act as attorney general (or deputy attorney general) if those offices were also to become vacant. Instead, under the Justice Department’s own succession statute and guidelines implementing that law issued by Attorney General Loretta Lynch in November 2016, Brand is replaced in that line of succession by Solicitor General Noel Francisco (the solicitor general is the nation’s chief legal representative in front of the Supreme Court).

The reason why all of this matters is because the associate attorney general is the designated successor to the Justice Department’s second-highest ranking official, Deputy Attorney General Rod Rosenstein. And it is Rosenstein, thanks to the recusal of Attorney General Jeff Sessions, who authorized Mueller’s investigation in the first place — and who is the only government official with the legal authority to directly fire Mueller and otherwise terminate his investigation. In other words, Rosenstein is the crucial fulcrum between the political leadership of the Trump administration and the quasi-independent special counsel. The president cannot directly interfere with the special counsel’s investigation without going through — or getting rid of — Rosenstein.

This does give President Trump some options. It's a matter of taking them.

A smart pick here could help end this farce and restore some order to the DOJ. It's not the rank and file people who are the issue. Either in the FBI or the DOJ. (State is another issue. It's much more deeply rotten.) It's a politicized leadership that needs to go. And Trump is making life uncomfortable enough that some of them are leaving.

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