Department of Justice, Federal Government, Politics, U.S. Attorneys Offices

A Deep Dive Into The Department Of Justice Transition

Who will be the next deputy attorney general, associate attorney general, and head of the Office of Legal Counsel?

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Main Justice (by Coolcaesar via Wikimedia)

Main Justice (by Coolcaesar via Wikimedia)

Barring something unforeseen, Senator Jeff Sessions will be confirmed as our nation’s 84th attorney general. Some of his colleagues in the U.S. Senate will vote against him, such as Chuck Schumer, Cory Booker, and Richard Blumenthal (fun fact: a former Supreme Court clerk). But with 52 Republican senators and some Democrats (like Joe Manchin) likely to vote in favor, Sessions’s path to Main Justice looks secure. Expect a vote shortly after next week’s inauguration.

With his confirmation hearings complete, Sessions can now focus on the Department of Justice transition more generally — and it sounds like it could use some help. Based on what I’ve heard from numerous sources, things are… rather chaotic right now.

I spoke to many sources for this report — current and former DOJ officials, people working on the transition, people in line for top jobs, Republicans and Democrats. All insisted on strict anonymity, given the sensitivity of the subject and the fact that the appointments discussed herein have not yet been officially announced. So this story will contain very few direct quotations and be told from the perspective of an omniscient narrator, to preserve anonymity, but rest assured that it reflects extensive reporting. Of course, that’s no guarantee of complete correctness; reporting is only as accurate as the sources consulted, and sometimes sources are misinformed (or misleading). As always, I welcome any and all comments and corrections, by email (subject line: “DOJ Transition”) or by text (646-820-8477).

There’s good news about the transition, and there’s bad news. Let’s start with the bad news and get it over with.

First, a bit of background (especially for those of you who have never lived in D.C.). Top government positions — the posts with the most power and prestige, and therefore the juiciest plums to be doled out by an incoming administration — are so-called “PAS” positions, “presidential appointment with Senate confirmation.” The Attorney General is a PAS post, of course, and so are many others at the Justice Department — top positions at Main Justice in Washington, such as deputy attorney general and solicitor general, plus other jobs around the country, such U.S. Attorneys.

It’s not possible to get all the PAS posts at an agency filled before a new presidential administration takes over. So what typically happens during the transition is that the incoming administration selects a number of non-PAS political appointees to place in the various divisions of an agency (sometimes called “beachhead” appointees). Because these appointees do not require Senate confirmation, they can join the agency immediately after inauguration, and they can represent the voice of the new administration from day one. They basically hold down the fort until the arrival of the Senate-confirmed appointees, which usually happens a few months later.

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Earlier this week, about two dozen lawyers received coveted calls from the Trump transition team offering them beachhead appointments at the DOJ — in the nature of “principal deputy” or “first assistant”-type positions, to serve under the future PAS appointees — and they accepted them. Then one day later, some (but not all) of these lawyers received calls along these lines: “Oops, sorry, we can’t guarantee you that job yet. Maybe you’ll get it in the end, or maybe you won’t. Maybe you’ll get a different DOJ job, or maybe you won’t. Stay tuned!”

As you can imagine, this did not go over very well with the recipients of these calls. Some of them had already told their employers that they’d be leaving their current jobs in a little over a week to take posts with the new administration. Now they’re in limbo — with just one week to go before inauguration. And so are the DOJ components these appointees were supposed to join. Inauguration is a week away, and other than Jeff Sessions, we don’t know who will be representing the Trump Administration at the Department of Justice. Yikes.

What explains the slowness? It’s not clear. The transition started a little late, with the Trump transition team not contacting the Justice Department until nine days after the election, and the transition as a whole was marked by some initial upheaval. But that can’t explain everything.

Some say that that Jeff Sessions personally has been slow to pull the trigger on appointments — perhaps because he was distracted by prepping for his confirmation hearings, perhaps because he didn’t want to presume too much prior to the completion of his hearings, perhaps because as a senator rather than an executive he’s not used to making quick decisions, or perhaps a combination of these factors. (The Trump transition team for the DOJ is staffed by a team of very impressive and capable Biglaw attorneys, and we’ve not heard blame placed on them for the problems.)

What explains the confusion over the quasi-rescinded job offers? What transpired is far from clear, but some cite the involvement of Chuck Cooper.

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Chuck Cooper is a prominent D.C. litigator, leading Washington power broker, and longtime Sessions friend. They’re both from Alabama, they both graduated from the University of Alabama School of Law in the 1970s, and they both worked in the Reagan Justice Department in the 1980s, when they became close.

As Politico reported earlier this month, Cooper played a major role in preparing Sessions for his confirmation hearings. On Wednesday, after those hearings ended successfully, Cooper sat down with Sessions and went over the DOJ org chart with him, offering the future AG his thoughts on who should get which job — and conveniently penciling himself in as solicitor general, a job he has long coveted.

Chuck Cooper’s views seem to have had an impact. The second round of phone calls, the “oops” calls, went out after Cooper’s post-hearing meeting with Sessions. Whether the call recipients get their jobs in the end or not might depend on what Cooper thinks of them (or whether he might prefer someone else in a given role). In a nutshell, Cooper seems to be the Svengali of Main Justice right now.

Delay and confusion: that’s the bad news. The U.S. Department of Justice needs to be up and running under a new administration in a week’s time, and as of now, everything is in flux. The PAS positions other than AG don’t have official nominees yet. The principal deputy positions might or might not have nominees — and some of those nominees are ticked off, to put it mildly, at being jerked around. When it comes to the transition process, some of the participants don’t even know what the “process” is. It will hopefully all get worked out in the end — as noted, the Trump transition team for the DOJ has no shortage of talent — but right now, it’s a bit of a mess.

Now, on to the good news. The leading candidates for three top jobs at the department — deputy attorney general, associate attorney general, and assistant attorney general for the Office of Legal Counsel — are all superb picks. All three have impeccable credentials, extensive past experience at the Justice Department, and sterling reputations for competence and integrity. They are conservative but not extreme, so they can hopefully serve as a moderating influence on Jeff Sessions. And they all have friends on both sides of the aisle, so they should enjoy easy confirmations.

(I have a high degree of confidence in these calls, with multiple sources confirming each. But they have not yet been completely finalized and no official announcement has been made, so it’s possible they could change. Remember, we’re talking about the administration of Donald J. Trump — a man who is not, shall we say, afraid to change his mind. He could tell these people “you’re fired” anytime — even though they have yet to be hired.)

Rod Rosenstein

Rod Rosenstein

The deputy attorney general or “DAG” is likely going to be Rod Rosenstein, the U.S. Attorney for the District of Maryland. Rosenstein is, as noted by CNN, the longest-serving U.S. attorney in the Justice Department; although he has served through all of President Obama’s presidency, he was actually confirmed to his current post in 2005, under the Bush Administration.

(I had this information earlier in the week and reached out to Rosenstein for comment yesterday (just as I reached out to all the potential nominees mentioned in this story). Rosenstein (and the other potential nominees) declined comment; CNN broke the Rosenstein news late last night. I believe the other potential nominees mentioned herein have not been previously reported.)

“Well liked and with obvious bipartisan credibility, he’d be a great choice for DAG,” one former Bush Administration official told me. “He’s the consummate public servant,” said a prominent Democratic lawyer. “So professional, and just the nicest guy — probably the nicest person I’ve ever dealt with. He’s awesome. I don’t know anyone who could have possibly have a negative thing to say about him.”

Rosenstein is a graduate of U. Penn. (Wharton) and Harvard Law School (where he was a member of the school’s Federalist Society chapter). After clerking for Judge Douglas Ginsburg on the D.C. Circuit, Rosenstein joined the Justice Department through the Attorney General Honors Program, and he has been with the DOJ ever since. So he has extensive DOJ experience — which makes him an excellent pick, given the DAG’s role in leading day-to-day management of the Department’s 110,000+ employees, and given how long it has been since Jeff Sessions worked at the DOJ.

Rosenstein should be easily confirmed. He has served in federal government across three administrations — Clinton, Bush 2, Obama — and the Senate unanimously approved his nomination as U.S. Attorney. President Bush’s nomination of him to the Fourth Circuit in 2007 didn’t work out as well, but more for political reasons than for anything having to do with Rosenstein: he was nominated in the November before an election year, and the seat had already been the subject of wrangling (including an attempt by the Bush Administration to turn a seat historically tied to Maryland into one filled by a Virginian). Maryland’s senators at the time, Barbara Mikulski and Benjamin Cardin, cited Rosenstein’s lack of sufficient Maryland ties in opposing his Fourth Circuit nomination. Lack of home-state senator support should no longer be a problem: Rosenstein has won praise from Senator Cardin and from Senator Chris Van Hollen, who will probably just be sad to lose Rosenstein as their state’s U.S. Attorney.

Rachel Brand

Rachel Brand

The associate attorney general is probably going to be Rachel Brand, who currently serves on the Privacy and Civil Liberties Oversight Board, an independent, bipartisan agency that seeks to protect civil liberties and privacy in the fight against terrorism. She is, like Rosenstein, a Harvard Law School grad (where she also belonged to the Federalist Society), and this would also not be her first tour of the duty at the Department: she served at the DOJ from 2003 to 2007, eventually rising to become assistant attorney general for the Office of Legal Policy. Being a member of the PCLOB and serving as an assistant attorney general both require Senate confirmation; Brand was confirmed to these posts by voice vote, suggesting smooth sailing for her this time around as well.

Brand has a résumé that is both dazzling and well-rounded. After graduating from HLS, she clerked for then-Justice Charles Fried on the Supreme Judicial Court of Massachusetts and for Justice Anthony M. Kennedy on the Supreme Court. She worked at WilmerHale — a firm most well-known for its Democratic ties, but with a few prominent conservatives — and as vice president and chief counsel for regulatory litigation at the U.S. Chamber of Commerce. And she just added academia to her list of roles, with a faculty appointment at Scalia Law School.

Early in Rachel Brand’s career, after her clerkship for Justice Fried and before her clerkship with Justice Kennedy, she spent two years as an associate at what is now Cooper & Kirk — the high-powered litigation boutique founded by Chuck Cooper. So Brand presumably has the Cooper stamp of approval, which is key given Cooper’s close ties to Sessions and given how President-elect Trump is, as pointed out by CNN, “allow[ing] his Cabinet nominees to play a major role in helping fill top positions in their agencies, a strategy past administrations haven’t always followed.”

(It’s not surprising that Trump is taking this approach; unlike a traditional politician, he doesn’t have a huge group of longtime supporters, financial contributors, and campaign operatives that he has to reward with political appointments. And it seems to me that, aside from a handful of signature issues, Trump will be more than happy to sit back and let others run the show — something that perhaps Trump opponents can draw comfort from.)

Now, on to the Office of Legal Counsel. I like this description of the staggeringly prestigious and powerful OLC, from Newsweek:

[OLC is] the most important government office you’ve never heard of. Among its bosses — before they went on the Supreme Court — were William Rehnquist and Antonin Scalia. Within the executive branch, including the Pentagon and Central Intelligence Agency, the OLC acts as a kind of mini Supreme Court. Its carefully worded opinions are regarded as binding precedent — final say on what the president and all his agencies can and cannot legally do.

Look to OLC to play a crucial role in the Trump Administration, telling POTUS and his appointees what they can and cannot do.

Steven Engel

Steven Engel

The assistant attorney general for the Office of Legal Counsel — a job previously held by Rehnquist, Scalia, and the aforementioned Chuck Cooper — is looking like Steven Engel, a litigation partner in the D.C. office of Dechert. He too has a gilded CV: Harvard College (summa), Yale Law School (prizes for the best moot court brief and best law journal note), clerkships for Judge Alex Kozinski (9th Cir.) and Justice Kennedy, and DOJ experience. He served at the Office of Legal Counsel from 2006 to 2009; as a former deputy assistant attorney general of OLC, he would be well equipped to lead the office.

Steve Engel is both brilliant and independent-minded — perhaps something he learned from clerking for Judge Kozinski and Justice Kennedy, who follow no party line (sometimes to the frustration of Democrats, and sometimes to the frustration of Republicans). Count on Engel to stand up to any overreaching by the Trump Administration.

So that’s the skinny on the DOJ transition: a bit of a s**t show right now, but somehow working out in the end. If that ends up being a description for the Trump Administration writ large, then even President Trump’s harshest critics will have to admit: it wasn’t as bad as we expected.

P.S. You’ll note I haven’t discussed the Solicitor General sweepstakes, a subject I’ve been covering extensively, even though SG is the #4 post in the department (after AG, DAG, and Associate). That’s the most interesting DOJ selection process of all, and I’m working on a detailed report. As always, email me or text me (646-820-8477) if you would like to contribute.

UPDATE (7:00 p.m.): Here’s my story on the SG selection process.

UPDATE (1/15/2017, 9:45 a.m.): And here’s my story on Donald Trump starting to interview potential Supreme Court nominees.

UPDATE (1/31/2017, 11 p.m.): The nominations of Rod Rosenstein, Rachel Brand, and Steven Engel are now official, as reported by Reuters and Law360, among others. But you heard the news first — and weeks earlier — on Above the Law!

Trump expected to tap longtime federal prosecutor for key DOJ post [CNN]

Earlier: An Exciting New Entrant In The Solicitor General Sweepstakes
Who Will Be The Next U.S. Solicitor General?

DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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