In some ways, Rachel Lee Brand followed a traditional path toward a high-ranking position in the Justice Department: an internship with her senator, an Ivy League law school, a Supreme Court clerkship, a legal job in the White House.
Brand, 44, who was confirmed this month, now has to navigate a much more difficult dance as she takes the reins of what is considered by many the most politically challenging job in the Justice Department. As associate attorney general, Brand manages the lawyers who litigate civil rights, environmental and antitrust issues.
Before Brand arrived, Attorney General Jeff Sessions had already sparked controversy with his actions on civil rights issues. He has begun to undo the Justice Department’s policy toward transgender students in public schools; unsuccessfully tried to pull back from a sweeping reform agreement the department has with the Baltimore Police Department; ordered officials to review other reform agreements with troubled police forces nationwide; and reversed the Justice Department’s position on a voting rights law in Texas that a federal court has found intentionally discriminatory.
And it is the lawyers in the Justice Department’s civil division who are defending President Trump’s travel ban, key sections of which have been ordered frozen by the courts. The latest version of ban blocked the issuance of new visas to residents of six Muslim-majority countries and suspended the refugee program.
“The challenge of her job is that she is responsible for oversight of some of the most politically difficult issues,” said Jamie Gorelick, who served as deputy attorney general under Attorney General Janet Reno and worked with Brand at the WilmerHale law firm. “All of the main places where there are differences between Republicans and Democrats reside in the civil litigation divisions. I think Rachel is well prepared — she’s very smart and very thoughtful — but that’s going to be a very hard job.”
In an interview on her third day on the job, Brand said it was too early for her to discuss the high-profile issues she is facing.
“I’m just delighted to be back,” said Brand, who ran the department’s Office of Legal Policy under President George W. Bush. “I love DOJ. I have a great amount of respect and affection for this institution.”
After graduating from the University of Minnesota at Morris in 1995, Brand went to Harvard Law School with an eye toward going into public service. She was a member of the Federalist Society and met future husband Jonathan Cohn, a former Justice Department lawyer, at Harvard when the two attended a Federalist Society student conference. (They have two young sons, both with Dutch names.)
She went on to clerk for Massachusetts Supreme Judicial Court Associate Justice Charles Fried and then Supreme Court Justice Anthony M. Kennedy.
Brand then worked for the firm Cooper, Carvin & Rosenthal (now Cooper & Kirk), which is led by former Reagan administration Justice Department official Charles Cooper. Brand tinkered in politics on Elizabeth Dole’s presidential campaign, and when Bush became president, White House counsel Alberto R. Gonzales hired Brand to work for him.
She moved over to the Justice Department as Bush’s assistant attorney general for the Office of Legal Policy, which develops and implements the department’s significant policy initiatives. In that position, she led the “murder boards,” sessions to prepare John G. Roberts Jr. and Samuel A. Alito Jr. for their Supreme Court confirmation hearings.
“She has deep knowledge of the department, is extremely bright, well organized and a good manager, excellent judgment,” said Jack Goldsmith, a Harvard Law School professor who headed the Office of Legal Counsel when Brand headed legal policy. “She is principled, tough-minded and truly thoughtful. I cannot offhand think of someone better for the associate attorney general job.”
Brand left the Justice Department in 2007, spent three years at WilmerHale and then became the vice president and chief counsel for regulatory litigation for the U.S. Chamber Litigation Center — a job that drew criticism from Democrats during her confirmation hearing.
“She carries a heavily skewed, pro-corporate agenda that would do further harm to the Justice Department and its independence,” said Sen. Patrick J. Leahy (D-Vt.).
Sen. Elizabeth Warren (D-Mass.) said Brand “has extensive experience, years of experience, fighting on behalf of the biggest and richest companies in the world.”
In response to a question about her work at the U.S. Chamber of Commerce from Sen. Charles E. Grassley (R-Iowa), Brand said she had spent most of her career in public service.
“When I was at the Chamber of Commerce, I had a client, the Chamber of Commerce, and, as a litigator there, my job was to file lawsuits and file amicus briefs on behalf of that client,” Brand said. “If I’m confirmed to this position, of course, I’ll have a very different role. . . . My client will be the United States, and my role will be to serve the public interest and the interest of justice, representing that client as best I can.”
President Barack Obama appointed Brand in 2012 to be a member of the Privacy and Civil Liberties Oversight Board, an independent, bipartisan agency within the White House that advised the president on the privacy and civil liberties implications of the government’s surveillance programs.
“She’s a top-notch analytic lawyer and really good at figuring out what is the art of the possible,” said Neal Katyal, former acting solicitor general in the Obama administration who worked with Brand when she was at the Chamber. “But the big issue for everyone at the Justice Department right now is how rigorously they’re going to police the rule of law.”
