Justice Department turnover is bad news for Mueller, ethics and democracy Rachel Brand had the backbone to refuse wrongful orders. She provided a measure of protection for Mueller and Justice independence. But now she's gone.

Norman Eisen and Victoria Bassetti | Opinion contributors

Under normal circumstances, leaving the No. 3 Justice Department job to take the top legal job at Walmart wouldn’t warrant much scrutiny. But these are not normal circumstances.

Associate Attorney General Rachel Brand had only been at Justice nine months when she announced her resignation Friday. Her departure should alarm those who worry that President Trump will move to fire Special Counsel Robert Mueller. That is because if Trump decides to launch a modern-day Saturday Night Massacre, she would have provided a measure of job security for Mueller.

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With Attorney General Jeff Sessions sidelined after recusing himself from Mueller’s Russia investigation, Mueller’s supervisor is Deputy Attorney General Rod Rosenstein. He has indicated that if Trump were to ask him to terminate Mueller absent good cause, he would refuse. That would probably trigger Rosenstein’s removal from office — and Brand would have been in line to take his place.

Brand also would have taken over supervision if the president, without demanding that Mueller be axed, simply followed through on his hints that he will dismiss Rosenstein. The deputy attorney general is the target of a sustained smear campaign by the right-wing media, Republican House members and the president himself. His job is in perpetual danger.

Brand is widely regarded as a first-rate lawyer with the backbone to refuse wrongful orders. She represented a firebreak, and not just regarding Mueller. With the president and his allies daily assaulting Justice’s independence, and Trump proclaiming at the end of December that “I have absolute right to do what I want to do with the Justice Department,” her integrity was badly needed.

Brand’s exit raises the question of whether she was pushed aside to make way for another person more willing to take a hatchet to the Mueller investigation. According to NBC News, she saw the “slow-motion Saturday Night Massacre” coming and was searching for a way to escape the line of fire. The Walmart job is a rare and well-timed professional evacuation route.

Whatever the explanation, the caliber of Brand’s replacement will signal how worried we should be. If the president nominates a crony, that will be a sign of trouble.

Indeed, Trump, with his disdain for norms, may not even bother to send a replacement to the Senate for confirmation. He may try to use a statute, the Federal Vacancies Reform Act, to temporarily insert someone into Brand’s post as the acting assistant attorney general. He has already used that provision to thrust a loyalist into another institution he wanted to control. In late November, Office of Management and Budget director Mick Mulvaney got the additional post of interim head of the Consumer Financial Protection Bureau.

If Trump doesn’t name anyone to succeed Brand, the next in line in the Justice order of succession is Solicitor General Noel Francisco. That is concerning. Before he joined Justice, Francisco was a law partner of Donald F. McGahn II, now the White House counsel. Their firm, Jones Day, represented the Trump campaign (though we are not aware of Francisco personally having done any of the work). Jones Day still works for the campaign; it.was paid more than $800,000 in the last quarter of 2017 to deal with, among other things, the Mueller investigation.

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Francisco moreover maintains financial ties to his old firm — it still owes him money. There are real questions about whether he can be impartial. When he took the Justice job, Francisco signed an ethics pledge that he would “not participate personally and substantially in any particular matter that to his knowledge has a direct and predictable effect on the firm's ability or willingness” to pay him what he is owed. Francisco also presumably signed the Trump administration's ethics pledge promising to step aside for two years from all matters “involving specific parties … directly and substantially related to my former employer.” He is also subject to other government and legal-profession rules on conflicts.

If Francisco sidesteps the role of Trump’s 21st century Robert Bork, next in line would be Steven Engel, the assistant attorney general for the Office of Legal Counsel. Engel too has potential issues in answering the phone. He worked as a lawyer for the presidential transition team during a period that has been the focus of intense scrutiny by Mueller’s team. That involvement alone might require him to think twice about responding to a presidential directive to fire Mueller.

During his confirmation process, Engel repeatedly assured senators of his independence. He pledged to provide “candid, independent and principled advice, even if that advice would contravene the wishes of policy makers.” He could face a choice about whether to keep that promise.

Brand’s precipitous departure has an ominous cast to it. Her exit is evidence of a dysfunctional Justice Department where people are fleeing what used to be considered dream jobs. One of the things we’ve learned in the last year is how much our democracy relies on personal integrity — at least as much as on written laws and rules. The people Brand leaves behind, including Francisco and Engel, would be wise to prepare for the toughest tests they have ever faced.

Norman Eisen, a senior fellow at the Brookings Institution and chairman of Citizens for Responsibility and Ethics in Washington, was President Obama's ethics czar from 2009 to 2011. Victoria Bassetti is a contributor at New York University's Brennan Center for Justice and author of Electoral Dysfunction: A Survival Manual for American Voters. Follow them on Twitter: @normeisen and @vbass.