Speculation swirls over candidates to succeed Rosenstein

Deputy Attorney General Rod Rosenstein’s planned departure after William Barr is confirmed as the next attorney general has sparked a guessing game in Washington about who will succeed him.

Barr told the Senate Judiciary Committee this week that President Trump will let him choose his second-in-command, and legal experts say he may very well pick someone he’s worked with before.

Among those in the mix are George Terwilliger, Ira Raphaelson and Douglas Cox. All three were senior Justice Department officials in the George H.W. Bush administration when Barr was attorney general.

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Terwilliger was deputy attorney general, Raphaelson served as special counsel for the financial institutions fraud unit and Cox was deputy assistant attorney general for the Office of Legal Counsel.

Terwilliger sat behind Barr throughout Tuesday’s confirmation hearing, increasing speculation that he will once again be Barr’s deputy.

In an interview with The Hill on Wednesday, Terwilliger declined to say whether Barr has approached him about the position or whether he would take it if offered.

“I think it would be inappropriate to presume I would be asked,” he said. “I’m not going to comment on that. I will say that I have a lot of commitments to clients about things important to them and to me. I’m not sure it could be in the cards for me anyway.”

He also downplayed the significance of his attendance at the Senate Judiciary Committee hearing on Tuesday.

“I really was just there to be supportive of someone who I both worked with professionally and who is a close friend,” he said.

Raphaelson and Cox did not respond to requests for comment.

If Terwilliger isn’t interested, his son might be.

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G. Zachary Terwilliger, who was confirmed as U.S. Attorney for the Eastern District of Virginia in August, has close family ties to Barr and could be a candidate, said a source who previously worked on Justice Department nominations.

Terwilliger declined to comment for this story.

The same source also said Brian Benczkowski, assistant attorney general for the Justice Department’s Criminal Division, could be in the running for the deputy post.

The Justice Department did not immediately respond to a request for comment.

Experts say Barr is likely to seek someone with prosecutorial experience.

“The deputy attorney general oversees all the federal prosecutors across America,” said Elliot Williams, who served a deputy assistant attorney general for legislative affairs during the Obama administration. “Barr, in spite of his record, isn’t a career prosecutor.”

Williams noted that deputies are often former U.S. attorneys. Rosenstein served as the U.S. attorney for Maryland and Sally Yates, who served as deputy attorney general under former President Obama, was the U.S. attorney for the Northern District of Georgia.

Selecting someone with prosecutorial experience, Williams said, might also minimize any fears among career employees that the people at the top are too political.

News of Rosenstein’s imminent departure has put Washington on edge, with many worrying about what will become of special counsel Robert Mueller’s investigation into Russian meddling in the 2016 presidential election. Rosenstein has been overseeing the Russia probe since former Attorney General Jeff Sessions recused himself in March 2017.

Barr has been critical of Mueller’s investigation in the past, but on Tuesday promised the special counsel would be allowed to complete his work if he’s confirmed as attorney general.

Sen. Sheldon Whitehouse (D-R.I.) pressed Barr during his confirmation hearing on whether he had anything to do with Rosenstein’s plans to leave the department.

“You have not undertaken to run him out in any way?” Whitehouse asked.

“Absolutely not,” Barr said.

Barr said that he and Rosenstein have been discussing the departure.

“He told me he viewed it as a two-year stint and would like to use my coming in as an occasion to leave,” Barr said. “But we talked about the need for a transition and I asked if he would stay awhile, and he said he would.”

When asked what he would look for in a successor, Barr said he would prefer someone who’s a good manager and has experience running government programs.

“I want a first-rate lawyer and someone who’s judgement I feel comfortable in,” he said.

The Hill contacted several former DOJ officials, and many insiders were tight-lipped about possible contenders. Several legal experts, however, were adamant that acting Attorney General Matthew Whitaker is not in the running.

“I feel confident Barr would never choose him,”said Harry Litman, a law professor and lawyer who worked under Barr in 1991 and 1992.

“He’s primarily a political operator and not an institutionalist,” Litman said. “Your deputy has to be the person you trust in the foxhole, and he’s leaving the foxhole and carrying reports to the White House.”

Whitaker was named acting attorney general after Sessions resigned, at President Trump’s request, in early November. Whitaker had served as Sessions’s chief of staff, and his ascension to interim head of the department spurred a flurry of litigation. Many argued Rosenstein was the rightful successor and that Whitaker’s appointment was unlawful because he did not previously hold a Senate-confirmed position.

“If he were to be retained at Justice, I think that would send a signal the White House wants to keep a firm finger on the pulse of the Justice Department,” a person with previous ties to the agency said. 

The White House declined to respond on the record to questions about Whitaker’s future and who is being considered to replace Rosenstein.

Other names that have been floated include Senate legal counsel Patricia Mack Bryan; Maureen Mahoney, who served as U.S. deputy solicitor general when Barr was attorney general; and Paul Cappuccio, an executive vice president and former general counsel at Time Warner, where Barr served on the board of directors.

Mahoney, who is retired from the law firm Latham & Watkins, declined to comment. Bryan did not respond to a request for comment, and Cappuccio could not be reached through a Warner Media spokesperson.