Jeffrey Rosen, nominated for the Justice Department’s number two position, would come to the job with decades of experience as a white collar attorney representing companies such as General Motors, PG&E and Raytheon Corp.
Rosen, the deputy secretary of the U.S. Transportation Department, worked for almost 30 years as a trial and appellate litigator at Kirkland & Ellis LLP, overseeing antitrust cases, contract disputes and other corporate litigation. He testified April 10 before the Senate Judiciary Committee, which peppered him with questions about his time in government and in private practice.
Sen. Dianne Feinstein (D-Calif.), noted that Rosen hasn’t held any positions at the DOJ and suggested he might not have the necessary prosecutorial experience to lead the department’s day-to-day operations.
Rosen said he plans to rely on his “varied” legal career, and on his experience managing large staffs at government agencies.
“I would arrive at the Department of Justice from the outside, but not as a stranger,” Rosen said, noting his coordination with the DOJ on various issues. He added that he will take advantage of the institutional knowledge offered by the “thousands of seasoned and highly capable” prosecutors at the department.
“What I need to do is to know how to use the resources available to me,” he told the committee.
A “significant portion” of his practice at Kirkland involved the transportation and energy industries, although he also handled cases in the hotel, real estate and telecommunications sectors, according to a questionnaire Rosen returned to the Judiciary Committee. That litigation dealt with matters including trade secrets, securities and administrative law and class actions.
“I would expect him to be a very solidly, reliably conservative voice in any kind of white collar law enforcement, including antitrust,” said Christopher Sagers, a law professor at Cleveland State University.
President Donald Trump picked Rosen to replace outgoing Deputy AG Rod Rosenstein, who agreed to stay on while new Attorney General William Barr — a Kirkland alumnus — assumed control of the DOJ. Rosen told the Judiciary Committee he has a great working relationship with Barr, who he’s known for years, and who recommended he be nominated to the deputy AG position.
Rosen’s long history of corporate representation and the vast span of Kirkland’s work in other cases can make answering questions difficult during confirmations. He tiptoed around questions from Committee Democrats about his views on major Supreme Court decisions, including Roe v. Wade, and on arguments he may have made about fuel efficiency and vehicle safety.
Rosen, who represented General Motors Corp. in a case of alleged defects in Chevrolet seat belts and steering wheels, faced questions from Sen. Richard Blumenthal (D-Conn.) following his 2017 confirmation hearing before the Senate Commerce Committee to be deputy Transportation secretary regarding another case Kirkland handled for GM.
Blumenthal, in written questions, pressed Rosen about Kirkland’s role in defending GM from emissions-cheating allegations, asking whether he thought automakers and their executives should be held criminally liable for dangerous activity that leads to deaths.
Rosen replied by saying his agency ethics agreement put limits on matters in which his former employer represented a party and noted the Justice Department “ultimately makes the determination of whether to pursue criminal penalties and when to settle a criminal case.” Blumenthal, who also serves on the Judiciary Committee, didn’t revisit this question during the April 10 hearing.
Rosen was lead counsel for Netscape Communications Co. in its 2002 antitrust complaint against Microsoft Corp., which he listed as one of the top-ten most significant matters he’s litigated.
As Deputy AG, Rosen would likely be included in conversations about closely watched matters spearheaded by the DOJ’s various divisions. Its antitrust division is currently considering whether to approve the $26.5 billion merger of Sprint Corp. and T-Mobile, and Nexstar Media Group’s $6.4 billion acquisition of Tribune Media Co.
Rosen spent time in the George W. Bush Administration as general counsel for both the Transportation Department and the Office of Management and Budget before returning to private practice, putting him on both sides of cases against federal agencies.
In 2010, he helped represent the U.S. Chamber of Commerce when it petitioned a federal appeals court to review an Environmental Protection Agency action on greenhouse gas rules. He served on the Chamber’s government operations and oversight committee from 2012 to 2017. He also served as several years on Kirkland’s management committee and as co-head of its Washington office.
While at Kirkland, Rosen also represented trade group Airlines for America in a 2013 joint petition for review of the Federal Aviation Authority’s and Transportation Department’s plan to furlough air traffic controllers.
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(Updates with comments from April 10 confirmation hearing)