Discover more from Original Jurisdiction
The #1 Lawyer At The #1 Company: An Interview With Rachel Brand
Or: how to become the top lawyer at the world's biggest company by age 45.
Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at firstname.lastname@example.org. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!
Earlier this month, Fortune magazine released its latest Global 500 list, the world’s 500 largest companies ranked by revenue. Retail giant Walmart took the top spot, for the ninth year in a row. Similarly, when Fortune announced the newest Fortune 500 companies back in May, Walmart came in first, for the tenth straight year.
What’s it like to be the #1 lawyer at the world’s #1 company? What types of issues and challenges do you face? And how do you rise to such a powerful position?
In 2018, Rachel Brand became the top lawyer at Walmart, where she now holds the titles of Executive Vice President of Global Governance, Chief Legal Officer, and Corporate Secretary. Earlier this year, I interviewed Brand about her life and career, connecting over Zoom; she took the call from home, with her three dogs hanging out in the background. (Historically Walmart’s culture emphasized presence in the office, but it became more flexible during the pandemic.)
Brand was born in Muskegon, Michigan, and moved at a young age to Pella, Iowa, where she grew up. After earning a B.A. in political science, with high distinction and honors, from the University of Minnesota Morris, she headed east and matriculated at Harvard Law School.
Like many HLS students, Brand was interested in clerking for a federal judge after graduation. But one of her professors, the late David Shapiro, encouraged her to apply to Justice Charles Fried of the Massachusetts Supreme Judicial Court, an HLS faculty member before (and after) his time on the bench—and she’s glad she did.
“Fried is such a brilliant scholar and interesting person,” Brand said. “And when you clerk for a state supreme court—as opposed to a federal court, a court of limited jurisdiction—you get exposed to everything.”
After clerking, Brand joined the high-powered litigation boutique of Cooper Carvin & Rosenthal (now Cooper & Kirk). As she explained when I profiled the firm for its 25th anniversary, she immediately received hands-on experience, taking depositions, including expert depositions, within a few weeks of her arrival.
This in-the-trenches litigation experience helped Brand excel when name partner Michael Carvin took her and fellow associate (and future U.S. Solicitor General) Noel Francisco down to Florida to work on litigation related to the contested 2000 presidential election. Her work on these cases impressed the right people, and when the Bush Administration was staffing up, she was invited to join the White House Counsel’s Office, where she became its youngest lawyer. She served there until 2002, when she left to clerk for Justice Anthony M. Kennedy on the U.S. Supreme Court (making her the rare SCOTUS clerk to have clerked only for a state-court judge).
In 2003, after her Kennedy clerkship, Brand returned to government, becoming Principal Deputy Assistant Attorney General in the Office of Legal Policy (“OLP”) at the U.S. Department of Justice (“DOJ”). In 2005, she was nominated by President Bush and confirmed by the Senate to lead OLP as Assistant Attorney General. While at OLP, she worked on the Supreme Court nominations of Chief Justice John Roberts and Justice Samuel Alito, as well as the successful reauthorization of the Patriot Act.
In June 2007, a few weeks before the birth of her first son, she resigned from the DOJ. After nine months off, she joined WilmerHale, where she practiced for three years, then worked for another three years at the U.S. Chamber Litigation Center, where she was Vice President and Chief Counsel for Regulatory Litigation.
While at WilmerHale and the Chamber, Brand worked part-time, in order to spend more time with her young children. Informed by this experience, today she urges fellow executives to support flexibility and work-life balance for employees who juggle the demands of their jobs with parenthood.
“It’s important for legal employers to look at résumés of people—women mostly, but also men—who have taken a step back in their career while their kids were young and be okay with that,” Brand said in her keynote address at the National Retail Federation’s Retail Law Summit in February. “It should not be a black mark on your résumé that you took a couple of years off or went part-time for a little while because you were spending time with your kids. If we can get to that point, that will be a huge boost for women in the workforce, and men—but especially women.”
While at the Chamber, Brand was contacted by Senator Mitch McConnell (R-Ky.) to gauge her interest in being nominated to serve as a Republican appointee on the Privacy and Civil Liberties Oversight Board (“PCLOB”), a bipartisan agency that advises the president on privacy and civil-liberties issues. After she expressed interest, she was nominated by President Barack Obama and unanimously confirmed to the PCLOB, along with three other nominees. (The PCLOB has five members; David Medine, nominated to serve as chair, was confirmed the following year.)
In August 2012, when Brand was confirmed, the PCLOB was a brand-new, independent federal agency, existing only in statute, not in reality. While waiting for the chair to be confirmed, the other four members began working on setting up the agency. How do you get access to the money that Congress has appropriated for you? How do you find an office that’s a Sensitive Compartmented Information Facility (“SCIF”), required for working with classified information? How do you hire federal employees? This complex, multifaceted process required navigating the bureaucracy of the federal government—no small feat.
In May 2013, David Medine was confirmed as PCLOB chair—and shortly thereafter, the Edward Snowden leaks began. President Obama said on national television that he would have the PCLOB review the privacy implications of some of the classified programs Snowden had leaked—which was news to the members of the PCLOB, who hadn’t been told ahead of time about their mission from the president. At that point, they hadn’t even been read into their security clearances yet.
“So we had to simultaneously build a federal agency from scratch, find staff, and dive into a high-profile investigation of a controversial subject,” Brand recalled.
In 2017, shortly after her term on the PCLOB ended, Brand was nominated and confirmed to serve as Associate Attorney General—the #3 job at the Justice Department. The first woman to serve in the role, she oversaw thousands of lawyers and other professionals in the Antitrust, Civil, Environmental and Natural Resources, and Tax Divisions, among others.
But Brand’s time as Associate AG was relatively short. In February 2018, after nine months in the role, she stepped down to become head of global governance at Walmart. She started at Walmart in April 2018—just shy of her 45th birthday.
The world’s biggest company hiring a new #1 lawyer is always newsworthy, but Brand’s move garnered additional coverage because she left the DOJ at a sensitive time. In February 2018, it looked like President Donald Trump might fire Deputy Attorney General Rod Rosenstein because of dissatisfaction with Rosenstein’s handling—i.e., his refusal to interfere with—Special Counsel Robert Mueller’s Russia investigation. Because Attorney General Jeff Sessions had already recused himself, firing Rosenstein would have put Brand in charge of overseeing the Mueller probe—and quite possibly “in the cross hairs of the president,” per the New York Times.
There was speculation that Brand left to avoid landing in that unenviable position or because of other issues with the Trump DOJ. One anonymous source told Politico that Brand departed from the Department “because she is very smart, accomplished, and talented, and wants to protect her career.”
When we spoke, Brand told me that she stepped down as Associate Attorney General not because of anything Mueller-related, but because she was offered an opportunity she simply couldn’t turn down. She wasn’t looking for other opportunities when Walmart approached her, but agreed to interview at the urging of two colleagues from her Bush White House days who were already at Walmart: Dan Bartlett, Executive Vice President for Corporate Affairs, and Dan Bryant, Senior Vice President for Global Public Policy and Government Affairs. She didn’t expect to land the job; when it was offered to her, she faced a difficult choice.
“I felt guilty about leaving DOJ so early,” Brand told me. “Leaving the Department and going in a completely different direction were big decisions.”
But the opportunity to serve as Walmart’s top lawyer—leading the legal department of the #1 company in the Fortune 500, reporting directly to CEO Doug McMillon, working on a wide range of fascinating issues, and earning a very nice living—was impossible to turn down.
“Political appointments at the DOJ are inherently temporary, with the average tenure just a couple of years,” she explained. “But jobs like this one don’t come around that often—and if I turned it down, there was no guarantee it would come around again.”
So Brand took the Walmart role. Together with her husband, Sidley Austin partner Jonathan Cohn, their two sons, and the family dog (they now have three), she relocated to Bentonville, Arkansas, Walmart’s longtime headquarters.
Brand might have seemed like a surprising pick for the Walmart job, since she had never served as an in-house lawyer for a large public company. But her track record of successfully tackling novel challenges, especially ones involving a diverse array of legal and policy issues, prepared her well for the new role.
“The breadth of subject-matter areas I deal with here at Walmart is mind-boggling, but many of the roles I’ve held have involved a very wide range of issues,” Brand said. “At the White House, I dealt with everything from Yucca Mountain to judicial nominations to the Patients’ Bill of Rights. As Associate Attorney General, I dealt with matters ranging from seeking congressional reauthorization of Section 702 of FISA to human trafficking to overseeing the department’s civil litigation. And so on.”
This breadth of issues reflects the size and scope of Walmart as a company. It has annual revenue of $572.8 billion, operating cash flow of $24.2 billion, and a market capitalization of $363 billion (as of this writing). It employs approximately 2.3 million people around the world, making it the world’s largest private employer.
“We have legal issues arising from stores, pharmacies, financial services, advertising, supply chain—and not just in the United States, but around the world,” Brand noted. “Our compliance department, which I also oversee, handles a broader array of subjects than many companies’ would, given the breadth and diversity of our business.”
Global Governance, the division Brand leads, has more than 3,000 associates, many of them lawyers—giving it a larger headcount than all but the biggest of Biglaw firms. It encompasses traditional legal and compliance functions, including the Office of the Corporate Secretary—another one of Brand’s titles, giving her oversight over corporate governance, securities, tax, and M&A. But it also extends to areas like privacy, physical security, employee background vetting, internal investigations, and even aviation. (Walmart has one of the largest corporate jet fleets in the country, and given its far-flung operations, the fleet is more of a necessity than a luxury.)
Given the sheer size and scope of Global Governance, Brand can’t afford to be a micromanager—something she got comfortable with as Associate Attorney General, when she also had a sprawling portfolio.
“As with the leadership of any big institution—I learned this in my last job at DOJ, and it’s even more true now—I’ve had to get comfortable with not knowing everything,” Brand said. “I couldn’t possibly be in the weeds on everything even if I worked 24/7. I have to hire great people, stay apprised of what’s important and where my judgment is needed, and ‘know what to touch’—because even with great people, I still need to have a hand in very significant issues.”
One such issue: seeing Walmart through the Covid-19 pandemic.
“In the early days of the pandemic, the government had not provided any guidance, so companies had to figure things out on their own,” she said. “We were one of the first companies to issue a mask policy and other proactive policies to deal with Covid. I think we’ve done a very good job, but it was a major challenge. Fortunately we had a chief medical officer to advise us.”
“At the start of the pandemic, we had around 1.5 million associates,” Brand told me. “During the pandemic, we hired more than 500,000 new associates globally, at a time when other companies were laying people off. It was a real benefit to the economy that we were able to hire that many people during Covid, and my team worked incredibly hard to make the vetting process more efficient to accommodate hiring that many people so quickly.”
Such a large and diverse workforce includes people with diverse opinions. So one area of internal focus for Brand has been civil discourse, which she sees as part of Walmart’s commitment to diversity and inclusion. Last year, she held a virtual “fireside chat” for Global Governance employees with her longtime friend Amanda Tyler, the Berkeley law professor and co-author with the late Justice Ruth Bader Ginsburg of Justice, Justice Thou Shalt Pursue: A Life's Work Fighting for a More Perfect Union. Despite divergent political views, Brand and Tyler have a decades-long friendship dating back to their Harvard Law days—not unlike the friendship between Tyler’s former boss, Justice Ginsburg, and the late Justice Scalia.
“Robust debate is great, but it’s deeply dismaying to see polarization in which people can’t work or be friends with people who hold different views,” Brand said. “I’m worried that the legal profession is failing on this front. Take law firms rejecting pro bono projects on one side of the political spectrum—that wasn’t the case before. Representing unpopular clients is one of the great traditions of the legal profession.”
Law firms that work (or aspire to work) for Walmart, take note. On that subject, I asked Brand to talk about what she likes to see from outside counsel.
First, the company wants lawyers that “treat the client like the client,” and truly try to understand the client’s objective. “Sometimes outside lawyers don’t make enough of an effort to understand the client’s strategy and what the client is trying to achieve.”
“Second, it’s important for lawyers representing public companies to understand the disclosure and accounting rules that go along with investigation and litigation. Many outside lawyers don’t understand these considerations—and they’d be much better counsel to the company if they did.”
Finally, I asked Brand for what career advice she’d offer to younger lawyers.
“First, be open to things you weren’t expecting to do. Some of my best jobs were ones I wasn’t looking for and roles I wouldn’t have expected to take on. If you get too fixated on one really specific track, you’re more likely to be disappointed, and you may miss out on roles you’d really enjoy.”
“Second, be qualified to get lucky. How did I get my job in the White House? I happened to be asked by one of my law-firm colleagues to go to Florida to work on the election recount. While I was there, I happened to be assigned to work with the person who later was responsible for staffing up the White House Counsel’s Office. Those were both cases of being in the right place at the right time. But I did very good work when given that opportunity—which is why he recommended me to Judge (later AG) Gonzales to work in the Counsel’s Office.”
“I come across many young lawyers who are always looking for their next job. My advice is to first focus on doing a great job in the job that you’re in, and you’re more likely to be recommended for future roles.”
And what future roles might lie in store for Rachel Brand? As Walmart’s top lawyer, she already has one of the most interesting and important jobs in the legal world—but I have a feeling it won’t be her last.
Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at email@example.com with questions or comments, and you can share this post or subscribe using the buttons below.