Trump's Lawless Reliance on Acting Secretaries
It's not in the law or the Constitution, but it's what he wants.
President Trump recently tweet-fired another senior official. He took a break from his essential daily activities like watching Fox & Friends and blasting various minority members of Congress to declare “Dan Coats, the current Director [of National Intelligence], will...be leaving office on August 15th. I would like to thank Dan for his great service to our Country. The Acting Director will be named shortly.”
Regardless of who will fill Coats’s shoes temporarily, his resignation on August 15 will result in yet another acting member of the administration. This is where the White House could have legal troubles.
CNN reported that Trump administration lawyers are scrambling to ascertain some way of bypassing the director of national intelligence (DNI) succession statute provision, which expressly dictates that the confirmed principal deputy DNI, in this case Susan Gordon, a career intelligence official, must serve as acting director.
The 2004 Intelligence Reform and Terrorism Prevention Act (IRTPA), which Congress enacted in response to the catastrophic miscommunications between domestic law enforcement and foreign intelligence agencies prior to the 9/11 attacks, created the Office of the Director of National Intelligence and requires “The Principal Deputy Director...shall act for, and exercise the powers of, the [DNI]…during a vacancy in the position.” That straight-forward language must have administration lawyers working overtime to find a way to overcome it.
If IRTPA is giving White House lawyers a headache, attempting to circumvent Article II, Section 2 of the Constitution might kill them. It states: “The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” Yet this type of legalistic maneuvering increasingly defines the modus operandi of this White House, as evidenced by the number of acting Cabinet members and other temporary office holders in the administration.
There are currently six White House and Cabinet-level acting officials: acting ambassador to the United Nations (since January), acting White House chief of staff (since January), acting director of the Office of Management and Budget (since January), acting secretary of homeland security (since April), acting small business administrator (since April), and acting secretary of labor (since July).
Beyond this list we have the recently confirmed secretaries of the interior and defense, who finally replaced “actings” in those positions on April 11 and July 23, respectively. The Defense Department had been without a permanent head for over six months. The departure of Secretary Mattis in December 2018 ushered in a succession of three separate “actings,” including secretary of the Army and eventual nominee Mark Esper, who served double duty as defense and Army secretary for over a month prior to being formally nominated. At the sub-Cabinet level, it is basically impossible to list all the vacant positions. There are 4,000 political appointees in the vast sea of federal agencies, of which more than 1,000 are Senate-confirmed.
One example of the staffing void in the executive branch can be found in the Department of Homeland Security. Currently “acting” at DHS are:
the secretary,
the deputy secretary,
the commissioner of Customs and Border Protection,
the director of Immigration and Customs Enforcement,
the director of the Border Patrol,
the director of Citizenship and Immigration Services,
the deputy director of Citizenship and Immigration Services,
the director of the Federal Emergency Management Agency,
and the commissioner of the Transportation Security Administration.
And that's only one department.
Relying on “acting” officials is just one way that this White House circumvents the Senate’s advice and consent power. Administration officials also twist the texts of statutes to install loyalists, entirely independent from the constitutional appointment process. The 1998 Federal Vacancies Reform Act (FVRA) allows the “first assistant” to the cabinet secretary to become the acting office-holder for 210 days. Enter failed Virginia gubernatorial candidate Ken Cuccinelli. Trump recently appointed Cuccinelli the “principal deputy director” of Citizenship and Immigration Services. This position was entirely contrived to fit the “first assistant” language of the FVRA.
Cuccinelli can now serve as acting director of CIS for almost seven months despite not even having been an employee of the agency, let alone a confirmed official prior to his appointment. As the former attorney general of Virginia and president of the Senate Conservatives Fund, Cuccinelli has basically no qualifications to be in charge of CIS, but the self-appraised “unwavering constitutional conservative” is a perfect illustration of repeated efforts by President Trump to duck the confirmation process.
Cuccinelli is not much beloved by the Senate Republican caucus—so much so that he might not even be confirmable. Senate Majority Leader Mitch McConnell especially loathes him for his past efforts supporting primary challenges against Senate GOP incumbents while at the Senate Conservatives Fund. Disregarding the concerns of Republican senators, the Trump administration made him the leader of an executive agency anyway.
This tried-and-true Trumpian model of mass vacancies, stretching statutory language, and skirting the appointment process might not survive a challenge in the courts, but for now it is still metastasizing with tacit congressional approval. If this Senate sets a precedent that allows anyone the administration chooses to serve as acting director for months without confirmation, it will fundamentally damage the constitutional constraints on executive power and undermine the checks and balances inherent in the Constitution’s structure.
There are some members of Congress that seem to be taking this matter seriously. Senator Richard Burr, chairman of the Senate Intelligence Committee, appeared to cajole the president to comply with the letter of the law. Burr’s official statement on the abortive nomination of Representative John Ratcliffe to serve as Coats’s successor, subtly chided the White House against naming any other acting DNI, “In the meantime, I look forward to working with DNI’s Principal Deputy Director Sue Gordon, who has been a trusted partner to our Committee.” Ratcliffe subsequently withdrew from consideration after multiple news stories accused him of exaggerating his national security experience and record in the Justice Department.
The Washington Post reported that “[l]awmakers and congressional aides said they would resist any efforts to make a different official [,] acting director.” Senator Burr became more explicit about his preferences in an interview a few days later, saying “‘The statute is very clear,’...‘The principal deputy takes over as acting...It's a legal issue...Read the statute.’”
President Trump may or may not be deterred by Burr’s desires. When asked whether he would name Gordon acting DNI in a press gaggle outside the White House on Friday, the president responded “Well, that might be, I like Sue Gordon. [She] is there now...and certainly she will be considered for the acting.”
Several press reports in major newspapers directly contradict these comments. The Wall Street Journal revealed later the same day, “The President is unlikely to allow Ms. Gordon to become acting director.” The New York Times also reported “[The Intelligence Reform and Terrorism Prevention Act] gives the White House much more flexibility in choosing who to appoint as the acting deputy if the No. 2 position is vacant.”
The WSJ story implied that the president might force Gordon to retire. Both papers cited sources claiming she would resign if requested by the president. Such maneuvering undermines the statute and the Senate’s advice and consent power. The whole point of having confirmed deputies is to assist the Cabinet secretary and fill his or her role if there is a vacancy.
If Burr’s counsel ultimately fails, senators should put an official hold on the nomination of the next DNI until the administration follows the law. Susan Gordon is the acting DNI under the plain wording of the IRTPA and a basic reading of the words and spirit of the Appointments Clause. The statutory language is not fungible, and Article II, Section 2 is not optional.
Then again, this is President “I like flexibility” Trump who said Article II allows him the power to do whatever he wants. Maybe the Senate agrees.