Legal experts are split on whether Trump must name a new permanent Pentagon chief
By DAN LAMOTHE AND MISSY RYAN | The Washington Post | Published: January 5, 2019
WASHINGTON – The Trump administration's contention that acting defense secretary Patrick Shanahan can stay in his new role "indefinitely" without being nominated as the permanent Pentagon chief could face constitutional challenges, according to legal experts, who were split on whether those protests would go anywhere.
Shanahan took over the job Tuesday following the resignation of Jim Mattis, and he has held the role of deputy defense secretary since July 2017. A U.S. official, speaking on the condition of anonymity because of the sensitivity of the matter, said Friday that Shanahan could serve in an acting capacity indefinitely at President Donald Trump's discretion.
Trump claimed in late December that "everybody and his uncle" and "everybody and his aunt" has interest in becoming defense secretary. He added that Shanahan "could be there for a long time" but did not say whether he meant in an acting capacity.
Other possible candidates floated in White House discussions include Jim Webb, who served as secretary of the Navy and an assistant secretary of defense under the Reagan administration before swapping parties and serving one term as a Democratic senator from Virginia. Three people familiar with the administration's reasoning, who also spoke on the condition of anonymity due to the sensitivity of the situation, confirmed the discussions had taken place. The New York Times first reported the administration was considering Webb.
Webb, who launched a bid for the Democratic presidential nomination in 2015, shares Trump's disdain for lengthy military interventions abroad and served in Vietnam as a Marine officer, earning a Navy Cross.
However, in a tweet on Friday, Trump denied Webb is being considered. "I'm sure he is a fine man, but I don't know Jim, and never met him. Patrick Shanahan, who is Acting Secretary of Defense, is doing a great job!"
Speculation about Shanahan's future comes as the Pentagon attempts to project an air of normalcy following the departure of Mattis, a widely respected retired Marine general. In his Dec. 20 resignation letter, Mattis offered to stay in office through Feb. 28 to ensure a smooth transition, but Trump abruptly installed Shanahan three days later.
Shanahan was scheduled to meet Friday with Gen. Joseph Dunford Jr., the chairman of the Joint Chiefs of Staff, and Pentagon comptroller David Norquist, an undersecretary of defense who was selected to perform as deputy defense secretary while Shanahan serves in an acting capacity.
Shanahan was due to receive updates from the military's regional combatant commands and meet with Trump's acting chief of staff at the White House, the U.S. official said.
The administration's determination that Shanahan could hold the job on a temporary basis in perpetuity is likely based, in part, on the Goldwater-Nichols Act, which outlines the principles for civilian control of the military.
Arnold L. Punaro, a retired two-star Marine general who assisted in the act's creation, said there is no limit under the law on how long a confirmed deputy defense secretary can stay in the role.
However, the law's framers never intended to have someone carry out those duties indefinitely, he said.
Still, Shanahan's indefinite stay could face legal challenges.
Stephen Vladeck, a professor at the University of Texas School of Law, said there is no legal dispute over whether Shanahan can serve as acting defense secretary for a short period because he was already confirmed as deputy defense secretary.
"The harder question is whether the Constitution allows him to serve in that role indefinitely," Vladeck said. "The longer he continues to hold that position, the more likely that someone will seek to litigate that issue in court."
A challenge, Vladeck said, could come under the appointments clause of the Constitution, which states that the president shall nominate Cabinet officials "by and with the advice and consent of the Senate."
Legal expert Anne Joseph O'Connell of Stanford Law School agreed that there was no time limit on a deputy secretary serving as an acting secretary, "but the Constitution may impose some limits on acting in the very top jobs." She said no legal decisions directly address the point but that she believes the courts will allow acting officials only on a temporary basis.
Martin S. Lederman, a visiting associate professor at Georgetown University Law Center, said Trump should nominate a new defense secretary as soon as possible. However, he said it would not violate the appointments clause to leave Shanahan in place because the Senate had already confirmed him as deputy defense secretary.
The situation is not the same with the attorney general, Lederman said. Trump's decision to fire Jeff Sessions and appoint former federal prosecutor Matthew Whitaker in an acting role without a confirmation hearing for any post "truly is a legal problem."
In that case, Trump bypassed Deputy Attorney General Rod Rosenstein to do so.
Under the Federal Vacancies Reform Act, Shanahan can carry out defense secretary duties for 210 days, said Jonathan Turley, a law professor at George Washington University Law School. That limit can be extended if Trump nominates someone else to hold the job permanently.
The greatest obstacle for those who would seek to prevent Shanahan from holding the job temporarily for a sustained period is timing, Turley said.
Trump will probably have a nominee within 210 days, and any litigation would probably take longer to address, he said.
"There is roughly two years left to the administration," Turley said. "Critics are running out of runway for such challenges as we get into 2019."
The Washington Post's Josh Dawsey and John Hudson contributed to this report.
The story in the New York Times regarding Jim Webb being considered as the next Secretary of Defense is FAKE NEWS. I’m sure he is a fine man, but I don’t know Jim, and never met him. Patrick Shanahan, who is Acting Secretary of Defense, is doing a great job!— Donald J. Trump (@realDonaldTrump) January 4, 2019