Spencer could be next acting defense secretary if Trump nominates Esper to top Pentagon job

Secretary of the Navy Richard Spencer, center, listens to opening statements during a Senate Armed Services subcommittee hearing on Navy and Marine Corps readiness, Dec. 12, 2018, on Capitol Hill.


By CAITLIN M. KENNEY | STARS AND STRIPES Published: July 9, 2019

WASHINGTON — Navy Secretary Richard Spencer could become the third acting defense secretary since January if President Donald Trump officially nominates Mark Esper for the top job at the Pentagon, defense officials said Tuesday.

Trump announced June 21 that he intended to nominate Esper, now the acting defense secretary, to be his next defense secretary, sparking questions whether the Senate-confirmed Army secretary could retain his acting role and still be the candidate for the post permanently.

Defense officials told reporters at the Pentagon that Esper can’t do both under the law. Once the Senate receives the Esper nomination, he must immediately step down as acting defense secretary and return to his previously confirmed position as Army secretary as mandated by the Federal Vacancies Act.

The Pentagon has been without a confirmed secretary of defense since its former leader, Jim Mattis, left office in early January. Since then, the Defense Department has been developing plans for how it will facilitate the transition of the president’s intended pick into the top role at the Pentagon.

Once Esper steps down, the secretary of the next most senior service after the Army — in this case, Spencer — will step in as acting defense secretary while Esper goes through the Senate confirmation process, said Eric Chewning, chief of staff to Esper. Spencer will stay in that acting role until the next defense secretary is confirmed.

The Pentagon is expecting and is prepared for the nomination to be submitted “shortly” by the White House to the Senate, Chewning said. In the past two weeks, defense officials have conducted meetings with Spencer to get him prepared for the duties of acting defense secretary, including operational issues and planning.

Chewning said they have been working closely with Senate leadership and the Senate Armed Services Committee, thanking them for “their efforts and commitment to swiftly consider top [Defense Department] leadership when they receive the formal nomination.”

But Chewning said they “will not presume confirmation” of Esper.

“It is the prerogative of the Senate to take as long as they think is necessary to examine and confirm a nominee,” he said.

Chewning said it is not unprecedented for a fast confirmation process, citing former Defense Secretary Robert Gates' confirmation, which took about three days.

Esper has already started to conduct office calls with senators ahead of his official nomination, according to Chewning.

This planning by the Pentagon is taking place because the previous intended nominee, former acting Defense Secretary Patrick Shanahan, stepped down from consideration and resigned in June after several news outlets reported incidents of domestic violence within Shanahan’s family, including that his then-wife Kimberley was arrested after she punched him in the face. They are now divorced. The Washington Post reported when Shanahan’s son was a teenager, he brutally attacked Shanahan’s ex-wife with a baseball bat, and Shanahan had come to his son’s defense.

As the deputy defense secretary, Shanahan stepped in to the acting defense secretary position after Mattis resigned. In May, the White House announced Trump intended to nominate him as defense secretary, however Shanahan’s nomination was never sent to the Senate officially before he resigned.

If Shanahan had been nominated, he would not have been forced to step down as Esper must because under 10 US Code section 132(b), Shanahan as the deputy secretary of defense had to step in as acting defense secretary once Mattis resigned, a senior Pentagon official said during the briefing.

“That is outside the [Federal] Vacancies Act,” said the Pentagon official, who spoke on the condition of anonymity. “And so Secretary Shanahan as the deputy secretary was serving pursuant to that provision as acting secretary, not under the Vacancies Act.”

An official can only serve in an acting capacity for 210 days, according to the Federal Vacancies Act. Mattis left Jan. 1, and the 210 days run out July 30, Chewning said. Once the Senate begins the official process of considering a nominee, the time limit is suspended.

If for some reason Esper’s nomination is withdrawn or it is rejected by the Senate, a new 210-day limit will start, the senior Pentagon official said.

Once Esper is nominated and Spencer takes on the role as acting defense secretary, close U.S. allies and partner nations will be notified “to ensure a smooth transition, so they’re aware of how we’re conducting the transition,” Chewning said.

“We’re going to be transparent as we move through the process. It’s very important for the department, for everybody in the world, to know we have a plan,” he said. “Only one person will serve as the secretary of defense. That person has all the authorities necessary at the appointed time to defend American interests and protect the homeland.”

Twitter: @caitlinmkenney

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