Congress Executive Branch

Trump’s Preference for Acting Officials Puts National Security at Risk

Carrie Cordero, Joshua A. Geltzer
Monday, May 20, 2019, 2:00 PM

This post is cross-posted on Just Security.

Then-Deputy Defense Secretary Patrick Shanahan with Vice President Mike Pence in October 2018. (Defense Department photo by Army Sgt. Amber I. Smith)

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This post is cross-posted on Just Security.

President Trump recently announced that his intended nominee for secretary of defense will be Patrick Shanahan, who became—way back in March—America’s longest-serving acting secretary of defense. It’s tempting to think that finally having a nomination for this critical position will end worries over the effects of having a long-term acting secretary of defense, alongside an acting secretary of homeland security and, previously, an acting attorney general and acting secretary of the interior. But Shanahan’s nomination doesn’t mark the end of this concern. To the contrary, there’s real reason to worry about Trump’s stated preference for acting secretaries, as acting cabinet members and other senior officials are less likely to speak truth to power—especially while serving a president who demands unquestioning “loyalty.” Auditioning for a job may not be the best way to do that job, and the policies that an acting secretary like Shanahan indulged while seeking a nomination can endure long after the period of serving as an acting secretary has concluded.

Having acting cabinet members for long periods is generally bad governance, given that such unilateral appointments by the president skirt the constitutional requirement that the president submit such important officials to the Senate for its consideration and—if they’re deemed to be qualified—consent. While acting secretaries are generally able to exercise the technical legal authorities of their positions, they don’t have the same practical ability to push back against a president where doing so is justified, drive change within their organizations internally or raise issues for congressional attention. And that’s bad for U.S. national security.

Shanahan’s tenure as acting secretary of defense underscores the concern that acting secretaries may be less likely to push back on the president at whose pleasure they serve. It was only after James Mattis resigned as defense secretary and Shanahan became acting secretary that President Trump declared the situation at America’s southern border a national emergency, purportedly triggering authorities that the president says allow him to shift funds allocated for other military construction projects to building a border wall. (We disagree with the president on that, but it’s his claim.) A Senate-confirmed defense secretary might have been better-positioned to resist Trump on this outlandish claim either privately or publicly, by stressing, first, that there simply is no national security emergency at the southern border—as Trump’s own intelligence chiefs already indicated by their lack of any mention of it in their annual worldwide threats briefing to Congress—and, second, that the funds already allocated to other military construction should in fact go to that intended construction. Senate-confirmed secretaries aren’t looking to be nominated for the jobs they already possess; they have received the imprimatur of Senate support; and, perhaps most significantly, the political costs associated with their resignation or firing are higher.

It’s not just that acting secretaries have less ability to push back on the president; it’s also that they have less ability to lead their own organizations, both internally and across the government’s national security apparatus. (We saw this tension play out just last week when Acting Homeland Security Secretary Kevin McAleenan reportedly had to threaten to resign to hold off White House pressure to make more agency leadership changes.) An example from Robert Gates’s tenure as defense secretary illustrates this point. As Gates later described in his book Duty, he directed an aggressive purchase and deployment of mine-resistant ambush-protected vehicles (MRAPs), which evidence had determined could significantly reduce mortality rates for soldiers deployed in Iraq facing improvised explosive devices. To achieve the accelerated deployment of MRAPs in 2007, Gates had to steamroll traditional bureaucratic procurement processes within the Department of Defense. He also had to overcome bureaucratic resistance to the expenditure. To do so internally, Gates carefully cultivated allies externally—including, perhaps most importantly, in Congress. It’s the type of agency leadership—requiring an internal exercise of authority and external credibility—that only a Senate-confirmed national security leader could take on successfully, given the added gravitas a Senate-confirmed secretary has within the department and the greater sway he or she has across the government, thanks to the Senate’s vote of support. And, simply put, it saved American lives.

At key moments, it can require a fully installed cabinet member—with the boost in influence that Senate confirmation provides—to elicit congressional attention and support. Around the same time that Gates was driving accelerated deployment of MRAPs, Director of National Intelligence Michael McConnell, in coordination with Attorney General Michael Mukasey, prioritized a legislative initiative to modernize and reform foreign intelligence collection by grounding it in an updated federal statutory framework. While the full background of this push is complicated and still hotly debated in some quarters, the key point is that changes in technology and national security threats meant that the preexisting legal framework was no longer consistent with collection needs and legal protections. Working with Mukasey and an interagency team, and coordinating closely with the White House, McConnell invested significant personal attention and capital in pushing proposed legislative reforms first through the interagency process and ultimately through Congress. He was personally invested in conducting classified national security briefings with members of Congress, ensuring that relevant departments and agencies were properly coordinating at the working level, and inserting himself into bureaucratic battles and providing top cover for those working for him (including one of the authors) when needed. The result was a set of legislative changes that continue to provide key intelligence collection authorities, and the intense political and personal capital that was needed to achieve those changes required the full stature of a Senate-confirmed director of national intelligence.

As former national security officials, we recognize that there may be periods of time when it’s necessary for government agencies to be run by acting leaders. Cabinet members sometimes suddenly resign or move on to new positions inside or outside of government for professional or personal reasons, and transitions between administrations often create at least temporary gaps between Senate-confirmed officials. But what’s happening in the Trump administration is something different from what we’ve observed firsthand working for prior administrations of both parties. Trump has said that he “like[s] acting” cabinet members because, in his words: “It gives me more flexibility.” For Trump, that’s another way of saying it leaves him with weakened leaders vying for his nomination—a perpetual season of “The Apprentice” with officials endlessly auditioning for top roles. This makes these weakened leaders less likely to push back against him, drive change in their organizations or work directly with Congress on challenging problems. That may be good for Trump, but it’s bad for the country.

Carrie Cordero is a Senior Fellow at the Center for a New American Security. She is also an adjunct professor at Georgetown Law, where she previously served as Director of National Security Studies. She spent the first part of her career in public service, including as Counsel to the Assistant Attorney General for National Security; Senior Associate General Counsel at the Office of the Director of National Intelligence; Attorney Advisor at the Department of Justice, where she practiced before the Foreign Intelligence Surveillance Court; and Special Assistant United States Attorney.
Joshua A. Geltzer is the Deputy Assistant to the President and Deputy Homeland Security Advisor Executive Director. He was previously Visiting Professor of Law at Georgetown University Law Center's Institute for Constitutional Advocacy and Protection and a Fellow in New America’s International Security Program.

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