No Approval? No Problem. Trump Bypasses Congress by Appointing Controversial Pentagon Nominee

Since the first year of his presidency, Donald Trump has relished his power to put people into temporary roles across the government instead of nominating a permanent official. By filling vacancies with officials serving in an acting capacity, Trump is able to bypass Senate confirmation of his picks. Why go through a rigorous, even embarrassing, nomination process if you don’t have to?

Over the weekend, Trump once again skirted the approval of the nation’s elected lawmakers by naming Anthony Tata, a retired Army brigadier general, to a senior role at the Pentagon that did not require approval. The appointment came just days after Tata was forced to withdraw his nomination for a position in the same office that did require Congressional consent.

Last Thursday, the Senate Armed Services Committee abruptly cancelled a hearing on Tata’s nomination to be Undersecretary of Defense for Policy, the Pentagon’s No. 3 position, after senators and civil rights groups raised questions about his previous false and incendiary commentary. Tata once called Barack Obama a “terrorist leader” and claimed that Islam is “the most oppressive violent religion I know of.”

A recent CNN report found several other inflammatory tweets, most of which have since been deleted, including one from May 2018 to former CIA Director John Brennan that read: “Might be a good time to pick your poison: firing squad, public hanging, life sentence as prison b*tch, or just suck on your pistol. Your call. #Treason #Sedition #crossfirehurricane #Obamagate”

Tata, 60, later apologized for those comments, according to a letter obtained by Foreign Policy, but it was not enough to reverse the damage.

Apparently anticipating the nomination would be rejected, the Senate Armed Services Committee called off the hearing and blamed it on Tata’s low profile. “There are many Democrats and Republicans who didn’t know enough about Anthony Tata to consider him for a very significant position at this time,” said Sen. Jim Inhofe of Oklahoma, the chairman of the Senate Armed Services Committee.

Make sense of what matters in Washington. Sign up for the daily D.C. Brief newsletter.

Nevertheless, three days later, the Pentagon confirmed Tata was appointed to the position of Deputy Undersecretary of Defense for Policy, one rung below the job he was initially intended to hold. “He looks forward to continuing to help implement the President’s National Security agenda,” a Pentagon spokesman said in a statement on Sunday, the day of his appointment.

The decision drew fire from many Democrats on what they saw as blatant circumvention of Congressional power. Sen. Jack Reed of Rhode Island, the top Democrat on the Senate Armed Services Committee, called the move “an insult to our troops, professionals at the Pentagon, the Senate and the American people.”

“Clearly, President Trump wants people who will swear allegiance to him over the Constitution,” Reed said in a statement. “His hand-picked candidate for this critical position was on the verge of potentially being rejected on the merits. This is a flagrant end-run around the confirmation process.”

Stephen Vladeck, professor at the University of Texas School of Law, said the administration’s maneuvering may allow Tata to be installed as Acting Undersecretary of Defense for Policy in the end. By naming Tata as “deputy,” he could slide into the role within three months.

“This is all a naked end-run around 5 U.S.C. § 3345(b),” Vladeck said on Twitter. “That provision of the Federal Vacancies Reform Act bars Tata from being named the Acting Undersecretary because he was nominated to the same job—*unless* he’s spent 90 days as the ‘first assistant.’ That clock is now running.”

Tata has served as a “senior adviser” to Defense Secretary Mark Esper since April, although the Pentagon has yet to say exactly what issues he’s advising on. His 28-year military career, which included a stint as a deputy commander in Afghanistan, ended in 2009 after investigators determined he engaged in at least two extramarital affairs, which are crimes under the military justice system.

The high turnover among senior leadership in Trump’s Administration has become one of the defining pillars of his presidency. While Trump stays within the stipulations of the Federal Vacancies Reform Act, set in 1998 to establish the procedure for filling vacant positions in the executive agency, legal scholars say the rate at which he has appointed acting officials to his Cabinet is concerning.

With nearly 30 acting secretaries, Trump’s cabinet has been filled by more temporary replacements than any previous president. “I like ‘acting.’ It gives me more flexibility,” Trump told reporters last year. “Do you understand that? I like ‘acting.’”

At the Pentagon, the number of vacancies has hit unprecedented levels. Today, more than one-third of the 60 positions that require Senate approval remain unfilled, said Rep. Adam Smith, a Democrat from Washington state, who chairs the House Armed Services Committee. The open jobs underscore the deep discomfort that many have with the Commander in Chief’s willingness to evade the Senate’s constitutionally prescribed advice-and-consent role, which creates a vacuum that lawmakers fear Trump will fill with unvetted political allies.

“The vacancies at the Department of Defense, which have now hit record-highs under the Trump administration, should be filled though the existing nomination and confirmation process,” Smith said in a statement. “If confirmations cannot be completed, the President must find new, qualified people who can win the support of the Senate.”

Trump’s habit of putting people into acting positions also raises the question of how long he can do so before nominating a permanent official. Under the Vacancies Act, an acting secretary can serve 210 days from when the position was made vacant, or 300 days if it’s the administration’s first year. If the nomination of a permanent official fails, the acting secretary can serve an additional 210 days. Should a second nomination process fail, the acting secretary can serve a final 210 days more.

No one has reached that limit in Trump’s presidency—thus far.

—With reporting by Mahita Gajanan