Mark Esper faces a legal maze to become the next defense secretary

Analysis
Patrick Shanahan Withdraws From Consideration For Defense Secretary

It's a good thing we're not racing headlong into a war with Iran or some other equally daunting geopolitical catastrophe, because the task of actually filling the Pentagon's top job is starting to look like an increasingly messy task.

After Acting Secretary of Defense Patrick Shanahan withdrew from consideration for permanent secretary, President Donald Trump tapped Army Secretary Mark Esper to take over as his second Acting Secretary of Defense in five months.

But unfortunately for both Trump and Esper, a federal law from 1998 puts a number of legal hurdles in their way.


As Steve Vladeck, a law professor at the University of Texas who focuses on national security and constitutional law, among other things, pointed out on Friday, the period we've gone without a Senate-confirmed defense secretary is three times as long the previous record.

Bu while Trump has said previously that he likes having secretaries in acting capacities because it gives him "more flexibility," the Federal Vacancies Reform Act of 1998 (FVRA) puts limitations on acting secretary roles, which put the the Pentagon in murky territory when Esper formally steps into the role on June 24.

For starters, in compliance with the FVRA, the person nominated to a position is typically not allowed to serve in that position in an acting capacity. If Trump officially nominated Esper for Defense Secretary, he would not be allowed to serve as the Acting Defense Secretary while his nomination was under consideration.

Shanahan was an exception to this rule because he, as Deputy Secretary of Defense, was "first assistant" to the Secretary; according to an explanation of the FVRA from the Congressional Research Service (CRS), only the "first assistant" to an office may bypass that rule.

Vladeck told Task & Purpose in an email that in the case that Esper is nominated and has to step aside as the acting secretary while his nomination is being considered, the position, "by default," would go to Navy Secretary Richard Spencer, although Trump "would be free to name someone else as long as that person is eligible under the FVRA."

Another limitation is time. There is a 210-day deadline for a person to serve in an acting capacity, beginning on the day that the position becomes vacant. This applies to the office, not the person in office, which means that the moment he takes office, Esper will be effectively running out the clock on Shanahan's 210-day tenure in the role — which ends on July 30th, 2019.

"This period does not begin on the date an acting officer is named," legislative attorney Valerie Brannon wrote for the CRS. "And because it runs continuously from the occurrence of the vacancy, the time limitation is unaffected by any changes in who is serving as acting officer."

Vladeck clarified that if the nomination is sent to the Senate before that 210-day limit expires, the time limit extends for as long as the nomination is pending. But because Shanahan's nomination was never sent to the Senate, that clock has continued ticking down since January 1, 2019.

And when, or if, the Senate Armed Services Committee receives Esper's nomination from the White House, it has to wait seven days before taking it up for discussion. To make matters more tense, Congress goes on recess for a week for the Fourth of July, starting on July 1st and again for about a month on August 5th.

The New York Times reported on Friday that the White House does intend to nominate Esper to the secretary position — CNN reported that Esper has already started filling out the paperwork for his nomination — along with Army Under Secretary Ryan McCarthy to take over as Army secretary.

McCarthy would be able to serve in an acting capacity while his nomination is being considered, as he is was the "first assistant" to the Army Secretary job as Army Under Secretary.

It's unclear what happens if we hit the 210-day deadline with no confirmed secretary, and without a nomination sent to the Senate, but the timeline is getting tighter by the day.

If that happened, Vladeck said simply, "we'd have a real big mess."

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Former Army 1st Lt. Clint Lorance, whom President Donald Trump recently pardoned of his 2013 murder conviction, claims he was nothing more than a pawn whom generals sacrificed for political expediency.

The infantry officer had been sentenced to 19 years in prison for ordering his soldiers to open fire on three unarmed Afghan men in 2012. Two of the men were killed.

During a Monday interview on Fox & Friends, Lorance accused his superiors of betraying him.

"A service member who knows that their commanders love them will go to the gates of hell for their country and knock them down," Lorance said. "I think that's extremely important. Anybody who is not part of the senior Pentagon brass will tell you the same thing."

"I think folks that start putting stars on their collar — anybody that has got to be confirmed by the Senate for a promotion — they are no longer a soldier, they are a politician," he continued. "And so I think they lose some of their values — and they certainly lose a lot of their respect from their subordinates — when they do what they did to me, which was throw me under the bus."

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BANGKOK (Reuters) - Defense Secretary Mark Esper expressed confidence on Sunday in the U.S. military justice system's ability to hold troops to account, two days after President Donald Trump pardoned two Army officers accused of war crimes in Afghanistan.

Trump also restored the rank of a Navy SEAL platoon commander who was demoted for actions in Iraq.

Asked how he would reassure countries such as Afghanistan and Iraq in the wake of the pardons, Esper said: "We have a very effective military justice system."

"I have great faith in the military justice system," Esper told reporters during a trip to Bangkok, in his first remarks about the issue since Trump issued the pardons.

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Editor's Note: This article by Richard Sisk originally appeared on Military.com, a leading source of news for the military and veteran community.

For one veteran who fought through the crossfires of German heavy machine guns in the D-Day landings, receiving a Congressional Gold Medal on behalf of his service and that of his World War II comrades would be "quite meaningful."

Bills have been introduced in the House and Senate to award the Army Rangers of World War II the medal, the highest civilian award bestowed by the United States, along with the Presidential Medal of Freedom.

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An airman at Seymour Johnson Air Force Base was arrested and charged with murder on Sunday after a shooting at a Raleigh night club that killed a 21-year-old man, the Air Force and the Raleigh Police Department said.

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