War Stories

Trump’s Latest Move at the Pentagon Is Brazenly Unlawful

But does anyone care, anymore?

Aerial shot of the Pentagon.
The Pentagon. STAFF/Getty Images

President Trump’s insouciant rampage of lawlessness continues. His latest violation—less serious than some of his actions, but more brazen than most—involves his desire to give Anthony Tata a senior job in the Pentagon without the Senate’s consent.

Tata—a retired brigadier general, Fox commentator, and rabid conspiracy theorist—was about to undergo Senate confirmation hearings on Thursday to become undersecretary of defense for policy. Suddenly the hearing was canceled, possibly because he was likely to be rejected.

Then on Sunday night, it was announced that Tata would be appointed to a job described as “Performing the Duties of Deputy Undersecretary of Defense for Policy.”

Trump wanted to make him acting undersecretary, replacing the current acting undersecretary, James Anderson, but the law forbids making anyone an acting official unless he or she already holds a Senate-confirmed post, which Tata does not. (He has been serving as a “consultant” to Secretary of Defense Mark Esper, but that doesn’t count.) So instead, he gave Tata this ungainly, unprecedented, and legally dubious title.

Trump has said he prefers to have acting secretaries in his cabinet because their status gives him “more flexibility”—meaning they are not accountable to Congress and are likely to be particularly loyal to him, since they’re still auditioning for the job.

Tata would give him more flexibility still. In various tweets and talk-show appearances, he has slandered former President Obama as an “anti-Semite,” a “Manchurian candidate,” and a “terrorist leader” peddled the notion that a “deep state cabal” is undermining Trump; accused former President Bill Clinton of “sedition and/or treason;” and denounced House Speaker Nancy Pelosi as a “violent extremist.” When he was first nominated for the Pentagon job, he apologized for some of these statements, saying they “are not indicative of who I am.”

The Pentagon’s policy secretariat has been raggedy since the onset of Trump’s presidency, a prime victim of his former chief strategist Steve Bannon’s goal of pulling off the “deconstruction of the administrative state.” Trump’s first defense secretary, retired Gen. James Mattis, didn’t actively collude in the dismantling, but he paid little attention to the Pentagon’s civilians, so let it happen. By the time Mattis quit in December 2018, many civilians had departed or been fired; vacancies were slow to fill, as only people who voted for Trump were even considered for the jobs.

The whole point of the deconstruction was to centralize the powers of the federal government in the Oval Office as much as possible—and, to the extent that departments and agencies were still needed, to make their senior officials as loyal to the president as possible. Esper started out as a lapdog of a secretary, though he’s steadily been dissenting from Trump ever since the protests over George Floyd’s police killing.*

Some fear that Trump is planning to fire Esper and replace him with Tata as acting defense secretary. If Tata had been formally nominated and confirmed as undersecretary, this could have happened; it may even have been Trump’s plot. But under the Federal Vacancies Reform Act, only an official who holds a Senate-confirmed position can be promoted to acting secretary. It’s not even clear whether Tata could become acting under secretary if James Anderson, the current acting under secretary, resigned. Probably not, as—again—Tata doesn’t hold a Senate-confirmed position. For that matter, he doesn’t hold any sort of official position. As his title puts it, he is merely “Performing the Duties of” the deputy undersecretary.

However, Trump might legitimately be wondering if anybody in Congress cares about the fine print of the law. For instance, his secretary and deputy secretary of homeland security, Chad Wolf and Ken Cuccinelli, are both acting; neither has been confirmed by the Senate. (Wolf had been confirmed as undersecretary, allowing him to be promoted to acting secretary. Cuccinelli isn’t even an acting deputy; like Tata at the Penagon, he is “Senior Official Performing the Duties of” deputy secretary.) Under the Federal Vacancies Reform Act, an acting secretary cannot serve in that role for longer than 210 days. Yet Chad Wolf has been acting DHS secretary for 263 days, meaning that all of his decisions for nearly the past two months—including the ordering of armed border guards to battle protesters in Portland—are illegal. Yet nobody has raised a fuss about this. Nobody has demanded Wolf’s ouster.

So maybe Trump thinks he can get away with moving Tata up the ranks, even to become acting secretary of defense. The Republican-controlled Senate would have to take active steps to block Trump’s desires. That would be a first. They might soon be tested. If so, their place in history, and maybe their seats in the Senate, will—and should—be on the line.

For more of Slate’s news coverage, subscribe to What Next on Apple Podcasts or listen below.

Correction, Aug. 4, 2020: This piece originally misspelled George Floyd’s last name.