Donald Trump came into office enamored with, as he called them, “my generals.” But as he learned on the job, the commander in chief grew frustrated with and replaced those retired four-star military men. Two years later, the president’s Cabinet is now stocked with a group he calls “my actings.”
Experts say the Constitution, existing laws and department-specific guidelines give Trump the authority and legal cover to keep various acting Cabinet-level and other officials in place for over 200 days — or longer, in some cases. But the law is clear as mud when it comes to whether he could simply keep a favorite “acting” in place for the duration of his administration, legal scholars say.
Just minutes after being sworn in on Jan. 20, 2017, the new chief executive wanted the world to fawn over two retired Marine Corps generals who would be confirmed by the Senate that day as his Defense and Homeland Security secretaries: James Mattis and John Kelly. “These are central casting. If I’m doing the movie, I’d pick you,” he quipped.
Two years later, the former reality television host and executive producer has booted both from the cast of his presidency — which often feels like a television “soap opera,” as Speaker Nancy Pelosi on Thursday described Trump’s actions during the ongoing border wall and partial standoff. And as Act Three of the “Trump Show” begins in earnest, the generals are out and the actings are in.
“I have ‘acting.’ And my ‘actings’ are doing really great. David [Bernhardt] is doing great at Interior. Mick Mulvaney is doing great as [White House] chief of staff,” the president said Jan. 6 as he left the White House for a border security summit with senior aides at Camp David. “But I sort of like ‘acting.’”
“It gives me more flexibility. Do you understand that?” he asked reporters. “I like ‘acting,’” he added. “So we have a few that are acting. … If you look at my Cabinet, we have a fantastic Cabinet. Really good.”
Flashback: Trump says he doesn’t know Matt Whitaker
Trump initially designated 24 positions in his administration as Cabinet-level jobs. A half-dozen are being occupied by individuals on an acting basis. Along with Mulvaney, the Cabinet now features Patrick Shanahan, a former Boeing executive, as acting Defense secretary; Bernhardt, a former oil and gas industry lobbyist, running the Interior Department; Andrew Wheeler as acting EPA chief; and Matthew Whitaker, a former U.S. attorney who has criticized the special counsel probe, as the acting attorney general. Jonathan Cohen is the acting U.S. ambassador to the United Nations, though that post was downgraded from the Cabinet level when Nikki Haley left at the end of year.
Trump formally nominated Wheeler to lead the EPA and William Barr to be attorney general last week.
Throw in another top official, Russell Vought, who is serving as Trump’s acting White House budget director while Mulvaney, who was confirmed to the OMB job by the Senate, takes over in a temporary capacity for Kelly in running the West Wing staff. (Mulvaney is a special case, having previously been the acting director of the Consumer Financial Protection Bureau while simultaneously OMB director.)
The Trump drift toward acting agency bosses is part of what the Brookings Institution, a Washington-based think tank, has calculated has been a 65 percent turnover rate during the first two years of his presidency among senior-level officials.
I never “lashed out” at the Acting Attorney General of the U.S., a man for whom I have great respect. This is a made up story, one of many, by the Fake News Media!— Donald J. Trump (@realDonaldTrump) December 24, 2018
Some Democratic members have raised concerns, while Senate Republicans have been mostly mum about what several experts say is an unusually high number of officials running sprawling federal agencies without the blessing of the Senate to serve in those specific roles.
“All of the adults are, one-by-one, being forced out of the room,” House Intelligence Chairman Adam B. Schiff of California told CNN hours after Trump touted his “actings,” adding: “Anyone who had the standing … to tell the president what he needed to hear, not what he wanted to hear, has been pushed aside.”
So funny to see little Adam Schitt (D-CA) talking about the fact that Acting Attorney General Matt Whitaker was not approved by the Senate, but not mentioning the fact that Bob Mueller (who is highly conflicted) was not approved by the Senate!— Donald J. Trump (@realDonaldTrump) November 18, 2018
Steve Vladeck of the University of Texas School of Law said the number of “actings” is legally “murky in the sense we’ve never seen it on this scale.”
“To me, the controversy arises from the confluence of several things: One, how many there are; two, how long each one has been serving and probably will serve; three, which positions we’re talking about — for example, it’s virtually unheard of to have an acting secretary of Defense; and four, all of this is happening while the president has a deeply supportive Republican majority in Senate.”
Anne Joseph O’Connell, a Stanford Law School professor, called it “highly unusual to have this many actings at the very highest levels, but I wouldn’t say it’s unprecedented.” She noted that research she and other scholars have conducted turned up the case of George Graham, who served as acting secretary of War from 1816-1817 under Presidents James Madison and James Monroe.
“What might be unprecedented is the timing at which it has occurred — just two years into a president’s term. It is not unusual to have some acting Cabinet-level secretaries at the end of one administration and the start of another, as people leave when a president’s term is expiring and the Senate is conducting the confirmation process for the next president’s Cabinet.”
But is it legal for Trump to, as some critics see it, conduct an end run around the Senate — even with it controlled by his own party? “Legally, there’s no structural problem with this,” Vladeck said.
And would Trump be violating the law if he could not find a nominee for a top job and opted to simply keep an “acting” department head in place indefinitely?
“The Supreme Court has never ruled on how long an acting official can serve,” O’Connell said. “Some cases throughout history suggest an acting official in a top job can serve only temporarily, but other cases suggest it remains more of a discussion than a settled matter. So we don’t know what that limit would be, if there even is one.”
To that end, “in general, a temporary appointment under the  Vacancies Act continues until no later than 210 days after the date the vacancy occurred or, if the vacancy occurred during a Senate recess, 210 days after the date the Senate reconvenes,” Henry Hogue of the Congressional Research Service concluded in an April 2017 report.
But even when it comes to that law, experts say things get murky. That’s because the 210-day expiration date “can be extended, and for positions like Defense secretary, there is a department-specific guideline. So, statutorily, the 210 days does not apply.”
Advice and consent?
Senators often stress the chamber’s “advice and consent” role for executive branch and judicial branch nominees. But Senate Republicans, including Majority Leader Mitch McConnell, are mostly mum — at least publicly — about Trump and his “actings.”
“I think what we’re seeing across the board is the majority leader being unwilling to assert the institutional role of the Senate at the expense of the president’s wishes,” Vladeck said. “Whether it’s the majority leader’s desire to get his [federal] judges or a strategic calculation about the politics of defying the president, you’ll have to ask him. But all evidence suggests this is the majority leader using his considerable power to keep the president happy. What’s gotten completely lost here is the independent constitutional role the Senate is supposed to play.”
A McConnell spokesman did not respond to a request for comment. A White House spokeswoman did not respond to an inquiry about just what the president meant about “my actings” giving him “more flexibility.”
O’Connell, however, noted McConnell is continuing to hold pro forma sessions, which prevent Trump from making recess appointments. “So McConnell is keeping up some control of the process,” she said.
The Stanford scholar interprets Trump’s “flexibility” as a president frustrated with the Senate’s lengthy confirmation process, pointing to rules changes made in 2013 by then-Senate Majority Leader Harry Reid that were “supposed to make it easier to get Cabinet nominees confirmed.” But data compiled by O’Connell shows “the failure rate for those nominees has gone down, but the delays have gone up,” she said, noting both parties have used tactics that allow them to slow nominations by presidents of the other political party.
Vladeck said it’s unclear whether Trump’s boast “was bluster or a strategy — one can turn into the other.”
“It’s worth stressing that there’s actually no difference in how much power a president has over a Senate-confirmed official and an acting official,” he said. “So there’s another question about whether this gives him access to people who can’t or don’t want to go through the Senate confirmation process. … And the irony is the politics are so favorable with a friendly Republican Senate that it suggests something more nefarious might be going on.”