A legal loophole may allow Tata to take the top job without Senate confirmation at all.
President Donald Trump over the weekend placed Anthony Tata into a key Pentagon position after the Senate Armed Services Committee effectively doomed his nomination for a related role, side-stepping Congress and exploiting a legal loophole that may allow Tata to take the top job without Senate confirmation at all.
In June, Trump nominated Tata — a retired brigadier general turned novelist and Fox News commentator — to become the top policy official at the Pentagon. But after the Senate panel moved on Friday to cancel his hearing amid bipartisan opposition to Islamophohic remarks Tata made in the past, the White House withdrew his nomination and instead named Tata the acting deputy to the current acting undersecretary for policy, James Anderson — in effect, making him the number two to the role he was nominated for.
The move allows the Pentagon to skirt GOP discomfort with Tata, and potentially offers a legal loophole: Under the Federal Vacancies Reform Act, Tata cannot immediately be installed as acting undersecretary for policy, even though he was withdrawn. But if he spends 90 days as the “first assistant” to that officer — Anderson — then the door is open, according to University of Texas law professor Steve Vladeck.
“This is all a naked end-run around 5 U.S.C. § 3345(b). 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,’” Vladeck wrote on Twitter. “That clock is now running.”
A top spokesman for the Pentagon did not immediately return a response to a question about whether Pentagon lawyers interpret the statute to mean that Tata could assume the responsibilities of the undersecretary in 90 days — coincidentally, one week before Election Day.
The Sunday announcement quickly sparked ire on the committee. The top Democrat on the panel, Sen. Jack Reed, R.I., called it “an offensive, destabilizing move.”
“This method of appointment is an insult to our troops, professionals at the Pentagon, the Senate, and the American people,” Reed said in a statement. “[Trump’s] 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.”
Although Republicans had not said so publicly on Friday, the indeterminate delay of Tata’s nomination hearing was seen as a likely death knell for his nomination. Punting Tata’s hearing until after the August recess and into the chaotic fall, when Congress’s focus will be exclusively on the 2020 elections and funding the government, effectively doomed his chances.
But the writing was on the wall. The committee held a closed executive meeting on Tuesday to discuss the nomination, and on Wednesday evening — the night before the scheduled hearing — committee chair Sen. Jim Inhofe, R-Okla., called the president to tell him “it wouldn’t serve any useful purpose to have a hearing at this point,” according to a statement. Sen. Mazie Hirono, D-Hawaii, told Defense One on Friday that the stated reason for canceling the hearing — Inhofe claimed publicly that they needed more time to consider Tata — was “sort of a nice way to say we can’t support this guy.”
The Pentagon issued its statement on Tata’s new role on Sunday night.
The top role has not had a Senate-confirmed official in place since February, when John Rood was pushed out of the administration as part of a purge of officials who had attempted to push back on White House efforts to withhold security assistance to Ukraine — one of the key inciting incidents in Trump’s impeachment.
At least three prominent retired general officers who had previously supported his nomination withdrew their endorsement after the revelation of Tata’s tweets and other Islamophobic statements. Tata called former President Barack Obama a “terrorist leader” and falsely said he was a Muslim and said that former CIA Director John Brennan should prepare for execution or “suck on a pistol,” among other offensive proclamations.
“I now would not want him in that position,” said retired Army Gen. Joseph Votel, who led U.S. Central Command until 2019, and previously was commander of U.S. Special Operations Command and Joint Special Operations Command.
Tata has sought to walk back the remarks, in a letter to senators in which he characterized the tweets as “a few misstatements” that “while grievous, are not indicative of who I am.” He has continued to serve in the Pentagon as a policy advisor to Defense Secretary Mark Esper.
“The general himself has stated he does not believe or support the comments he had made,” Pentagon spokesman Jonathan Hoffman said Thursday.
Inhofe on Monday afternoon appeared to offer tacit approval for the maneuver.
“While I have always stressed the need to have Senate-confirmed leadership in top Pentagon positions, I believe it is within the President’s authority to appoint DoD officials when and as appropriate," he said in a statement. "These are clearly critical positions in the Department where a full bench is needed."
As of Monday afternoon, there was little evidence that the panel will move to push back on Trump’s expansive use of his designation authority to skirt the Senate’s power to “advise and consent” on presidential nominees.
“What’s especially ridiculous about Tata is that they *nominated* him to the position—and he’s withdrawing *only* because he wasn’t going to get confirmed,” Vladeck said. “It’s a pretty messed-up system when the guy who the Senate was about to nix can effectively end up with the same job anyway.”