The White House has yet to send Acting Defense Secretary Mark Esper's formal nomination as the next defense secretary to the Senate. But Pentagon officials are hopeful the process will kick off soon and are readying Navy Secretary Richard V. Spencer to switch jobs once it begins.
The Federal Vacancies Reform Act of 1998 prohibits a secretary nominee from serving in the role in an acting capacity. To get around the problem, the position of acting defense secretary will default to Spencer, who is next in the line of succession, until Esper is confirmed.
Eric Chewning, chief of staff to the acting secretary, told reporters Tuesday that Spencer has been getting briefings to "get him spun up on all the different operational contingencies."
For the last two weeks, officials have been preparing Spencer for duties that "he will have to take on as the acting secretary," Chewning said. He and three senior defense department officials briefed reporters on the transition process.
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Spencer "has not been exposed to the range of operational issues that the secretary of defense is responsible for, and so that's why we've spent the last two weeks getting him up to speed on what those are," according to Chewning.
Once Esper's nomination is sent to the Senate, Chewning said officials will notify all appropriate parties, including U.S. allies.
"It is very important for everybody in the world to know we have a plan," he said.
Pentagon officials are hopeful the transition will be smooth. Stressing that the process is the "Senate's prerogative," Chewning said that other defense secretaries, including William Perry and Robert Gates, were confirmed and sworn in in less than a week's time.
Timing is an issue: Congress is expected to leave for its August recess in the next three weeks, but has yet to pass bipartisan Fiscal 2020 National Defense Authorization legislation.
The Vacancies Act kicked in when former Defense Secretary Jim Mattis resigned Dec. 31. The law prohibits a federal vacancy from being filled in an acting capacity for more than 210 days, a limitation meant to prompt administrations to nominate permanent candidates and not repeatedly use officials in an acting capacity. The 210-day window runs out July 30.
Chewning said the clock is "paused" once the Senate begins reviewing a nominee. Spencer will be able to remain in an acting capacity for as long as it takes lawmakers to review Esper's nomination.
If the Senate were to reject Esper, the 210-day clock would reset.
According to the Vacancies Act, "If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return."
A similar transition plan is being worked out for David Norquist, who is currently "performing the duties of" deputy defense secretary as well as the Pentagon's chief financial officer. President Donald Trump announced his intention last month to nominate Norquist for the permanent DepSecDef position.
The law did not apply to Deputy Defense Secretary Patrick Shanahan, who took over for Mattis in an acting capacity, because he had previously been confirmed by the Senate in his deputy position. In addition, Shanahan's designation was protected by the 1986 Goldwater Nichols Act, meant to streamline the chain of command at the Pentagon.
Trump announced his intention to nominate Esper as defense secretary in June.
The news came after Trump announced that Shanahan would not continue to pursue the nomination, following reports of an FBI investigation into two domestic incidents in 2010 and 2011.
If the process goes as planned, Spencer would be the Trump administration's fourth SecDef in an acting or permanent role, and the third since Mattis left in December.
Spencer served in the Marine Corps for five years as a CH-46 Sea Knight pilot, from 1976 to 1981. Prior to becoming Navy secretary, he served for a decade as managing director of Fall Creek Management, a management consulting company in Wilson, Wyoming.