'Not a Damn Thing Anyone Can Do About It': Trump Picking New Acting SecDef Raises Alarms

President Trump and Secretary of Defense Dr. Mark T. Esper bow their heads during an invocation.
President Trump and Secretary of Defense Dr. Mark T. Esper bow their heads during an invocation at the Full Honors Welcome Ceremony for Secretary Esper, Pentagon, Washington, D.C., July 25, 2019. (DoD/Sgt. Amber I. Smith)

The president's decision to remove his Senate-confirmed defense secretary and replace him with an acting leader has some in Washington calling foul.

President Donald Trump on Monday fired Mark Esper as defense secretary and put Christopher C. Miller, who previously led the National Counterterrorism Center, in charge at the Pentagon.

Miller will serve as acting secretary of defense, Trump said Monday.

But some say that doesn't follow the rules set by DoD statute and an executive order on the Defense Department's line of succession. Those call for the deputy defense secretary -- another Senate-confirmed position -- to fill the vacancy.

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That would mean the No. 2 at the Pentagon now, David Norquist, should have replaced Esper.

An executive order signed by President Barack Obama in 2010 laying out the DoD's succession order lists 19 positions in line for the defense secretary role "during any period in which the Secretary has died, resigned, or otherwise become unable to perform the functions and duties of the office."

The Defense Department statute also says the deputy secretary "shall act for, and exercise the powers of, the Secretary when the Secretary dies, resigns, or is otherwise unable to perform the functions and duties of the office."

Norquist is still in his deputy defense secretary role, Cmdr. Candice Tresch, a Pentagon spokeswoman, told Military.com on Tuesday and "remains engaged in his duties."

One loophole may be the Federal Vacancies Reform Act, which says the president may direct a person "to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations."

The problem, said Steve Vladeck, an expert on military justice and national security and constitutional law, is that it's not obvious the Federal Vacancies Reform Act overrides the DoD statute that would put Norquist in the job instead of Trump naming Miller to fill the spot.

Gary Solis, a retired military judge who taught law at West Point and Georgetown University Law Center, said that until President-elect Joe Biden takes the oath of office, Trump can continue firing and hiring political appointees.

"There is no constitutional or legal mandate, order, or requirement that dictates that deputies shall fleet up, when their superiors are fired, quit or die," Solis said. "Trump can do it, and there's not a damn thing anyone can do about it."

Esper indicated in an exit interview with Military Times that he was concerned about his replacement. The former defense secretary had clashed with Trump in recent months, including on talk about invoking the Insurrection Act, which could have left active-duty troops on U.S. streets during widespread protests this summer.

"Who's going to come in behind me? It's going to be a real 'yes man.' And then God help us," Esper told Military Times days before Trump announced he'd been "terminated."

At least one Pentagon official has resigned in the wake of the president's decision, though installing acting leaders is nothing new under Trump. He told reporters in 2019, when a quarter of his Cabinet was serving in an acting capacity, that he preferred it that way and was in no hurry to change it.

"I like acting," Trump said at the time. "It gives me more flexibility."

But Democrats on Capitol Hill are calling Esper's ouster with two months remaining in Trump's administration reckless. Rep. Adam Smith, a Washington Democrat and chairman of the House Armed Services Committee, said the Pentagon needs experienced and stable leadership, adding that Trump put loyalty above competence when replacing Esper.

"Dismissing politically appointed national security leaders during a transition is a destabilizing move that will only embolden our adversaries and put our country at greater risk," he said. "President Trump's decision to fire Secretary Esper out of spite is not just childish, it's also reckless."

Sen. Mark Warner, a Virginia Democrat, said the country deserves better than to see Esper ousted.

"This president can still do a lot of damage between now and January," Warner said. "We can't take our eyes off the ball yet."

Solis said the situation could lead to Congress enacting legislation to limit the powers of a defeated president whose term continues after an election -- but it's too late to do so during Trump's remaining time in office, he added.

If an outgoing president entangled the military in an overseas conflict on his way out the door, for example, "How long might it take the new president to stop that locomotive?" Solis said.

-- Oriana Pawlyk contributed to this report.

-- Gina Harkins can be reached at gina.harkins@military.com. Follow her on Twitter @ginaaharkins.

Related: Pentagon's Acting Policy Chief Resigns in Wake of Esper Firing

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