Some “Acting” Officials Will Soon Lose Authority

Some government officials who are serving on an “acting” basis because a permanent replacement has not yet been named will lose their ability to function this month when their legal authority is nullified under the terms of the Vacancies Act.

In the Trump Administration there are hundreds of government agency positions requiring Senate confirmation that have gone unfilled. In many cases, their responsibilities have been assumed by “acting” officials.

But by law, that arrangement can only be temporary. The Federal Vacancies Reform Act of 1998 specifies that “acting” officers can fill positions requiring confirmation for no more than 210 days. If the position is vacant at the start of a new Administration, an extension of 90 days is allowed, for a total of 300 days.

The 300 day period from Inauguration Day last January 20 will end on November 16, 2017. After that, certain acting officials will no longer be able to carry out their duties.

“If the acting officer remains in office and attempts to perform a nondelegable function or duty — one that a statute or regulation expressly assigns to that office — that action will ‘have no force or effect’,” according to a new brief from the Congressional Research Service.

See Out of Office: Vacancies, Acting Officers, and Day 301, CRS Legal Sidebar, November 1, 2017. See also The Vacancies Act: A Legal Overview, October 30, 2017.

President Trump does not appear to be concerned about the matter. Asked about high level vacancies in the State Department last week, he told Laura Ingraham of Fox that most of the government positions awaiting confirmed nominees were superfluous. “I’m the only one that matters,” he said.

Can the President Pardon Himself?

The Congressional Research Service has prepared a summary overview of the presidential pardon power, addressing various legal questions such as: “whether the President can issue ‘prospective’ pardons; whether the President can pardon himself; and the extent to which Congress can regulate or respond to the exercise of the President’s pardon authority.”

So can the President pardon himself?

“The Framers did not debate this question at the Convention, and it unclear whether they considered whether the pardon power could be applied in this manner. No President has attempted to pardon himself. . . Accordingly, this is an unsettled constitutional question, unlikely to be resolved unless a President acts to pardon himself for a criminal offense.”

See Presidential Pardons: Frequently Asked Questions (FAQs)CRS Legal Sidebar, August 28, 2017.

Other new and updated reports from the Congressional Research Service include the following:

Allowances and Office Staff for Former Presidents, FY2016-FY2018 AppropriationsCRS Insight, August 28, 2017

Transport Agencies Withdraw Proposed Sleep Apnea RulesCRS Insight, August 24, 2017

Kurds in Iraq Propose Controversial Referendum on IndependenceCRS Insight, August 25, 2017

China’s Economic Rise: History, Trends, Challenges, and Implications for the United States, updated August 26, 2017

China-U.S. Trade Issues, updated August 26, 2017

Trump Budget Would Reduce Most Federal R&D

The Trump Administration budget request would cut federal spending on research and development in every major agency except for the Department of Defense and Veterans Affairs, the Congressional Research Service said yesterday in a new report.

“Nearly every federal agency would see its R&D funding decrease under the President’s FY2018 request compared to their FY2016 levels,” the CRS report said.

“The largest declines (as measured in dollars) would occur in the budgets of HHS (down $6.099 billion, 18.9%), DOE (down $1.809 billion, 11.9%), USDA (down $666 million, 25.1%), NSF (down $639 million, 10.6%), and the EPA (down $239 million, 46.3%).”

Federal R&D is generally understood to provide support for scientific, medical, military and other research of economic, social, security or other value that would not normally be undertaken by the private sector. Reducing R&D therefore means foregoing the benefits that might otherwise accrue from such investment.

CRS noted that the Trump budget request is “largely silent” on funding for existing multiagency R&D initiatives such as the National Nanotechnology Initiative, Networking and Information Technology Research and Development program, U.S. Global Change Research Program, Brain Research through Advancing Innovative Neurotechnologies (BRAIN) initiative, Precision Medicine Initiative, Cancer Moonshot, Materials Genome Initiative, National Robotics Initiative, and National Network for Manufacturing Innovation. The future of these programs, some of which have a statutory basis, is left uncertain in the Administration budget request.

However, the budget request is the first word, not the last word, in the budgeting process.

“Congress may opt to agree with none, part, or all of the request, and it may express different priorities through the appropriations process,” CRS said. “In particular, Congress will play a central role in determining the allocation of the federal R&D investment in a period of intense pressure on discretionary spending.”

See Federal Research and Development Funding: FY2018, July 31, 2017.

Other new or updated reports from the Congressional Research Service include the following.

Bail: An Overview of Federal Criminal Law, updated July 31, 2017

The Federal Communications Commission: Current Structure and Its Role in the Changing Telecommunications Landscape, updated July 28, 2017

Ongoing Section 232 Steel and Aluminum InvestigationsCRS Insight, July 28, 2017

In Brief: Highlights of FY2018 Defense Appropriations Actions, July 31, 2017

NAFTA and Motor Vehicle Trade, July 28, 2017

Rwanda’s August 4 Presidential ElectionCRS Insight, July 31, 2017

Honduras: Background and U.S. Relations, updated July 28, 2017

U.S. Petroleum Trade with Venezuela: Financial and Economic Considerations Associated with Possible SanctionsCRS Insight, July 27, 2017

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, updated July 24, 2017

Legality of Presidential Disclosures, Continued

“There is no basis” for suggesting that President Trump’s disclosure of classified intelligence to Russian officials was illegal, wrote Morton Halperin this week.

To the contrary, “senior U.S. government officials in conversations with foreign officials decide on a daily basis to provide them with information that is properly classified and that will remain classified,” wrote Halperin, who is himself a former senior official.

“We should not let our desire to confront President Trump lead us to espouse positions that violate his rights and that would constrain future presidents in inappropriate ways.” See “Trump’s Disclosure Did Not Break the Law” by Morton H. Halperin, Just Security, May 23, 2017.

But constraints on presidential disclosure were on the minds of Rep. Stephanie Murphy (D-FL) and 17 House colleagues. They introduced legislation on May 24 “that would require the President to notify the intelligence committees when a U.S. official, including the President, intentionally or inadvertently discloses top-secret information to a nation that sponsors terrorism or, like Russia, is subject to U.S. sanctions.”

Yesterday, Rep. Dutch Ruppersberger (D-MD) introduced a bill “to ensure that a mitigation process and protocols are in place in the case of a disclosure of classified information by the President.”

Rep. Mike Thompson (D-CA) and five colleagues introduced a resolution “disapproving of the irresponsible actions and negligence of President Trump which may have caused grave harm to United States national security.”

For related background, see The Protection of Classified Information: The Legal Framework, Congressional Research Service, updated May 18, 2017, and Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information, Congressional Research Service, updated March 7, 2017.

Legality of the Trump Disclosures, Revisited

When President Trump disclosed classified intelligence information to Russian officials last week, did he commit a crime?

Considering that the President is the author of the national security classification system, and that he is empowered to determine who gets access to classified information, it seems obvious that the answer is No. His action might have been reckless, I opined previously, but it was not a crime.

Yet there is more to it than that.

The Congressional Research Service considered the question and concluded as follows in a report issued yesterday:

“It appears more likely than not that the President is presumed to have the authority to disclose classified information to foreign agents in keeping with his power and responsibility to advance U.S. national security interests.” See Presidential Authority to Permit Access to National Security Information, CRS Legal Sidebar, May 17, 2017.

This tentative, rather strained formulation by CRS legislative attorneys indicates that the question is not entirely settled, and that the answer is not necessarily obvious or categorical.

And the phrase “in keeping with his power and responsibility to advance U.S. national security interests” adds an important qualification. If the president were acting on some other agenda than the U.S. national interest, then the legitimacy of his disclosure could evaporate. If the president were on Putin’s payroll, as the House majority leader lamely joked last year, and had engaged in espionage, he would not be beyond the reach of the law.

Outlandish hypotheticals aside, it still seems fairly clear that the Trump disclosures last week are not a matter for the criminal justice system, though they may reverberate through public opinion and congressional deliberations in a consequential way.

But several legal experts this week insisted that it’s more complicated, and that it remains conceivable that Trump broke the law. See:

“Don’t Be So Quick to Call Those Disclosures ‘Legal'” by Elizabeth Goitein, Just Security, May 17, 2017

“Why Trump’s Disclosure to Russia (and Urging Comey to Drop the Flynn Investigation, and Various Other Actions) Could Be Unlawful” by Marty Lederman and David Pozen, Just Security, May 17, 2017

“Trump’s disclosures to the Russians might actually have been illegal” by Steve Vladeck, Washington Post, May 16, 2017

Update, 05/23/17: But see also Trump’s Disclosure Did Not Break the Law by Morton Halperin, Just Security, May 23, 2017.

An Authorized Disclosure of Classified Information

Updated below

President Trump’s disclosure of classified intelligence information to Russian officials, reported by the Washington Post, may have been reckless, damaging and irresponsible. But it was not a crime.

Disclosures of classified information are not categorically prohibited by law. Even intelligence sources and methods are only required to be protected under the National Security Act from “unauthorized disclosure.” This leaves open the possibility that disclosures of such classified information can actually be authorized. And we know that they are, from time to time.

One statute in particular — 18 USC 798 — does come close to matching the circumstances of the Trump disclosure to Russia, with a crucial exception.

That statute makes it a felony to disclose to an unauthorized person any classified information “concerning the communication intelligence activities of the United States or any foreign government; or […] obtained by the processes of communication intelligence from the communications of any foreign government.”

But it further explains that an “unauthorized person” is one who has not been “authorized to receive information… by the President.”

This morning, President Trump tweeted that “As President I wanted to share with Russia (at an openly scheduled W.H. meeting) which I have the absolute right to do, facts pertaining to terrorism and airline flight safety. Humanitarian reasons, plus I want Russia to greatly step up their fight against ISIS & terrorism.”

(Was the gratuitous parenthetical phrase “at an openly scheduled W.H. meeting” intended to rule out a clandestine transfer of classified information?)

All of that is to say that this episode, though it may have far-reaching ramifications for national security, is probably not a matter for law enforcement. (Based on the reporting by the Washington Post, the President’s actions did violate the terms of an intelligence sharing agreement with a foreign government that supplied the information. But that agreement would not be enforced by the criminal justice system.)

Instead, this is something to be weighed by Congress, which has the responsibility to determine whether Donald J. Trump is fit to remain in office.

Update, 05/17/17: For contrasting views arguing that Trump’s disclosure of classified intelligence to the Russians may actually have been illegal, see Marty Lederman and David Pozen, Liza Goitein, and Stephen Vladeck.

Update, 05/23/17: See also Trump’s Disclosure Did Not Break the Law by Morton Halperin, Just Security, May 23.

Transparency Will Need a Reboot in the Trump Era

The future of transparency in the Trump Administration is uncertain. It will ultimately be determined in practice as the new Administration embarks on its programs, determines its priorities, appoints its personnel, engages with Congress and confronts the public.

On his first full day in office, President Obama famously pledged to conduct the most transparent Administration in history. Though it was imperfectly executed and suffered some reversals, I think that pledge was fulfilled to an impressive extent. More government information was made more easily available to more people than ever before. The reported volume of new national security secrets created in the past two years dropped to historically low levels. Whole categories of information that had previously been off-limits — the size of the U.S. nuclear weapons stockpile, the President’s Daily Brief, the size of the annual intelligence budget request, among others — were newly subject to declassification and disclosure during Obama’s tenure. If this was not the most transparent Administration in history, then which Administration was?

Donald Trump’s estimation of transparency already appears to be radically different. Although his Twitter persona during the campaign represented a degree of unfiltered candor that is almost alarming in a public official, it was unaccompanied by detailed policy proposals that might have informed the election. Trump’s refusal to release his tax returns as a presidential candidate was a startling repudiation of a longstanding norm of American governance. Worse, the fact that this refusal was not considered disqualifying by his supporters suggests that the norm is weaker than supposed. Far from being a given, the value of transparency itself may not be widely understood or shared by many Americans.

It’s not that Trump has promised transparency and failed to deliver. He has promised nothing of the kind. Hypocrisy on this point would actually be a step forward.

In what seems to be the first post-election reference to the FOIA by the Trump transition team, applicants for positions in the new Administration were advised that “One should assume that all of the information provided during this process is ultimately subject to public disclosure, if requested under the Freedom of Information Act.” (also noted by Russ Kick)

This is somewhat misleading, since various types of personal privacy information such as social security numbers would not be subject to FOIA. But perhaps it is a healthy sign that some awareness of the FOIA and its disclosure requirements is already present in the Trump camp.