President Donald Trump is thinking about making a recess appointment of a new attorney general next month. Luckily for him, two of his administration’s top lawyers are experts on the subject of recess appointments.
Noel Francisco, the principal deputy solicitor general at the Justice Department and Trump’s current nominee to be solicitor general, was the lead attorney arguing against the Obama administration in the 2015 landmark Supreme Court case NLRB v Noel Canning. In that case Supreme Court decided that recess appointments President Obama had made while the Senate had held pro forma sessions during an extended recess was unconstitutional. Francisco, who at the time worked for the mega-firm Jones Day, argued the case and was the counsel of record. One of his co-counsels on the case was James Burnham, a Jones Day colleague who now works in the White House counsel’s office—specifically focused on presidential nominations.
As the Washington Post reported Wednesday evening, Trump has discussed with “confidants and advisers in recent days” the possibility of avoiding the Senate confirmation hurdle he would face with nominating an attorney general. I outlined on Wednesday how the president would run up against stiff opposition if he sought to replace Sessions, whom he blames for the naming of the special counsel investigating his campaign’s ties to Russia. But replacing Sessions through a recess appointment, which allows a president to fill vacancies while the Senate is not in session, would allow Trump to install a new attorney general—and one who would likely acquiesce to Trump’s desire to end the special counsel’s investigation.
It’s not clear if either Francisco or Burnham is advising Trump on recess appointments. But if the Post’s report is true, there’s an obvious irony. Two lawyers who argued for curbing the last president’s power to make recess appointments are employed by a current president thinking about doing just that.
An Ad Hoc Policy on Transgenders in the Military
On Wednesday White House press secretary Sarah Huckabee Sanders could not answer basic questions about how President Trump’s new policy banning transgendered members of the military would be implemented. And you can hardly blame her.
According to the White House, the president made a decision on Tuesday and announced it early on Wednesday in a series of tweets: “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow . . . Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming . . . victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.”
So what would happen to transgendered Americans who are currently serving in the military? “That’s something that the Department of Defense and the White House will have to work together as implementation takes place and is done so lawfully,” Sanders said. What’s the reason behind the change in policy? Trump, after consulting his national security team, “came to the conclusion that it erodes military readiness and unit cohesion and made the decision based on that.”
Why, asked CBS News’ Major Garrett, isn’t the administration better prepared to answer these questions once the policy is announced? “Look, I think sometimes you have to make decisions,” Sanders said. “And once he made a decision, he didn’t feel it was necessary to hold that decision.”
This is what I’ve heard from another senior White House aide, who noted this policy change had been discussed for “months” before Wednesday’s tweets: “The president decided he was going to announce it, and that’s what he did.”
Why This Doesn’t Help Trump
It’s certainly Trump’s prerogative to roll out a policy decision without having a coordinated messaging strategy, but doing so serves himself and his White House poorly. Despite the collective outrage over the new policy among the media and in Washington, the policy of allowing transgendered people to serve openly in the military is just over a year old. The Obama administration’s policy had plenty of critics on Capitol Hill and among military leadership. The Pentagon is conducting an ongoing study on the impact of transgendered soldiers on readiness and military cost, and there are reasons to be skeptical of claims there are no negative consequences of the Obama administration policy.
But Americans heard none of these counter-arguments or explanations from the White House on Wednesday. There were no surrogates or interest groups ready to defend the president’s new policy. And Americans don’t even have the broadest guidelines about how and when this policy would take effect. Instead, the environment surrounding the announcement was filled with arguments against Trump’s policy made by the transgender lobby, which is incredibly organized and effective.
Perhaps Trump’s announcement was intended to influence a House bill, as a Politico report convincingly outlines. Perhaps the White House wanted to disrupt a bad news cycle with a play to the base that would distract the press. Perhaps it was just as Sarah Huckabee Sanders says and that the president simply wanted to state his policy decision in the open.
But the result is confusion that will sow uncertainty within the military, agitate his opposition, and likely do political damage to the position that the military should not accommodate transgendered soldiers. Such is the way of the ad hoc president.
