More on the John Bolton Drama: 2nd Recess Appointment Means No Pay or Legal Challenges


The President’s team ‘has a plan’ regarding the seemingly irrational obsession with keeping John Bolton working at the United Nations.
We just don’t know what that plan is. The Senate Foreign Relations Committee will vote Bolton down, decisively and definitively, if called to vote this week.
Senators Bill Frist and Norm Coleman will probably then stomp around on the floor of the Senate bemoaning what Dems and a wayward Republican voice, calling for a revived centrist ethic, did to their poster child for crude, pugnacious nationalism.
Then, the White House — angry at the rejection of Bolton — could call an end to the bipartisan dance, accuse the Dems of obstructionism and try to “re-appoint” Bolton to his current job as a recess appointee — thwarting not only the Senate that the White House strongly controlled this past year — but also thwarting the next Congress that they control less well and with which they will have a tougher time finding common ground with this type of strident behavior.
Scott Paul has posted a useful short synopsis of a legal analysis of the President’s options on Bolton — prepared by Arnold & Porter. The analysis is here — and should be read carefully.

I need to consider the implications of this analysis a bit more closely — but essentially, here are the options as I see them now.
Bolton could be recess-appointed to his current position, but he would have to work for no pay.
Alternatively, Bolton could be “nominated” to a lesser position at the United Nations — and some are suggesting that in such a Deputy role, Bolton could be made the “Acting Ambasssador.” The fact is that all of the deputy jobs that Bolton might be appointed to are ‘encumbered’ — meaning people hold those positions. In addition, that appointment would also have to be submitted to the Senate Foreign Relations Committee for action, which would certainly be negative.
Another bizarre but possible White House strategy is to appoint John Bolton Deputy National Security Advisor to the President, a position NOT subject to Senate confirmation, and then make him “Acting Ambassador to the United Nations.”
Some believe that this is the strategy that White House General Counsel Harriet Myers is trying to cook up.
However, this would cross many legal lines and certainly be litigated and challenged by a number of U.S. Senators.
When President Clinton played these games with the recess appointment and then “acting role” designation for Bill Lann Lee, the then-Republcan controlled Congress shut down the loopholes that allowed these kinds of appointment shenanigans.
John Bolton, if appointed to a non-confirmed position, does not fit one of the three allowable categories to be given an “Acting” role designation because the only role in his work history that would allow him to serve as “acting” UN Ambassador is his current role as UN Ambassador, which he received by recess appointment.
Arnold & Porter concludes that Congress did not write law that intended to give the President to circumvent the Federal Vacancies Reform Act that tied up such past loopholes.
Fascinating stuff — and as long as the White House wants to push Bolton, there are a lot of us who are there ready to respond to every twist and turn to this increasingly stale and pathetic campaign.
— Steve Clemons


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