Opinion

Trump Names Maguire Acting DNI. The Appointment May Violate Federal Law.

Well, that’s awkward.

Seems like President Donald Trump forgot to check with HR about the rules for new hires.  The president tweeted that Joseph Maguire will become the next Acting Director of National Intelligence.  The appointment is set to go into place August 15. The only problem is that Maguire already has a job. He’s the Director of the National Counterterrorism Center– and neither he, nor anyone else, is legally permitted to hold both positions at the same time.

There’s even a very specific statute on the issue, and it’s about as clear as statutes ever get:

(a)Establishment of Center

There is within the Office of the Director of National Intelligence a National Counterterrorism Center.

(b) Director of National Counterterrorism Center

(1) There is a Director of the National Counterterrorism Center, who shall be the head of the National Counterterrorism Center, and who shall be appointed by the President, by and with the advice and consent of the Senate.

(2) The Director of the National Counterterrorism Center may not simultaneously serve in any other capacity in the executive branch.

That means, as law professor Steve Vladeck remarked on Twitter, that Maguire must officially leave his post as Director of the National Counterterrorism Center before beginning his new position as Acting Director of National Intelligence on August 15th. Let’s just calendar that. We can check back in on the 14th to make sure Maguire officially stepped down as Director of the National Counterterrorism Center before starting his new gig.

Speaking of federal statutes, there’s also one that says when an executive officer (like, for example, the Director of National Intelligence) resigns, the first assistant of that officer becomes the “acting director” to fill the vacancy. That would’ve meant that Deputy Director of National Intelligence Sue Gordon would have become became acting director upon Dan Coat‘s departure.

That may explain why Gordon — a figure widely respected within intelligence circles — stepped down. Judging from Gordon’s resignation letter, it doesn’t appear that the choice was entirely voluntary.

Maguire wasn’t the president’s first choice to lead the intelligence community; at first, Trump planned to nominate Rep. John Ratcliffe (R-Texas), to succeed Coats.  That plan didn’t work out so well.

[image via Al Drago/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. She is a frequent media contributor, and is Of Counsel to Smedley & Lis, in Woodbury, New Jersey. Follow Elura on Twitter @elurananos

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