Does Bannon’s Appointment to the NSC/PC Require Senate Confirmation? Perhaps A Judge Should Decide.

6 February 2017, 1234 EST

Retired U.S. Navy Admiral Mike Mullen published an op-ed in today’s New York Times calling for the removal of Steve Bannon from the National Security Council Principals Committee, a position he apparently obtained without Trump being fully briefed.

According to Mullen:

“Having Mr. Bannon as a voting member of the Principals Committee will have a negative influence on what is supposed to be a candid, nonpartisan deliberation. I fear that it will have a chilling effect on deliberations and, potentially diminish the authority and prerogatives to which Senate-confirmed Cabinet officials are entitled. They, unlike Mr. Bannon, are accountable for the advice they give and the policies they execute.”

A point Mullen didn’t raise, and side-steps in this passage, is that Bannon’s presence on the NSC/PC without prior Senate confirmation is not only politically but legally controversial. As Fred Kaplan noted last week, citing an interview with Yale law scholar Eugene Fidell, according to Paragraph A(6) of the 1947 statute creating the NSC, appointment of members to the NSC beyond those stipulated in the statute requires confirmation by the United States Senate. This argument was made by Jonathan Alter in a tweet citing the 1947 statute echoed in a few places last week.

Other legal scholars aren’t sure this interpretation is correct.  Jordan Brunner, a National Security intern at Brookings, argued at Lawfare Blog that because Bannon was made a member of the Principals Committee, but only an invitee to the NSC itself, this circumvented the need for Senate Confirmation. In a back and forth with Kaplan on Twitter, Harvard law professor Jack Goldsmith tweeted: “Principals committee analytically separate from NSC, which is all that statute regulates.” This was also the expressed view of Harvard Law professor Lawrence Tribe last week, who tweeted the law “doesn’t require Senate confirmation to serve on the Principals Committee, which isn’t part of NSC as such.” Based on these arguments, and an interview with Tribe (but not Fidell), weighed in on January 31 to say the claim that Senate confirmation was needed for Bannon is “unproven.” This does not, of course, mean it could not be proven. But such a point of dispute among legal observers could only be settled by a court of law through a suit brought by a plaintiff with standing (in this case most likely someone associated with the US Senate).

As a non-lawyer who follows national security law, I’d like to see a a more nuanced consideration of whether the US Senate might have a case to make that its prerogative to provide advice and consent has been circumvented here. My reading of the 1947 NSC statute and other primary documents suggest to me that the PC’s relationship to the NSC is not as clear and unambiguous as suggested in these exchanges. So to the extent that Senate confirmation indeed hinges on that distinction, there might well be an interpretive basis for a confirmation hearing – or at least for judicial review to settle the matter. 

First, Brunner is right that the Principals Committee is not governed in the 1947 statute (having been created later, in 1989). That said, the plain language of George HW Bush’s 1989 NSD establishing the Principals Committee, (entitled the National Security Council Principals Committee or NSC/PC) seems to indicate that the PC is a subsidiary organ of the NSC (which is governed by the statute), not an analytically separate entity. As Brunner himself points out, the Principals Committee is, essentially, “the National Security Council minus the President and the Vice President.”

It might also be possible to make inferences about the relationship of NSC committees to the NSC itself by looking at the statutory language pertaining to other committees that were established by statute in 1947. Both the Committee on Foreign Intelligence and the Committee on Transnational Threats were designated, in the 1947 statute, as “within the NSC.” Thus, while the language of the clauses pertaining to membership in these committees (Paragraphs H(E) and I(F) respectively) does allow the President to appoint additional members of his liking, his ability to do so would arguably seem limited to the conditions enumerated in Paragraph A(6) of that statute, specifying the makeup of the NSC as being limited to designated officials and “Secretaries and Undersecretaries of other executive departments and military departments… with the advice and consent of the Senate.”

The language of George HW Bush’s original National Security Directive also provides non-statutory clues as to the composition of the PC.  The document describes this body as an “interagency forum” composed of senior members of relevant national security agencies, not political advisers.  This would also lend support to the argument that the President’s power to appoint members as he likes to this committee, and NSC committees in general, is subject to the restrictions enumerated for the NSC as a whole in Paragraph A(6) of the 1947 Statute, which states the Council can include, at the President’s discretion and in addition to those individuals designated by Statute, “the Secretaries and Under Secretaries of other executive departments and of the military departments, when appointed by the President by and with the advice and consent of the Senate.”

My point is, I suspect attorneys could argue it either way in a court of law, but there seems to be at least an argument to make here that the membership of NSC committees is limited by statute to individuals who could conceivably sit on the NSC; and at any rate that the statute put the oversight for such appointees under the control of the Senate. To me, this suggests the media and the public need more than a few tweets and a article before writing off the Senate’s prerogative to hold a confirmation hearing for Bannon – there is at least an opening for potential judicial review of Bannon’s appointment in the context of the statute.

The wider questions are whether any of the many Senators on right and left who have expressed unease about Bannon’s role on the NSC will be prevailed upon to take it, whether it would succeed (though plaintiffs haven’t been doing so shabbily at holding Trump accountable of late) and whether if it did it would solve the problem of Bannon’s political influence over the President.