Designating an Acting Director of National Intelligence

43 Op. O.L.C. 1

Designating an Acting Director of National Intelligence

No. 19-10

United States Department of Justice

November 15, 2019

In designating an Acting Director of National Intelligence, the President could choose anyone who is eligible under the Federal Vacancies Reform Act of 1998, even though 50 U.S.C § 3026(a)(6) specifies that the Principal Deputy DNI “shall act for” the DNI during a vacancy.

The President could designate the Senate-confirmed Director of the National Counter-terrorism Center as the Acting DNI, but that person could not perform the duties of the NCTC Director during his time as the Acting DNI because no person may “simultaneously serve” as NCTC Director and “in any other capacity in the executive branch, ” 50 U.S.C. § 3056(b)(2).

Because the incumbent NCTC Director was rendered unable to perform the duties of that office while serving as Acting DNI, the NCTC Director's first assistant would, in the absence of an alternative presidential designation, automatically serve as Acting NCTC Director under the Vacancies Reform Act.

CURTIS E. GANNON Principal Deputy Assistant Attorney General Office of Legal Counsel.

MEMORANDUM FOR THE LEGAL ADVISOR TO THE NATIONAL SECURITY COUNCIL

On July 28, 2019, Daniel R. Coats submitted his resignation as the Director of National Intelligence (“DNI”) effective August 15, 2019. On August 8, 2019, Susan M Gordon, the Principal Deputy DNI, announced that she would resign at the same time as the DNI. In connection with these impending vacancies, you asked whether the President could invoke the Federal Vacancies Reform Act of 1998, 5 U.S.C §§ 3345-3349d, to authorize Joseph Maguire, the Director of the National Counterterrorism Center (“NCTC Director”), to serve as Acting DNI and whether someone else might then serve as Acting NCTC Director. We advised that the President could designate the NCTC Director as the Acting DNI, but because no person may “simultaneously serve” as NCTC Director and “in any other capacity in the executive branch, ” 50 U.S.C. § 3056(b)(2), Mr. Maguire could not perform the duties of the NCTC Director during his time as the Acting DNI. We further advised that, because Mr. Maguire would be legally disabled from serving as NCTC Director during that period, the Vacancies Reform Act would authorize someone else to serve as Acting NCTC Director.

This memorandum memorializes the reasoning underlying our advice. In reaching our conclusions, we considered the interaction between the Vacancies Reform Act and the provisions of the Intelligence Reform and Terrorism Prevention Act of 2004 (“IRTPA”), 50 U.S.C. § 3003 et seq., that establish the offices of the DNI and the NCTC Director. First, consistent with our prior opinions, we concluded that the Vacancies Reform Act would remain an available means for designating an Acting DNI, even though IRTPA specifies that the Principal Deputy DNI “shall act for” the DNI during a vacancy, id. § 3026(a)(6). Second, upon the Principal Deputy DNI's resignation, no officer would automatically become the Acting DNI under either IRTPA or the Vacancies Reform Act, and that would remain true even if someone else became the Acting Principal Deputy DNI, because the statutes do not allow a “double acting” arrangement. Third, the first person named in the operative order of succession, established by a 2013 presidential memorandum, could not serve as Acting DNI because she was on detail to the Office of the Director of National Intelligence (“ODNI”) and was not otherwise eligible under 5 U.S.C. § 3345(a)(3). Fourth, the second person on the order of succession, the NCTC Director, was available to serve as Acting DNI, but, as contemplated in IRTPA and the 2013 presidential memorandum, could not perform the duties of the NCTC Director while serving as Acting DNI. Finally, because an incumbent NCTC Director is, by statute, rendered unable to perform the duties of that office while serving as Acting DNI, this was an unusual instance in which someone else could act in an already-encumbered position-here, become the Acting NCTC Director- while the incumbent served elsewhere in an acting capacity.

I.

In 2004, Congress enacted IRTPA, which established the position of the DNI to serve as the “head of the intelligence community” and “principal adviser to the President” and others on “intelligence matters related to . . . national security.” 50 U.S.C. § 3023(a), (b) (codifying Pub. L. No. 108-458, sec. 1011(a), § 102(a), (b), 118 Stat. 3638, 3644). The DNI is appointed by the President with the advice and consent of the Senate. 50 U.S.C. § 3023(a)(1).

IRTPA also established the ODNI to assist the DNI in carrying out his duties. Id. § 3025(a), (b). Congress created several offices within the ODNI and authorized the DNI to establish additional offices and to hire staff members. Id. § 3025(c), (d). In practice, many of those on the [ 2] ODNI's staff are detailed from other agencies in the intelligence community. See Id. § 3024(l )(1)-(2) (authorizing the DNI to prescribe mechanisms to encourage such details); ODNI, Who We Are, www.dni.gov/ index.php/who-we-are/organizations (last visited Nov. 15, 2019) (noting that “[t]he ODNI is staffed by officers from across the [intelligence community]”).

One of the ODNI's statutory officers is the Principal Deputy DNI, 50 U.S.C. § 3025(c)(2), who is appointed by the President with the advice and consent of the Senate, id. § 3026(a)(1). The Principal Deputy DNI “assist[s] the [DNI] in carrying out the duties and responsibilities of the [DNI].” Id. § 3026(a)(5). The statute further provides that the Principal Deputy DNI “shall act for, and exercise the powers of, the [DNI] . . . during a vacancy in the position of [DNI].” Id. § 3026(a)(6).

Another of the ODNI's statutory officers is the NCTC Director, id. § 3025(c)(11), who is also appointed by the President with the advice and consent of the Senate, id. § 3056(b)(1). The NCTC Director serves as the “principal adviser” to the DNI on “intelligence operations relating to counterterrorism” and has “primary responsibility within the United States Government for conducting net assessments of terrorist threats.” Id. § 3056(f)(1). The NCTC Director “may not simultaneously serve in any other capacity in the executive branch.” Id. § 3056(b)(2).

II.

We first explain who was eligible to serve as Acting DNI upon the resignations of both the DNI and the Principal Deputy DNI on August 15, 2019. We advised not only that the President could designate the NCTC Director as the Acting DNI, but also that he would become the Acting DNI by operation of the current order of succession, which was issued in 2013 as an advance exercise of the President's authority under the Vacancies Reform Act.

A.

Throughout the Executive Branch, the Vacancies Reform Act generally applies when a Senate-confirmed officer, such as the DNI or NCTC Director, “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” 5 U.S.C. § 3345(a). By default, anyone serving [ 3] as “the first assistant” to the vacant office “shall” become the acting officer. Id. § 3345(a)(1). But the President “may” instead choose to designate, as the acting officer, someone who already holds an “office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, ” id. § 3345(a)(2), or an “officer or employee” of the same agency who has served in a position with a sufficiently high level of compensation “for not less than 90 days” of the “365-day period preceding” the vacancy, id. § 3345(a)(3).

IRTPA states that the Principal Deputy DNI “shall act for” and “exercise the powers of ” the DNI “during a vacancy in the position of ” the DNI, 50 U.S.C. § 3026(a)(6), but IRTPA does not otherwise make the Vacancies Reform Act inapplicable to the position of DNI. In a series of opinions dating back to 2003, this Office has consistently explained that the Vacancies Reform Act remains available to the President as a means for designating an acting official even when an office-specific statute provides that someone else “shall” serve in that role. See Designating an Acting Director of the Federal Housing Finance Agency, 43 Op. O.L.C. ___, at *4-10 (Mar. 18, 2019) (“Acting Director of FHFA”); Designating an Acting Attorney General, 42 Op. O.L.C. ___, at *3-8 (Nov. 14, 2018); Designating an Acting Director of the Bureau of Consumer Financial Protection, 41 Op. O.L.C. ___, at *4-11 (Nov. 25, 2017); Authority of the President to Name an Acting Attorney General, 31 Op. O.L.C. 208, 208-11 (2007); Designation of Acting Director of the Office of Management and Budget, 27 Op. O.L.C. 121, 121 & n.1 (2003). When another statute does so, we have explained, the Vacancies Reform Act ceases to provide the exclusive means of filling vacancies on an acting basis, but, without something more to displace the Vacancies Reform Act, it remains an available alternative to the other statute. See Acting Director of FHFA, 43 Op. O.L.C. ___, at *4-6. Every court to address this question has agreed with our reasoning.^[1] And we think that the same conclusion applies to the [ 4] DNI. Notwithstanding section 3026(a)(6)'s provision that the Principal Deputy DNI “shall act for” the DNI during a vacancy, the President may choose to designate as Acting DNI a different official who qualifies under the Vacancies Reform Act.

No other provision of IRTPA counsels a different result. In 2012, IRTPA was amended to authorize the President to fill vacancies in some ODNI offices with non-Senate-confirmed individuals drawn from other agencies in the intelligence community. See Intelligence Authorization Act for Fiscal Year 2012, Pub. L. No. 112-87, sec. 405(2), § 103(e),...