Donald Trump’s administration has experienced an unprecedented cascade of Cabinet departures, many tainted by the stench of corruption or impropriety. The president now appears to favor a new approach to temporarily shield acting agency chiefs from the scrutiny of Senate confirmation hearings: simply delay an official nomination.
Of the 24 Cabinet-level positions, six are filled by people in an acting capacity. Those include Andrew Wheeler, acting administrator of the Environmental Protection Agency and a former coal lobbyist; David Bernhardt, acting secretary of the Interior Department and a former oil and gas lobbyist; and Patrick Shanahan, acting secretary of the Department of Defense and a former Boeing executive.
It’s a title modifier Trump has come to embrace, despite the fact that it highlights the dysfunction plaguing his administration.
“I’m in no hurry” to name permanent replacements, Trump told reporters Sunday before departing for Camp David. “I sort of like ‘acting.’ It gives me more flexibility, do you understand that? I like ‘acting.’”
He applauded Bernhardt and Mick Mulvaney, the acting White House chief of staff. “My actings are doing really great,” Trump said. He did not elaborate on what he meant by “more flexibility.”
But advocates think his reason for not moving ahead with nominations is clear.
“Trump is comfortable with appointees serving in an acting capacity because it avoids the public scrutiny of conflicts of interest that confirmation hearings will expose,” said Craig Holman, a government affairs lobbyist for the progressive watchdog group Public Citizen. Bernhardt and Wheeler in particular “have serious conflict of interest concerns that may well constitute a violation of Trump’s own ethics executive order,” Holman added. His nonprofit has filed ethics complaints against both.
Trump’s ethics pledge bars executive branch appointees from participating “in any particular matter involving specific parties that is directly and substantially related to” former employers or clients.
Bernhardt and Wheeler worked for industries they are now tasked with regulating — histories that have not gone unnoticed by environmental groups and Democratic lawmakers.
Wheeler was a lobbyist for oil and mining interests until his confirmation as the EPA’s deputy administrator in April 2017. He has served as acting administrator since scandal-plagued agency chief Scott Pruitt resigned in July.
Three weeks after Wheeler took over at the EPA, House Democrats called on the Office of Government Ethics to investigate whether he violated ethics rules after E&E News reported that he met with former clients at least three times since being sworn in as deputy administrator. An agency spokesman told E&E News at the time that the meetings did not violate the Trump administration’s ethics pledge because the former clients Wheeler met with were not among those he pledged to avoid for two years.
Trump said in November that he intends to nominate Wheeler as permanent administrator, but he has yet to do so.
Similarly, Bernhardt was sworn in as Interior’s deputy secretary on Aug. 1, 2017, after eight years of lobbying for oil, gas, mining and agricultural interests. He took over as Interior’s acting secretary last week after the resignation of scandal-plagued agency chief Ryan Zinke.
Conservation groups have labeled Bernhardt “a walking conflict of interest.” The Colorado native has so many potential conflicts that he carries around a list of former clients he is barred from dealing with, as The Washington Post reported in November. The ethics agreement he signed last year prevents him from participating in matters involving his longtime employer, law firm Brownstein Hyatt Farber Schreck. Yet as Interior’s deputy secretary, Bernhardt met several times with lobbyists for MGM Resorts International, a casino-resort giant that Brownstein Hyatt also represents, as HuffPost previously reported.
In a Dec. 15 Twitter post announcing Zinke’s resignation, Trump said he would name a new secretary the following week. That hasn’t happened. Bernhardt, Rep. Rob Bishop (R-Utah) and former Sen. Dean Heller (R-Nev.) are among several likely contenders for the role.
All Cabinet-level posts require Senate confirmation. With Bernhardt and Wheeler previously confirmed by a Senate with fewer Republicans than there are in the new Congress, it seems unlikely the two wouldn’t get a second nod of approval.
But they would certainly face tough questions from Democratic senators during confirmation hearings. And that public scrutiny and the negative headlines that might come from it may be exactly what Trump is hoping to avoid, at least as long as he can.
The Federal Vacancies Reform Act limits the amount of time Cabinet officials may serve in an acting role to 210 days. It is possible, however, for Bernhart, Wheeler and others to remain in acting roles for years while a nominee is pending before the Senate, as Bloomberg reports.
Last week an administration official told reporters at the Pentagon that Shanahan, the former Boeing executive, could serve as acting defense secretary for “an indefinite period at the discretion and direction of the president” ― a claim some experts dispute. Trump has also said Shanahan “could be there for a long time,” as The Washington Post reported.
Trump named Shanahan as the acting chief just days after Defense Secretary Jim Mattis submitted his letter of resignation.