Does Bannon’s Role at the NSC Require Senate Confirmation?

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A number of bloggers are reporting that Stephen Bannon cannot be appointed to a permanent seat on the National Security Council without Senate confirmation. But so far I haven’t seen this in the mainstream press anywhere.

Here’s the pertinent statute, from the Cornell Law School site — 50 U.S. Code § 3021:

(a) Establishment; presiding officer; functions; composition

There is established a council to be known as the National Security Council (hereinafter in this section referred to as the “Council”).

The President of the United States shall preside over meetings of the Council: Provided, That in his absence he may designate a member of the Council to preside in his place.

The function of the Council shall be to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as to enable the military services and the other departments and agencies of the Government to cooperate more effectively in matters involving the national security.

The Council shall be composed of–

(1) the President;

(2) the Vice President;

(3) the Secretary of State;

(4) the Secretary of Defense;

(5) the Secretary of Energy; and

(6) 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, to serve at his pleasure.

Now, that seems to say that anyone appointed to the NSC as a permanent member who is not covered by (1) through (5) requires Senate confirmation. So why is nobody talking about holding a hearing for Bannon’s appointment to the Council?

It might be that someone like the head of the Joint Chiefs of Staff, who apparently used to be a regular member, was not subject to confirmation, so maybe this rule gets waived a lot. But it also seems to me that someone who is, in effect, one of the President’s flunkies (officially, he is Chief Strategist and Senior Counselor to the un-POTUS, an obvious political role) would not be automatically waived.

Does anyone want to chime in on this?

 

14 thoughts on “Does Bannon’s Role at the NSC Require Senate Confirmation?”

  1. Sadly, I con’t chime in with anything legally useful.
    So all I can say, is that even W & Dick were smart enough to not try to (0fficially) stick Rove and Libby on the NSC.
    And how low a bar is that?

    Bannon needs the boot, and fast!
    Maybe someone can set a trap in a nearly emptry barrel of whiskey, lure him inside with a tin cup at the bottom, pull the trap by stuffing him inside, putting a lid on the barrel, nail the lid shut, and drop him off at the top of Niagra Falls.
    Nah.
    He’d probably survive that.
    This boy’s got some Rasputin in him, I think.
    So, there may have to be other traps readied if this one fails.
    Suggestions?

  2. Further down the statute is:
    (e) Participation of Chairman or Vice Chairman of Joint Chiefs of Staff
    The Chairman (or in his absence the Vice Chairman) of the Joint Chiefs of Staff may, in his role as principal military adviser to the National Security Council and subject to the direction of the President, attend and participate in meetings of the National Security Council.

    Which seems to provide for the Chairman to be allowed in the council on the Presidents whim (presumably without conformation), vs. the ‘Shall’ for the earlier listed members who must be on the committee.

  3. I’m betting that since his official position is not on the list of “shall consist of,” and instead falls under “attends at the President’s whim,” he does not require confirmation. So, he will not be de facto a permanent member, but instead just another Presidential nutcase flunky who tells the President what to think and when to precipitously act…

  4. The Secretary of Energy part is scary! What if ol’ Rick forgets his smart glasses on meeting day?

  5. What I’ve seen is that he has a permanent invitation to all meetings, meaning he’s allowed to sit in and participate. It’s been mentioned that this is different from Obama’s Press Secretary who would attend but *would not* participate – his role was to be able to discuss how Obama arrived at decisions.

    This might be a legal grey area where Bannon is permitted to attend meetings and is known as one of Trump’s people, but isn’t officially a member of the council itself. The problem, of course, is that the media will give plenty of deference to claims of legality, CF: Bush’s “lawful and necessary” illegal wiretapping, or Hillary Clinton’s e-mails PFWAH HAH HAH HAH HAH HAH HA, I’m sorry, no, of course they only defer questions of legality that don’t seem like juicy headline bait.

  6. Define senior! If senior is meant in the sense of age, than yeah, Bannon would be the senior. But if influence and authority is the measure..Than Kushner holds the distinction of being the senior. Kushner is the only one who has any real security in the inner sanctum. Designating Bannon as the senior henchman would be apropos.
    Trump could have a narcissistic flare up triggered by some perceived slight and shit-can Bannon on a whim of insecurity. Kim Jong-un move over. White House press release would say: Bannon dreamed the wrong dreams.

  7. *Note: I am not a lawyer, but I play one on the Internet*

    My lay reading of the statue says that to have Bannon on the NSC may well require Senate confirmation.

    It might be that someone like the head of the Joint Chiefs of Staff, who apparently used to be a regular member, was not subject to confirmation, so maybe this rule gets waived a lot.

    No, participation of the Joint Chiefs does not involve any waiver. It’s explicitly permitted under the law:
    U.S. Code › Title 50 › Chapter 44 › Subchapter I › § 3021

    (e) Participation of Chairman or Vice Chairman of Joint Chiefs of Staff
    The Chairman (or in his absence the Vice Chairman) of the Joint Chiefs of Staff may, in his role as principal military adviser to the National Security Council and subject to the direction of the President, attend and participate in meetings of the National Security Council.

    The law also explicitly allows participation of named others, including the Director of National Intelligence and the Director of Drug Control Policy.

    The fact that the law is specific in naming some who may participate indicates to me that anyone who is not explicitly permitted is someone who requires Senate confirmation.

    Again, this is just my lay reading. I’d love to hear from some attorneys on this.

  9. Does this law also state that Bannon could preside over the meeting in Trump’s absence? Say, if he decides to jet off to Mar A Lago for awhile?

    “The President of the United States shall preside over meetings of the Council: Provided, That in his absence he may designate a member of the Council to preside in his place.”

  10. I doubt that Trump cares and in the unlikely event that Congress calls him out on it, he’ll just ignore them. It’ll be a case of “you made your decision, now enforce it”, something the current Congress will certainly not do.

  11. Well, I’m no lawyer either..But!.. I do have an extensive knowledge in dealing with psychopaths. And with Trump being a psychopath I know exactly how he is going to thwart any efforts to bring him to bay. His history is one where he’s learned to use the legal system not in an effort to seek justice or to find a remedy..It’s one where he knows that the slow moving process of the legal system to put controls on him and make him comply with what he should be required to do can be pushed into obscurity by presenting legal challenges, requesting legal clarifications and a whole myriad of petty wrangling designed to run out the clock and wear down the opposition.
    His Trump university law suits were in the courts for what, 6 years? and he could have extended that fight for another 6 years had he desired to do so. It just worked out where he was able to off load that lawsuit by settling and claiming it was a magnanimous gesture on his part for the benefit of the American people. He’s sick! believe me, he’s sick!
    Nobody is going to put shoes on Trump. The only possible way to get control of Trump is to toss him out of office…and that probability is slim given the way the Repugs have such disdain for democracy and the rule of law..
    America you fucked up big time this time…Maybe I’ll write a country & western song. Ill borrow from Kenny Rogers..And this time the hurtin’ won’t heal.

  12. You’re all reading the statute wrong. What it’s saying is that only people in cabinet departments who have been confirmed by the Seante can be members of the NSC. He can’t have a State Dept employee who has not been confirmed by the Senate on his advisory board.

  13. I don’t often admit this right out in public, but I am a lawyer (although not by any means a constitutional specialist), for what that’s worth. My guess is that LongHairedWeirdo above is right: Trump will avoid the need for Senate confirmation by denying that he appointed Bannon as an actual “member” of the NSC, but simply extended an indefinite invitation to him to attend its meetings. I leave it to lawyers from taller buildings to debate whether that’ll work or not – from down here at ground level, I suspect it will.

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