Recess Appointments: Trump’s Way to Bypass Senate Impasse?—Jeff Clark

[RUSH TRANSCRIPT BELOW] As part of our special series on the U.S. presidential transition period, I’m sitting down today with Jeff Clark, an assistant attorney general at the Department of Justice during the first Trump administration and now senior fellow and director of litigation at the Center for Renewing America.

What are recess appointments? Why is Trump so interested in them? Are there legal or historical precedents for them? And how could they impact the effectiveness of this coming administration?

Views expressed in this video are opinions of the host and the guest, and do not necessarily reflect the views of The Epoch Times.

*Big thanks to our sponsor for this episode Patriot Gold Group. Check them out here: https://ept.ms/3sr5LhH

RUSH TRANSCRIPT

Jan Jekielek:
Jeff Clark, such a pleasure to have you on American Thought Leaders.

Jeff Clark:
Thank you, Jan. It’s good to be here. I enjoy your show.

Mr. Jekielek:
Thank you. President Trump has indicated that he wants to use recess appointments to put people into his cabinet and into other positions. So can you explain to me what this is all about and why he might be talking about that so prominently?

Mr. Clark:
That’s the right characterization. He’s thinking about using the recess appointment power and then how that relates to another power I can describe in terms of how Congress takes recesses in the first place. It’s a power that’s been used many times before. There are a lot of very important legal questions bound up in using that power. And there’s a lot of pushback on that. But also, it has a political dimension to it. And so the recess appointments clause is the source of the power that we’re talking about. It’s in Article 2, Section 2, Clause 3 of the Constitution, and it gives the power when Congress is in recess for the president to appoint someone without any kind of Senate confirmation process.

The president solely taps someone on the shoulder and says, I would like for you to serve this office in my government. It can be in any department, any agency, and then that person can begin to serve once they receive a piece of paper called commission. Normally, the base appointments clause is in Article 2, Section 2, Clause 2. It says that the president can appoint someone and then they go into office if the Senate confirms them. That’s a joint process with the Senate. The one power is one where it’s a cooperative power essentially with the Senate, although the president’s in the predominant role of picking the person. The Senate doesn’t get to pick someone, they just get to do thumbs up, thumbs down.
And then the recess appointment clause involves only an exercise of presidential power. So those are the two powers. And the dispute is coming up because the senators are very interested, many of them anyway, and especially the Democrat Party senators, in preserving their power to give their vote on whether a particular nominee of President Trump should get the thumbs up or thumbs down. So if the president shifts to using recess appointment clause powers more frequently, they don’t get that attempt to try to influence the process.

Mr. Jekielek:
Let’s learn more about you. You were very prominently part of Trump 45. Please tell us about your background.

Mr. Clark:
Sure. I was also part of Bush 43. I was born in Philadelphia to parents who were lower middle class. I thought we were middle class until I went off to Harvard to study economics and Russian and Soviet history. I spent a lot of time learning about the rise of Leninism. I am also part Lithuanian. I have a lot of relatives who would teach me about the evils of communism. That’s one reason why I studied in that area. But my primary concentration was actually in economics. I spent a lot of time with statistics and models and microeconomics and macroeconomics.

Then I went off to law school at Georgetown, and I did very well. And I clerked for a prominent federal judge, Judge Danny Boggs. And then I went to work at the prominent international law firm of Kirkland & Ellis. Just before I was about to become a partner, I went over to the Bush 43 administration as one of the youngest deputy assistant attorney generals that there had ever been. I ran the appellate section of the Environment and Natural Resources Division, so I worked on all the cases that went to the Supreme Court for four years from 2001 to 2005.

I started a few weeks before 9/11, so I was there in the department when we got the evacuation order as a result of the different attacks occurring around the D.C. area. I also ran this other section which put me in touch with an area of law that I had never encountered before, all of the law about the Indian tribes in America; the Native Americans, their treaties, the statutes that govern them, and the Supreme Court cases. I did that again for four years, 2001 to 2005.

I went back to Kirkland and Ellis as a partner doing a lot of appellate litigation. I was, before I went into the administration and then thereafter I grew it, I became especially an administrative law expert. I worked in litigating against all kinds of government agencies, just like when I was in the Bush administration, I defended government agencies from litigation. I did patent things, I did communications things, I worked on challenges to EPA rulemakings. I worked on challenges to Interior Department actions. I worked on Energy Department matters. I mean, you name it, I had a very broad administrative practice.

In 2017, I was asked to become an Assistant Attorney General, which is the Senate confirmed spot running one of the seven litigating divisions at the Justice Department. And I accepted that, and I went up for a confirmation hearing, had some testy exchanges with Senator Whitehouse and Senator Al Franken, the Saturday Night Live figure. But ultimately, even though they held me up for quite a long time, I got confirmed with bipartisan support. And I was confirmed in the middle of October of 2018. And then I got sworn in on November 1st and began my service in the Trump administration running a division of about 400 lawyers at the Justice Department and countless support staff.

Then in September of 2020, I was the only one of the Assistant Attorney Generals tapped to run a second division, which I ran simultaneously the Civil Division, and the civil division is a thousand lawyers. So by the time I
left nearing the end of the Trump administration before the Biden inauguration, there were 1,400 lawyers and then, you know, a whole slew of other civil servants under me, you know, paralegals, secretaries, and other administrators. I resigned on January 14th, six days before the inauguration.
Ultimately, I wound up at my current think tank, the Center for Renewing America, where I work with many excellent people. It’s headed up by Russ Vought, who was my colleague in the Trump administration. He was the director of OMB. And I think one reason why we work together is because a lot of what I did was defending Trump administration regulations. And the Office of Management and Budget reviews all of the regulations that go through all of the departments and agencies of the federal government. So that’s a thumbnail.

Mr. Jekielek:
But you don’t associate the Trump administration with adding new regulations, right?

Mr. Clark:
No. We were trying to take down more regulations than we put in place. And indeed, there was an executive order to that effect, and we’re very successful in deregulating. But if you’re going to repeal a policy, right, that was stressing the American people, because regulations are often a kind of hidden form of tax, and we’ll call them regulatory taxes. If you’re reducing those regulatory taxes, you have to put out a new rulemaking that either repeals or amends an existing rulemaking. That process then is
kind of shepherded through by the Office of Management and Budget [OMB]. They have an official that is the head of the Office of Information and Regulatory Affairs [OIRA]. And OIRA is the component of OMB that focuses on regulatory issues.

Mr. Jekielek:
Let’s jump back to recess appointments. Why is President Trump talking about this at this moment?

Mr. Clark:
It is because he is seeing that the confirmation process as it has evolved over time, especially if you look back at the early republic, has really bogged down. And it’s become an opportunity for political gotchas. It’s become an opportunity to slow the process down. Therefore, it’s become a process to resist President Trump. He can’t get his team fully in place until, especially since we’re talking about, you know, more than a thousand positions, you know, it’s a big bottleneck to go through the Senate on each of those, right? And this is not the system that the framers really designed.

Let me put that in historical context for you. I’ve looked at the Senate rules at the time when President Washington was putting together his first cabinet. These rules were very simple, and they resulted in a very simple confirmation process. How would it work? The president was actually given the power to go to the Senate and observe the proceedings and maybe even preside over them if he wanted to. If he didn’t preside, then it was the vice president in his capacity as the president of the Senate who would preside.

The nominations might go over early in the day, like in the morning. Then before the day was over, the Senate would vote on whether to confirm that nominee or not, and they often did it by voice vote, so that very efficiently and quickly President Washington gets his team in place in order to administer the federal government. Obviously, that was a smaller federal government. If the process was really intended to be more extensive, it should have been more extensive at a time when there were far fewer government departments and fewer positions.

So as one example, one of the initial members of the president’s cabinet was his attorney general, and there was no such thing as the Justice Department. It was not created until circa 1870. I don’t think a lot of people know that. So even you would think you would have the luxury to go on
maybe for several days, a week, multiple weeks to have the Senate review the nominees. But they didn’t see the process that way. That wasn’t how it was intended by the framers.

So for a lot of the history of the Republic, the nominees of the president both to serve in the executive branch and the nominees of the president to serve in the judicial branch, in the Article III judiciary for lifetime appointments, these things sailed through relatively quickly. The check was a modest one on presidential power, because the Federalist Papers tell us that the president is really the main driver of this. Especially if we’re talking about people in his own branch, executive branch officials. Now, we get to the modern era, where you have to fill out a very long questionnaire.

I can tell you I filled out this questionnaire. It took many days. For instance, I had to research and list all of the Supreme Court cases I’ve worked on, which is, you know, quite a few over the years. And we’re talking about my nomination process in 2017. If I were lucky enough to be nominated for something, it’s all the things that I worked on between 2018 and 2021. I’d have to research those and put those and compile those into a list. It takes a long time to prepare this paperwork.

The paperwork goes over, then they have to schedule a confirmation hearing, and then you prepare for it. You go to it, you get questioned by each of the members, and then they ask you after that questions for the record [QFRs]. That takes a while to prepare the follow-up questions from the hearing. Then they have to schedule a business committee meeting on you, and they take a vote from the committee, and then they either report you out favorably or unfavorably. And then you get a cloture vote in the Senate, and then you get an actual vote on the floor of the Senate.

This is a very involved process. It’s like night and day from the process that George Washington encountered, and I think the drafters of the Constitution intended. There is a lot of red tape that has been added. And it’s a lot of opportunities to just, you know, drag the process down and make it so that there are very many qualified people, you know, excellent people who, you know, if the process were more streamlined, might want to serve, but they don’t have to want to go through their whole life history.

If they’re tapped on the shoulder and asked, will you take an appointment, they’ll say, no thanks. I don’t want to be dragged through the newspapers. I don’t want to be subjected to twisting in the wind potentially for months. My confirmation took 14 months from the time that the papers went over to the Senate to the time that I actually started to serve. So the recess appointments clause power exists in the Constitution.
Hundreds of federal officials in the past have been confirmed using it from presidents of all parties. And it’s clearly a power that exists in the Constitution. And it’s one that can streamline a lot of this process. So that’s the president’s interest in it. He’s a businessman. He’s an efficiency expert.

Mr. Jekielek:
How would you react to someone saying, when the republic was young, there was a lot that wasn’t yet known about what would happen. Some of these more advanced procedures were developed in order to be able to protect the American people from bad appointments, so we should follow that process.

Mr. Clark:
Jan, I would push back on that, having looked at the history. President Washington’s initial cabinet included people like Thomas Jefferson.
There were excellent choices made. The reason why the process evolved was not to try to create more excellent appointees. In fact, it is discouraging the service of people who would otherwise be willing to serve, because the process has become filled with red tape. It’s actually the opposite that is true. The process has been pioneered in order to try to stir up political forces.

One of the first big modern confirmation messes led to a book by a Harvard law professor called The Confirmation Mess, about Judge Bork. Let me describe Judge Bork’s career to you. Judge Bork is an eminent law professor. He writes major books and works about how to reform antitrust law, which is very famous. He’s at the Yale Law School. He teaches generations of students about constitutional law.

He’s a constitutional law expert. He gets tapped and he’s put on the D.C. Circuit Court of Appeals, which does a lot of reviewing of government regulations, which, as I said, I’m an expert in. Anyone who’s an expert in that area of law becomes an expert in the D.C. Circuit and how it operates. He serves on that court with distinction, and he’s nominated by President Reagan for an opening on the Supreme Court. The Democrats decided that they were just going to try to bring him down by any means.

Ultimately, they did stop his nomination. It has been turned into a verb, Jan. The verb is Borked. If someone is nominated to a court or the executive branch and they’re subjected to the kind of ill treatment that was shown to Judge Bork, it’s called Borking. The constitutional framers did not imagine Borking. They did not want Borking. They wanted deference to the president’s choices.

If you find that someone took bribes or you find that they lack any qualifications for office, or they’ve been involved in scandals, this is what the founders thought would be their check. Otherwise, even if they wouldn’t have picked someone for a particular cabinet spot, or another spot, if they want that power, they have to run for the presidency and win it.
Otherwise, they should be deferring to who the president wants to put on his team. That’s the system they put in place.

They did not put the Borking system in place. The Democrats used the Borking system not only to block Judge Bork, an eminent constitutional scholar from the Supreme Court. they tried the same tactics, you know, with a sexual, you know, sexual harassment angle against Clarence Thomas. It failed, but they tried it, and it became a national spectacle. They tried it against Justice Kavanaugh to try to keep him off the Supreme Court. That failed as well with these allegations of Christine Blasey Ford.

Again, the process is not designed for this. It has become the kind of thing that also puts the United States in a bad light. It makes these confirmation hearings into laughingstocks all around the world. Our framers did not foresee that system and did not want that system. With the separation of powers fights between the branches, if one branch acquires too much power or they’re potentially abusing their power, it becomes incumbent on the other branches to push them back. One thing that’s attractive to those of us who think that it’s time for the president to push back on abuses of the confirmation process is the use of the Recess Appointment Clause power.

Mr. Jekielek:
You wrote a brief on this with Anthony Licata. Indeed, this is what caught my attention because I was very curious about this recess appointments approach. And then you had it, you know, you laid out for me answers to a whole bunch of questions that I had. So why was it necessary to write a brief? So far, what you’re explaining to me sounds fairly simple.

Mr. Clark:
It’s because there’s a lot of pushback, both from liberal constitutional scholars, and even from conservative scholars. We’re conservative think tankers who don’t want the president to try to put the confirmation process back into its original box, into its original historical moorings. They think that these, you know, constitutional long confirmation process hearings with, you know, documents coming in before and televised hearings and documents coming in afterwards and then debates that are also televised.
I’ve gone to look at what happened inside the business committee meeting about me, for instance, and then any floor debate about it.

With all these things, they seem to like the process. I think they like that process because they can use it when they’re out of power and nominees for executive branch offices can be put on the spot. My perspective on it, along with Anthony Licata, who is a rising legal superstar and a very smart guy, very studied and learned in the law, is that we want to return to the historical process. That’s one of the purposes of the Center for Renewing America is to try to restore the historic Constitution and to shave off its misshapen additions and overgrowths that have happened since the Republic started. That’s why we wrote the paper.

Mr. Jekielek:
Why don’t you give me a picture of what you’re arguing?

Mr. Clark:
The president has the power, if the Senate is in recess, to simply tap someone on the shoulder and decide that they will serve in Office X. It could be the Secretary of Agriculture or the ambassador to NATO. Without a lot to do, that person can begin serving. There is a time limit on such appointments, which is that they can serve until the next session. How long that period is depends on what kind of recess is at issue.

There are two kinds of recess. One kind of recess is an inter-session recess, and the other kind is an intra-session recess. Each Congress has two sessions and they each last a year. In the break between the prior Congress and the first year of the new Congress, there’s an inter-session recess. Then between the first year and the second year, there can be an inter-session recess.

But if you were to recess appoint someone during a recess, like, you know, say in February, after the session for the new year has already started, that’s an intra-session recess. If someone is appointed to an inter-session recess, they serve about a year, because the next session is just about to start. And so that’s the next session. And then you can only serve until the end of that. If you appoint someone, you know, in the first year of a Congress, then they can serve until the next session, which is the second year, which means that the in-trust session recesses can go on for longer.

There’s a famous Supreme Court case about this that was decided a decade ago. It’s NLRB v. Noel Canning. In that case, President Obama was frustrated by the fact that the National Labor Relations Board [NLRB] didn’t have a quorum. So he put three people on that board so that it would have a quorum, and it could start producing decisions. That agency proceeds by doing adjudications, like each thing it does is its own individual case. They produced some decisions that were adverse to this company, Noel Canning, in the labor law area. Noel Canning challenged it because President Obama had made those recess appointments during an intrasession recess, and the intrasession recess was very short. It was only for three days.

Let me explain why the recess is very short. In order to stop recesses which give the president this opportunity, the Senate had taken to doing pro forma sessions. They would actually not be conducting any business, but they would gavel themselves in and say, we’re doing a session. Then they would quickly gavel the session out, on the fiction that the session was really continuing, but it wasn’t. President Obama took the position that he could recess a point, even during a recess as short as three days. That issue ultimately gets up to the Supreme Court. What does the Supreme Court say?

Unanimously, it affirms a judgment that invalidated the decisions of the
National Labor Relations Board with these three Obama appointees on it. What was the rationale? There was a majority opinion, and then there was a concurring opinion. The majority opinion was written by Justice Breyer, who’s now not on the court anymore. The concurring opinion was written by Justice Scalia, who is no longer with us. Justice Breyer said that there is the power to do in-trust session recess appointments, because there was an argument that the president lacked that power.

However, the court said that a recess of three days is not long enough for the president to exercise this power. In order for the president to be surely able to exercise the power, this recess has to last for at least 10 days. The concurring opinion said that there shouldn’t be intrasession recess appointments. There should only be intersession recess appointments. Since these appointments by President Obama were intrasession recess appointments, they were inherently invalid. All nine of them agreed that the NLRB actions here could be invalidated because they had three suspect appointees on it, but their rationales were very different. And so that’s the world in which we find ourselves.

I don’t think the Supreme Court is going to revisit that case. They’re going to treat that as a stare decisis, that it’s already been firmly established. The rules are clear. If President Trump finds himself in a situation where the Senate takes a 10-day or longer recess, then he can exercise this power of recess appointment. Now, call that the basic situation of the Senate agrees to put itself into recess.

Mr. Jekielek:
But what happens if the Senate does not want to go into recess, but the House does?

Mr. Clark:
In that case, there’s another provision in the Constitution. It’s the
Presidential Adjournment Clause. Sorry to be so technical, but that’s what these things hinge on. And it says that if the chambers disagree about the time of adjournment, then the President has the power to send them into recess for as long as he sees fit. And that power is on that has a check at the back end, which is that there’s another constitutional provision that says the Congress has to meet at least once a year. The president, if he used this presidential adjournment clause, would not be claiming the power to dismiss Congress. He could just put them into a recess, and there’s a constitutional backstop for that.

Now, for your viewers to understand, this presidential adjournment clause power has never been used. However, it is plainly in the Constitution. It is plainly a power that the president possesses. back on this misshapen, distorted confirmation process that’s evolved out of recognition. You can’t be recognized anymore versus what the framers intended. It’s time for the separation of powers, for the president to use this power to push back so we can get back to something much more like the original confirmation process that was a lot shorter and a lot more reasonable.

Mr. Jekielek:
Can this process be used against the president?

Mr. Clark:
I don’t think it can be used against the president because he has recess appointment power and he has presidential adjournment power if there’s a disagreement. Those who are arguing to the contrary are making some hyper-technical arguments that try to say functionally that the president shouldn’t have this power, that it’s unwise for him to exercise it, that the Senate could easily defeat the power by deciding that, and this argument really makes no sense to me, that as long as the Senate decides to stay in session, they’re not actually expressing a view of whether to take a recess or not. I don’t think the courts would remotely look at it that way. And in any event, we’ve done a deep dive on the history of these clauses.

It turns out that there are many state constitutions going back to the time of our framing that had similar clauses in them. We call those gubernatorial adjournment clauses. If the two houses of the state legislature disagreed about taking a recess, the governor of that state could decide to send them into recess. Some states, it’s like our federal constitution, for as long as that governor sees fit. Other times, for instance, like in one state constitution, it had a four-month limit in it. The precise way in which they execute this concept varies.

But the basic idea that the governor was the tiebreaker, he decides, and it’s not for the courts to second-guess that. They’ll say that it’s a political question, and they’ll say that a fight between two houses in the state legislature is also a political question. And so the governors clearly have this power. They need this power. So those who are arguing that this is a, you know, kind of a non-power are wrong. The framers thought that this was an important power.

Indeed, it’s even older than that. It’s not just like this was drawn from state constitutions that the framers knew about. They were adopted 10 to 20 years before. This is a power that goes all the way back to the English king. The English king had the power, you know, going back centuries to dissolve parliament or to prorogue parliament. So the framers, prorogue means to put it into recess, essentially. And the framers, they did not give the president the power to dissolve Congress.

We have three separate branches of government, whereas in England, as you might know, right, under their unwritten constitution, their legislative branch and their executive branch are fused together, especially in their modern system, much like the Canadian system. The prime minister is a member of parliament, and he comes out of parliament. In the U.S. system, that’s not true. The president is entirely separate from Congress. The framers wanted a Congress that continued to exist and that the president could not disrupt. That avoids a lot of the problems that happened in English history. In English history, if the king didn’t like what the parliament was saying and was trying to override the will of the people at some level, he would just say, go home, get out of here.

The framers didn’t want that system. They wanted the three branches to be pushing back on each other in order to preserve liberty through that system of checks and balances and what I called the hurly-burly. But what they did decide is that the president did need this power or some analog to it to prorogue the Congress. Then they limited it further. It’s not just like the English King could do. He could just say, all right, take a month, then I’ll do some things I want to do while you guys are out of session. They said that he only has this power to essentially prorogue Congress if there’s a disagreement between the two houses.

In America we have a bicameral legislature. We have a Senate, the upper house, and we have the House of Representatives, the lower house. Only in a situation in which they disagree does the president have this adjournment power, which is the analog, but in a more limited form of this power that goes back to the English king. But those who are pushing back on this and trying to say that there is no presidential adjournment clause or we should ignore it, they’re ignoring this centuries-long history.

They’re ignoring the fact that the framers wanted to confer this power on the president, and they thought very carefully about its implications. They put limits on it so that it was a power that makes more sense. It’s part of our republic. It’s part of our, you know, what the Democrats call our democracy. What do you call it? I call it the republic because I think that’s a better description.

But functionally, in the minds of the average American because of how our education system works and the fact that there’s been a lot of death of civics education and of teaching people about the Constitution, I’m fine in a practical sense with referring to it as a democracy because our democracy is in the form of a republic. But if I were teaching a political science class or a law class, to my mind, a democracy is much more like a direct democracy where it’s like Athens and all of the relevant enfranchised voters are deciding individual questions. But that’s not really a workable system of government for a country of hundreds of millions of people.

Clearly, the framers imagined that eventually through Manifest Destiny, we would expand from coast to coast with the addition of new states. And so we have a Republican form of government, as the Constitution refers to it in Article 4. And that means that the people elect the members of Congress, and then those members of Congress represent their interests, and they pass laws. And those laws are executed by a president of the United States who’s in a separate branch of government. Then when there are conflicts between those two branches, and when there are people who disagree with government statutes or government regulations, they can challenge them in the courts. And then the third branch, the courts, will adjudicate those disputes.

Let me game this out. So if both houses decided to, if all of Congress decided that they would not go into recess, then the president does not, in that scenario, have recess appointment power. And he also does not have presidential adjournment clause power because the two houses are in agreement. And so the president can only send the two houses into recess if they disagree with each other. And then he can exercise recess appointment power.

Another scenario is the two houses could agree to go into a 10-day-plus recess. And when they do that, he also has recess appointment clause power. So two scenarios to have recess appointment clause power. One involves this presidential adjournment clause in the case of disagreement between the two houses. The other one is if the two houses agree to go into a recess of 10 days plus.

Mr. Jekielek:
Your latter example would send a signal that we trust you to make these appointments.

Mr. Clark:
Yes.

Mr. Jekielek:
The other option would send the opposite message, presumably.

Mr. Clark:
Yes, it would mean that one of the houses did not want
to allow the president to more quickly get his team up and running.

Mr. Jekielek:
Practically speaking, what do you expect will happen?

Mr. Clark:
I don’t want to prejudge any decision by the president about how to use his constitutional powers. Our point is to show the president that he has the option. The other point is to recognize that the framers were all on top of these kinds of things. They spent a lot of time thinking about the structure of government to get it right, so that in the fights between the branches, right, or the disagreements between the branches, each of the branches had their own tools to try to use as leverage in negotiations to reach a particular result that they were trying to drive to.

This is a tool that the president has. It gives him leverage in discussions with, probably in our current situation and makeup, leverage with the Senate in order to negotiate getting his team through the Senate confirmation process. Or you could imagine a whole range of deals that the president could make. He could say, I’m not going to use this power, but I really want to make sure these nominees are confirmed. If you’ll agree to bring them up quickly and confirm them, then I don’t need to try to use this power for the first time.
Alternatively, he could decide that there’s some category of people that I’m going to recess appoint and the other ones I’m going to send up for you, the Senate, to confirm. The other thing to understand is that this has been traditionally how the president has used the power, especially in the modern era. If he uses the recess appointment clause power, he often also uses the base appointment clause power. Here’s how that works.

The president says, I’m going to recess appoint John Smith to be Secretary of Commerce. Then that person can begin serving immediately as soon as they receive this document called the commission, which is very famous because a fight about whether somebody got a commission or not is what this famous case that probably a lot of people have heard about called Marbury v. Madison is about. It’s about Marbury saying, I’m owed a commission. Where’s my commission? He sues to get it as things shift into the Jefferson administration. Then the president also sends up nomination documents for confirmation to the Senate.

So he says, I’m putting this person in. They can start working now, and they can serve until the end of the next session. But I also want to know whether you think this person should be confirmed. And then you can proceed on the separate track, or what some would say is the ordinary track of Senate confirmation. Certainly, if that person is not confirmed, if John Smith for the Secretary of Commerce is not confirmed, then his commission expires at the end of the next session. Whereas if you get confirmed, the commission does not expire. And so that person can serve for as long as the president wants to leave them in office.

I’ll give you an example. There are people who served in the Reagan administration who were held over to the Bush 41 administration. So they get a commission from President Reagan. President Bush is perfectly happy with them continuing to serve. He doesn’t issue a new commission to them. Their commission doesn’t expire. He just lets them continue in office. And then in this case, they resign before President Clinton comes in. If the person wants to engage in some kind of fight, they’re fired, potentially, by President Clinton, because President Clinton wants to put his own person in, which is the way our system works.

The point to understand is that the base Senate confirmation commissions that come out of that do not expire. They might practically expire when the presidency changes party hands and presidential hands. Not all of the Reagan people were held over into the Bush 41 administration, for instance. But recess appointments have an expiration date stamped on them. They cannot go past the next session of the Congress. And so if both methods are used simultaneously to serve things up for the Senate and to give them a say, then that’s when that expiration date comes into effect.

Mr. Jekielek:
But if a president were facing a very hostile Senate, if they get the recess through their recess power, couldn’t they just make the recess appointment and then just make the same recess appointment for the next session?

Mr. Clark:
No. But there is a way actually to extend a recess appointment and I’ll give you an example and that’s under a statute that Congress passed so they passed a statute in 1998 called the Federal Vacancy Reform Act [FVRA]. That statute allows someone who has met certain criteria to be named an acting official in that department or agency or whatever the office is for to a base period of 210 days, and then there are certain ways for it to be extended.

Someone could get a recess appointment, and as that’s expiring, they could then be given an FVRA appointment as acting. You could get the two years of the recess appointment plus the 210 days. What’s the practical example of that? As his appointment was coming to an end, President Bush moved him into a senior executive service job for a short time, and then he named him as the acting solicitor of labor. Then Eugene Scalia would go on to become Secretary of Labor in the Trump administration. He serves as a recess appointee for a period, and then he serves for another period tacked on to that under the Federal Vacancy Reform Act. The president has not just a constitutional head of power under the recess appointment clause, he has this FVRA head of power to name actings as well.

Mr. Jekielek:
What about these acting roles that we heard about so often in Trump 45?

Mr. Clark:
As an example, in the Trump administration, the first attorney general that President Trump nominated and who was confirmed by the Senate was Jeff Sessions, former senator from Alabama. So he serves. Then in 2018, just a few weeks after I started, and after I had my first onboarding meeting with him, President Trump decided that he wanted a different Attorney General. And so I remember being at the farewell gathering that we had up in the Attorney General’s conference room and then seeing him get into the black set of SUVs and being driven out of the big courtyard inside main justice.

Then President Trump named the Chief of Staff to Jeff Sessions, Matt Whitaker, who’s just been named by President Trump as the ambassador to NATO, as the acting attorney general. Actually, there was litigation about that. In particular, there were criminal defendants who said that they were being convicted under the leadership of an acting attorney general who they didn’t think was validly appointed. Those challenges actually were all rejected. This office inside the Justice Department, a very important office called the Office of Legal Counsel, was called on to write an opinion about whether Matt Whitaker serves as acting attorney general.

One interesting thing to note about Matt Whitaker is that he was not Senate confirmed at the time. He’d been Senate confirmed back in Bush 43 as the U.S. attorney from Iowa. But in Trump’s first term, he was not Senate confirmed. He didn’t hold a Senate confirmed office. But the Office of Legal Counsel, going back in history, saw that there had been many examples of individuals who were not Senate confirmed who were tapped to serve as acting attorney generals in particular or acting as other cabinet members. So this power to use actions is also a longstanding power that the president has had, unlike in the earlier phase, where there was nothing like this Federal Vacancies Reform Act.

Having spent a lot of time with it, I can tell you it is an extremely complicated statute. That wasn’t on the field before 1998. But now it is, but it works as I described to you. So if there was someone who was either appointed by President Trump and Senate confirmed or recess appointed by President Trump, their tenure could be extended by at least 210 days by this Federal Vacancy Reform Act.

Mr. Jekielek:
It seems like there’s just a lot of opportunities here for the president to be able to enact his vision for America.

Mr. Clark:
Yes, that’s fair.

Mr. Jekielek:
In the previous Trump administration, he encountered a lot of resistance. You feel like that type of resistance is possible this time around?

Mr. Clark:
Everything depends on who is actually nominated and confirmed or who is recess appointed. And you can’t foresee all of the circumstances in which particular officials, once they’re vested with that power, might disagree with President Trump. But I can tell you my vision for what someone who receives a commission from the president to serve in a high office should do. They should give the president their best advice.

Indeed, there’s a separate clause in the Constitution. It’s called the Opinion Clause. It gives the president the power to ask any of these so-called principal officers to call for their opinion in writing. What’s the purpose of this? Of course, the president can have discussions with people, right? But if you really want to solidify what they think, you can make them, if you’re the president, reduce it to writing. And then, you know, it really, it becomes a document that will eventually come out in history. It will eventually go to the National Archives. The President can also use this device.

Not only can he study what they said, he doesn’t have to rely just on the memory of what was said in an oral meeting or on a telephone call or something. If the President is getting this candid advice, it’s reduced to a memo form, or if it’s provided by telephone or video call in the situation room, an Oval Office meeting, or in some other part of the executive branch when the president is present. The president hears from cabinet member X, and his view might be different than cabinet member X. They can have a frank exchange of views, and then the president makes a decision. This cabinet officer has a number of choices. There’s a famous book about corporate law that applies to this model as well.

There are three things. There’s voice, there’s exit, and there’s loyalty. The cabinet official will have exercised voice by saying what his views are to the president. The president decides to agree or disagree. There’s loyalty, which is the president makes a decision even if you disagree with it. You say, all right, I’ll carry it out because you’re the constitutional official who heads up the branch. You’re my superior officer. That’s what I’ll do. Or there’s exit, and you can say, Mr. President, I disagree with you to such an extent that I cannot actually carry this decision out.

Now, in the modern government, oftentimes, people will do what I think is the dishonorable thing, and they’ll go running to the press, or they’ll go leaking to the press that they disagreed with the president. I think that is entirely dishonorable. I don’t think the framers thought that that was the way anyone should behave. They take an oath to the Constitution, and that Constitution has in it a structure where the president is the head of the executive branch. They’re not. They’re an official in it that he’s chosen. They all serve at the pleasure of the president. And therefore, if they disagree, they should quietly exit. And that’s the way the system should work.

It shouldn’t work in this way where we have these noisy public disagreements between people who’ve been appointed by the president. And so I hope that the second term of the Trump administration will see fewer people engage in this kind of public backstabbing of the president. We didn’t see any of that, for instance, in the Biden administration. Jan, do you know of any situations in which there was a cabinet official who ran to the New York Times, saying, I disagree with Biden about this? No.

But for some reason, if you’re President Trump, there are people who want to get inside and resist him. I’m not attaching that label to any particular person in the new Trump term. I hope that there are zero of them. But there are definitely examples of this, and they made President Trump very angry. Famously, he would vent against them on Twitter, now X.

Mr. Jekielek:
This has been a fascinating deep dive into the topic of recess appointments and commissions. Any final thoughts as we finish?

Mr. Clark:
The Federalist Papers have a discussion of these three things. What is the difference between these things? There’s the presidential nomination, then there’s a Senate confirmation, and then there’s the commission. What is the commission? It’s the evidence of the fact that you ran the gauntlet of the process. And if it’s a recess appointment, there is no Senate gauntlet. It’s just the president decided to do it. And you get this commission.
And that commission is the legal document that establishes that you have the right and privilege to exercise that office.

I have a presidential commission from President Trump up on my wall.
A lot of people think that these kinds of things are quaint. But, no, they’re legal documents with operative effect. Indeed, the first major case in which the Supreme Court established that it could exercise judicial review and decide whether what a president did or what the Congress did was consistent with the Constitution is this case, Marbury v. Madison. What is it a fight about?

It’s a fight about a commission. At some level, what’s old is new again. Now, we might have an interbranch conflict or disagreement about this power that the president has that clearly exists, but has never been used—the presidential adjournment clause.

Mr. Jekielek:
Jeff Clark, such a pleasure to have you on the show.

Mr. Clark:
Thank you.