In the world of business, lateral movements are pretty common. For those new to the term, it's HR speak for taking a new position with new responsibilities and team members, but no promotion or raise is included in the mix. Moving to a new shift in the kitchen, taking on a new software project, or leaving one team to join another that does something similar, those are lateral moves.
Companies love lateral movement because it usually means they get more work out of a known person for the same cost, and it is either a better fit for everyone involved, or it puts an incompetent nincompoop that can't be fired in a place where they can't break anything.
Government agencies like this as well, but usually for the latter reason than the former. Low and mid-level government positions can be difficult to fill, but once in the system, one has to work hard to get fired. It's often times easier to strongly encourage someone to apply for a transfer to some obscure department where they will spend their days filling out status reports about meetings about status reports about meetings about status reports.
But what about government positions requiring a presidential appointment and approval by Congress? Especially in the Cabinet?
Does moving from Cabinet post to another require approval from the Senate? Or does the previous approval count for the old position still count for the new one?
That's the question being asked on twitter today. Here's why…
Trump wants to remove Jeff Sessions from his spot as United States Attorney General because Sessions recused himself from any investigation related to the campaign, which he worked on. This recusal is required by law. Because of this recusal, Deputy AG Rod Rosenstein became the go-to person in the DOJ for the Russian Investigation. Then, when Trump fired FBI Director Jim Comey to bury the Russian Investigation, Rod activated the Special Counselor rule, and named Robert Mueller III, aka "Bobby Three Sticks" as the Special Counselor in charge.
Only the AG can fire Bobby Three Sticks. And since Jeff "Keebler Nazi" Sessions is recused, that means it's Rod's job, and he's said he's not gonna do it.
That leaves Trump with three moves to fire Bobby, and all of them suck.
The first move is a repeat of history. He could fire Jeff, Rod, and everyone down the line until he gets someone to fire Bobby. Nixon did this on a Saturday night for the exact same reason, to remove a Special Prosecutor. It was called the Saturday Night Massacre. Nixon fired both the AG and Deputy AG until he found Robert Bork, Solicitor General, to do the needful, as the Indians say. Bork was promised the next open chair on the Supreme Court for his part in this. The Saturday Night Massacre basically ended Nixon's presidency, and Bork became the first person to ever have their SCOTUS nomination voted down in the Senate.
The second move is to fire Jeff Sessions during a recess, and appoint his replacement then. The Constitution has a provision in it for the President to make an appointment during a Congressional recess. That appointment would then be approved or not during the next session. This has been anticipated, though. Thanks to a SCOTUS ruling from the 1920's a three day break is not long enough for a recess appointment to take place. Congress will hold a Pro Forma session once every three days, to prevent the recess from becoming official. One member of either house shows up, goes through the motions of having and setting up a session of Congress, sits around for a while, then calls it a day. If this seems petty, it is. Mitch McConnell used this against Barack Obama for a year to prevent him from naming Merrick Garland to the Supreme Court.
The third trick left up to Trump to get Bobby fired is for a lateral movement. Here's the plan…
Trump recently hired John F. Kelly as his new Chief of Staff. He was the Secretary for the Department of Homeland Security, DHS, a Cabinet position. Trump would try to convince Jeff to step down from AG and take over the DHS. Assuming Jeff goes along with this plan, and that's a BIG if, Trump would then name one of his other Cabinet picks, like Rick Perry, as the new AG. He would then have Rick fire Bobby Three Sticks (I'll have more on why he's called that in a future article, but the dude's like Wu-Tang, ain't nothing to fuck with). There's also the chance he fires Jeff outright and names Rick Perry the new AG anyway.
This leads to a Constitutional Crisis, or a scenario that was not explicitly defined in the Constitution, nor has it been decided since.
Does filling a Cabinet opening with a person from another Cabinet position require the consent of Congress, or was that consent already given when that person was approved for their original position?
What if there was a significant change between when the original approval was given, and when the new position opened? Would it be realistic to assume that consent would have been granted?
This is where we're at. We're debating the constitutionality of a Hail-Mary move by the President to end an investigation into his campaign where his own son admitted to meeting with the Russians to gain an edge on his opponent.
But, let's answer the question as best as possible. Does a lateral cabinet movement require approval from the Senate?
To answer that question, let's look at some historical perspective.
Wikipedia link to people that served two or more Cabinet positions.
There are more than a few people that have served in two cabinet positions, but this list also includes cabinet-elevated positions like Chief of Staff which don't require approval from Congress.
So, I had to find someone in two positions, same President, and two positions that required approval, preferably since Watergate.
I found Federico Peña. He served Bill Clinton as Secretary of Transportation then as Secretary of Energy. Here is an article about his nomination for Energy in 1997, and Here for his 1993 nomination. He required Senate approval for both positions.
The most recent example of a person serving two positions is Elaine Chao, the current Transportation Secretary who was also on W's Cabinet. Norman Mineta served 6 months on Bill Clinton's Cabinet, then on W's. For both people, both instances required Senate approval.
The argument that Trump's team will make is that any approval for a Cabinet position is good enough, and that it's not specifically mentioned that each person has to be approved for a specific position. At best, their argument is flawed, and history is not on their side. Every person who was approved for one position had to be approved for the new position they took.