Herold and Surratt

[Thomas Thorne]

the Constitution directs how officials who will exercise substantial authority under the laws are to be selected. Under the Appointments Clause, Art, II, sec. 2, cl. 2, the President is vested with the authority (and duty) to appoint all officers of the United States, subject to Senate confirmation. The President may also, under certain circumstances, fill vacancies in such offices through recess appointments which expire at the end of the next session of the Congress in which they were issued. Art. II, sec. 2, cl. 3.

Over the years, Congress has established a legislative scheme to protect the Senate's constitutional role in the confirmation process against presidential evasion. The Vacancies Act traces its legislative origin to a 1795 enactment limiting the time a temporary assignee could hold office to six months.1 All subsequent vacancies legislation contained some time limitation on temporary occupancy. Congress has also enacted provisions requiring that filling of vacancies by recess appointments be promptly followed by submissions of presidential nominations for such positions,2 and prohibiting the payment of salary of recess appointees who had been rejected by a vote of the Senate.3

The Vacancies Act,6 originally passed in 1868,7 was intended to prevent the President from delaying sending forth nominations for advice and consent positions which could thereby evade the Senate's confirmation prerogative, and to provide the exclusive means for temporarily filling vacancies in covered positions unless Congress explicitly provided a superseding mechanism. Only two options were available under the statute: either a first assistant or a presidential designee who had previously received Senate confirmation could serve for a strictly defined and limited period. Prior to 1988, the limitation period was 30 days. In that year it was increased to 120 days. An unbroken line of Attorneys General and Office of Legal Counsel opinions from 1880 through 1977 reflected the understanding that there could be only one limited period of occupancy per vacancy (a first assistant's and a presidential designee's service could not be piggybacked) and that a pending nomination did not toll the limitation period.8 These opinions held that once the time period was exhausted, the office had to remain vacant and the powers and duties of the office could not be lawfully exercised. The Act was understood by the DOJ to apply in this rigid manner whether bureau chiefs or the heads of cabinet departments were involved. The only recourse of a President to fill a position in the event the Vacancies Act was unavailable was the nomination process or a recess appointment...

The President now has three options when an advice and consent position in any executive agency becomes vacant as a result of the death, resignation or other inability to perform the functions and duties of the office. Under new Section 3345 the President may allow the first assistant to such officer to assume the functions and duties of the office; or he may direct a current officer in any agency who has been subject to Senate confirmation to perform those tasks; or he may select any officer or employee of the subject agency who has been with that agency for at least 90 of the 365 days preceding the vacancy and is at least at the minimum GS-15 grade level. However, a person may not temporarily serve if that person did not, in the previous 365 days, serve as a first assistant, or was first assistant for less than 90 days, and the President submits a nomination of that person to the Senate. Section 3345 (b) (1).


The above is an inelegantly copied abstracted legal article from the Federalist Society in 1999 about filling cabinet vacancies. Under the constitution Pres. Johnson or Foster could during a congressional recess as existed between March and December 1865 have appointed anyone to be Secretary of State under the recess provision of the constitution. Pres. Johnson opted to use the statutory mechanism provided by Congress-which Lincoln had also employed to appoint Asst Secretary Frederick Seward-to make Chief Clerk William Hunter Acting Secretary of State.

Obviously neither Frederick Seward or William Hunter lacked the political clout of William H. Seward. But if required either could have legally issued a call for a presidential election.

It is fun to point out that the idea that the conspirators sought to prevent a "lawful election" did not originate in the pages of the Surratt Courier in Jan 1987 by John Brennan but as Mr. Brennan noted was included as a specification in US v Herold. Pl see the Steers edition of Pittman p.19. Curiously in a trial in which U.S. Grant had to testify that the military department of Washington did have the "fortified and intrenched lines" so crucial in justifying a military trial, I can't find anything in Pittman to suggest the prosecution brought up the election prevention specification in their case. The prosecution would have to prove the conspirators were aware of the 1792 and related acts and sought to target all 5 persons I have named.
Tom