(11-11-2013 11:30 PM)Thomas Thorne Wrote: 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
Tom:
The prosecution would have had a very difficult time proving that the defendants, or any of them, knew of even the existence of the 1792 statute, much less its provisions, inasmuch as none of them could testify under the then-current law. But it was not necessary that they do so to convict the defendants. Convictions were had under the conspiracy laws where overt wrongdoing could not be shown (e.g. O'Laughlen, where the Commissioners gave greater weight to the seven defense witnesses than to the three prosecution witnesses). Still, it is significant that Holt inserted into the Specification reference to preventing a lawful election of President and Vice-President of the United States as one of the purposes of the conspirators, because it showed that even then, long before Tidwell, Hall and Gaddy's seminal works, Stanton and Holt (and doubtless many others) were on to the real authorship of the events of April 14 and the purposes and intentions of the authors. Holt later wrote at length about it in his Vindication. That the conspirators were ignorant of the statute was, of course, immaterial. Theirs was just to do and die, not to wonder why. All they did was follow the leader, who also happened to be the paymaster, after the fashion of grunts and hatchet men everywhere and always. Only Arnold had the courage to face the leader down, once, only to revert to his old oily self with his last letter to Booth (the "Sam" letter). It was not even necessary for Booth to have known of the statute and the purposes of Benjamin, et al., and the likelihood is that the 26-year old actor, unschooled in the law, did NOT know of the same. So what? He didn't need the statute to fuel his fire; it burned spontaneously.
The fact that others, such as Foster and Frederick Seward, could have filled the shoes of the departed, briefly or otherwise, strikes me as not very important in the overall scheme of things. The purpose was to create chaos in the United States Government and its military, and chaos is precisely what there would have been if the decapitation has been more successful than it was, and no one knew this better than Confederate leaders.
John
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