WASHINGTON – President Donald Trump's controversial pick for the No. 3 post at the Pentagon withdrew his nomination under fire but is now eligible to take other senior positions — even Defense Secretary — according to a legal expert.
Retired Army Brig. Gen. Anthony Tata, who once branded former President Obama a "terrorist leader" in a tweet, pulled his name from consideration for undersecretary for policy on Sunday. After Tata withdrew, he was promptly installed at the Pentagon "as the official performing the duties of the deputy undersecretary of Defense for policy," according to a Pentagon statement.
From that post, Tata can be tapped to fill other leadership roles on an acting basis if a vacancy occurs.
The Vacancy Act requires an official to serve in the agency for 90 days at a senior pay grade to be eligible to be named to a senior post there. Tata has been a senior adviser at the Pentagon since April and thus is eligible to be named another post, according to a Defense official who was not authorized to speak publicly.
That post could be acting Defense Secretary if the deputy Defense Secretary was removed as well, said Stephen Vladeck, a law professor at the University of Texas School of Law who specializes in national security law. The only post Tata is not eligible to fill is the one he had been nominated for, Vladeck said in an email.
Trump has favored placing senior officials serve in acting posts, a move that he says provides him with flexibility.
Last week, Tata's Senate confirmation hearing was postponed moments before it was scheduled to begin because he faced bipartisan opposition on the Armed Services Committee.
Democrats blasted Tata's new appointment as an attempt to evade congressional oversight.
"This is an offensive, destabilizing move and General Tata should not be appointed to a Senate-confirmed position," Sen. Jack Reed, the top Democrat on the Armed Services Committee, said in a statement. “This method of appointment is an insult to our troops, professionals at the Pentagon, the Senate, and the American people.
"Clearly, President Trump wants people who will swear allegiance to him over the Constitution. His hand-picked candidate for this critical position was on the verge of potentially being rejected on the merits. This is a flagrant end-run around the confirmation process. The situation is symptomatic of a president who is unraveling and continues to lash out."
Sen. Jim Inhofe, the Republican chairman of the committee, offered a qualified endorsement of Trump's move on Monday.
“While I have always stressed the need to have Senate-confirmed leadership in top Pentagon positions, I believe it is within the president’s authority to appoint (Department of Defense) officials when and as appropriate," Inhofe said in a statement. "These are clearly critical positions within the Department where a full bench is needed.”
Tata, a combat veteran, has been a regular guest on Fox News and has published several novels (as A.J. Tata). Tata retracted his controversial tweets, including one in which he had disparaged Islam, Hoffman told reporters last week. The tweets were first reported by CNN.
Defense Secretary Mark Esper and Deputy Defense Secretary David Norquist occupy the top two positions at the Pentagon. Statutes on succession would have Norquist take over for Esper, Vladeck said. If both were removed, Tata could be named to either job.
Esper and Trump have been at odds on several issues over the summer. Last week, Esper defended the decision to move 11,000 troops out of Germany as a strategic move to counter Russia. Later that day, Trump called it retribution for Germany's failure to pay more to NATO.
They have also differed over banishing Confederate names and emblems from military bases, with Trump favoring the names as historic.
Esper also resisted invoking the Insurrection Act to allow federal troops to quell protests earlier this summer. Trump has argued for a more forceful approach.
Asked June 3 if Trump had lost confidence in Esper over that issue, White House press secretary Kayleigh McEnany offered a tepid endorsement.
"As of right now, Secretary Esper is still Secretary Esper," she said.
This article originally appeared on USA TODAY: Trump's controversial Pentagon pick Tony Tata eligible for top posts