Can Political Advisors Serve on the NSC?

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Copyright 2019 Dan Cofran

By statute, Steve Bannon is not eligible to be on the National Security Council and should be removed. The legal proceeding used to challenge a person’s eligibility to serve in a public position is a proceeding in “quo warranto,” meaning “by what legal authority or ‘warrant’ do you hold this position?”

In a February 2, 2017 FB post, I stated removal as a practical matter wouldn’t make any difference because Donald Trump is going to listen to whomever he wants, with or without an official position.

However, we are seeing increasing evidence that the White House does not understand or accept the wisdom of the “separation of powers” foundation of our nation’s government, namely, that the Legislative, Executive and Judicial branches constitutionally are separate but equal branches of our government, subject to constitutional “checks and balances” on each other to maintain equilibrium and avoid dominance by any one branch . . . autocracy in the case of the Executive branch.

The White House is testing boundaries. It’s time to push back . . . through the Courts.

Under the Constitution, Congress legislates, Art. I, Sec. 1, and the Executive branch must “take Care that the Laws be faithfully executed,” Art. II, Sec. 3, “faithfully” meaning within, not beyond, the bounds of those laws. Think of it as a fence.

. The Law. Congress by the 1947 National Security Act, 50 U.S.C. Sec. 3021, created the National Security Council as a Cabinet-level membership body limited to two categories of the nation’s top civilian elected, cabinet and military officials, not political advisors, as follows:

. Statutory Members. Under the NSA, the NSC “shall be composed of” the President, the Vice President, the Secretary of Defense and the Secretary of Energy (nuclear weapons).

. Advice and Consent Members. In addition, the President can appoint, but “subject to the advice and consent of the Senate,” Secretaries and Under Secretaries of other Cabinet-level departments, e.g., Homeland Security, and the military departments, e.g., Secretaries of the Army, Navy and Air Force (all civilians), to the NSC.

In addition, at a lesser “attend and participate” level, the Chairman of the Joint Chiefs of Staff, the Director of National Intelligence, the Coordinator the Prevention of Weapons of Mass Destruction Proliferation and Terrorism and the Director of National Drug Control Policy may “attend and participate” in NSC meetings. They are statutory “attendees,” not members.

Political operatives by statute are not included as NSC members. For example, David Axelrod, Barack Obama’s political advisor, was not a member. According to Axelrod, he attended occasionally but did not speak. Karl Rove, George W. Bush’s top political advisor, reportedly was barred from even attending NSC meetings in order to avoid the appearance of political influence or impropriety.

That’s it. No more. Nada. No presidential political advisors as members. No Karl Rove. No David Axelrod. No Steve Bannon.

We are a nation of laws, not men and women. So be it.

© 2019 – 2021, Dan Cofran. All rights reserved.

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