Candidate for FBI acting director may not meet minimum requirements

One of the five people the Trump administration is considering to temporarily lead the FBI in place of fired Director James Comey may not meet the minimum qualifications for the position.

Under federal law, one of the criteria to serve as acting FBI director is that a candidate hold "an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate."

But whether William Evanina, who reportedly interviewed for the position of acting FBI director with Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein on Wednesday, meets that requirement is open to interpretation.

Evanina's current job, national counterintelligence executive in the Office of the Director of National Intelligence, requires Senate confirmation. However, that mandate was only added in 2015, after Evanina was appointed to the role – meaning that he, himself, was never confirmed by the Senate.

The language is ambiguous. The Justice Department declined to comment, but the issue has raised concerns on Capitol Hill and prompted at least one congressman's office to request clarification from the Congressional Research Service.

Richard Painter was the chief ethics lawyer for President Barack Obama, White House employees and senior nominees to positions in the executive branch that require Senate confirmation. He suggests the operative portion of the statute is the one mandating that the appointee had been personally vetted by the upper chamber of Congress.

"This qualification focuses on whether he has gone through Senate confirmation," Painter, a professor at the University of Minneapolis Law School, writes in an email. "Thus, if he were to have an acting or recess appointment to that position, the criteria would not be met."

(William Evanina/Office of the Director of National Intelligence)

Some scholars, though, say the text of the statute concerning acting appointments could be seen to apply to the office a person holds, not whether the person himself was confirmed – meaning that Evanina would still be qualified to be appointed acting director.

"That's right. I think it does meet the statute," says attorney Bill Banks, director of the Institute for National Security and Counterterrorism at Syracuse University, whose study includes constitutional law. "Because of the terms of this statute, he doesn't have to be confirmed for the interim position."

There are other qualifications that a candidate for FBI acting director can meet instead: The person must currently work for the Justice Department or one of its component agencies or have worked there for at least 90 days within a year of the previous director's departure; and that person has to hold a senior paygrade of GS-15 or higher.

Two other candidates being considered for acting director – the special agents in charge of the FBI's field offices in Chicago and Richmond, Virginia – would appear to meet those requirements. So does the current acting director, Andrew McCabe, who was also in the line of succession, another qualification for the acting director's post.

Evanina, however works at ODNI, which is a separate agency from the Justice Department. And that means that the question about the Senate-confirmation requirement, and whether it applies to him or his office, may ultimately decide if he stays in the running to at least temporarily helm the FBI.

"It could go either way, and I just don't think it's very clear," says Carl Tobias, a law professor at the University of Richmond School of Law. "You could make a plausible argument: Isn't it more about the office than the particular individual – that it's really that you've held and discharged the duties of that office, rather than you made it through the confirmation process?

"I could argue it on both sides," he says.

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