(Slip Opinion)

1

Designating an Acting Director of National Intelligence

In designating an Acting Director of National Intelligence, the President could choose 

anyone who is eligible under the Federal Vacancies Reform Act of 1998, even though 

50 U.S.C. § 3026(a)(6) specifies that the Principal Deputy DNI “shall act for” the DNI 

during a vacancy.

The President could designate the Senate-confirmed Director of the National Counterterrorism Center as the Acting DNI, but that person could not perform the duties of the 

NCTC Director during his time as the Acting DNI because no person may “simultaneously serve” as NCTC Director and “in any other capacity in the executive branch,” 

50 U.S.C. § 3056(b)(2).

Because the incumbent NCTC Director was rendered unable to perform the duties of that 

office while serving as Acting DNI, the NCTC Director’s first assistant would, in the 

absence of an alternative presidential designation, automatically serve as Acting 

NCTC Director under the Vacancies Reform Act.

November 15, 2019

MEMORANDUM FOR THE LEGAL ADVISOR 

TO THE NATIONAL SECURITY COUNCIL

On July 28, 2019, Daniel R. Coats submitted his resignation as the 

Director of National Intelligence (“DNI”), effective August 15, 2019. On 

August 8, 2019, Susan M. Gordon, the Principal Deputy DNI, announced 

that she would resign at the same time as the DNI. In connection with 

these impending vacancies, you asked whether the President could invoke 

the Federal Vacancies Reform Act of 1998, 5 U.S.C. §§ 3345–3349d, to 

authorize Joseph Maguire, the Director of the National Counterterrorism 

Center (“NCTC Director”), to serve as Acting DNI and whether someone 

else might then serve as Acting NCTC Director. We advised that the 

President could designate the NCTC Director as the Acting DNI, but 

because no person may “simultaneously serve” as NCTC Director and “in 

any other capacity in the executive branch,” 50 U.S.C. § 3056(b)(2), Mr. 

Maguire could not perform the duties of the NCTC Director during his 

time as the Acting DNI. We further advised that, because Mr. Maguire 

would be legally disabled from serving as NCTC Director during that 

period, the Vacancies Reform Act would authorize someone else to serve 

as Acting NCTC Director.

This memorandum memorializes the reasoning underlying our advice.

In reaching our conclusions, we considered the interaction between the 
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2

Vacancies Reform Act and the provisions of the Intelligence Reform and 

Terrorism Prevention Act of 2004 (“IRTPA”), 50 U.S.C. § 3003 et seq., 

that establish the offices of the DNI and the NCTC Director. First, consistent with our prior opinions, we concluded that the Vacancies Reform 

Act would remain an available means for designating an Acting DNI, 

even though IRTPA specifies that the Principal Deputy DNI “shall act 

for” the DNI during a vacancy, id. § 3026(a)(6). Second, upon the Principal Deputy DNI’s resignation, no officer would automatically become the 

Acting DNI under either IRTPA or the Vacancies Reform Act, and that 

would remain true even if someone else became the Acting Principal 

Deputy DNI, because the statutes do not allow a “double acting” arrangement. Third, the first person named in the operative order of succession, established by a 2013 presidential memorandum, could not serve as 

Acting DNI because she was on detail to the Office of the Director of 

National Intelligence (“ODNI”) and was not otherwise eligible under 

5 U.S.C. § 3345(a)(3). Fourth, the second person on the order of succession, the NCTC Director, was available to serve as Acting DNI, but, as 

contemplated in IRTPA and the 2013 presidential memorandum, could 

not perform the duties of the NCTC Director while serving as Acting 

DNI. Finally, because an incumbent NCTC Director is, by statute, rendered unable to perform the duties of that office while serving as Acting 

DNI, this was an unusual instance in which someone else could act in an 

already-encumbered position—here, become the Acting NCTC Director—

while the incumbent served elsewhere in an acting capacity.

I.

In 2004, Congress enacted IRTPA, which established the position of 

the DNI to serve as the “head of the intelligence community” and “principal adviser to the President” and others on “intelligence matters related to 

. . . national security.” 50 U.S.C. § 3023(a), (b) (codifying Pub. L. No. 

108-458, sec. 1011(a), § 102(a), (b), 118 Stat. 3638, 3644). The DNI 

is appointed by the President with the advice and consent of the Senate.

50 U.S.C. § 3023(a)(1).

IRTPA also established the ODNI to assist the DNI in carrying out 

his duties. Id. § 3025(a), (b). Congress created several offices within 

the ODNI and authorized the DNI to establish additional offices and to 

hire staff members. Id. § 3025(c), (d). In practice, many of those on the 
Designating an Acting DNI

3

ODNI’s staff are detailed from other agencies in the intelligence community. See id. § 3024(l )(1)–(2) (authorizing the DNI to prescribe mechanisms to encourage such details); ODNI, Who We Are, www.dni.gov/

index.php/who-we-are/organizations (last visited Nov. 15, 2019) (noting 

that “[t]he ODNI is staffed by officers from across the [intelligence community]”).

One of the ODNI’s statutory officers is the Principal Deputy DNI, 

50 U.S.C. § 3025(c)(2), who is appointed by the President with the advice 

and consent of the Senate, id. § 3026(a)(1). The Principal Deputy DNI 

“assist[s] the [DNI] in carrying out the duties and responsibilities of the 

[DNI].” Id. § 3026(a)(5). The statute further provides that the Principal 

Deputy DNI “shall act for, and exercise the powers of, the [DNI] . . . 

during a vacancy in the position of [DNI].” Id. § 3026(a)(6).

Another of the ODNI’s statutory officers is the NCTC Director, id.

§ 3025(c)(11), who is also appointed by the President with the advice and 

consent of the Senate, id. § 3056(b)(1). The NCTC Director serves as 

the “principal adviser” to the DNI on “intelligence operations relating 

to counterterrorism” and has “primary responsibility within the United 

States Government for conducting net assessments of terrorist threats.” Id.

§ 3056(f)(1). The NCTC Director “may not simultaneously serve in any 

other capacity in the executive branch.” Id. § 3056(b)(2).

II.

We first explain who was eligible to serve as Acting DNI upon the 

resignations of both the DNI and the Principal Deputy DNI on August 15, 

2019. We advised not only that the President could designate the NCTC 

Director as the Acting DNI, but also that he would become the Acting 

DNI by operation of the current order of succession, which was issued in 

2013 as an advance exercise of the President’s authority under the Vacancies Reform Act.

A.

Throughout the Executive Branch, the Vacancies Reform Act generally 

applies when a Senate-confirmed officer, such as the DNI or NCTC 

Director, “dies, resigns, or is otherwise unable to perform the functions 

and duties of the office.” 5 U.S.C. § 3345(a). By default, anyone serving 
Opinions of the Office of Legal Counsel in Volume 43

4

as “the first assistant” to the vacant office “shall” become the acting 

officer. Id. § 3345(a)(1). But the President “may” instead choose to designate, as the acting officer, someone who already holds an “office for 

which appointment is required to be made by the President, by and with 

the advice and consent of the Senate,” id. § 3345(a)(2), or an “officer 

or employee” of the same agency who has served in a position with a 

sufficiently high level of compensation “for not less than 90 days” of the 

“365-day period preceding” the vacancy, id. § 3345(a)(3).

IRTPA states that the Principal Deputy DNI “shall act for” and “exercise the powers of ” the DNI “during a vacancy in the position of ” the 

DNI, 50 U.S.C. § 3026(a)(6), but IRTPA does not otherwise make the 

Vacancies Reform Act inapplicable to the position of DNI. In a series of 

opinions dating back to 2003, this Office has consistently explained that 

the Vacancies Reform Act remains available to the President as a means 

for designating an acting official even when an office-specific statute 

provides that someone else “shall” serve in that role. See Designating an 

Acting Director of the Federal Housing Finance Agency, 43 Op. O.L.C. 

__, at *4–10 (Mar. 18, 2019) (“Acting Director of FHFA”); Designating 

an Acting Attorney General, 42 Op. O.L.C. __, at *3–8 (Nov. 14, 2018); 

Designating an Acting Director of the Bureau of Consumer Financial 

Protection, 41 Op. O.L.C. __, at *4–11 (Nov. 25, 2017); Authority of 

the President to Name an Acting Attorney General, 31 Op. O.L.C. 208, 

208–11 (2007); Designation of Acting Director of the Office of Management and Budget, 27 Op. O.L.C. 121, 121 & n.1 (2003). When another 

statute does so, we have explained, the Vacancies Reform Act ceases to 

provide the exclusive means of filling vacancies on an acting basis, but, 

without something more to displace the Vacancies Reform Act, it remains 

an available alternative to the other statute. See Acting Director of FHFA,

43 Op. O.L.C. __, at *4–6. Every court to address this question has agreed 

with our reasoning.1 And we think that the same conclusion applies to the 

 1 See United States v. Castillo, 772 F. App’x 11, 13 (3d Cir. 2019) (noting that district 

“courts have been asked to address the validity of [Matthew Whitaker’s] designation 

[as the Acting Attorney General] and have, thus far, uniformly concluded that it was 

proper”); Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 556 (9th Cir. 2016)

(addressing designation of Acting General Counsel of the NLRB; “neither the [Vacancies 

Reform Act] nor the [National Labor Relations Act] is the exclusive means of appointing 

an Acting General Counsel”; “the President is permitted to elect between these two 

statutory alternatives to designate an Acting General Counsel”); United States v. Patara, 
Designating an Acting DNI

5

DNI. Notwithstanding section 3026(a)(6)’s provision that the Principal 

Deputy DNI “shall act for” the DNI during a vacancy, the President may 

choose to designate as Acting DNI a different official who qualifies under 

the Vacancies Reform Act.

No other provision of IRTPA counsels a different result. In 2012, 

IRTPA was amended to authorize the President to fill vacancies in some 

ODNI offices with non-Senate-confirmed individuals drawn from other 

agencies in the intelligence community. See Intelligence Authorization 

Act for Fiscal Year 2012, Pub. L. No. 112-87, sec. 405(2), § 103(e), 125 

Stat. 1876, 1889 (codified at 50 U.S.C. § 3025(e)). Congress achieved 

that result by expanding the third category of officials made eligible 

to serve as acting officials by the Vacancies Reform Act. See 5 U.S.C. 

§ 3345(a)(3). As it applies to other agencies, section 3345(a)(3) limits the 

available pool to certain officials in the “Executive agency” where the 

vacancy occurs. Id. For the ODNI, however, section 3025(e) expands 

that pool to include officials within the entire “intelligence community.”

50 U.S.C. § 3025(e). That expansion applies to all vacancies “within the 

Office of the Director of National Intelligence (other than that of the 

Director of National Intelligence).” Id.

Although Congress precluded resort to the expanded section 3345(a)(3) 

pool when selecting an Acting DNI, we cannot read that parenthetical 

as making the Vacancies Reform Act itself inapplicable to that position.

To the contrary, by excepting the DNI from its tailored expansion of 

section 3345(a)(3), section 3025(e) implies that section 3345(a)(3) applies 

to the DNI in its non-expanded form, which means that the President may 

 

365 F. Supp. 3d 1085, 1088–91 (S.D. Cal. 2019) (sustaining designation of Acting 

Attorney General); Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 

356 F. Supp. 3d 109, 139, 153–54 (D.D.C. 2019) (same), aff’d on other grounds, 920 

F.3d 1 (D.C. Cir. 2019), petition for cert. filed, No. 19-296 (U.S. Aug. 29, 2019); United 

States v. Santos-Caporal, No. 18-cr-171, 2019 WL 468795, at *6–7 (E.D. Mo. Jan. 9, 

2019) (same), report and recommendation adopted by 2019 WL 460563, at *1 (E.D. Mo. 

Feb. 6, 2019); United States v. Smith, No. 18-cr-115, 2018 WL 6834712, at *2 (W.D.N.C. 

Dec. 28, 2018) (same); United States v. Peters, No. 17-cr-55, 2018 WL 6313534, at *2−5 

(E.D. Ky. Dec. 3, 2018) (same); United States v. Valencia, No. 17-cr-882, 2018 WL 

6182755, at *2−4 (W.D. Tex. Nov. 27, 2018) (same), appeal dismissed, 940 F.3d 181 (5th 

Cir. 2019); English v. Trump, 279 F. Supp. 3d 307, 319−31 (D.D.C. 2018) (sustaining 

designation of Acting Director of the Bureau of Consumer Financial Protection), appeal 

dismissed upon appellant’s motion, No. 18-5007, 2018 WL 3526296 (D.C. Cir. July 13, 

2018).
Opinions of the Office of Legal Counsel in Volume 43

6

select an Acting DNI from certain senior ODNI officers and employees.

And section 3025(e) says nothing to alter the applicability of section 

3345(a)(2), which enables the President to choose a Senate-confirmed 

officer to fill a vacancy when the Vacancies Reform Act is available.2

Congress could have easily excluded the DNI from coverage under the 

Vacancies Reform Act by, for instance, adding the DNI to the list of 

excluded offices in 5 U.S.C. § 3349c or specifying that section 3026(a)(6) 

applies notwithstanding the Vacancies Reform Act.Cf. 6 U.S.C. § 113(g)(1), 

(2) (specifying who shall serve as Acting Secretary of Homeland Security 

in certain circumstances “[n]otwithstanding chapter 33 of title 5”). But 

Congress took no such course. As a result, IRTPA is not the exclusive 

means of temporarily filling a vacancy in the position of DNI, regardless 

of whether there is an incumbent Principal Deputy DNI. Consistent with 

the opinions of this Office and the decisions of federal courts, the President would have discretion to designate as Acting DNI someone else who 

is eligible under the Vacancies Reform Act—either as an official in a 

Senate-confirmed position or as a senior ODNI official who satisfies the 

statute’s pay and tenure requirements.

B.

The Principal Deputy DNI is the first assistant to the DNI. See 50 

U.S.C. § 3026(a)(5), (6); Designation of Acting Associate Attorney General, 25 Op. O.L.C. 177, 179 (2001) (“[T]he phrase [‘first assistant’] is a 

term of art that refers to the top deputy,” and, “[u]nder this interpretation, 

the Principal Deputy would generally qualify as the ‘first assistant.’”).

Yet, because that position became vacant at the same time as the DNI, no 

one automatically became the Acting DNI under either IRTPA (50 U.S.C. 

§ 3026(a)(6)) or the first-assistant provision of the Vacancies Reform Act 

(5 U.S.C. § 3345(a)(1)). Moreover, because an Acting Principal Deputy 

DNI does not satisfy either of those statutory provisions, nobody will be 

 2 The legislative history of section 3025(e) does not indicate that Congress believed the 

exclusion of the DNI from the tailored expansion of section 3345(a)(3) would prevent the 

President from using the Vacancies Reform Act. A section-by-section analysis stated that 

the DNI would be excepted from the new authority and that, under section 3026(a)(6), 

“the Principal Deputy DNI is next in line.” 157 Cong. Rec. 20160 (Dec. 14, 2011). The 

analysis noted that the amendment would not “modif[y] or preclude[] the utilization of 

sections 3345(a)(1) or (2) of title 5 to fill vacancies.” Id.
Designating an Acting DNI

7

eligible under them until a new Principal Deputy DNI is appointed by the 

President.

An Acting Principal Deputy DNI’s ineligibility, by virtue of acting in

that position, to become the Acting DNI is consistent with this Office’s 

long-standing approach. More than forty years ago, we recognized “as a 

general rule of interpretation” that “a statute providing that a deputy shall 

perform the duties of the principal officer in case of a vacancy . . . should 

be construed as referring to an actual and not an acting deputy.” Memorandum for John W. Dean III, Counsel to the President, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: 

Acting Deputy Public Printer at 2 (Jan. 26, 1973). In 1984, we explained 

that the “Office has consistently taken the position that statutes providing 

that a deputy shall perform the duties of his principal during absence or 

disability or in case of a vacancy refer to an actual and not to an acting 

deputy.” Memorandum for D. Lowell Jensen, Associate Attorney General, 

from Theodore B. Olson, Assistant Attorney General, Office of Legal 

Counsel, Re: Service of John C. Lawn as Acting Deputy Administrator of 

the Drug Enforcement Administration at 3 (July 31, 1984). We have 

therefore “cautioned against a ‘double acting’ arrangement.” Id.

Our rationale for continuing to disapprove double-acting arrangements

is grounded in statutory text, executive practice, and common sense. In 

the Vacancies Reform Act, the reference in section 3345(a)(1) to “the first 

assistant to the [vacant] office” is best understood as a reference to 

an individual who has actually been appointed to—and is thus encumbering, for personnel-law purposes—the position of first assistant. In other 

words, only an individual encumbering the position of first assistant is the

first assistant; the term does not include someone who holds another 

position but is temporarily performing the duties of the first assistant.

That is consistent with the venerable principle that an office remains 

vacant even when someone has been assigned to perform its duties on a 

temporary basis. See, e.g., District Attorney—Temporary Appointment, 

16 Op. Att’y Gen. 538, 540 (1880) (“The office in no respects ceases to 

be vacant . . . for the reason that the [assignment] itself contemplates only 

a temporary mode of having the duties of the office performed.”). And 

we construe analogous provisions similarly. Thus, for purposes of 50 

U.S.C. § 3026(a)(6), only an individual appointed as, and encumbering 

the position of, Principal Deputy DNI is the Principal Deputy DNI.
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8

Consistent with that view, when Presidents issue orders of succession 

as an advance exercise of their authority to name acting officials under the 

Vacancies Reform Act, they often specify that “[n]o individual who is 

serving in an office . . . in an acting capacity, by virtue of so serving, shall 

act as [the agency head] pursuant to this order.”3 In fact, such a proviso 

has been included in all four of the presidential memoranda that have 

established orders of succession for the DNI, going back to 2005.4

That practice is strongly supported by common sense. When a line 

of succession for one office lists several officials, we look for the first 

available official on the list. In doing so, we pay no heed to any underlying lines of succession that may exist for each of the listed officials.

Thus, Congress has included fifteen Cabinet officials in the statutory 

line of succession to be Acting President when the offices of President 

and Vice President are vacant. See U.S. Const. art. II, § 1, cl. 6; 3 U.S.C. 

§ 19(d)(1). Although Congress has specified that only officers appointed 

with the Senate’s advice and consent will count as Cabinet officials for 

succession purposes, see 3 U.S.C. § 19(e), the line of succession for each 

Cabinet official typically includes multiple Senate-confirmed officers. For 

example, the order of succession for the office of Secretary of State includes literally hundreds of Senate-confirmed officers, from the Deputy 

Secretary of State to every Under Secretary, every Assistant Secretary, 

 3 E.g., Providing an Order of Succession Within the Department of Justice, Exec. 

Order No. 13787, § 2(a) (Mar. 31, 2017), 82 Fed. Reg. 16723, 16723 (Apr. 5, 2017); 

Providing an Order of Succession Within the Department of the Treasury, Exec. Order 

No. 13735, § 3(a) (Aug. 12, 2016), 81 Fed. Reg. 54709, 54709 (Aug. 17, 2016); Providing 

an Order of Succession in the Environmental Protection Agency and Amending Certain 

Orders on Succession, Exec. Order No. 13261, §§ 3(a), 4(a)–(i) (Mar. 19, 2002), 67 Fed. 

Reg. 13243, 13243–44 (Mar. 21, 2002).

4 See Presidential Memorandum for the Director of National Intelligence, Designation 

of Officers of the Office of the Director of National Intelligence to Act as Director of 

National Intelligence § 3(a) (Sept. 20, 2013), 78 Fed. Reg. 59159, 59159 (Sept. 25, 2013); 

Presidential Memorandum for the Director of National Intelligence, Designation of 

Officers of the Office of the Director of National Intelligence to Act as Director of 

National Intelligence § 4(a) (Mar. 8, 2011), 76 Fed. Reg. 13499, 13499 (Mar. 11, 2011); 

Presidential Memorandum for the Director of National Intelligence, Designation of 

Officers of the Office of the Director of National Intelligence to Act as Director of 

National Intelligence § 3(a) (Oct. 3, 2008), 73 Fed. Reg. 58869, 58869 (Oct. 8, 2008); 

Presidential Memorandum for the Director of National Intelligence, Designation of 

Officers of the Office of the Director of National Intelligence to Act as Director of 

National Intelligence § 4(a) (Dec. 20, 2005), 70 Fed. Reg. 76375, 76375 (Dec. 23, 2005).
Designating an Acting DNI

9

and eventually every “Chief[] of Mission, in the order in which they shall 

have taken the oath of office.” Providing an Order of Succession Within 

the Department of State, Exec. Order No. 13251, § 2(a)–(m) (Dec. 28, 

2001), 67 Fed. Reg. 1599, 1599–60 (Jan. 11, 2002). But, whenever any of 

those officers is the Acting Secretary of State, the presidential line of 

succession skips that person and passes on to the Secretary of the Treasury. See 3 U.S.C. § 19(d)(1); Operation of the Twenty-Fifth Amendment 

Respecting Presidential Succession, 9 Op. O.L.C. 65, 69 (1985) (noting 

that “the acting heads of departments . . . are not Presidential successors”).

Similarly, within the Department of Justice, if the President does not 

invoke the Vacancies Reform Act, the statutory order of succession for 

the office of Attorney General includes the Deputy Attorney General, the 

Associate Attorney General, the Solicitor General, and several Assistant 

Attorneys General. See 28 U.S.C. § 508(a), (b). Each of those offices has 

its own principal deputy who is the first assistant to that office for purposes of the Vacancies Reform Act. See 28 C.F.R. § 0.137(b). Yet, when 

there is only an Acting Deputy Attorney General, the first available person 

in the line for Acting Attorney General is the Associate Attorney General; 

when there is also only an Acting Associate, the next available person in 

the line is the Solicitor General; and so on.5

The bar on double-acting arrangements finds inferential support in judicial decisions. When the Attorney General and Deputy Attorney General both resigned on October 20, 1973, the Solicitor General became 

Acting Attorney General. The district court in United States v. Halmo, 

386 F. Supp. 593 (E.D. Wis. 1974), recognized that the Solicitor General 

had become Acting Attorney General not by virtue of being Acting Deputy Attorney General—i.e., by acting as the “first assistant” mentioned in 

the then-applicable versions of 5 U.S.C. § 3345 and 28 U.S.C. § 508(a)—

but rather as Solicitor General under 28 U.S.C. § 508(b). See 386 F. Supp. 

at 595. And a 2009 court-of-appeals decision implicitly applied the bar on 

 5 Thus, our 2007 opinion explained that “when the positions of Deputy Attorney General and Associate Attorney General are vacant—as they are now”—“[t]he Solicitor 

General is first in line” to “act as Attorney General.” Authority of the President to Name 

an Acting Attorney General, 31 Op. O.L.C. at 208. The opinion did not mention that, at 

the time, the Department had both an Acting Deputy Attorney General and an Acting 

Associate Attorney General.
Opinions of the Office of Legal Counsel in Volume 43

10

double-acting arrangements by declining to treat an Acting Principal 

Deputy Assistant Secretary in the Department of the Interior as an Acting 

Assistant Secretary under section 3345(a)(1). See Schaghticoke Tribal 

Nation v. Kempthorne, 587 F.3d 132, 135 (2d Cir. 2009).6

C.

The Principal Deputy DNI’s resignation alongside the DNI meant that 

neither section 3026(a)(6) nor section 3345(a)(1) was available for automatic accession to the role of Acting DNI. As a result, no one would have 

become the Acting DNI in the absence of presidential action under the 

Vacancies Reform Act. Since 2005, however, Presidents have exercised 

their authority under the Vacancies Reform Act to prescribe, in advance, 

an order of succession that would apply to the DNI.

The current order of succession specifies, when the DNI and the Principal Deputy DNI are both vacant, a line of four officials to serve as Acting 

DNI, unless the President chooses to depart from that list. See Presidential 

Memorandum for the Director of National Intelligence, Designation of 

Officers of the Office of the Director of National Intelligence to Act as 

Director of National Intelligence §§ 1, 3(c) (Sept. 20, 2013), 78 Fed. Reg. 

59159, 59159 (Sept. 25, 2013) (“DNI Order of Succession”). The first 

position on the list is the Deputy DNI for Mission Integration. Id. § 1(a).7

But the person who was serving in that position when the vacancies 

 6 In Schaghticoke Tribal Nation, the appellant contended that the Associate Deputy 

Secretary of the Interior had violated the Vacancies Reform Act by performing a function 

that regulations assigned to the Assistant Secretary of the Interior for Indian Affairs. 587 

F.3d at 134–35. At the time, the position of the Assistant Secretary was vacant, and the 

duties of Principal Deputy Assistant Secretary for Indian Affairs—the first assistant to the 

Assistant Secretary—were being performed by another official. See Brief for DefendantsAppellees (2d Cir. May 6, 2009) (No. 08-4735), 2009 WL 8189661, at *79. The appellant 

argued that the Acting Principal Deputy Assistant Secretary was functioning as the Acting 

Assistant Secretary under 5 U.S.C. § 3345(a)(1)—effectively urging the court to recognize a double-acting arrangement. See Reply Brief for Plaintiff-Appellant (2d Cir. June 8, 

2009) (No. 08-4735), 2009 WL 8189664, at *35–36. The Second Circuit declined to do 

so. Instead, it concluded that the “Principal Deputy position was vacant” and that there 

was no Acting Assistant Secretary for Indian Affairs under section 3345(a)(1). 587 F.3d 

at 135.

7 The 2013 order refers to the Deputy DNI for “Intelligence Integration,” but in a restructuring completed in July 2018, that position was redesignated as the Deputy DNI for 

“Mission Integration.”
Designating an Acting DNI

11

occurred was ineligible to serve as Acting DNI because she was on detail 

to the ODNI from another agency and did not have a separate appointment from the DNI as a Deputy DNI.

The Vacancies Reform Act generally permits the President to designate 

certain senior agency officials to act in a vacant office; when a Senateconfirmed officer “of an Executive agency . . . dies, resigns, or is otherwise unable to perform the functions and duties of the office . . . the 

President . . . may direct an officer or employee of such Executive agency 

to perform the functions and duties of the vacant office temporarily in an 

acting capacity.” 5 U.S.C. § 3345(a)(3) (emphasis added). Because the 

statute requires the official to be an officer or employee “of such Executive agency,” it excludes someone who has merely been detailed to that 

agency from somewhere else and does not have any independent claim to 

be an officer or employee of the agency receiving the detail. That conclusion is consistent with how details generally work in the Executive 

Branch. See, e.g., 5 C.F.R. § 317.903(a) (explaining that, for details of 

Senior Executive Service employees, there is an “expectation that the 

employee will return to the official position of record upon expiration of 

the detail” and “[f]or purposes of pay and benefits, the employee continues to encumber the position from which detailed”). It is also consistent 

with our conclusion in 1986 that, if the Army assigned lawyers from the 

Judge Advocate General Corps to the Department of Justice, they would 

need formal appointments from the Attorney General before they could 

represent the United States in litigation, because 28 U.S.C. § 516 reserves

the conduct of litigation on behalf of the United States to “officers of 

the Department of Justice.” Assignment of Army Lawyers to the Department of Justice, 10 Op. O.L.C. 115, 117 & n.2 (1986). Moreover, our 

conclusion is consistent with Congress’s tailored expansion of section 

3345(a)(3) for purposes of most ODNI positions covered by the Vacancies Reform Act, which reflected the fact that so many ODNI staff members are, in practice, detailees from other intelligence-community elements, thus shrinking the pool of senior agency officials who would 

otherwise be eligible under section 3345(a)(3). See 157 Cong. Rec. 20160

(Dec. 14, 2011) (section-by-section analysis of 2012 amendment, noting 

“the relatively small size of the ODNI” and “the fact that a significant 

number” of its personnel “are on detail to the office”).

To be eligible to serve as Acting DNI under section 3345(a)(3), or under the order of succession invoking that provision, a detailee at the ODNI 
Opinions of the Office of Legal Counsel in Volume 43

12

must have held a separate appointment within that “agency” for at least 

90 days in the year preceding the vacancy. 5 U.S.C. § 3345(a)(3); see 50 

U.S.C. § 3025(e) (modifying this aspect of section 3345(a)(3) only for 

vacancies in the ODNI “other than that of the [DNI]”); see also 50 U.S.C. 

§ 3025(c)(14) (authorizing the DNI to “establish” additional “offices and 

officials” in the ODNI).8 Because the Deputy DNI for Mission Integration 

did not satisfy this requirement, she was ineligible to serve as Acting DNI 

under section 3345(a)(3).

D.

The next officer on the current order of succession is the NCTC Director. See DNI Order of Succession § 1(b), 78 Fed. Reg. at 59159. Because 

the NCTC Director was appointed by the President with the advice and 

consent of the Senate, 50 U.S.C. § 3056(b)(1), he was eligible to serve as 

Acting DNI under 5 U.S.C. § 3345(a)(2).

The NCTC Director’s service as Acting DNI does involve one statutory 

wrinkle. IRTPA provides that the NCTC Director “may not simultaneously serve in any other capacity in the executive branch.” 50 U.S.C.

§ 3056(b)(2). We do not, however, read this provision as categorically 

forbidding the NCTC Director from serving as Acting DNI. Instead, 

section 3056(b)(2) permits the Director of NCTC to serve as Acting DNI, 

and to continue to hold the office of NCTC Director, so long as he does 

not, while Acting DNI, also perform the functions and duties of the NCTC 

Director. That conclusion follows from the way section 3056(b)(2) is 

phrased—as a restriction on simultaneously serving in any other capacity.

It comports with the apparent purpose of the provision: to ensure that the 

person performing the functions and duties of the Director of NCTC does 

so with a degree of independence and without competing obligations. And 

it is consistent with the orders of succession for the DNI issued by Presidents George W. Bush and Barack Obama. In his 2011 and 2013 memoranda, President Obama expressly accounted for section 3056(b)(2) by 

specifying: “In the event that the Director of the National Counterterror-

 8 The rate of pay for the ODNI position to which the detailee is separately appointed 

would also need to be “equal to or greater than the minimum rate of pay payable for 

a position at GS–15 of the General Schedule,” 5 U.S.C. § 3345(a)(3)(B), even though, as 

a practical matter, the detailee could draw that salary only from the home agency, see id.

§§ 5533, 5535.
Designating an Acting DNI

13

ism Center acts as and performs the functions and duties of the DNI . . . , 

that individual shall not simultaneously serve as Director of the National 

Counterterrorism Center during that time, in accordance with 50 U.S.C. 

3056.” DNI Order of Succession § 3(d), 78 Fed. Reg. at 59159; Presidential Memorandum for the Director of National Intelligence, Designation of 

Officers of the Office of the Director of National Intelligence to Act as 

Director of National Intelligence § 4(d) (Mar. 8, 2011), 76 Fed. Reg. 

13499, 13499 (Mar. 11, 2011). Although President Bush did not expressly 

acknowledge the prohibition on simultaneous service, he also included the 

NCTC Director in his 2008 order of succession. See Presidential Memorandum for the Director of National Intelligence, Designation of Officers 

of the Office of the Director of National Intelligence to Act as Director of 

National Intelligence § 1(e) (Oct. 3, 2008), 73 Fed. Reg. 58869, 58869 

(Oct. 8, 2008).

IRTPA elsewhere contemplates a conceptually similar arrangement, 

whereby an officer may continue to hold another office but is legally 

disabled from exercising some of the duties of that office during service 

within the ODNI. Under the statute, a commissioned officer of the Armed 

Forces may serve as DNI or Principal Deputy DNI and continue to receive 

military pay and allowances but may not, while so “serving,” be supervised or controlled by, or exercise supervision or control over, any officer 

or employee of the Department of Defense. 50 U.S.C. § 3026(c)(4), (6). In 

that instance, the commissioned officer will retain his military office but 

will be disabled from exercising certain duties or responsibilities of that 

office while serving at the ODNI. We think the same thing is true with 

respect to the restriction on dual service by the NCTC Director. Section 

3056(b)(2) permits the NCTC Director to continue occupying that office, 

even while disabling him from performing his normal duties during any 

period in which he serves as Acting DNI.

In support of this conclusion, we again find instructive the 1986 opinion concerning the assignment of Army lawyers to the Department of 

Justice. In that opinion, then–Deputy Assistant Attorney General Samuel 

Alito concluded that the Posse Comitatus Act, which generally precludes 

“any part of the Army” from being used for law enforcement, 18 U.S.C. 

§ 1385, “would not be implicated” if military personnel “were detailed on 

a full-time basis” to the Department of Justice and they then “functioned 

on a day-to-day basis in an entirely civilian capacity under the supervision 

of civilian personnel.” Assignment of Army Lawyers to the Department of 
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14

Justice, 10 Op. O.L.C. at 121. The opinion distinguished that situation 

from one in which military lawyers would be “assigned on a part-time 

basis to perform civilian law enforcement functions along with their 

regularly assigned military duties”—a situation that would raise “serious 

questions” under the Posse Comitatus Act. Id. For similar reasons, we 

believe that the prohibition on “simultaneous[] serv[ice]” in section 

3056(b)(2) is not implicated when the President designates the NCTC 

Director to serve as Acting DNI, so long as, while so serving, the NCTC 

Director does not perform the functions and duties of that office.

Accordingly, we advised that, upon the resignations of the DNI and 

Principal Deputy DNI, the NCTC Director would become the Acting DNI 

without the need for further action by the President, as contemplated by 

the 2013 order of succession, which was promulgated as an advance 

exercise of the President’s authority under the Vacancies Reform Act.

Under section 3056(b)(2), however, he would be unable to exercise the 

functions and duties of the NCTC Director while serving as Acting DNI.

III.

We further considered whether anyone could serve as Acting NCTC 

Director while the incumbent served as Acting DNI. Because the NCTC 

Director is legally disabled by section 3056(b)(2) from performing the 

functions and duties of his own office while serving as Acting DNI, this 

presents an unusual situation in which the Vacancies Reform Act may be 

used to designate an Acting NCTC Director while there is still an incumbent in that office. We have generally advised that when one official 

serves in an acting capacity under the Vacancies Reform Act, another 

official may not be designated under that statute to act in the encumbered 

position. In other words, the agency may not “backfill” the position. In 

such cases, the incumbent officeholder will continue to occupy both 

positions, absent some legal restriction on joint service. That rationale, 

however, does not apply when, as with the NCTC Director, the incumbent 

is legally precluded from serving in both capacities at once.

Prior to the Vacancies Reform Act, we had recognized the general expectation that an acting officer will continue to occupy his own office and 

perform its duties even while he is temporarily acting in another office.

See, e.g., Legality of Designation of Certain Acting Officials by the Secretary of Energy, 2 Op. O.L.C. 113, 115 (1978) (noting the practical diffi-
Designating an Acting DNI

15

culties that may arise when an acting official can effectively perform 

the additional duties only “on a part-time basis”). Congress has long 

prescribed that someone “performing the duties of a vacant office” generally “may not receive pay in addition to the pay for his regular office.”

5 U.S.C. § 5535(a).

The 1998 enactment of the Vacancies Reform Act did not alter that understanding. As we have recognized, “duties arising under the Vacancies 

Reform Act can be regarded as part and parcel” of the underlying office 

that makes one eligible to be an acting officer. Designation of Acting 

Director of the Office of Management and Budget, 27 Op. O.L.C. at 122 

n.3. That is especially true when someone is a first assistant or other 

deputy to the vacant office, where day-to-day tasks often involve delegated functions of the principal and an important duty of the lower position is 

to be ready to stand in for the principal when needed. Thus, we have 

continued to read section 3345(a) as resting on the premise that an acting 

officer will ordinarily perform the duties of both his office and the vacant 

office. Otherwise, each application of the statute could begin a cascade of 

acting arrangements within an agency, as one official after another temporarily moves into a different position. We have also reasoned that, because 

almost all officials may delegate a significant portion of their duties, they 

can typically accommodate, at least for temporary periods, the need to 

carry out the duties of two positions. Put simply, an acting official remains able to perform the most important duties of each position, and he 

may be expected to delegate the exercise of the more mundane duties

under his supervision. In such circumstances, the acting official may well 

be busier during the period of joint service, but he still encumbers (and 

receives the pay of) only the underlying position, which is not vacant.

By contrast, in this instance, the NCTC Director is temporarily precluded from performing the duties of that office, whether or not those 

duties are delegable. The Vacancies Reform Act applies when a Senateconfirmed officer of an Executive agency “dies, resigns, or is otherwise 

unable to perform the functions and duties of the office.” 5 U.S.C. 

§ 3345(a) (emphasis added). While serving as Acting DNI, the NCTC 

Director is “unable to perform the functions and duties of [his] office”—

not because he is merely preoccupied or away from his usual desk, but 

because section 3056(b)(2) forbids him from doing so. The statutory 

prohibition thus resembles an ethical constraint that necessitates an 

across-the-board, but temporary, recusal. When an official must recuse, 
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16

someone else is typically able to act in his place with respect to the matter 

concerned.9 Here, there is no ethical constraint, but a statute mandates

something functionally equivalent to a recusal, as a result of which someone else must perform the NCTC Director’s duties.

Accordingly, when the NCTC Director became the Acting DNI, the 

Vacancies Reform Act permitted the designation of someone else as 

Acting NCTC Director. The President could have selected anyone who 

was eligible under section 3345(a)(2) or the expanded form of section 

3345(a)(3) that applies to most ODNI offices under 50 U.S.C. § 3025(e).

Instead, the President allowed the default under the Vacancies Reform 

Act to take effect. Russell Travers, the incumbent Deputy Director of the 

National Counterterrorism Center, who was the first assistant to the 

NCTC Director, became the Acting NCTC Director—just as he had in the 

period before Mr. Maguire was appointed as NCTC Director. See ODNI, 

Acting Director, National Counterterrorism Center, www.dni.gov/index.

php/nctc-who-we-are/deputy-director-nctc (last visited Nov. 15, 2019).

When Mr. Maguire ceases to serve as Acting DNI, he will be able to

resume his duties as the NCTC Director (the position he still encumbers 

and for which he is being paid), at which time Mr. Travers will cease to 

be the Acting NCTC Director.

IV.

For the reasons set forth above, we concluded that, in designating an 

Acting DNI, the President could choose anyone who is eligible under the 

Vacancies Reform Act. See 5 U.S.C. § 3345(a)(2), (3). The President 

could therefore select the Senate-confirmed NCTC Director, who may 

serve as Acting DNI subject to the time limits of the Vacancies Reform 

Act. See id. § 3346. The President could in turn invoke the Vacancies 

Reform Act to authorize someone to serve as Acting NCTC Director 

because, while serving as Acting DNI, the NCTC Director is rendered 

 9 See, e.g., In re Grand Jury Investigation, 916 F.3d 1047, 1056 (D.C. Cir. 2019) (concluding that the Deputy Attorney General had become “the Acting Attorney General” 

under 28 U.S.C. § 508(a) when “the Attorney General’s single-issue recusal . . . created a 

vacancy that the Deputy Attorney General was eligible to fill”); Muffley ex rel. NLRB v. 

Spartan Mining Co., 570 F.3d 534, 539 & n.1 (4th Cir. 2009) (affirming district court’s 

conclusion that, when the General Counsel was recused from a case, a Deputy General 

Counsel properly carried out the General Counsel’s functions under 5 U.S.C. § 3345(a)(1)).
Designating an Acting DNI

17

“unable to perform the functions and duties of ” NCTC Director. Id.

§ 3345(a); see 50 U.S.C. § 3056(b)(2). Here, in the absence of an alternative presidential designation, the NCTC Director’s first assistant would 

automatically serve in that role. See 5 U.S.C. § 3345(a)(1).

CURTIS E. GANNON

Principal Deputy Assistant Attorney General

Office of Legal Counsel