The press is writing now what was clear well over a month ago: John Bolton will not be confirmed by the Senate. But ever since the possibility of his rejection arose, White House officials have been not-so-subtly hinting at the possibility of either giving Bolton a second recess appointment or even appointing him to a lower position and designating him the "acting" Ambassador.

Well, we got curious. We requested a legal analysis from the powerhouse law firm Arnold & Porter to consider the Administration's options for extending Bolton's tenure as U.N. Ambassador. The verdict? One of the Administration's options is unprecedented is Constitutionally questionable; the second runs directly contrary to a law passed in 1998 by a Republican Congress.

My synopsis of the analysis is below; the full memo will be posted later, most likely at The Washington Note.

To recap, the Administration is considering two options. The first option is to offer Bolton a second recess appointment to his current position. The second option is to appoint Bolton to some lower position and then appoint him Acting Ambassador.

Let's start with option 1. Successive recess appointments have been few and far between in American history, and there is no record of the practice ever being used to keep such a controversial nominee as Bolton in such a high-level post as U.N. Ambassador. It would be unprecedented.

And while no court has ever ruled that successive recess appointments are unconstitutional, the legal consensus seems to be that the importance and controversy surrounding Bolton's nomination make the Senate's Constitutional role of advice and consent more important, not less.

Moreover, if Bolton accepts a second recess appointment as U.N.
Ambassador, he cannot be paid.

That brings us to option two, making Bolton an "Acting Ambassador." It turns out that such a move would run contrary to the Federal Vacancies Reform Act (FVRA) of 1998, passed by a Republican Congress to prevent exactly this type of nonsense after Bill Clinton elevated Bill Lann Lee to "Acting" Assistant Attorney General for Civil Rights without Senate Confirmation. The Senate's hearing on the FVRA produced some notable quotes:

From the Republican side, Sen. Fred Thompson: "People have recognized for many hundreds of years that an unfettered power to appoint those who run our government is not a good thing, that is not
our system."

From the Democratic side, Sen. Robert Byrd: "[W]ithout the . . . limitation on the length of time a vacancy may be temporarily filled, . . . no President of either party or any party need ever, ever forward a nomination to the Senate. Instead, he can staff the Executive Branch with 'acting' officials who may occupy the vacant position for months, or . . . years at a time."

Finally, from the then-Democratic, now Independent-caucusing-with-the Democrats side, Sen. Joe Lieberman:  "[T]he Senate's constitutional prerogatives have too often been ignored through the executive's far-too-common practice of appointing acting officials to serve lengthy periods in positions that are supposed to be filled with individuals confirmed by the Senate."

Obviously, Congress didn't want the President naming "acting" officials to circumvent the advice and consent clause of the Constitution. In fact, the plain language of the FVRA specifically outlines the three categories of officials that can serve as "acting" officials. Bolton did not fit any of these categories in 2005, and our Arnold & Porter legal analysis concludes: "Congress could not have intended to permit the President to circumvent the Senate and appoint an otherwise-ineligible official by first making him or her a recess appointee."

If President Bush tries to pull these shenanigans, the FVRA specifies that Bolton's actions will have "no force and affect" and would be subject to legal challenges. Or, put simply, Bolton can't legally serve as Acting Ambassador to the U.N. under any circumstances.

Of course, this legal chatter should not overshadow the damage that President Bush would inflict on his professed desire for bipartisan cooperation with the new Democratic Congress by even trying these shady moves. But we knew that before. Now we know that there are serious legal impediments, too.