A congressional waiver is the biggest hurdle for Biden’s defense pick

The biggest obstacle to retired Army Gen. Lloyd Austin’s nomination for secretary of defense is his retirement date from the military just four years ago — too recent under American law and for the tastes of several members of Congress.

Multiple Democratic aides tell CNN they don’t think Austin’s nomination is in serious jeopardy right now, as President-elect Joe Biden and his team press for passage of a waiver by both chambers of Congress. The Biden transition says it does not expect problems in winning the waiver nor in confirming Austin.

But even lawmakers who consider Austin to be exceedingly qualified are worried about the congressional waiver it would require, exempting him from a law that demands the head of the US military be at least seven years past active duty. That law is meant to ensure civilian control of the Pentagon.

There is rising concern on both sides of the aisle about the idea of issuing another waiver so soon. James Mattis, President Donald Trump’s first secretary of defense, also required a waiver because he’d also been out of the military less than seven years when tapped to serve.

Facing the same decision, this time members of Congress are also presented with the uncomfortable choice between upholding the civilian norm and blocking the country’s first Black defense chief. If granted the waiver and confirmed by the Senate, Austin would be the first African American to lead the Pentagon.

Biden’s request itself has ruffled feathers among his fellow Democrats, some of whom are voicing their dismay both publicly and privately. Worries over cementing a new precedent could at least delay Austin’s confirmation process.

“The waiver thing is frustrating,” one Democrat familiar with the process told CNN. “The cooling off of seven years is important. They did it once because they wanted an adult in the room, but there is a principle involved, and I think some people will be concerned about that for a while.”

The Biden transition team is insisting for now that it does not expect problems with Austin’s confirmation. A transition official went so far as to say they believe Austin will be quickly and comfortably approved by the Senate. The waiver, this official said, will not end up being an issue.

Austin’s confirmation would require two steps. First, the House and Senate would have to approve the waiver to allow him to serve. Then, the Senate would have to confirm him through the normal confirmation process.

Thus, the waiver debate gives House Democrats a role in the confirmation process that they typically wouldn’t have.

One source familiar with the legislative landscape surrounding Austin’s confirmation process said that at least a part of the concern being raised by House Democrats owes to their heightened interest in being involved in this confirmation.

There is also a push from some House Democrats, this source said, for Austin to be more engaged with House members than Mattis was four years ago when Trump nominated him to be secretary of defense.

A Biden transition official said Austin will meet with members of the House Armed Services Committee soon, as well as additional members of the Senate. The added meetings come in addition to his outreach to members of Congress that began the week after his nomination.

House Armed Services Committee Chairman Adam Smith has been in conversation with Biden’s transition team about potentially setting up a hearing with Austin in the new year to address member questions about the waiver. Smith’s office told CNN that Biden’s team has been amenable to that prospect.

But not everyone has been satisfied. A source familiar with the situation told CNN that Biden’s team never contacted Rep. Seth Moulton, a Democrat on the House Armed Services Committee, even as Moulton raised public concerns about the waiver. Last week, Moulton came out against Austin’s nomination.

“We shouldn’t be getting into a habit of issuing waivers,” Moulton told Politico. “A waiver by definition is an exceptional case. That is exactly what we had with President Trump and General Mattis.”

In the Senate, Democratic Sens. Richard Blumenthal, Elizabeth Warren and Tammy Duckworth, all members of the Armed Services Committee, have said they cannot vote for a waiver for Austin. It is unclear how many waiver opponents ultimately would vote for Austin’s confirmation, if a waiver was granted.

Other Democratic members on the committee, Sens. Tim Kaine and Gary Peters have met with Austin, but said in statements afterward that the waiver issue was something they would have to consider carefully.

“I intend to closely evaluate the implications for waiving the National Security Act requirement twice in just four years,” Kaine said.

In meetings, Democratic aides have said Austin has clearly demonstrated that he’s qualified. One aide pushed back on Politico’s reporting that Austin had underperformed in meetings.

“This is not about qualifications,” the aide said.

But one Democrat predicted the choice will be a difficult one, especially for those of the President-elect’s party.

“Again, highly qualified and first African American Defense Secretary,” the Democrat said. “Democrats in Congress and the Senate are interested in that.”

CORRECTION: An earlier version of this story misspelled Sen. Tammy Duckworth’s name.