Two committee staff members, speaking on the condition of anonymity, said that Mattis was willing to appear before the House committee. Separately, Mattis’s confirmation hearing is scheduled for Thursday morning before the Senate Armed Services Committee.
“This is a major issue affecting civilian control of the military, and Congress has a responsibility to consider it carefully with hearings and a markup,” said Rep. Adam Smith (D.-Wash.), the ranking Democrat on the committee. “The members of our committee have not been afforded a chance to hear from General Mattis, including new members who have just joined Congress and need information to make up their minds.”
A spokeswoman for the transition team, Alleigh Marré, said in a statement that Mattis’s focus is on “following the Constitutional process for confirmation” and testifying before the Senate committee.
“If confirmed, he looks forward to working with both the Senate and House Armed Services Committees, which play critical roles in supporting our forces and ensuring civilian control of the military,” Marré said.
Congress has granted only one exception to the law. Army Gen. George C. Marshall, an active-duty five-star general, was defense secretary for about a year beginning in 1950 after he was selected by President Harry S. Truman as the military struggled in the early days of the Korean War. Legislation passed at the time allowed Marshall to take the job but said it was “the sense” of lawmakers that “no additional appointments of military men to that office shall be approved.”
The law means that in addition to requiring confirmation by the Senate, both chambers of Congress must pass a waiver for Mattis. Senate Republicans included a clause in the continuing-resolution spending bill passed last month that limits debate about Mattis’s waiver to 10 hours, making it hard for Democrats to block the nomination.
Barron Youngsmith, a spokesman for House Armed Services Committee Democrats, said they have several concerns when comparing the legislation that allowed Marshall to hold the position and the proposal that would open the door for Mattis to become Pentagon chief.
For one, the legislation for Mattis does not name him specifically, providing the waiver only to “the first person appointed” as defense secretary. If for someone reason Mattis is not approved, the new law would still be on the books, Youngsmith said. Marshall’s waiver specifically named him.
Mattis, as a military retiree drawing a pension, also is still subject to the Uniform Code of Military Justice, the set of laws that guide behavior in the military. Among the laws are provisions that forbid contempt toward officials and disregard for orders or regulations. Democrats believe Mattis explicitly should be exempt from military law if his going to be defense secretary, Youngsmith said.
A provision in the legislation for Marshall stated he was subject to “no supervision, control, restriction, or prohibition (military or otherwise)” than he would be if he were not an officer.
Smith does not appear to agree with some of those concerns. Interviewed Monday night, he said he was not concerned about Mattis’s name not appearing in the legislation. Smith added that having “someone of Mattis’s capability and character” is needed now more than ever “to help hopefully stop any of the crazy stuff” that other members of Trump’s administration, particularly national security adviser Michael Flynn, might propose.
At a Senate Armed Services Committee hearing Wednesday, two national security experts testified that Mattis has the acumen to be defense secretary but argued that they do not think there should be another general after him serving in the position for at least 20 years.
One of the witnesses, Eliot Cohen of Johns Hopkins University’s strategic-studies program, argued that Mattis would be a “stabilizing and moderating force, preventing wildly stupid, dangerous or illegal things from happening” in Trump’s administration.
“As has long been pointed out, the secretary of defense is other than the presidency probably the most difficult job in the federal government, and I would trust General Mattis as much as or more than just about anybody else,” Cohen said.
Karoun Demirjian contributed to this report.