Explainer-Did Pentagon chief Austin's secret hospitalization break the rules?

By Jack Queen

(Reuters) -U.S. Secretary of Defense Lloyd Austin may have violated the law by failing to report his recent hospitalization to his boss, but despite some calls for his resignation likely only faces a reprimand from U.S. President Joe Biden, according to two legal experts.

WHAT DID AUSTIN DO?

Austin, 70, was admitted on New Year's Day to an Intensive Care Unit at Walter Reed National Military Medical Center for what the Pentagon has said were "complications following a recent elective medical procedure," a fact the Defense Department kept under wraps for five days.

Austin sits just below Biden atop the chain of command of the U.S. military but his staff did not inform the White House of his condition for three days, and even his own top deputy was kept in the dark.

WHAT IS THE PROTOCOL?

His handling of the situation appeared to be a stark breach of protocol for high-ranking cabinet officials, who typically inform the public of planned medical absences ahead of time and identify who will be filling in for them.

Austin's duties require him to be available at a moment's notice to respond to any national security crisis. He said on Saturday that he "could have done a better job" and took "full responsibility" for the secrecy over his hospitalization.

White House officials have said Biden still has "complete confidence" in Austin, who remains in the hospital but has returned to his regular duties.

WHAT RULES MIGHT HE HAVE BROKEN?

Legal experts said Austin may have violated a U.S. law on "reporting of vacancies" that requires executive agencies to report top-level absences and the names of anyone serving in an acting capacity to both houses of Congress. The law is largely procedural and does not spell out any penalties for lapses.

Legal experts said that Austin appears to have clearly violated the rule but will likely face only a reprimand and a warning from Biden. Any top deputies or staff responsible could face similar consequences.

Austin may have also violated internal U.S. Department of Defense protocols, and officials say they are conducting a full review of the incident to determine how future lapses could be prevented.

WAS AUSTIN EVER UNCONSCIOUS?

The Pentagon still hasn't confirmed whether Austin ever lost consciousness. If he had, perhaps because he was under anesthesia, between the time he arrived at the hospital on Jan. 1 and when he turned over his duties on Jan. 2, it could expose him to serious questions about dereliction of duty.

The Pentagon has disclosed that Austin arrived at Walter Reed while conscious, after taking an ambulance from his residence to the hospital, where he was admitted to its ICU. The Pentagon has also disclosed he was in severe pain, but will not say whether he took pain medication that could have altered his judgment.

WHEN DID HE TALK TO BIDEN?

Austin spoke to Biden, National Security Advisor Jake Sullivan and Secretary of State Antony Blinken on the morning of Jan. 1 before he went to the hospital, the White House said. The "secure conference call" was about the Middle East. Biden was in St. Croix on vacation at the time.

There was then no contact with the White House or National Security Council until Jan. 4, the White House said. Biden and Austin next spoke on Jan. 6, the White House said.

White House officials said Biden continued to be briefed on national security issues by other officials during Austin's hospitalization, and the president received his daily national security briefing prepared by the intelligence community. The daily briefing includes input from the Defense Department but is not produced by them.

WHAT DOES CONGRESS SAY?

Congressional leaders are calling for an inquiry.

Lawmakers from both parties said they were deeply concerned that the president did not know his top civilian commander was hospitalized for three days at a time when wars are being fought in Gaza and Ukraine.

U.S. Senator Roger Wicker, the highest-ranking Republican on the Senate Armed Services Committee, said on Saturday that the situation was "unacceptable" and demanded a "full accounting of the facts immediately."

Former President Donald Trump, who is Biden's likely Republican challenger in the 2024 election, said on Sunday night that Austin should be fired for his "improper professional conduct and dereliction of duty."

Democratic Senator Jack Reed, the chair of the Senate Armed Services Committee, said: "This lack of disclosure must never happen again."

WILL THERE BE A PENTAGON REVIEW?

Asked if the general counsel's office at the Defense Department believed Austin violated laws, chief Pentagon spokesperson Air Force Major General Patrick Ryder told reporters: "We are considering the impact of any statutory reporting requirements and will provide updates as appropriate."

He later added that the reporting requirements being examined would not just involve Congress. "It's to Congress, the White House or anyone else," he said.

(Reporting by Jack Queen, Phil Stewart, and Trevor Hunnicutt; Editing by Heather Timmons and Rosalba O'Brien)