GAO: Agency leadership invalid
Watchdog says Homeland Security officials installed illegally
WASHINGTON — The top two officials at the Department of Homeland Security are serving unlawfully in their roles, the Government Accountability Office said Friday.
The GAO, an independent watchdog agency that reports to Congress, said Chad Wolf, the acting secretary of the Department of Homeland Security, and Ken Cuccinelli, the acting deputy, are serving in an invalid order of succession under the Vacancies Reform Act.
Democrats in Congress called on the two men to resign, but Homeland Security officials rejected the findings as “baseless.”
Trump has repeatedly circumvented the Senate confirmation process by installing appointees to interim positions, and then has left them in those roles indefinitely without a formal nomination or the backing of Congress.
Cuccinelli’s formal job title — senior official performing the duties of the deputy secretary — is among the most strained in the administration. The Homeland Security leadership chart also shows him occupying the acting director role at U.S. Citizenship and Immigration Services, a job he has had for more than a year without a nomination.
According to the GAO, Trump’s installation of Wolf and Cuccinelli violated the law because of the sequence of events following the resignation of Homeland Security Secretary Kirstjen Nielsen in April 2019. The official who assumed the title of acting secretary at that time, Kevin McAleenan, had not been designated in the order of succession, the GAO said.
Subsequent personnel moves were also therefore illegitimate, and Wolf and Cuccinelli “are serving under an invalid order of succession,” the agency found. The GAO said that it was referring the matter to the Homeland Security inspector general for review and that any further actions would be up to Congress and the inspector general’s office.
The Vacancies Reform Act governs how temporary appointments can be made to positions that require Senate confirmation.
Immigrant advocacy groups already have challenged the legality of Trump administration initiatives by arguing the policies have been implemented by Homeland Security officials who lack legal authority to do so. The GAO finding is expected to trigger a new wave of litigation calling into question Homeland Security policy changes that include blocking asylum-seekers, immigrants and others from entering the country.
Homeland Security quickly issued a statement challenging the GAO’s conclusion Friday.
“We wholeheartedly disagree with the GAO’s baseless report and plan to issue a formal response to this shortly,” Homeland Security spokesman Nathaniel Madden said.
The normal nomination process exists in part to encourage executive nominees who will be acceptable to a majority of lawmakers while preserving the congressional oversight role the Constitution established. Trump has said he prefers having senior officials serving in an acting capacity because he thinks it makes them easier to remove.
“I like ‘acting,’ ” Trump told reporters last year. “It gives you great, great flexibility.”
Despite the GOP’s control of the Senate, some of the top officials Trump has appointed, including Cuccinelli, would not be able to win majority support there. Senate Majority Leader Mitch McConnell, R-Ky., warned the White House last year that he would not allow Cuccinelli to be confirmed because of Cuccinelli’s prior campaign work targeting moderate Republicans.
The GAO report newly emboldened Democratic lawmakers in going after Trump’s appointees and the work they have done while in the Trump administration.
“The determination by an independent congressional watchdog today invalidates actions Mr. Cuccinelli and Mr. Wolf have taken and both should immediately step down from their illegal roles,” Senate Minority Leader Charles Schumer, D-N.Y., said in a statement. “The Department of Homeland Security Inspector General must launch a top-to-bottom legal review of every decision made by Mr. Cuccinelli and Mr. Wolf during their tenures and report his findings to the public and to Congress.”
The GAO noted that it was not examining the question of the consequences of Wolf and Cuccinelli’s improper appointments, or the impact on the actions they have taken in those roles, instead referring those questions to the Homeland Security inspector general.
The GAO conducted its review in response to inquiries from House Homeland Security Committee Chairman Rep. Bennie Thompson, D-Miss., and Rep. Carolyn Maloney, D-N.Y., chairwoman of the Committee on Oversight and Reform.
In a statement responding to GAO’s findings, Thompson and Maloney called on Wolf and Cuccinelli to resign from their roles.