Top Two Homeland Security Officials Are Serving Illegally, GAO Rules

The two top officials at the Homeland Security Department are serving illegally, according to a legal decision by the Government Accountability Office. 

Both acting Secretary Chad Wolf and Senior Official Performing the Duties of Deputy Secretary Ken Cuccinelli are ineligible for their posts under the Federal Vacancies Reform Act and the Homeland Security Act, GAO said on Friday. The verdict was rooted in DHS circumventing the order of succession when Kirstjen Nielsen, the last Senate-confirmed DHS secretary, stepped down in April 2019. The department at the time flouted its requirement to place the director of the Cybersecurity and Infrastructure Security Agency as DHS' temporary head, instead tapping then-Customs and Border Protection Commissioner Kevin McAleenan. 

McAleenan’s subsequent appointments of Wolf and Cuccinelli were therefore invalid, GAO said, as he was not eligible to make them. Before he stepped down in November 2019, the former head of CBP changed the line of succession when a vacancy arose to ensure the undersecretary for strategy, policy and plans—a position that Wolf held—would replace him. Upon becoming acting secretary, Wolf then changed the order of succession for deputy secretary at DHS, putting the principal deputy director of U.S. Citizenship and Immigration Services—a position that Cuccinelli held—second in line. The undersecretary for management would be first in line for both the secretary and deputy positions, but that position has sat vacant for more than two years.   

Wolf and Cuccinelli were named to their positions “by reference to an invalid order of succession,” GAO said. The auditors, who have authority to review the propriety of appointments under the Federal Vacancies Reform Act, did not rule on the fallout of their invalid service, instead deferring to the DHS inspector general for a decision on who should serve in the positions and “the question of the consequences of actions taken by these officials.” 

In explaining its decision to appoint McAleenan in 2019, DHS said it relied on a separate order of succession created when the secretary is “unavailable to act during a disaster or catastrophic emergency.” GAO said that was a mistake, as Nielsen resigned and therefore it should have used the order of succession specific to that circumstance. Nielsen changed the order of succession for catastrophic events the day before she resigned, but never altered the other order that applies after resignations. GAO noted Nielsen likely intended to make McAleenan the next in line to succeed her, but said it would be “inappropriate” to ignore the written policy. 

DHS did not respond immediately for comment. 

“GAO’s damning opinion paints a disturbing picture of the Trump administration playing fast and loose by bypassing the Senate confirmation process to install ideologues,” said House Homeland Security Committee Chairman Rep. Bennie Thompson, D-Miss., and House Oversight and Reform Committee Chairwoman Rep. Carolyn Maloney, D-N.Y., who requested GAO’s review. “In its haste to circumvent Congress’s constitutional role in confirming the government’s top officials to deliver on the president’s radical agenda, the administration violated the department’s order of succession, as required by law.”

They called on Wolf to step down as acting secretary and return to his Senate-confirmed position of undersecretary for strategy, policy and plans, and for Cuccinellli to resign from federal government altogether. The Trump administration had named Cuccinelli to a new position at USCIS to circumvent the Senate confirmation process. They also suggested Trump should tap a top career official to head DHS temporarily and nominate someone to serve in the post permanently. 

Wolf and Cuccinelli’s fate will likely be decided in federal court. Both are facing several lawsuits seeking to deem their appointments as illegal, most of which aim to strike down policies they have put in place. A federal judge previously ruled Cuccinelli was serving unlawfully and voided his policy initiatives. The Trump administration dropped an appeal of that decision on Thursday.