GAO says Wolf, Cuccinelli appointments at DHS invalid

DHS did not follow rules of succession, report says

Chad Wolf, acting secretary of Homeland Security, was invalidly appointed to the job because the department failed to follow its own rules of succession, the GAO found.   (Tom Williams/CQ Roll Call file photo)
Chad Wolf, acting secretary of Homeland Security, was invalidly appointed to the job because the department failed to follow its own rules of succession, the GAO found. (Tom Williams/CQ Roll Call file photo)
Posted August 14, 2020 at 11:17am

The appointments of acting Homeland Security Secretary Chad Wolf and his aide, Ken Cuccinelli, were invalid, the Government Accountability Office said Friday.

The GAO said the Department of Homeland Security didn't follow the proper succession rules in making Wolf the acting secretary and in making Cuccinelli the senior official performing the duties of deputy secretary, and they were thus ineligible for their positions. The GAO report came at the request of the heads of two House committees.

"Messrs. Wolf and Cuccinelli were named to their respective positions of Acting Secretary and Senior Official Performing the Duties of Deputy Secretary by reference to an invalid order of succession," the GAO said. It said it had not reviewed the legality of their actions.

Nor did the agency comment on Cuccinelli’s prior appointment as the head of U.S. Citizenship and Immigration Services.

The GAO referred the appointments of Wolf and Cuccinelli to the Homeland Security Inspector General for further review.

A spokesman said the White House disagreed with the finding, but sidestepped the reasons cited by the GAO.

"DHS is expressly authorized by Congress in the Homeland Security Act to designate its acting secretaries. GAO is not.  And GAO’s opinion substituting its views for that of the Agency’s is not only wrong, but laughable," Deputy Press Secretary Judd Deere told CQ Roll Call.

The GAO’s report may have a bearing on several court cases brought by advocates against a litany of policies put in place under these officials. 

One such case challenging regulations restricting work permits for asylum seekers was heard Friday in the U.S. District Court for the District of Maryland Southern Division. The plaintiffs, immigrant advocacy groups in Maryland, argued the rules were void because the appointees who put them in place were unlawfully appointed. During a telephone hearing, Federal Judge Paula Xinis indicated that the reasoning in the GAO’s decision was “tracking quite closely” with her own reading of the law.

On Wednesday, the Trump administration dropped its appeal of a March ruling in another case. The federal court for the District of Columbia found that Cuccinelli had been illegally appointed as acting director of USCIS.

The department didn't respond to a request for comment.

"The GAO opinion on their appointments could prove persuasive to judges who are deciding existing and future cases that involve policies they implemented," Carl Tobias, a professor at the University of Richmond School of Law, told CQ Roll Call via email. "If judges find officials lacked authority to take actions, the judges could invalidate the actions."

Senate Democratic Leader Charles E. Schumer said Wolf and Cuccinelli should resign. He urged the department inspector general to investigate every decision they made during their tenures.

"President [Donald] Trump’s efforts to install political sycophants to implement his extreme policies in an end run around the law and Senate have finally caught up with him," he said in a statement. “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.

“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,” Schumer said.

The succession problem arose in the wake of the resignation of Homeland Security Secretary Kirstjen Nielsen in April 2019. Nielsen handed off to Kevin McAleenan, then the commissioner of Customs and Border Protection, who then became acting secretary. He held the job until November 2019, when he resigned.

The Senate had moved quickly to confirm Wolf as undersecretary of the agency’s Office of Strategy, Policy, and Plans, and hours later he stepped up to the position of acting secretary. He became the fifth person to head the agency in the Trump administration. Wolf moved Cuccinelli, who was heading the USCIS at the time, to a newly created number two position a day after.

According to the GAO, Nielsen had laid out a plan for her succession under varying conditions, but amended it before she resigned. She changed it with respect to vacancies arising from disasters and catastrophes and not from resignations.

As a result, McAleenan should also not have risen to the top job because he wasn't in the line of succession to replace a secretary who left because of resignation. McAleenan also amended the line of succession before quitting, but because he was not validly appointed his changes were also invalid.

In a response cited by the GAO, the DHS invoked other laws to argue that Nielsen rightly designated McAleenan as her successor. According to the GAO, the department also “asserted that the direction from the Secretary to change the order of succession applied to any vacancy in the position of the Secretary,” citing a memo Nielsen had sent prior to her departure.

However, the GAO concluded that the “the plain language of the delegation controls, and it speaks for itself.”

McAleenen and Wolf have signed over 20 immigration-related rules since April 2019 — after Nielsen left the post. The two officials have also waived several environmental and historic preservation laws in order to expedite border wall construction at the U.S. -Mexico border. The GAO’s findings may be cited in existing and future legal challenges against these actions.

Friday’s report at the request of the heads of the House Homeland Security and the Oversight and Reform committees. Following the report’s release, the heads of the two committees demanded that Wolf and Cuccinelli resign.

“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,” Reps. Bennie G. Thompson, D-Miss. and Carolyn D. Maloney, D-N.Y, said in their statement. “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.”

Niels Lesniewski contributed to this report.