The appointments of two top Department of Homeland Security (DHS) officials, including the acting secretary, violated federal law, according to a Government Accountability Office (GAO) report issued Friday.
The GAO found that acting Secretary Chad Wolf and acting Deputy Secretary Ken Cuccinelli are technically ineligible to serve based on their improper appointment. The office did not review the legality of their orders while serving in their positions improperly.
The issue with the two officials’ appointments stems from when former Homeland Security Secretary Kirstjen Nielsen resigned in April 2019 and was replaced by Kevin McAleenan, who had previously been leading Customs and Border Protection.
McAleenan had not been designated in the order of succession to replace Nielsen, the GAO found, and therefore could not legally alter the order of succession at DHS.
“Accordingly, 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 report states.
The GAO did not weigh in on the “consequences” of the tenure of McAleenan, Wolf or Cuccinelli, referring those issues to the DHS Office of Inspector General. The report’s findings are not legally binding, but they are likely to be used in legal challenges to DHS’s actions since Wolf took over as acting head of the agency last November.
“We wholeheartedly disagree with the GAO’s baseless report and plan to issue a formal response to this shortly,” a DHS spokesperson said in a statement.
Democrats seized on the GAO report, calling into question the actions of Wolf and Cuccinelli to crack down on immigration and on protesters in recent months.
Reps. Bennie Thompson (D-Miss.) and Carolyn Maloney (D-N.Y.), the respective chairs of the House committees on Homeland Security and on Oversight and Reform, called for Wolf to step down as acting head of DHS and for Cuccinelli, who never received Senate confirmation, to 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,” the lawmakers said in a statement.
“At a time when DHS should be marshaling the resources of the Federal government to respond to the pandemic that has killed over 165,000 Americans, the Department’s illegally appointed leaders are instead focused on continuing the Administration’s attack on immigrants and intimidating peaceful protesters in a show of force for the President’s reelection campaign,” they added.
Wolf is the fifth person to lead DHS during the Trump administration. He was previously confirmed as under secretary of strategy, policy and plans. The department has been without a Senate-confirmed leader since Nielsen resigned roughly 16 months ago, and many of the top positions have only been filled on an acting basis.
The department was formed in the wake of the Sept. 11 terrorist attacks, but Trump has largely used it as an instrument to enforce his immigration agenda. In more recent weeks, the president used agency resources and personnel to quell protests in Portland, Ore. DHS has faced intense scrutiny, from Democrats in particular for its aggressive tactics toward demonstrators there.
“From dismantling the immigration system to tear-gassing peaceful protesters, their authority is illegitimate,” Rep. Joaquin Castro (D-Texas) tweeted. “Wolf and Cuccinelli must be removed immediately.”
A federal judge ruled in March that Cuccinelli had been illegally appointed to his post as acting director of U.S. Citizenship and Immigration Services (USCIS), invalidating two new policies he had implemented that would make it harder for newly arrived immigrants to apply for asylum.
On Thursday, the Trump administration quietly withdrew its appeal of the judge’s decision.
Anne Harkavy, executive director of Democracy Forward, the group that brought the lawsuit against DHS, applauded the GAO’s findings.
“It’s notable that the Trump administration dropped its appeal in our case mere hours before the GAO issued its report,” Harkavy said in a statement. “It’s been clear from the start: Ken Cuccinelli was unlawfully appointed to lead USCIS. The Trump administration retreated from its legal fight because it knows the law is not on its side. This is a victory for the rule of law and for the asylum seekers and immigrants hurt by the administration’s harmful policies.”
If the March decision is allowed to stand and the GAO’s new findings go unchallenged, it could bolster dozens of lawsuits against DHS policies implemented under Wolf.
A recent lawsuit filed by protest groups in Portland alleged that DHS’s response to demonstrations in the city were unlawful, in part because of the disputed appointments of Wolf and other agency officials.
The lawsuit alleged that “the president’s reliance on acting officials deprives Congress of its constitutional role to oversee appointments to key positions within the government, and removes a crucial check on the president’s exercise of power. The consequences are now playing out on the streets of Portland.”
Updated at 1:14 p.m.