Two top US officials serving illegally, accountability office rules

By on 19/08/2020 | Updated on 27/01/2022
The GAO ruled that the DHS had circumvented the order of succession in making Kevin McAleenan its temporary head and that McAleenan's appointments of Wolf and Cuccinelli were therefore invalid. (Photo by Tara A. Molle, courtesy DHS via flickr).

Two top-ranking homeland security officials are serving illegally, the US Government Accountability Office (GAO) has said. The GAO believes that flaws in the way successions were handled mean that the acting secretary of homeland security, Chad Wolf, and the senior official performing the duties of deputy secretary, Ken Cuccinelli, are ineligible for their posts. Democrats have pointed to the appointments of Wolf and Cuccinelli as further evidence of politicisation in the US civil service at the hands of the Trump administration.

The GAO, a non-partisan Congressional investigative body, ruled last Friday that the Department of Homeland Security (DHS) had circumvented the order of succession after Kirstjen Nielsen, the last Senate-confirmed DHS secretary, stepped down in April 2019. According to Government Executive, successional rules required the DHS to install the director of the Cybersecurity and Infrastructure Security Agency as DHS’s temporary head. Instead, it appointed then-Customs and Border Protection commissioner Kevin McAleenan to the position. McAleenan’s subsequent appointments of Wolf and Cuccinelli were therefore invalid under the Federal Vacancies Reform Act and the Homeland Security Act, the GAO said, as he was not eligible to make them.

In normal circumstances, DHS’s undersecretary for management would be first in line for both the secretary and deputy positions, but that position has lain vacant for more than two years. It was also found that the line of succession had been changed, allowing Wolf and Cuccinelli to advance to previous positions.

“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, Bennie Thompson, and House Oversight and Reform Committee chairwoman Carolyn Maloney, the two Democrats 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.”

‘Baseless and baffling’

On 17 August Chad Mizelle, the senior official performing the duties of the DHS general counsel, wrote an eight-page letter to the GAO in which he rebuffed its findings, claiming it did not properly review the evidence and calling its report “baseless and baffling”.

He personally attacked the GAO attorney who penned the report, referring to him as a “junior staffer”, and questioned his experience – he “graduated from law school only three years ago”, Mizelle wrote. He also pointed out that the attorney had previously worked on a Democratic campaign and accused him of partisanship. A number of attorneys who side with the GAO’s judgement were quick to point out that Mizelle himself graduated from law school in 2013, and was a volunteer for the Trump campaign.

Mizelle concludes that “the report takes the reader on a march through a marsh. At each refusal to rely on key evidence the morass thickens and the water deepens… as the reader reaches the report’s conclusion, he is left with the sinking and inescapable feeling that something is afoot in the swamp”.  

“The GAO should rescind its erroneous report immediately,” he said.

University of Texas law professor Steve Vladeck said Mizelle’s letter epitomised the government’s superficial approach to legal work under the Trump administration.

“The actual legal ‘argument’ in DHS’s response to GAO on Wolf and Cuccinelli is risible. But then there’s the tone and the hubris – a 2013 law school grad (the ‘senior official performing the duties’ of GC) criticizing a GAO staffer for his inexperience,” Vladeck tweeted. “This letter is the epitome of lawyering in the Trump administration: Offer flatly unconvincing legal arguments that might seem superficially plausible to (non-expert) Trump supporters, then distract with overblown rhetoric, ad hominem attacks, hyperbole, and partisan innuendo.”

Aaron Reichlin–Melnick, policy counsel at the American Immigration Council, similarly criticised the letter, calling it a “deranged partisan screed” and “the mark of an agency gone mad”.

“The people who wrote this letter and this press release have no shame… This is how authoritarian governments speak,” he tweeted.  

Calls for resignation

Democrat legislators Thompson and Maloney 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 Cuccinelli to resign from federal government altogether. They also suggested Trump should tap a top career official to head DHS temporarily and nominate someone for confirmation by the Senate to serve in the post permanently. 

The GAO deferred to the DHS inspector general to make a decision on who should serve in the positions and “the question of the consequences of actions taken by these officials”. However, Wolf and Cuccinelli’s fate will likely be decided in federal court, Government Executive reported. The pair are facing lawsuits which seek to deem their appointments illegal, in a bid to strike down policies they have put in place.

A federal judge previously ruled that Cuccinelli was serving unlawfully and voided his policy initiatives. The Trump administration dropped an appeal of that decision on 13 August.  

About Mia Hunt

Mia is a journalist and editor with a background in covering commercial property, having been market reports and supplements editor at trade title Property Week and deputy editor of Shopping Centre magazine, now known as Retail Destination. She has also undertaken freelance work for several publications including the preview magazine of international trade show, MAPIC, and TES Global (formerly the Times Educational Supplement) and has produced a white paper on energy efficiency in business for E.ON. Between 2014 and 2016, she was a member of the Revo Customer Experience Committee and an ACE Awards judge. Mia graduated from Kingston University with a first-class degree in journalism and was part of the team that produced The River newspaper, which won Publication of the Year at the Guardian Student Media Awards in 2010.

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