Top DHS Officials Not Legally Eligible To Serve In Current Roles

A U.S. government watchdog found that the appointment of the lead officials at the U.S. Department of Homeland Security violated federal law.

In a review released Friday morning, the U.S. Government Accountability Office (GAO) said acting Secretary of Homeland Security Chad Wolf and his deputy, Kenneth Cuccinelli, are in their positions under an invalid order of succession under the Vacancies Reform Act.

“Upon Secretary Kirstjen Nielsen’s resignation on April 10, 2019, the official who assumed the title of Acting Secretary had not been designated in the order of succession to serve upon the Secretary’s resignation,” according to the GAO. “Because the incorrect official assumed the title of Acting Secretary at the time, subsequent amendments to the order of succession made by that official were invalid and officials who assumed their positions under such amendments, including Chad Wolf and Kenneth Cuccinelli, were named by reference to an invalid order of succession. We have not reviewed the legality of other actions taken by these officials; we are referring the matter to the Inspector General of DHS for review.”

The DHS has been without a presidentially appointed and Senate approved secretary for the longest period of vacancy in the history of the position. Nielsen resigned in April 2019 after clashing with U.S. President Donald Trump and critics over border security measures, including separating children from their parents.

Prior to her resignation, “Trump in recent weeks had asked Ms. Nielsen to close the ports of entry along the border and to stop accepting asylum seekers, which Ms. Nielsen found ineffective and inappropriate,” according to The New York Times. “While the 30-minute meeting was cordial, Mr. Trump was determined to ask for her resignation. After the meeting, she submitted it.”

The GAO review was prompted by a request from leaders of the U.S. House of Representatives Committees on Homeland Security and Oversight and Reform, who questioned whether Wolf and Cuccinelli’s leadership was legal after Nielsen resigned and Kevin McAleenan, the confirmed commissioner of U.S. Customs and Border Protection, assumed the role as acting DHS secretary, because other deputy positions who would have filled that role were vacant.

The DHS has faced intense scrutiny during the Trump administration, previously for its role in carrying out controversial border security tactics and later this year for deployment of officers to Portland to help quell civil unrest and secure federal facilities—a demonstration of force not seen before in the United States.

“I wasn’t just disappointed—I was angry,” said Tom Ridge, former Pennsylvania governor and the first DHS secretary, in an interview with The Washington Post. “The president has perverted the mission of DHS. Creating the perception that the department is a political arm of the president is an abuse I never thought I’d see.”

In a report released earlier this week by the Atlantic Council, former DHS officials wrote that the department should refocus itself on protecting the United States from cyberthreats and infectious diseases.

“Infectious diseases, cyber threats from hostile nation-states, threats to election security, foreign disinformation, threats to critical infrastructure from climate change, vulnerabilities from new technologies, and growing white supremacism present serious risks to homeland security,” the report explained. “Although DHS was founded in 2003 to focus on the threat from terrorism, today’s challenges demand more DHS leadership attention and resources, even as the department needs to meet all its other current missions.”

To help balance this workload and better address its core mission, the report suggested DHS turn over setting the number of immigration visas. Making a move like this could help DHS agencies, such as the Cybersecurity and Infrastructure Security Agency (CISA), further their cybersecurity mission and improve public support of the work they do.

“The less trust the public has in DHS as a whole, the less impact CISA will have,” said Neil Jenkins, a former DHS official in the Obama administration, in an interview with CyberScoop. “Those other agencies in DHS are forcing CISA to work twice as hard to stay above the fray and show the community that they can continue to be trusted. CISA can’t let the security gains its made be undermined by politics.”