The appointments of the top two officials at the Department of Homeland Security violated federal law, the Government Accountability Office said on Friday.

GAO, which is an independent watchdog agency that reports to Congress, said that Acting Secretary of Homeland Security Chad Wolf and his deputy Kenneth Cuccinelli are serving under an invalid order of succession under the Vacancies Reform Act.

DHHS Acting Secretary Chad Wolf at a Senate committee on Aug. 6, 2020, in Washington. Alex Wong/Pool via Associated Press

The Vacancies Reform Act governs how temporary appointments can be made to positions that require Senate confirmation. President Trump has repeatedly circumvented the Senate confirmation process by placing people in acting positions — including Wolf and Cuccinelli, whose official title is Senior Official Performing the Duties of Deputy Secretary of Homeland Security.

Those two appointments violated the act, GAO said, because of the sequence of events following the resignation of DHS Secretary Kirstjen Nielsen in April of last year. The official who assumed the title of acting secretary at that time, Kevin McAleenan, had not been designated in the order of succession, GAO said.

Subsequent personnel moves also were invalid, and Wolf and Cuccinelli “are serving under an invalid order of succession,” the agency said.

GAO said it was referring the matter to the DHS inspector general for reviews, and that any further actions would be up to Congress and the IG.

Wolf was a deputy chief of staff in the Trump administration before rising through the ranks, in part because of his repeated public professions of support for Trump and his hardline views on immigration. Wolf has played a central role in the government’s controversial response to protests throughout the United States this summer, actions that some former DHS officials from both parties have said crossed the line.

Cuccinelli, formerly the attorney general of Virginia, is also an immigration hardliner who also served as acting director of U.S. Citizenship and Immigration Services. In March, a federal judge ruled that his appointment to head USCIS was illegal and that he lacked the authority to issue policy directives tightening asylum rules.

GAO noted that it was not examining the question of the consequences of Wolf and Cuccinelli’s improper appointments, or the impact on the actions they have taken in those roles, instead referring those questions to the DHS inspector general.

DHS quickly issued a statement opposing GAO’s conclusion.

“We wholeheartedly disagree with the GAO’s baseless report and plan to issue a formal response to this shortly,” DHS spokesman Nathaniel Madden said in a statement.

The GAO conducted its review in response to inquiries from House Homeland Security Committee Chairman Bennie Thompson (D-Miss.) and Rep. Carolyn Maloney (D-N.Y.), chairwoman of the Committee on Oversight and Reform.

In a statement responding to GAO’s findings, Thompson and Maloney called on Wolf and Cuccinelli to resign from their roles.

“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,” Thompson and Maloney said. “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.”

Trump has publicly discussed his preference for having people in his administration serving in an acting capacity, saying this gives him “more flexibility.”

Trump ousted Nielsen in April 2019, and since then the White House has displayed an unprecedented disregard for the Senate confirmation process. McAleenan served seven months without a nomination, and though Trump has effusively praised Wolf, he has not received a nomination for the secretary position.

Across the department, career officials have retired or resigned from their jobs without replacement, and the White House has made no effort to push for the confirmation of its more recent appointees, despite GOP control of the senate.

The leadership page of the DHS website shows empty seats and interim appointments across the agencies charged with protecting the country from terrorist attacks and other threats, with more than 20 vacancies and acting chiefs among senior department positions.

In addition to the temporary appointments at DHS headquarters, none of the three agencies that run the country’s immigration system—U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS)—have a Senate-confirmed leader.


Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.