Government watchdog finds top Trump DHS officials are ineligible for their positions

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 WolfChad WolfFederal agencies seize, dismantle cryptocurrency campaigns of major terrorist organizations Senate Democrats demand answers on migrant child trafficking during pandemic Watch live: Acting DHS chief testifies on deployment of federal agents to protests MORE 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 DHS Secretary Kirstjen NielsenKirstjen Michele NielsenTrump’s acting ICE chief to leave post Trump’s fight with city leaders escalates Neo-Nazi pleads guilty to ‘swatting’ Black church, Cabinet official, journalists MORE resigned in April 2019 and was replaced by Kevin McAleenan, who had previously been leading Customs and Border Patrol.

McAleenan had not been designated in the order of succession to replace Nielsen, 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.

Neither DHS nor the DHS Office of Inspector General immediately responded to requests for comment on the GAO ruling.

Democrats seized on the GAO report, calling into question the actions of Wolf and Cuccinelli to crackdown on immigration and on protesters in recent months.

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Reps. Bennie ThompsonBennie Gordon ThompsonProgressive Caucus co-chair: Reported oversight change in intelligence office ‘seems a bit…fascist’ House lawmakers to launch probe into DHS excluding NY from Trusted Traveler Program Cuomo says Wolf, Cuccinelli violated oath of office and should be investigated MORE (D-Miss.) and Carolyn MaloneyCarolyn Bosher MaloneyTrump says he’d sign bill funding USPS but won’t seek changes to help mail voting 175 members of Congress call on postmaster general to reverse changes, restructuring ahead of election The Hill’s Campaign Report: Biden, Harris make first public appearance as running mates MORE (D-N.Y.), the respective chairs of the House committees on Homeland Security and Government Oversight, 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 undersecretary 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 CastroJoaquin CastroLawmakers of color urge Democratic leadership to protect underserved communities in coronavirus talks This week: Congress set for bipartisan coronavirus talks as clock ticks Sherman joins race for House Foreign Affairs gavel MORE (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 U.S. Citizenship and Immigration Services director, 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. If that decision is allowed to stand and the GAO’s 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’ 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.”

Harper Neidig contributed. Updated at 11:45 a.m.