GAO has referred the matter to the Homeland Security Department Inspector General for further assessment and potential action. The bureau also urged the inspector general to consider the consequences of actions taken by improperly appointed officials.
A spokesman for DHS said the department plans to issue a formal response shortly.
“We do not agree with the GAO’s baseless report,” the spokesman said.
The legal opinion has no binding force, but is likely to raise extraordinary legal questions and invite lawsuits over the legitimacy of actions taken by Wolf and Cuccinelli, a conservative immigration-hard liner. GAO says it has not checked the validity, making the request to the Inspector General for consideration.
The GAO opinion was issued at the request of House Homeland Security Committee Chairman Bennie Thompson (D-Miss.) And House Oversight Committee Chairman Carolyn Maloney (DN.Y.), who chaired the Inspectorate. urged them to “immediately and expeditiously review the legality of actions – which span 16 months – taken by these officials.” They also asked Wolf to resign his position and return to his previously confirmed Senate-confirmed role as Deputy Secretary of Strategy . And they demanded that Cuccinelli be fired altogether.
It is not the first time Cuccinelli has questioned the legality of his appointment. A federal judge ruled in March that he had been unfairly appointed to his role as acting director of U.S. Citizenship and Immigration Services, a ruling blocking two policies he had implemented at the time. Trump has not nominated Cuccinelli for one of the two top DHS jobs he has held, an opportunity that is likely to meet opposition among Senate Republicans who have clashed with Cuccinelli in the past.
The decision seems to boil down to a procedural error by DHS. The day before she was fired on April 10, 2019, Nielsen sought to change the order of succession to ensure that McAleenan succeeded her. However, GAO found that the department only changed the succession order for vacancies that result if the secretary is unavailable to serve due to a disaster or disaster. The order of succession as a result of a dismissal remained unchanged, GAO found, and that order did not cause McAleenan to take over.
Therefore, following Nielsen’s dismissal, the law required the director of the Cybersecurity and Infrastructure Security Agency to succeed her, GAO found. But instead, President Donald Trump elevates McAleenan, the head of Customs and Border Protection, to the position. McAleenan then changed the order of succession, paving the way for Wolf and Cuccinelli to the top lanes.
DHS sought to argue that Nielsen intended to nominate McAleenan as her successor upon dismissal and, in a letter to GAO, argued that this intent was clear and legally valid. But GAO said the letter failed to address the “ordinary language” of the changes Nielsen made.
“When Secretary Nielsen issued the April delegation, she only amended Annex A, placing the U.S. Customs and Border Protection Commissioner as the next position in the order of succession in cases of the Secretary’s unavailability to acting in the event of a disaster or catastrophic emergency, ”GAO found.
