The Government Accountability Office denied the Department of Homeland Security’s request that the watchdog rescind its finding that Acting DHS Secretary Chad Wolf and Acting Deputy Secretary Ken Cuccinelli were appointed in a way that makes their current roles invalid.
The GAO review, issued a week ago, found that the acting secretary who appointed them, Kevin McAleenan, was improperly installed in his role per the chain of succession and therefore didn’t have the authority to amend DHS rules to pave the way for Wolf and Cuccinelli.
When former Secretary Kirstjen Nielsen resigned in April 2019, the deputy secretary and under secretary for management positions at DHS were vacant. The DHS secretary order of succession was deputy secretary, under secretary for management, administrator of the Federal Emergency Management Agency, and director of the Cybersecurity and Infrastructure Security Agency. The order of succession for deputy secretary was under secretary for management, administrator of FEMA, director of CISA, and under secretary of Science and Technology.
The day before Nielsen resigned, DHS said, the order of succession was changed to deputy Secretary, under secretary for management, commissioner of Customs and Border Protection, and administrator of FEMA, moving CBP Commissioner McAleenan into the role. But GAO said only the line of succession in case of a disaster or catastrophic emergency was changed, not the DHS line of succession established in E.O. 13753 for when the secretary dies, resigns, or is unable to perform the functions of the office.
That would have made CISA Director Chris Krebs acting secretary after Nielsen’s departure. “Mr. McAleenan was not the designated Acting Secretary because, at the time, the Director of CISA was designated the Acting Secretary under the April Delegation,” GAO wrote.
In a Monday letter to GAO General Counsel Tom Armstrong, DHS Acting General Counsel Chad Mizelle declared that Wolf and Cuccinelli “are lawfully performing their current roles at DHS” and called the GAO report “fundamentally erroneous” with “baseless and baffling” conclusions.
“Despite the obvious fact that the agency is entitled to interpret its own internal memoranda, the GAO improperly rejected DHS’s reading. Instead, the GAO decided that its preferred interpretation should displace that of everyone else’s at DHS, including both the Agency head and the Agency’s highest-ranking attorney,” Mizelle wrote, then asserting that the GAO “has no authority … to opine” on the matter.
GAO’s report stemmed from a November 2019 emergency review request in reaction to Wolf’s appointment from House Homeland Security Committee Chairman Bennie Thompson (D-Miss.) and House Oversight and Reform Committee Chairwoman Carolyn Maloney (D-N.Y.).
Mizelle’s letter included a DHS Twitter photo of Nielsen swearing in McAleenan. “Few things constitute a more unambiguous designation of a successor than personally swearing your successor in,” Mizelle wrote. “Even if the GAO were correct that the Nielsen Memorandum did not designate then-Commissioner McAleenan as then-Secretary Nielsen’ s successor – which it is not – the swearing in of then-Commissioner McAleenan (and the accompanying announcement) unequivocally supplanted that prior designation.” He argued that “the moment that Secretary Nielsen invoked her authority, she overrode all past designations.”
“The GAO must accept this permissible interpretation. The GAO cannot ignore that interpretation to choose a different, preferred interpretation of its own in order to suit partisan ends,” Mizelle said of the nonpartisan watchdog, adding that “the Report was released a mere 80 days before the Presidential election – but 274 days after the GAO had been asked by congressional Democrats to investigate the matter.”
“Does the timing of this Report suggest that something else is motivating this opinion? Does the GAO’ s unfortunate recent history of issuing partisan and inaccurate reports perhaps explain what is going on? As the reader reaches the Report’s conclusion, he is left with the sinking and inescapable feeling that something is afoot in the swamp,” he added.
GAO denied Mizelle’s request to rescind its report “as DHS has not shown that our decision contains either material errors of fact or law, nor has DHS provided information not previously considered that warrants reversal or modification of the decision.”
“DHS asserts that our decision is ‘fundamentally erroneous,’ but in doing so did not point to any facts which we relied upon that were in error or provide any new facts for us to consider,” Armstrong wrote, noting that “an agency’s interpretation is not entitled to deference unless the controlling language is ambiguous.”
“In addition to its insistence on deference, DHS accused this office of political partisanship. In our oversight role, GAO produces hundreds of written products annually, including legal decisions, that examine agency programs and operations throughout the government,” he continued. “DHS’s demand for deference in these circumstances is not only legally unsupported but also ignores the public and Constitutional imperative of oversight to ensure transparency and accountability of governmental actions.”
Mizelle’s letter said a “junior staffer” three years out of law school with experience at the Senate Democratic Steering and Outreach Committee was the author of the report. Armstrong said all reports “represent the work of numerous professionals, each taking care to remain independent and mindful of GAO’s obligation to provide nonpartisan service to the American people.”
“All GAO products also undergo a multi-level review to assure they are intellectually sound and free from bias,” Armstrong wrote. “Rather than trying to reach a particular conclusion, our legal decisions, this one included, are the result of a dispassionate application of the relevant law to facts, not advocacy, and are subject to rigorous legal review and signature of GAO’s General Counsel.”
“GAO will modify or reverse a prior decision or opinion only if it contains a material error of fact or law. DHS has not demonstrated that our prior decision contains errors of either fact or law, nor has DHS presented information not previously considered that warrants reversal or modification of our decision. Therefore, we decline to reverse or modify the decision.”
GAO’s report said the agency was “referring the question as to who should be serving as the Acting Secretary and the Senior Official Performing the Duties of Deputy Secretary to the DHS Office of Inspector General for its review.”