(DHS photo)

Wrongful McAleenan Appointment Makes Wolf, Cuccinelli Also ‘Invalid,’ GAO Finds

The appointments of Acting DHS Secretary Chad Wolf and Acting Deputy Secretary Ken Cuccinelli are invalid because 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, a Government Accountability Office review concluded.

Wolf, former chief of staff at the Transportation Security Administration and later at the Department of Homeland Security under former Secretary Kirstjen Nielsen, served as Assistant Secretary of Homeland Security for Strategy, Plans, Analysis & Risk and as Under Secretary of Homeland Security for Strategy, Policy, and Plans when he was named to the acting secretary role after McAleenan’s departure from DHS in November 2019.

The Federal Vacancies Reform Act of 1998 details how acting officials fill vacant presidentially appointed, Senate-confirmed positions. According to the law, the first assistant to this position automatically becomes the acting official in case of a vacancy unless the president designates another individual who meets the Vacancies Reform Act’s eligibility requirements.

When 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.

Nielsen also changed the annex relating to the line of succession for the deputy secretary role to under secretary for Management, administrator of TSA, administrator of FEMA, and director of CISA. TSA Administrator David Pekoske served as acting deputy secretary during McAleenan’s time as acting secretary.

“Apparently, DHS mistakenly referred to Annex A, rather than E.O. 13753. … Mr. McAleenan would have been the appropriate official had Secretary Nielsen been unavailable to act during a disaster or catastrophic emergency. That was not the case here. Secretary Nielsen resigned. A Secretary’s resignation is addressed in E.O. 13753, not Annex A,” GAO wrote in its report, which 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.).

In response to GAO, DHS said that the secretary’s order changing the line of succession superseded the executive order, and “asserted that the direction from the Secretary to change the order of succession applied to any vacancy in the position of the Secretary.” GAO retorted that Nielsen “did not change the ground for which Annex A would apply” — only to vacancies created by the secretary’s inability to act during a disaster or catastrophic emergency: “DHS did not provide evidence of Secretary Nielsen’s designation under HSA in the case of her death, resignation, or inability to perform the functions of the office.”

When McAleenan revised the line of succession before leaving DHS, he made the disaster and catastrophic emergency line of succession and the death, resignation, or inability to perform job line of succession match. He then changed the roles in the line of succession to deputy secretary, under secretary for Management, commissioner of CBP, and under secretary for Strategy, Policy, and Plans. Considering the first three positions were vacant, that put Wolf in the acting secretary role.

Wolf then amended the order of succession for deputy secretary to under secretary for Management, principal deputy director of U.S. Citizenship and Immigration Services, administrator of TSA, and administrator of FEMA, ushering Cuccinelli into the acting No. 2 role at DHS.

Since McAleenan “was not the proper Acting Secretary” at the time, GAO found, “he did not have the authority to amend” the lines of succession. And because Wolf “draws his authority to serve as Acting Secretary” from McAleenan’s amendment, “Wolf cannot, therefore, rely upon it to serve as the Acting Secretary.” Wolf then did not have the authority to alter the line of succession to place Cuccinelli in the acting deputy role, the report added.

“In this decision we do not review the consequences of Mr. McAleenan’s service as Acting Secretary, other than the consequences of the November delegation, nor do we review the consequences of Messers. Wolf and Cuccinelli service as Acting Secretary and Senior Official Performing the Duties of Deputy Secretary respectively,” the review concludes. “We are 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. We also refer to the Inspector General the question of consequences of actions taken by these officials.”

DHS said in a brief statement that they “wholeheartedly disagree with the GAO’s baseless report and plan to issue a formal response to this shortly.”

The chairmen who requested the review called on Wolf to step down and return to his Senate-confirmed under secretary role at DHS. “The President should appoint an apolitical career official to run the Department temporarily and follow the Constitution by swiftly nominating a permanent Secretary,” Thompson and Maloney said in a joint statement.

They added that Cuccinelli should “immediately resign from the Federal government and retire his unprofessional official Twitter account.” Neither Cuccinelli nor Wolf have tweeted about the GAO report.

Nielsen was the last Senate-confirmed DHS secretary and the fifth person in the top role at DHS — confirmed or acting — during the Trump administration.

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Bridget Johnson is the Managing Editor for Homeland Security Today. A veteran journalist whose news articles and analyses have run in dozens of news outlets across the globe, Bridget first came to Washington to be online editor and a foreign policy writer at The Hill. Previously she was an editorial board member at the Rocky Mountain News and syndicated nation/world news columnist at the Los Angeles Daily News. Bridget is a senior fellow specializing in terrorism analysis at the Haym Salomon Center. She is a Senior Risk Analyst for Gate 15, a private investigator and a security consultant. She is an NPR on-air contributor and has contributed to USA Today, The Wall Street Journal, New York Observer, National Review Online, Politico, New York Daily News, The Jerusalem Post, The Hill, Washington Times, RealClearWorld and more, and has myriad television and radio credits including Al-Jazeera, BBC and SiriusXM.

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