Top Homeland Security Officials Are Serving Illegally, G.A.O. Says

WASHINGTON — President Trump’s top two officials at the Department of Homeland Security are illegally serving in their positions, with appointments that violated the laws governing who can fill Senate-confirmed positions, according to a report released Friday by the Government Accountability Office.

Chad F. Wolf, the acting secretary of homeland security, and Kenneth T. Cuccinelli, his deputy at the sprawling agency, are serving in violation of the Federal Vacancies Reform Act, which lays out specific orders of succession when senior officials resign, according to the G.A.O., Congress’s nonpartisan watchdog.

The report said the improper appointments began after Kirstjen Nielsen was forced out of office as the department’s secretary in April 2019.

“Because the incorrect official assumed the title of acting secretary at that time, subsequent amendments to the order of succession made by that official were invalid,” the Government Accountability Office said on Friday. The agency said that Mr. Wolf and Mr. Cuccinelli “are serving under an invalid order of succession.”

The report follows a similar finding in March by a federal judge, who ruled that Mr. Cuccinelli’s appointment violated federal law and that two policies he put in place while he served in the position should be nullified.

“Cuccinelli’s appointment fails to comply with the F.V.R.A. for a more fundamental and clear-cut reason,” the judge, Randolph D. Moss of the United States District Court in Washington, said in his ruling.

The Government Accountability Office does not have the ability to enforce its findings on the Trump administration, which has repeatedly defended its appointments of Mr. Wolf and Mr. Cuccinelli. In a statement, the watchdog said that it was referring the issue to the Department of Homeland Security’s inspector general and to Congress, which could try to force their removals.

Legal experts said the report would help bolster several court cases, including the one in Judge Moss’s court, in which the appointments are being challenged.

“Holy cow: The *GAO* has determined that Chad Wolf was not lawfully named the Acting Secretary of Homeland Security, and that @HomelandKen (who already is using an inappropriate title) wasn’t lawfully appointed even to his *proper* position at DHS,” Stephen I. Vladeck, a law professor at the University of Texas at Austin, whose work includes studying the Vacancies Act, wrote on Twitter.

“This is a remarkably big deal,” he added.

The Vacancies Reform Act provides specific rules for how senior positions at federal agencies can be filled temporarily when a top official leaves. It requires that only certain officials in a department’s existing chain of command can be tapped as “acting” leaders while a president seeks Senate confirmation of a permanent replacement.

Mr. Trump’s administration has repeatedly sought to ignore the order of succession defined by the Vacancies Reform Act, seeking instead to elevate officials seen as more loyal to the president and his agenda than the civil servants who were in line to take on the “acting” positions.

In the cases of Mr. Wolf and Mr. Cuccinelli, the report found that the administration improperly skipped over the proper individual to succeed Ms. Nielsen — the director of the Cybersecurity and Infrastructure Security Agency — and instead installed Kevin McAleenan, the commissioner of Customs and Border Protection, to serve as acting secretary.

When Mr. McAleenan later resigned, the Government Accountability Office said, the administration’s subsequent moves involving Mr. Wolf and Mr. Cuccinelli were “also improper because they relied on an amended designation made by Mr. McAleenan.”

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