President Donald Trump on Monday received a rare rebuke and a decided “no” from the Department of Justice (DOJ) Office of Legal Counsel (OLC) on a prospective staffing decision.
The Trump Administration currently has a personnel deficit at the Department of Homeland Security (DHS) due to acting secretary Kevin McAleenan tendering his resignation in early October. Trump himself had two men in mind for the job: (1) acting Director of Citizenship and Immigration Services Ken Cuccinelli; and (2) acting Commissioner of U.S. Customs and Border Protection Mark Morgan. According to the Wall Street Journal, the president’s hardline anti-immigration braintrust is also fond of Cuccinelli and Morgan.
That same report noted, however, that White House Presidential Personnel Office director Sean Doocey has put the kibosh on both. Per the WSJ:
Both men are serving on an acting basis, and neither has been nominated by Mr. Trump for permanent roles, which would require Senate confirmation. … as a result, neither man is eligible to be elevated to the Department’s top job on an acting basis, according to the people. The federal statute that governs vacancies states that acting officials in cabinet-level positions must either be next in line for a position or hold a Senate-confirmed position.
Legally, the last DHS secretary was Kirstjen Nielsen–who departed the position in April of this year after being asked to resign due to her perceived moderate approach to immigration enforcement by aforementioned anti-immigration hardliners like Stephen Miller.
Doocey reportedly briefed Trump, Miller and Deputy Chief of Staff Emma Doyle that OLC had nixed the Cuccinelli and Morgan appointments during a closed-door meeting last Friday.
In lieu of the president’s preferred candidates, the administration is considering Chad Wolf, Nielsen’s former chief of staff, for the role of acting DHS secretary. According to anonymous sources cited by the WSJ: “Miller is said to be supportive of Mr. Wolf’s appointment.”
The OLC decision is perhaps a bit surprising. The DOJ’s OLC is frequently criticized for acting as rubber stamp for the Trump Administration. Hence, Georgetown University Law Professor Marty Lederman remarked:
— Marty Lederman (@marty_lederman) October 21, 2019
University of Texas Law Professor Steve Vladeck was nonplussed.
“It’s pretty wild that it took an OLC opinion to sort out the plain language of the Federal Vacancies Reform Act, under which this result has been clear from day one,” he tweeted.
As Law&Crime previously reported, Vladeck harshly rubbished the Trump Administration’s prior elevation of Cuccinelli at length in an analysis for Lawfare.
Putting the failed Virginia gubernatorial candidate into his current post required a novel interpretation of the Federal Vacancies Reform Act (FVRA)–one which meant the administration took “advantage of an entirely different—and more problematic—loophole.”
“Although the director of USCIS holds an office created by statute, the same does not appear to be true of the deputy director,” Vladeck explained. “Instead, that position is an internal position created by executive branch regulation.”
Vladeck noted the upshot of side-stepping FVRA:
Presumably, the new staff position of principal deputy director will supersede the deputy director as the first assistant for purposes of the FVRA. (Some statutes expressly identify which position in specific agencies is the first assistant, but no such statute does in this case.) In other words, through nothing other than internal administrative reshuffling—creating a new position and deeming it the first assistant—the Trump administration was able to bootstrap Cuccinelli into the role of acting director…
In other words: by bootstrapping Cuccinelli into his current position, the Trump Administration rigged up a legislation-defying loophole that’s nothing shy of an act of Congress can’t really do anything about–but in the process of doing so, Trump and his team effectively took Cuccinelli out of the running for further promotions.
[image via Win McNamee_Getty Images]