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‘An Agency Gone Mad’: DHS Unleashes Personal Attack on GAO Employee Who Concluded Cuccinelli and Wolf Were Illegally Appointed

WASHINGTON, DC - AUGUST 06: Acting U.S. Secretary of Homeland Security Chad Wolf testifies during a hearing before Senate Homeland Security and Governmental Affairs Committee at Dirksen Senate Office Building August 6, 2020 on Capitol Hill in Washington, DC. The committee held a hearing on “Oversight of DHS Personnel Deployments to Recent Protests. (Photo by Alex Wong/Getty Images)

Acting DHS Secretary Chad Wolf

The top attorney at the Department of Homeland Security (DHS) on Monday rejected a nonpartisan congressional watchdog’s report which concluded that two of the agency’s top officials—Acting DHS Secretary Chad Wolf and Senior Official Performing the Duties of the Deputy Secretary Ken Cuccinelliwere ineligible to serve in those roles. Chad Mizelle, the senior official performing the duties of the DHS general counsel, responded by attacking the Government Accountability Office’s (GAO) findings and the author of the agency’s report.

The GAO determined last week that the official who took over after former DHS Secretary Kirstjen Nielsen resigned in 2019 was not properly designated by the agency’s order of succession, meaning Nielsen’s successor incorrectly filled her position in an acting capacity. According to the GAO, because the wrong official assumed the role of Acting Secretary, “subsequent amendments made to the order of succession by that official were invalid and officials who assumed their positions under such amendments, including Chad Wolf and Kenneth Cuccinelli, were named by reference to an invalid order of succession.”

Despite most experts sharing the GAO’s legal position, the assessment did not go over well with Mizelle, who penned an 8-page letter to GAO General Counsel Thomas H. Armstrong.

“The GAO should rescind its erroneous report immediately,” Mizelle wrote, characterizing the report as “baseless and baffling.”

“Yet, 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,” he said.

Mizelle then levied a personal attack against the GAO attorney who penned the report, referring to them as a “junior staffer.”

“This staffer appears to have limited experience practicing law- having graduated from law school only three years ago. He also previously worked on a Democratic campaign and the partisan Senate Democratic Steering and Outreach Committee,” Mizelle wrote. “Surely, few things could be more significant than the appointment of the head of a cabinet-level agency. It should have been easy to find a more seasoned attorney (whose past political work would not have created even the appearance of impropriety) among the GAO’s 3,000 employees.”

Attorneys immediately noted that Mizelle, who graduated law school in 2013 and was an attorney volunteer for the Trump campaign before taking on a senior legal role in the administration, was attacking someone for lacking in experience.

University of Texas law professor Steve Vladeck said Mizelle’s letter epitomized the government’s superficial approach to legal work under the Trump administration.

“The actual legal ‘argument’ in DHS’s response to GAO on Wolf and Cuccinelli is risible. But then there’s the tone and the hubris—a 2013 law school grad (the ‘senior official performing the duties’ of GC) criticizing a GAO staffer for his inexperience,” Vladeck wrote. “This letter is the epitome of lawyering in the Trump administration: Offer flatly unconvincing legal arguments that might seem superficially plausible to (non-expert) Trump supporters, then distract with overblown rhetoric, ad hominem  attacks, hyperbole, and partisan innuendo.”

Aaron ReichlinMelnick, policy counsel at American Immigration Council, similarly criticized the “deranged partisan screed.”

“Oh my god. DHS’s response to the GAO report that Wolf and Cuccinelli comes along with a *personal attack* on a GAO staffer who was involved with drafting the report. This is the mark of an agency gone mad. There are no adults left at DHS HQ. None,” he tweeted.

The people who wrote this letter and this press release have no shame. They have fully taken control of DHS and have bludgeoned the agency into doing everything they ever wanted. This press release is how authoritarian governments speak.”

[Image via Alex Wong/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.