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Homeland Security Officials Chad Wolf and Ken Cuccinelli Hold Office Through ‘Invalid Order of Succession’: GAO Report

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 — [Photo by Alex Wong/Getty Images]

The nonpartisan Government Accountability Office (GAO) on Friday issued a decision which says Acting Homeland Security Secretary Chad Wolf and Acting Deputy Secretary Ken Cuccinelli are not legally eligible to hold the offices they currently occupy.

Accordingly, the GAO is referring questions about the consequences of Wolf and Cuccinelli’s “improper service” to the Department of Homeland Security’s Office of Inspector General (OIG) for review. That OIG referral cites Wolf’s actions involving the use of federal troops to quell protests, property damage and violence in Portland, Oregon, as among the areas of GAO concern.

WASHINGTON, DC - AUGUST 04: Acting Deputy Secretary of Homeland Security Ken Cuccinelli testifies before the Senate Judiciary Committee's Subcommittee on the Constitution about "anarchist violence" in the Dirksen Senate Office Building on Capitol Hill August 04, 2020 in Washington, DC. Against the wishes of state and local authorities, the Department of Homeland Security sent additional federal law enforcement officers to Portland, Oregon, at the beginning of July to protect the federal courthouse there from attack by violent protesters. Actions by those he heavily militarized agents are under investigation after several incidents of possible abuse during those anti-racism demonstrations. (Photo by Chip Somodevilla/Getty Images)

Acting Deputy Secretary of Homeland Security Ken Cuccinelli — [Photo by Chip Somodevilla/Getty Images]

The legal issue at play surrounds two federal succession statutes, a presidential executive order, and a flurry of succession documents signed by various DHS officials over time. In short, the GAO accuses DHS of “apparently . . . mistakenly” interpreting that array of documents. The effect was a falling-domino-like series of moves — which the GAO says resulted in one incorrect official after another taking office. The report says some of those officials further altered the succession plans without legal authority. That resulted in the “invalid” installation of a series of officials in the upper ranks of the agency tasked with protecting America from terrorist attacks within its borders.

The core findings of the report are contained in this digest:

Upon Secretary Kirstjen Nielsen’s resignation on April 10, 2019, the official who assumed the title of Acting Secretary had not been designated in the order of succession to serve upon the Secretary’s resignation.  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 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.  We have not reviewed the legality of other actions taken by these officials; we are referring the matter to the Inspector General of DHS for review.

Law&Crime previously addressed these issues surrounding DHS appointments in early August.

Homeland Security Secretary Kirstjen Nielsen testifies before the House Homeland Security Committee on border security on Capitol Hill in Washington, DC, March 6, 2019. (Photo by Jim WATSON / AFP)

Fmr. Homeland Security Secretary Kirstjen Nielsen — [Photo by JIM WATSON/AFP via Getty Images]

At issue is the legal operation of the Federal Vacancies Reform Act of 1998, which the GAO explains “provides for temporarily filling vacant executive agency positions that require presidential appointment with Senate confirmation.” However, in the case of DHS, a separate statute provides a succession plan. The powers of succession outlined in part and delegated in part by the DHS succession statute were further charted through a delegation order, known as HSA Delegation 00106 (signed by then-secretary Nielsen). That Delegation was itself changed over time through what the GAO refers to a “February Delegation” and an “April Delegation” — and by additional documents known as “Annex A” and “Annex B.” Additionally, an executive order, known as E.O. 13753 (signed by Barack Obama), is at play in the analysis as to precisely how DHS vacancies were supposed to have been filled.

What follows in the GAO’s report is a weedy assessment of those convoluted legal authorities. (Law&Crime recommends that it be printed for inclusion on the nightstands of those struggling with insomnia.) Bottom line: at one point, the GAO states that DHS screwed up by “[a]pparently . . . mistakenly referr[ing] to Annex A, rather than E.O. 13753” in its selection of a successor for a particular post. The mess-up resulted in “the incorrect individual assum[ing] the position of Acting Secretary.”

The GAO report further indicates that the HSA’s own lawyer provided a faulty analysis as to how the process was supposed to work — which may have been impacted by suggestions by Nielsen over who she wished her successor to be:

Notwithstanding the General Counsel’s statement in the Memorandum asserting the Secretary’s intentions in amending the April Delegation, the plain language of the delegation controls, and it speaks for itself. When Secretary Nielsen issued the April Delegation, she only amended Annex A, placing the Commissioner of U.S. Customs and Border Protection as the next position in the order of succession in cases of the Secretary’s unavailability to act during a disaster or catastrophic emergency. April Delegation Annex A. She did not change the ground for which Annex A would apply. 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.

We are mindful that the timing of Secretary Nielsen’s resignation the next day and the subsequent actions and statements of officials—such as Secretary Nielsen’s farewell message to DHS12—may suggest that she intended for Mr. [Kevin] McAleenan to become the Acting Secretary upon her resignation. However, it would be inappropriate, in light of the clear express directive of the April Delegation, to interpret the order of succession based on post-hoc actions. [Legal citations omitted.] The April Delegation was the only existing exercise of the Secretary’s authority to designate a successor pursuant to HSA. As such, 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.

NEW YORK, NEW YORK - APRIL 22: Acting Department of Homeland Security (DHS), Secretary Kevin McAleenan listens to questions from DHS personnel at the One World Trade Center on April 22, 2019 in New York City. McAleenan also visited the September 11 Memorial and Museum before holding the "all hands" meeting with DHS staff. McAleenan was U.S. Customs and Border Protection (CBP) ,commissioner before being named by President Trump as acting secretary of DHS, replacing outgoing Secretary Kirstjen Nielsen. McAleenan, a career official who joined U.S. government service after the attacks of September 11, 2011, also worked under the Presidential administrations of Barack Obama and George W. Bush. (Photo by John Moore/Getty Images)

Kevin McAleenan — [Photo by John Moore/Getty Images]

McAleenan, the GAO concludes, altered the order of succession documents thinking he had the authority to do so — but he ultimately did not:

Under HSA, the Secretary, or properly serving Acting Secretary, has the authority to designate the order of succession for Acting Secretary. 6 U.S.C. § 113(g)(2). Based on the analysis above, Mr. McAleenan was not the proper Acting Secretary which means he did not have the authority to amend the April Delegation. When Mr. McAleenan issued the November Delegation, he did so without the proper authority. [Legal citation omitted.] Because Mr. Wolf draws his authority to serve as Acting Secretary from the November Delegation, Mr. Wolf cannot, therefore, rely upon it to serve as the Acting Secretary.

From there, Wolf altered the order of succession documents — which the GAO said he did not have the authority to do:

Mr. Wolf altered the order of succession for Deputy Secretary in the November Delegation to permit Mr. Cuccinelli to serve as the Senior Official Performing the Duties of Deputy Secretary. According to DHS, Mr. Wolf did this under his authority as Acting Secretary. [Citation omitted.] As discussed previously, Mr. McAleenan did not have the authority to alter the order of succession; therefore, Mr. Wolf also does not have the authority to alter it as well. The last valid order of succession to serve in that capacity was Annex B to the April Delegation, which did not include Mr. Cuccinelli’s position.

Here is the GAO’s ultimate summary of its conclusions:

In the case of vacancy in the positions of Secretary, Deputy Secretary, and Under Secretary for Management, the HSA provides a means for an official to assume the title of Acting Secretary pursuant to a designation of further order of succession by the Secretary. Mr. McAleenan assumed the title of Acting Secretary upon the resignation of Secretary Nielsen, but the express terms of the existing designation required another official to assume that title. As such, Mr. McAleenan did not have the authority to amend the Secretary’s existing designation. Accordingly, Messrs. Wolf and Cuccinelli were named to their respective positions of Acting Secretary and Senior Official Performing the Duties of Deputy Secretary by reference to an invalid order of succession.

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. 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, including consideration of whether actions taken by these officials may be ratified by the Acting Secretary and Senior Official Performing the Duties of Deputy Secretary as designated in the April Delegation.

The GAO noted that its role in the DHS matter is to collect information and “to report to Congress any violations of the time limitations on acting service imposed by the Vacancies Reform Act.”

READ the full report below, including a flow chart of how DHS successions are supposed to occur:

GAO Report on DHS Vacancies by Law&Crime on Scribd

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is the anchor and executive producer of Law&Crime Daily on the Law&Crime Network.  The broadcast is a recap of the day's most compelling trials and court proceedings.  He also serves as an editor for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.