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Chad Wolf and Ken Cuccinelli, Trump's top DHS officials, were invalidly appointed, watchdog finds

A federal government watchdog said Friday that Chad Wolf and Ken Cuccinelli, the highest-ranking officials at the U.S. Department of Homeland Security (DHS), were invalidly appointed to their current positions at the department charged with implementing President Trump's immigration agenda.

In a decision published Friday, the Government Accountability Office, Congress' investigative arm, found that former acting DHS secretary, Kevin McAleenan, did not have the authority to change the line of succession prior to his resignation last fall, making Wolf ineligible to succeed him. Consequently, the watchdog added, Wolf also lacked authority to alter the order of succession that made Cuccinelli acting deputy secretary.

Chad Wolf, acting secretary of the Department of Homeland Security (left); and Ken Cuccinelli, acting head of U.S. Citizenship and Immigration Services (right). CBS News/AP Photo

When Kirstjen Nielsen, the last Senate-confirmed secretary of the department, resigned in April 2019, the next in line should have been Christopher Krebs, the director of the Cybersecurity and Infrastructure Security Agency (CISA). However, McAleenan, who was then the commissioner of U.S. Customs and Border Protection (CBP), was appointed. 

"As such, Mr. McAleenan did not have the authority to amend the Secretary's existing designation," the Government Accountability Office wrote in its decision Friday. "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."

Congress' watchdog said it did not examine the legality of subsequent actions and policies that followed the invalid appointments. That question was referred to the Homeland Security Inspector General. 

DHS said on Friday it disagreed with the legal opinion, calling it a "baseless report." On Monday, Chad Mizelle, the senior official performing the duties of the DHS general counsel, issued a formal response strongly admonishing Friday's report and calling for its immediate withdrawal. Mizelle argued that Nielsen executed all the required steps during her final days as secretary to properly alter the department's line of succession, saying the subsequent appointments of Wolf and Cuccinelli were lawful.

Before succeeding McAleenan as acting secretary, Wolf led the DHS policy office and served as Nielsen's chief of staff. After maintaining a relatively low profile as the department's leader, Wolf has embraced the spotlight in recent months, forcefully defending his decision to send federal agents to Portland during a wave of anti-racism protests that occasionally turned violent.

Prior to being tapped as the second-highest ranking official at DHS, Cuccinelli led U.S. Citizenship and Immigration Services (USCIS) on an acting basis, overseeing a series of policies that restricted asylum and legal immigration. Apart from being the senior official performing the duties of the DHS deputy secretary, he remains, on paper, the senior official performing the duties of the USCIS director.

Cuccinelli, a former attorney general of Virginia, also has not been nominated to be confirmed by the Senate for his current position. His inflammatory rhetoric and support for anti-establishment Republicans have made him a controversial figure even among GOP lawmakers, who expressed concern about his appointment last year. Despite this, Cuccinelli is the de facto chief government spokesperson for the administration's stringent immigration policies.

In March, a federal judge in Washington, D.C., ruled that Cuccinelli had been unlawfully appointed to lead USCIS, and invalidated two of his directives that restricted the access asylum-seekers at the U.S.-Mexico border have to lawyers.

On Thursday, the Justice Department dropped its appeal of that decision.

Democratic Representatives Bennie Thompson and Carolyn Maloney, who chair the House Homeland Security and Oversight committees, respectively, said Friday's decision illustrated missteps committed by the Trump administration in its "haste" to implement a "radical agenda" through DHS. 

"GAO's damning opinion paints a disturbing picture of the Trump Administration playing fast and loose by bypassing the Senate confirmation process to install ideologues," the lawmakers said in a joint statement.

Thompson and Maloney called on Wolf to return to his Senate-confirmed position as head of the DHS policy office and urged Cuccinelli to retire from federal government altogether and give up his "unprofessional" Twitter account.

Sara Cook contributed to this report.

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