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A top House Democrat says White House can't use unconventional method to pick DHS secretary

Acting Secretary of Homeland Security Kevin McAleenan resigns
Acting Secretary of Homeland Security Kevin M... 09:45

A top House Democrat is blasting the White House's reported exploration of a loophole to bypass legal complications so President Trump can pick the person he wants to run the Department of Homeland Security. 

The New York Times reported late Tuesday that the White House is exploring using an office meant to counter weapons of mass destruction in order to work around the Federal Vacancies Act, which says acting officials who assume cabinet-level roles must meet one of three conditions: 

  • Senate approval; 
  • Served 90 days under the previous secretary;
  • Or be in the line of succession. 

Specifically, the Times reported, the president could tap someone to be the assistant secretary at the Countering Weapons of Mass Destruction office, then elevate that person to the role of acting DHS secretary. As CBS News has reported, the president's top picks have included acting director of U.S. Citizenship and Immigration Services Ken Cuccinelli and acting commissioner of Immigration and Customs Enforcement Mark Morgan, and neither meets the conditions outlined by the act.

The White House did not immediately respond to a request for comment. 

On Wednesday, House Homeland Security Committee Chairman Bennie Thompson, Democrat of Mississippi, demanded that the White House go through the normal channels to name a new homeland security secretary.

"Reports that President Trump is desperately combing through federal law to find a loophole to make an end-run around the Constitution are disappointing but not surprising," Thompson said in a statement. "If the White House cannot find anyone qualified and suitable to run the Department of Homeland Security - or even run it in an acting capacity - something is very wrong with this administration. 

"The White House must immediately disavow these reports — including repeated rumors that Ken Cuccinelli will be installed by Trump as Acting Homeland Security Secretary through some convoluted process," Thompson continued. "Cuccinelli is an anti-immigrant fringe figure who has no business being in government in any capacity, much less as a Department head overseeing 240,000 employees working to keep the country safe. There is a reason he has been rejected by Republicans and Democrats alike and has no chance of Senate confirmation."

Cuccinelli on Wednesday said the Vacancies Act isn't something he isn't too familiar with enough to address. Democratic Representative Ayanna Pressley of Massachusetts asked Cuccinelli about the legal conclusion that he can't be tapped for the role.

"I'm not privy to anything you just described. So I cannot answer that question," he initially responded, before saying he was not well-versed in federal employment law. "I know areas of the law very well, but I don't know them all. And one I don't know very well is federal employment law, including things like the Vacancies Act."

The person the president picks will replace outgoing acting DHS secretary Kevin McAleenan, whose last day is Thursday. 

McAleenan had only been on the job — in the acting role — for six months, and as far as immigration hardliners were concerned, he struggled to maintain control of the massive border security and enforcement agency.

— CBS' Camilo Montoya-Galvez contribtued to this report 

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