DHS rejects government watchdog finding that top officials were improperly appointed

The Department of Homeland Security (DHS) on Monday dismissed a congressional watchdog's finding that the agency's top two officials were ineligible to serve in their positions.

Chad Mizelle, the senior official performing the duties of DHS general counsel, called the Government Accountability Office's (GAO) report "baseless and baffling." The GAO, which is under the purview of Congress, ruled last week that acting DHS Secretary Chad WolfChad WolfSenate to hold nomination hearing for Wolf next week Hillicon Valley: FBI chief says Russia is trying to interfere in election to undermine Biden | Treasury Dept. sanctions Iranian government-backed hackers Democrats slam DHS chief for defying subpoena for testimony on worldwide threats MORE and his top deputy, Ken Cuccinelli, are illegally serving in their posts because their appointments were invalid under the order of succession. 

"Yet, despite the obvious fact that the agency is entitled to interpret its own internal memoranda, the GAO improperly rejected DHS's reading," Mizelle wrote in an eight-page rebuttal. "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."

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Mizelle accused the GAO of refusing to look at key evidence and precedent that supports the appointments of Wolf and Cuccinelli and implied that the congressional agency has suspect partisan motivations because the report was released roughly 80 days before the presidential election.

"As the reader reaches the Report’s conclusion, he is left with the sinking and inescapable feeling that something is afoot in the swamp," Mizelle wrote.

The GAO last week issued a report that found Wolf and acting Cuccinelli were technically ineligible to serve based on their improper appointments, though the agency did not review the legality of their orders while serving in those positions.

The issue, the GAO said, stemmed from when former Homeland Security Secretary Kirstjen NielsenKirstjen Michele NielsenDHS IG won't investigate after watchdog said Wolf, Cuccinelli appointments violated law Appeals court sides with Trump over drawdown of immigrant protections Democrats smell blood with new DHS whistleblower complaint MORE resigned in April 2019 and was replaced by Kevin McAleenan, who had previously been leading Customs and Border Protection.

McAleenan had not been designated in the order of succession to replace Nielsen, the GAO found, and therefore could not legally alter the order of succession at DHS. But he did so anyway, subsequently making the appointments of Wolf and Cuccinelli invalid.

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But DHS in Monday's letter argued that Nielsen issued a memorandum on the order of succession within the department that superseded existing language and made McAleenan's appointment legal.

The department's response made clear that neither Wolf nor Cuccinelli was expected to resign or be reassigned in the wake of the GAO report, which prompted a wave of calls for Wolf and Cuccinelli to step down from top Democrats, including Reps. Bennie ThompsonBennie Gordon ThompsonSenate to hold nomination hearing for Wolf next week Hillicon Valley: FBI chief says Russia is trying to interfere in election to undermine Biden | Treasury Dept. sanctions Iranian government-backed hackers FBI director calls antifa 'a real thing' MORE (D-Miss.) and Carolyn MaloneyCarolyn Bosher MaloneyTop Democrats call for DOJ watchdog to probe Barr over possible 2020 election influence House panel advances bill to ban Postal Service leaders from holding political positions Shakespeare Theatre Company goes virtual for 'Will on the Hill...or Won't They?' MORE (D-N.Y.), the respective chairs of the House committees on Homeland Security and on Oversight and Reform.

Wolf is the fifth person to lead DHS during the Trump administration. He was previously confirmed as undersecretary of strategy, policy and plans. The department has been without a Senate-confirmed leader since Nielsen resigned roughly 16 months ago, and many of the top positions have been filled on just an acting basis.

A federal judge ruled in March that Cuccinelli had been illegally appointed to his post as acting director of U.S. Citizenship and Immigration Services, invalidating two new policies he had implemented that would make it harder for newly arrived immigrants to apply for asylum.

Last Thursday, the Trump administration quietly withdrew its appeal of the judge's decision.