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August 14, 2020

Thompson and Maloney Release GAO Decision Confirming Trump’s Top DHS Appointments Were Illegal

(WASHINGTON) – Today, the U.S. Government Accountability Office (GAO) issued a legal decision concluding that President Donald Trump’s appointments to senior leadership positions at the Department of Homeland Security were illegal and circumvented both the Federal Vacancy Reform Act and the Homeland Security Act. 

In November 2019, Rep. Bennie G. Thompson (D-MS), Chairman of the Committee on Homeland Security, and Rep. Carolyn Maloney (D-NY), Chairwoman of the Committee on Oversight and Reform, requested GAO conduct an emergency review of the legality of Trump Administration actions to install Chad Wolf as Acting Secretary of Homeland Security and Ken Cuccinelli as the Senior Official Performing the Duties of the Deputy Secretary of Homeland Security. 

Chairs Thompson and Maloney issued the following statement:

“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. In its haste to circumvent Congress’s constitutional role in confirming the government’s top officials to deliver on the President’s radical agenda, the Administration violated the Department’s order of succession, as required by law. At a time when DHS should be marshaling the resources of the Federal government to respond to the pandemic that has killed over 165,000 Americans, the Department’s illegally appointed leaders are instead focused on continuing the Administration’s attack on immigrants and intimidating peaceful protesters in a show of force for the President’s reelection campaign.

“In light of this decision, Mr. Wolf should immediately step down and return to his Senate-confirmed position as Under Secretary for Strategy, Policy, and Plans. The President should appoint an apolitical career official to run the Department temporarily and follow the Constitution by swiftly nominating a permanent Secretary.

“As for Mr. Cuccinelli, a political pundit plucked by the President to serve in multiple senior roles at DHS for which he is woefully unqualified, he should immediately resign from the Federal government and retire his unprofessional official Twitter account.”

“As GAO indicates, the DHS Office of the Inspector General must immediately and swiftly review the legality of actions – which span 16 months – taken by these officials.”

Key findings from GAO:

  • “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.”
  • “[U]pon the resignation of Secretary Kirstjen Nielsen, the express terms of the then existing designation required the Director of the Cybersecurity and Infrastructure Security Agency (CISA) to assume that title instead of the Commissioner of Customs and Border Protection (CBP), Kevin McAleenan. As such, the subsequent appointments of Under Secretary for Strategy, Policy, and Plans, Chad Wolf and Principal Deputy Director of U.S. Citizenship and Immigration Services (USCIS) Ken Cuccinelli were also improper because they relied on an amended designation made by Mr. McAleenan.”
  • “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 Trump Administration’s incompetent zeal to hijack DHS has allowed these unaccountable, unconfirmed officials to use their illegitimate authority to carry out the following activities.

While improperly serving as Acting Secretary, Kevin McAleenan:

  • Personally negotiated agreements with Guatemala, El Salvador, and Honduras that contributed to a complete and cruel dismantling of the U.S. asylum system.
  • Approved poorly-coordinated Immigration and Customs Enforcement (ICE) workplace raids in Summer 2019 that resulted in the arrest of over 600 people in Mississippi and separated hundreds of families.
  • After requesting billions in emergency funding in June 2019 to address the growing Southwest border humanitarian crisis, millions specifically designated for migrant care were inappropriately spent on his watch.

While improperly serving as Acting Secretary, Chad Wolf:

  • Deployed DHS law enforcement officers to subdue peaceful protestors in DC and Portland. Under his direction, federal officers have repeatedly used aggressive and violent tactics including arresting protestors without probable cause.
  • Suspended New Yorkers’ ability to enroll or re-enroll into Global Entry and other Trusted Traveler programs in February 2020.
  • Waived procurement rules that protect taxpayers from waste, fraud, and abuse in order to speed up the construction of the President’s border wall.

While improperly performing the duties of the Deputy Secretary, Ken Cuccinelli:

  • Established a new DHS rule in June 2020 uniquely designed to keep migrants seeking asylum in the U.S. impoverished by de facto barring them from being able to seek work permits.
  • Approved a move to limit oversight of the Department’s Office of Intelligence and Analysis by constraining the role of the Office of Civil Rights and Civil Liberties in approving intelligence products.

Link to Decision

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Press Contact

(Thompson) Adam Comis, 202-225-9978
(Maloney) Aryele Bradford, 202-226-5181