GAO rejects bid by DHS to rescind opinion on illegal appointments

Acting Secretary of Homeland Security Chad Wolf makes opening remarks at a NFL Public Safety Press Conference with Miami-Dade Police Department and DHS Super Bowl LIV partners.  CBP photo by Dusan Ilic 

Acting DHS Secretary Chad Wolf briefs the press about public safety arrangements in advances of Super Bowl LIV. (Photo credit: Dusan Ilic/ Customs and Border Protection)

The Government Accountability Office rejected a bid by the Department Homeland Security to rescind its legal opinion that claims top DHS officials were installed in top positions in violation of federal law.

GAO issued a legal opinion on Aug. 14 that stated the appointments of former and current acting DHS secretaries Kevin McAleenan and Chad Wolf and the appointment of Ken Cuccinelli to the post of deputy secretary of DHS did not comport with the Homeland Security Act, which provides for an order of succession for elevation to acting DHS secretary and other top roles.

DHS responded with a legal memorandum from its acting general counsel that claimed the GAO report was politicized. The agency also issued a blistering press release describing the report as a "deeply flawed attempt to revive its partisan impeachment efforts with [a] baseless report."

In addition to its oversight work and bid protest adjudication, GAO is charged with rendering opinions on the service of unconfirmed political appointees in acting senior roles. GAO opinions are not binding – their initial legal opinion referred the matter to the Office of Inspector General at DHS.

"DHS has not demonstrated that our prior decision contains errors of either fact or law, nor has DHS presented information not previously considered that warrants reversal or modification of our decision," GAO General Counsel Thomas H. Armstrong said in an Aug. 21 opinion.

GAO's argument in its original opinion and in its follow-up is that DHS maintained a general and an emergency order of succession, based on agency documents. The general order of succession is to be used in the event of the death, resignation or incapacity of the DHS secretary; the emergency order of succession is to be used in the event the DHS secretary was unavailable in the midst of a disaster or emergency.

This provision for emergency succession was put in place in April 2019 just before the resignation of Kirstjen Nielsen as DHS secretary. Though Nielsen swore in McAleenan has her successor, according to GAO she did so in violation of law and agency policy. Subsequently, the elevation of Wolf, who had been confirmed by the Senate to the post of undersecretary of policy and plans, to acting DHS secretary bypassed officials considered more senior in the official order of succession.

Additionally, Armstrong defended the congressional agency against charges of partisanship.

"All GAO products also undergo a multi-level review to assure they are intellectually sound and free from bias," Armstrong wrote.

The lawmakers who requested the review of the appointments hailed GAO's affirmation of its earlier opinions.

"We continue to call on Mr. Wolf step down from his position and for Mr. Cuccinelli to resign from Federal service entirely," said Reps. Bennie G. Thompson (D-Miss.) and Carolyn B. Maloney (D-N.Y.) in a joint statement. "We also continue to call on the President to appoint an apolitical career official to run the Department temporarily and follow the Constitution by swiftly nominating a permanent Secretary."

About the Author

Adam Mazmanian is executive editor of FCW.

Before joining the editing team, Mazmanian was an FCW staff writer covering Congress, government-wide technology policy and the Department of Veterans Affairs. Prior to joining FCW, Mazmanian was technology correspondent for National Journal and served in a variety of editorial roles at B2B news service SmartBrief. Mazmanian has contributed reviews and articles to the Washington Post, the Washington City Paper, Newsday, New York Press, Architect Magazine and other publications.

Click here for previous articles by Mazmanian. Connect with him on Twitter at @thisismaz.


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