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The Government Accountability Office issued a report Friday claiming that President Donald Trump’s appointments of two top Homeland Security leaders are invalid.
The GAO report says the appointments of acting Homeland Security Secretary Chad Wolf and Director of U.S. Citizenship and Immigration Services Ken Cuccinelli were not properly made under provisions of the Federal Vacancies Reform Act of 1998, which allows presidents to temporarily fill Executive Branch vacancies that normally need Senate confirmation.
“Upon [former DHS] Secretary Kirstjen Nielsen’s resignation on April 10, 2019, the official who assumed the title of Acting Secretary had not been designated in the order of succession to serve upon the Secretary’s resignation,” the GAO determined.
“Because the incorrect official assumed the title of Acting Secretary at that time, subsequent amendments to the order of succession made by that official were invalid and officials who assumed their positions under such amendments, including Chad Wolf and Kenneth Cuccinelli, were named by reference to an invalid order of succession,” the non-partisan agency added.
Further, under terms of the Homeland Security Act of 2002, the GAO found that the “Director of the Cybersecurity and Infrastructure Security Agency (CISA)” was supposed to assume her role as acting head of DHS.
But instead, Kevin McAleenan, then-head of Customs and Border Protection (CBP), was appointed, making his 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,” the GAO reported.
House Democrats on the Homeland Security Committee and the Committee on Oversight and Reform had asked the GAO to examine the appointments of Wolf and Cuccinelli.
Earlier this year, a federal judge ruled that the appointment of Cuccinelli, a former Virginia attorney general who is considered to be a major ally of the president, was improper.
In ruling that his appointment was unlawful, U.S. District Judge Randolph D. Moss of the D.C. Circuit also noted that two major policies Cuccinelli had implemented, including one affecting asylum seekers’ access to counsel, were voided.
It’s not immediately clear what effect the GAO’s findings will have, but they are sure to animate President Trump’s Democrat critics in Congress.
Both Wolf and Cuccinelli have been advocates for the president’s ‘get tough’ approach to ongoing riots and violence in cities like Portland.
On Friday, for instance, Cuccinelli retweeted a post from independent journalist Andy Ngo pointing out that the Multnomah County District Attorney’s office has declined to prosecute a suspect arrested on felony rioting and resisting arrest charges.
Update: The same day that he was arrested, @MultCoDA made the decision to not pursue any of the charges. They will also not prosecute the other rioter who was arrested last night. Not a single person will face prosecution for last night's violence. #PortlandRiots https://t.co/radAfam1Z0
— Andy Ngô (@MrAndyNgo) August 14, 2020
And last month, Wolf rebuked Portland Democrats for allowing mobs to continue to attack a federal courthouse there while putting DHS agents’ lives in danger.
“Each night, lawless anarchists destroy and desecrate property, including the federal courthouse, and attack the brave law enforcement officers protecting it,” he said.
“A federal courthouse is a symbol of justice – to attack it is to attack America,” Wolf added.
As to the GAO’s finding, DHS is pushing back hard, claiming that the president’s appointments are lawful and that the two officials are serving in a legitimate capacity, The Daily Caller reported.
“We wholeheartedly disagree with the GAO’s baseless report and plan to issue a formal response to this shortly,” an agency official told the outlet.
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