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GAO Claim That DHS Secretary Is Illegal Is Riddled With Legal, Factual Errors


A Government Accountability Office report issued Friday was written by a partisan Democrat with no legal experience, ignored key facts, and doesn’t have the legal authority to dictate DHS’s succession orders.


A Government Accountability Office report issued Friday, which attacked the Department of Homeland Security, was written by a partisan Democrat with no legal experience, ignored key facts, and doesn’t have the legal authority to dictate the agency’s succession orders, according to a Monday response from the department. The GAO report led to headlines suggesting that Acting Homeland Security Secretary Chad Wolf and Acting Deputy Secretary Ken Cuccinelli were illegally appointed.

“The GAO’s conclusions are baseless and baffling,” wrote Chad Mizelle, who performs the duties of general counsel at Homeland Security, in a blistering six-page response requesting GAO immediately rescind its report.

The report was released 80 days before the November elections — some 274 days after congressional Democrats asked GAO to look into the matter. While GAO claimed the alleged illegality of Wolf’s appointment was “clear,” it took the agency more than nine months to make that finding. A junior GAO staffer told DHS employees in an Aug. 14 phone call that he was the “author” of the report, which was officially signed by GAO General Counsel Thomas Armstrong. The junior staffer previously worked on a Democratic campaign and the partisan Senate Democratic Steering and Outreach Committee, according to Mizelle.

“It should have been easy to find a more seasoned attorney (whose past political work would not have created even the appearance of impropriety) among the GAO’s 3,000 employees,” Mizelle said.

GAO has a budget of $706 million and is supposed to be an independent, nonpartisan government watchdog that reports to Congress. It has lost favor with non-leftists recently for what its critics say are “substantive legal and methodological errors” and for what some deemed as inappropriate support for congressional Democrats’ impeachment efforts.

Wrong Governing Authority

GAO made its claim by asserting that former Secretary Kirstjen Nielsen’s order of succession required her to appoint a different successor than then-U.S. Customs and Border Protection (CBP) Commissioner Kevin K. McAleenan, the man she designated, personally swore into office, announced to the public — and who was installed into the office. That assertion was made by ignoring the unique order-of-succession authority found in the Homeland Security Act.

GAO’s report was issued under the claimed authority of the Federal Vacancies Reform Act of 1998, which gives the agency authority to report to Congress if “an officer [designated under the FVRA] is serving longer than the 210-day period” maximum allowed under the FVRA. The report did not cover an appointment under that act, however, and even if it did, it did not claim that any official at DHS had exceeded the 210-day maximum, Mizelle wrote. The appointment actually fell under Section 103 of the Homeland Security Act, which does not grant authority to GAO to opine regarding. That statute grants the DHS secretary, not GAO, exclusive authority to determine order of succession.

Here, the report makes what Mizelle describes as “the faulty contention” that Nielsen’s expressed will and actions had no legal authority to determine order of succession. Nielsen issued a document on April 9, 2019, designating the order of succession, which provided that McAleenan would be her successor. She sent a note to the entire agency naming McAleenan as her successor, and then she personally swore him in.

The information was posted publicly on DHS’s Twitter account:

President Donald Trump also made a public announcement naming McAleenan as the acting secretary.

“Few things constitute a more unambiguous designation of a successor than personally swearing your successor in,” Mizelle said. “The [Homeland Security Act] confers the Secretary with the exclusive authority to ‘designate such other officers of the Department … as Acting Secretary.’ Based on the statute, one would expect that the words and actions of then-Secretary would be highly relevant to determine whom she was ‘designat[ing] … as Acting Secretary.’”