The Government Accountability Office this week stated that President Trump's top two Department of Homeland Security officials are "invalid" and "ineligible to serve" thanks to the administration's bungled attempt to do an end-run around the Senate nomination process.
"Upon 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 wrote in a report published on its website Friday. "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."
Essentially, when Nielsen retired, she incorrectly amended the order of succession rules to allow Kevin McAleenan to replace her — which he did, thanks to a promotion from Trump. But, since Nielsen's amendment was done incorrectly, McAleenan's subsequent efforts to once again change the rules of succession — changes that lead to Wolf and Cuccinelli's current roles within the administration — were, per the GAO's report, invalid.
Wolf, the acting homeland security secretary, and Cuccinelli, whose official title listed him as "senior official performing the duties of deputy secretary of homeland security," have been some of the White House's most ardent operatives in dramatically clamping down dissent in cities like Portland and Washington, D.C., as well as helping carry out the administration's ongoing anti-immigrant agenda.
Incredibly, this is not the first time Cuccinelli has been deemed ineligible for an assumed position within the Trump administration. This past March, a federal judge ruled Cuccinelli's appointment to run the Department of Homeland Security's U.S. Citizenship and Immigration Services was similarly invalid, as it too subverted the standing laws about who is able to assume positions left vacant by officials who have undergone Senate confirmations.
As a result of that ruling, several of Cuccinelli's policy decisions made during his unauthorized tenure at USCIS were subsequently invalidated. In this most recent instance, however, the GAO's decision carries no actionable consequences. Instead, the office has referred the invalid appointments to the Department of Homeland Security's inspector general, who may then act on both the positions themselves, as well as any directives or policies enacted by Cuccinelli and Wolf.
In a statement to Politico, a DHS spokesperson pushed back on the GAO's conclusion, saying, "We wholeheartedly disagree with the GAO's baseless report," and promising that a more formal response to the decision was forthcoming.