A government watchdog refused to reconsider its conclusion that the two officials inserted atop the Department of Homeland Security have no legal authority to be in their positions.
The Government Accountability Office informed acting DHS Secretary Chad Wolf and acting DHS Deputy Secretary Ken Cuccinelli on Friday that it will not rescind its Aug. 14 decision “as DHS has not shown that our decision contains either material errors of fact or law, nor has DHS provided information not previously considered that warrants reversal or modification of the decision.”
Two weeks ago, GAO declared Wolf and Cuccinelli were not the next people in line to take over for departed acting Secretary Kevin McAleenan and Deputy Secretary David Pekoske, who returned to his job over the Transportation Security Administration. Wolf wrote GAO General Counsel Thomas H. Armstrong and asked his office to reconsider its decision, calling it “fundamentally erroneous” that they had been accused of violating the Vacancies Reform Act, which outlines the order of succession procedures.
Wolf argued that McAleenan’s predecessor, Kirstjen Nielsen, had reordered the line of succession a day before she left DHS last spring, therefore allowing both men to take over down the road.
GAO said the matter of whether the work Wolf and Cuccinelli have done in their positions is valid under the law will be a question for the DHS inspector general to decide.
A DHS spokesman told the Washington Examiner on Friday afternoon that the GAO’s latest response was “deeply flawed” and “clearly [a] partisan report.”
“The Office of General Counsel has made it clear that both Acting Secretary Chad F. Wolf and Senior Official Performing the Duties of Deputy Secretary (SOPDDS) Kenneth T. Cuccinelli II are lawfully performing their current roles at DHS under the Homeland Security Act of 2002 and that the GAO got it wrong on both the facts and the law,” the spokesman wrote in an email. “The GAO’s unfortunate decision today does nothing whatsoever to change the law, the facts, or the truth; instead, it only further damages the office’s little remaining credibility as a nonpartisan entity.”
The prospect of Cuccinelli and Wolf serving in DHS leadership was first questioned last fall when McAleenan resigned and the two were rumored to be his replacement. Federal law experts told the Washington Examiner at the time that it would be illegal to appoint Cuccinelli, a 51-year-old former attorney general from Virginia, and Wolf, the former chief of staff to Nielsen, because their superiors were mandated to be named the “senior official performing the duties” of secretary or deputy secretary. Instead, those more senior officials were jumped over or moved to other posts.
