“The determination by an independent congressional watchdog today invalidates actions Mr. Cuccinelli and Mr. Wolf have taken and both should immediately step down from their illegal roles.”

The Government Accountability Office (GAO) has completed a review of leadership changes within the Department of Homeland Security. In a report issued Friday, it concluded two Homeland Security appointments were invalid — Acting Secretary Chad Wolf and Acting Deputy Secretary Ken Cuccinelli. 

GAO pinpointed precisely how the two officials were incorrectly appointed to their positions, POLITICO reported. The trouble began when former Secretary Kirstjen Nielsen resigned in April 2019. The day prior to her resignation, Nielsen altered department policies in order to ensure former Secretary Kevin McAleenan would take her place.

That succession did occur, but Nielsen did not properly alter the succession line. Instead, she only changed how a vacancies would be filled if the secretary is unable to serve due to a calamity, POLITICO reported.

Insufficient Amendment Leads to Errors

“When Secretary Nielsen issued the April Delegation, she only amended Annex A, placing the Commissioner of U.S. Customs and Border Protection as the next position in the order of succession in cases of the Secretary’s unavailability to act during a disaster or catastrophic emergency,” GAO reported. 

Therefore, when McAleenan assumed the mantle, he served illegitimately, as did his successor, CNN reported.

“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 report states.

Notably, Nielsen was the last Homeland Security secretary to be confirmed by the Senate. Under the Trump Administration, there have been five department heads, including Wolf. Furthermore, over a third of the department’s leadership roles are currently occupied by acting officials.

Are Their Policies Legal?

The GAO report raises questions of whether DHS policies under Wolf are legitimate if his own position is not. In a lawsuit over the department’s asylum rules, Maryland District Court Judge Paula Xinis speculated on the idea, CNN reported.

“In reading the GAO opinion, it’s not binding but it was tracking quite closely what I was thinking about this issue, as stunning as it is that we’re at day 500 and we still don’t have a secretary installed that’s nominated by the president and confirmed by the Senate,” Xinis said.

Although GAO holds no power of enforcement, its report has provoked some members of Congress to call for action, NBC News reported.

“President Trump’s efforts to install political sycophants to implement his extreme policies in an end run around the law and Senate have finally caught up with him,” said Sen. Chuck Schumer, D-N.Y. “The determination by an independent congressional watchdog today invalidates actions Mr. Cuccinelli and Mr. Wolf have taken and both should immediately step down from their illegal roles.”

Inspector General’s Turn

GAO said it would refer the report to Homeland Security’s inspector general. However, inspector generals under the Trump administration have been prone to retribution from the White House. Since April, five have been ousted by Trump, Politifact found. Those include inspectors general of the State, Health and Human Services, Transportation, and Defense departments along with the inspector general of the intelligence community.

DHS defended the appointments of Wolf and Cuccinelli and is preparing a full response to the report, POLITICO reported.

“We wholeheartedly disagree with the GAO’s baseless report,” a DHS spokesman said. 

GAO discovered the Homeland Security appointments were invalid after two House committees asked it to look into the issue. Homeland Security Committee Chairman Bennie Thompson, D–Miss., and Oversight Committee Chairwoman Carolyn Maloney, D–N.Y., reacted to the report by asking the inspector general to “immediately and swiftly review the legality of actions” Wolf and Cuccinelli have taken since they assumed their positions.

They also called on the two officials to resign and asked Trump to appoint a permanent secretary.