WASHINGTON -- A government watchdog released its findings Friday that the appointments of President Donald Trump's top Homeland Security officials were invalid, opening the administration up to legal challenges that could invalidate a number of immigration policies as well as undermine its central 2020 reelection strategy, former officials and legal experts say.
The Government Accountability Office said the Homeland Security Department did not follow federal law governing succession when making Chad Wolf the acting Homeland Security secretary and Ken Cuccinelli the senior official performing the duties of deputy secretary. The GAO's decision doesn't carry the force of law, and the department's inspector general's office will now review the legality of Wolf and Cuccinelli's actions.
But with Wolf and Cuccinelli squarely at the center of the beleaguered department's latest controversies, including deploying armed border officials in military-style fatigues to American cities and sidestepping Supreme Court orders on the Deferred Action for Childhood Arrivals program, Friday's report bolsters arguments in a handful of lawsuits against the administration that its policies are illegal because their appointment was.
"Every bit of the last 18 months of action from DHS is now legally suspect," said Paul Rosenzweig, a former deputy assistant secretary for policy in the Department of Homeland Security.
Michael Chertoff, the second-ever Homeland Security secretary, who served under President George W. Bush, said with likely litigation, "Any direction or order given by the top two officials -- that's going to become a real problem for the department upholding or defending those without authority."
"It creates a further weakening of the department's ability to function, with everybody holding their breath," he said.
The GAO weighed the legality of the president's recent appointments at the request of the Democratic chairs of the House Homeland Security and Oversight and Government Reform committees. But the problem actually stems from the April 2019 resignation of Homeland Security Secretary Kirstjen Nielsen. Her departure kicked off a purge of officials at the behest of immigration hard-liners in the White House, such as Trump's close aide Stephen Miller.
The Homeland Security Department wouldn't provide comment on the record and the White House did not respond to requests for comment.
The order of succession for positions at the third-largest federal department that require presidential nominations and Senate approval are governed by the Federal Vacancies Reform Act and Homeland Security Act. Before stepping down, Nielsen changed the order of succession so that Kevin McAleenan, then-commissioner of Customs and Border Protection, could take over. But according to the GAO, she did it incorrectly, amending the order for replacing the secretary in the case of disaster or emergency -- not resignation.
McAleenan, too, amended the line of succession before resigning in November, but because he was improperly appointed, the appointment of Wolf was invalid as well, and so was Cuccinelli's, the GAO concluded.