Monday, August 17, 2020

GAO: Trump's top DHS officials were unlawfully appointed

 

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Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security

 

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The Trump administration has a large number of "temporary" high level officials in the U.S. Department of Homeland Security (DHS), which administers and enforces the U.S. immigration laws.  The Government Accountability Office (GAO) has concluded that Chad Wolf and Ken Cuccinelli, the highest-ranking officials in the Department, were unlawfully appointed to their positions.  In a decision released last week, the GAO found that former acting DHS secretary, Kevin McAleenan, did not have the authority to change the line of succession prior to his resignation last fall, making Wolf ineligible to succeed him. Consequently, the watchdog added, Wolf also lacked authority to alter the order of succession that made Cuccinelli acting deputy secretary.

KJ

UPDATE (August 18):  The Department of Homeland Security does not agree with the GAO's conclusions and issued a statement ("DHS rebukes GAO’s deeply flawed attempt to revive its partisan impeachment efforts with baseless report").  It is quite an amazing partisan response from a government agency.  The conclusion:

"The Report takes the reader on a march through a marsh. At each refusal to rely on key evidence, the morass thickens and the water deepens, as crucial questions lurking just underneath the surface begin to emerge: Is the ignored evidence and failure to afford DHS deference more than just a good faith disagreement?  Does the timing of this Report suggest that something else is motivating this opinion?  Does the GAO' s unfortunate recent history of issuing partisan and inaccurate reports perhaps explain what is going on?  As the reader reaches the Report’s conclusion, he is left with the sinking and inescapable feeling that something is afoot in the swamp.”

Full text of the letter responding to the GAO report available here. 

The letter is signed by "Chad Mizelle Senior Official Performing the Duties of the General Counsel."  According to his Linked In page, Mizelle is a graduate of Cornell Law School and former Associate Counsel to President Trump (2018/19).    
Matt Shuham for Talking Points Memo comments on the amazing DHS response, which boils down to a partisan attack on the author of the GAO report.  He writes:

The letter by "Chad Mizelle was, ostensibly, a legal rebuttal to the GAO. But it detoured into an attack against a GAO staffer who, Mizelle suggested, was too inexperienced to author the opinion in question. 

In a phone call Friday between GAO and DHS staff, Mizelle wrote, the GAO identified a staffer as the “author” of the report, even though the staffer had limited experience practicing law — “having graduated from law school only three years ago,” Mizelle griped. 

Mizelle also pointed to the political affiliations of the staffer, who he said previously worked on a Democratic campaign.

. . . .  Mizelle wrote [that] “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.”

. . .  As the senior official performing the duties of the DHS general counsel, Mizelle himself is only seven years out of law school. And, as CNN reported in February, he is close with White House adviser Stephen Miller and was an attorney volunteer for the Trump campaign in 2016. 

. . .  [T]he quibble about partisanship and the knock on the GAO staffer’s supposed inexperience was representative of the tenor of DHS’ rebuttal to the office’s legal finding. 

`As the reader reaches the Report’s conclusion, he is left with the sinking and inescapable feeling that something is afoot in the swamp,' Mizelle’s letter concluded, after dismissing the GAO’s analysis as hopelessly partisan. `The GAO should rescind its erroneous report immediately.'”

KJ

https://lawprofessors.typepad.com/immigration/2020/08/gao-trumps-top-dhs-officials-were-unlawfully-appointed.html

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