GAO has referred the matter to the Inspector General of the Department of Homeland Security for further review and possible action. The office also asked the inspector general to consider the consequences of actions taken by invalidly appointed officials.
A DHS spokesman said the department plans to issue an official response soon.
“We wholeheartedly disagree with Gao’s unfounded report,” the spokesman said.
Legal opinion has no binding force but is likely to raise extraordinary legal questions and sue over the legitimacy of the actions taken by Wolf and Cuccinelli, a narrowly conservative immigration person. GAO says it has not reviewed the validity, leaving the question to the inspector general for review.
The GAO opinion was issued at the request of Homeland Security Committee Chairman Bennie Thompson (D-Miss.) And House Oversight Committee Chair Carolyn Maloney (DN.Y.), who asked the Homeland Security Inspector to general to “immediately and promptly review the legality of actions ̵1; which last 16 months – taken by these officials”. They also called for the Wolf to step down from his position and return to his previously confirmed role by the Senate as undersecretary for strategy. And they demanded that Cuccinelli give up altogether.
It is not the first time Cuccinelli has faced questions about the legality of his appointment. A federal judge ruled in March that he should be named as acting director of U.S. Citizenship and Immigration Services, a decision that blocked two policies he had implemented at the time. Trump has not named Cuccinelli for any of the two best DHS jobs he has held, a prospect that is likely to meet resistance among Senate Republicans who have clashed with Cuccinelli in the past.
The decision appears to be reduced to a procedural error by DHS. A day earlier when she resigned on April 10, 2019, Nielsen tried to change the order to predict that McAleenan would succeed him. However, GAO found that the department only changed the order of vacancies that result when the secretary is not available to serve due to a catastrophe or disaster. The order of success that resulted from a resignation remained unchanged, GA found, and that order did not provide for McAleenan to take over.
Therefore, following Nielsen’s resignation, the law required the director of the Cyber Security and Infrastructure Security Agency to succeed him, GA revealed. But instead, President Donald Trump raised McAleena, head of Customs and Border Protection, to the position. Then McAleenan changed the order, securing the path of Wolf and Cuccinelli to the top jobs.
DHS tried to argue that Nielsen had intended to appoint McAleen as its successor after her resignation and, in a letter to GAO, argued that this intention was clear and legally valid. But Gao said the letter failed to address the “simple language” of the changes Nielsen made.
“When Secretary Nielsen left the April Delegation, she only amended Annex A, placing the U.S. Customs and Border Protection Commissioner in the next position in cases of the Secretary’s inability to act during a disaster or emergency. catastrophic, “Gao found.