Former Democrat Senate Staffer Prepared ‘Baseless and Baffling’ GAO Memo on Homeland Security Leaders’ Legitimacy

August 18, 2020 Updated: August 25, 2020

A report questioning the legitimacy of the top two Department of Homeland Security officials’ appointments was written by a former Democrat Senate staff member, according to the DHS general counsel.

“In an Aug. 14, 2020, call between the [Government Accountability Office] GAO and DHS staff, GAO held out a junior staffer as the ‘author’ of the report,” acting DHS general counsel Chad Mizelle wrote in an Aug. 17 letter (pdf).

“This staffer appears to have limited experience practicing law—having graduated from law school only three years ago. He also previously worked on a Democratic campaign and the partisan Senate Democratic Steering and Outreach Committee,” Mizelle wrote to GAO general counsel Thomas Armstrong.

“Surely, few things could be more significant than the appointment of the head of a cabinet-level agency. 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.”

Sarah Kaczmarek, GAO’s director of public affairs, told The Epoch Times on Aug. 18 that “we stand by our decision, but will certainly review their concerns. GAO has rigorous standards to ensure that all of our legal decisions are accurate, nonpartisan, and independent.

“This legal decision was prepared by a team of attorneys, went through a robust legal review, as do all GAO legal products, and was signed by the general counsel.”

It should be noted that, as the investigative arm of Congress for legislative oversight of the executive branch, it isn’t unusual for the GAO to hire former congressional aides.

The report is only advisory in nature, and GAO referred its findings to the DHS inspector general (IG). The federal government’s IGs, who are appointed by the president and confirmed by the Senate, can refer cases to the Department of Justice for possible prosecution.

Mizelle’s eight-page letter was prompted by the Aug. 14 GAO report that declared the appointments of acting DHS Secretary Chad Wolf and acting Deputy Secretary Ken Cuccinelli to be illegal because they were done by “reference to an invalid order of succession.”

The report’s conclusion was based on the GAO’s interpretation of a succession process derived from the Homeland Security Act of 2001 that established the DHS in the wake of the 9/11 terrorist attacks on New York and Washington.

The process was described in an internal memorandum authored by then-DHS Secretary Kirstjen Nielsen. The process was subsequently revised by Nielsen and her immediate acting successor following her resignation, Kevin McAleenan, and then yet again by his acting successor, Wolf.

But Mizelle argued that the GAO failed to follow a Supreme Court decision that requires officials to accord the Nielsen memorandum controlling weight in comparison to alternative interpretations on succession issues.

“At a minimum, the GAO should have at least followed the Supreme Court’s reasoning in Kisor v. Wilkie (2019) and afforded the department’s interpretation deference,” Mizelle wrote.

“In fact, the Supreme Court explicitly held in Kisor and Ford Motor Credit Co. v. Milhollin (1980) that such deference was owed even to official staff memoranda ‘never approved by the agency head.’

“This principle undergirding the Supreme Court’s prevailing precedents entitles DHS in this matter to even more robust deference because the Nielsen Memorandum was, for the reasons DHS has given, ‘approved by the agency head’ herself.”

Mizelle also questioned the timing of GAO’s release of the report, which was originally requested in November 2019 by the chairmen of the House Committee on Homeland Security and the House Committee on Oversight and Government Reform.

“The report was released a mere 80 days before the presidential election, but 274 days after the GAO had been asked by congressional Democrats to investigate the matter,” Mizelle wrote.

“Although the report argues that the purported illegality of Acting Secretary Wolf’s appointment is ‘clear,’ the GAO took more than nine months to determine it.

“Clear and obvious legal answers do not take 274 days to divine, particularly for an agency like the GAO, which has approximately 3,000 employees and a $706 million annual budget.”

Mizelle also suggested that partisan political considerations and opposition to President Donald Trump motivated the GAO report.

“The GAO has recently come under fire for allegedly partisan behavior. The GAO was accused of inappropriately participating in the attempted impeachment of the President and of changing a decades-long legal opinion in order to intentionally disfavor the President. Unfortunately, the issuance of this most recent Report exacerbates legitimate concerns of political partisanship at the GAO,” Mizelle wrote.

He was referring to a Jan. 16 GAO report that claimed the Office of Management and Budget improperly held up aid intended for Ukraine. The GAO report was published as Congress was preoccupied with an impeachment of Trump on allegations that he improperly pressured Ukraine to investigate former Vice President Joe Biden.

The report failed to acknowledge that the aid was ultimately delivered. Trump was impeached by the House, but the Senate declined to convict him.

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