Trump Administration Challenges Findings on Legality of Homeland Security Promotions

August 18, 2020 Updated: August 18, 2020

The watchdog conclusions that the highest officials at the Department of Homeland Security (DHS) were promoted in an invalid order of succession are “baseless and baffling,” a Trump administration official said on Monday.

Acting DHS General Counsel Chad Mizelle said the findings from the Government Accountability Office (GAO) didn’t include relevant evidence and questioned the timing of the legal opinion.

“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?” Mizelle wrote in a letter to the GAO’s General Counsel Thomas Armstrong.

“As the reader reaches the report’s conclusion, he is left with the sinking and inescapable feeling that something is afoot in the swamp.”

Armstrong asserted that the proper line of succession in the DHS was improperly altered when Kevin McAleenan took the role of acting secretary following Kirstjen Nielsen’s resignation last year.

That means the current top officials, acting Secretary Chad Wolf and acting Deputy Ken Cuccinelli, are ineligible to hold their current positions, GAO said.

The group, a congressional watchdog that claims to be nonpartisan, referred the matter to the DHS inspector general.

Democrats cheered the legal opinion, calling on Wolf to return a lower position he held in the department and for Cuccinelli to resign.

Mizell said Nielsen legally changed the order of succession through three official acts, including a document issued on April 9, 2019. The next day, she personally swore in McAleenan as the new acting secretary.

“Even if the GAO were correct that the Nielsen memorandum did not designate then-Commissioner McAleenan as then-Secretary Nielsen’s successor—which it is not—the swearing in of then-Commissioner McAleenan (and the accompanying announcement) unequivocally supplanted that prior designation,” the general counsel wrote.

In addition, then-acting Secretary McAleenan amended the order of succession, invoking federal law, leading to Wolf taking office.

That would mean Wolf and Cuccinelli are lawfully performing their current roles.

A GAO spokesperson told The Epoch Times in an emailed statement on Tuesday: “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.”

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