The U.S. Government Accountability Office (GAO) released a decision concluding that after Department of Homeland Security (DHS) Secretary Kirstjen Nielsen resigned in April 2019, the official who assumed the title of Acting Secretary, Kevin McAleenan, had not been designated in the order of succession to serve upon the Secretary’s resignation. “Because the incorrect official assumed the title of Acting Secretary at that time, subsequent amendments to the order of succession made by that official were invalid and officials who assumed their positions under such amendments, including Chad Wolf [as DHS Acting Secretary] and Kenneth Cuccinelli [as Senior Official Performing the Duties of Deputy Secretary], were named by reference to an invalid order of succession,” the GAO said.
The GAO said it had not reviewed the legality of other actions taken by these officials and was referring the matter to the DHS Inspector General for review, but that it was “aware that certain actions taken by Acting Secretary Wolf and his authority to take them are currently the subject of litigation.”
The GAO also noted that in March 2020, the U.S. District Court for the District of Columbia ruled in L.M.-M v. Cuccinelli, 442 F. Supp. 3d 1, 29 (D.D.C. 2020) that Mr. Cuccinelli’s separate appointment as Acting Director of USCIS was illegal. On August 14, 2020, the Trump administration dismissed its appeal of the ruling.
- “Decision, Matter of Department of Homeland Security—Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland Security,” File B-331650, Aug. 14, 2020 (GAO)
- “Trump Admin Drops Appeal of Court Ruling That Ken Cuccinelli Was Illegally Appointed,” Catholic Legal Immigration Network, Inc.