Updated Aug. 18: The Department of Homeland Security has responded to the GAO's report with an eight-page letter calling the watchdog group's conclusions "baseless and baffling." The department says that the last secretary of Homeland Security clearly designated her successor not only through paperwork, but by swearing him in, and that her decision must be respected.
The letter suggests that the GAO's finding may be motivated by political partisanship and alleges that the document was drafted by an inexperienced junior staffer. "The [GAO] Report takes the reader on a march through a marsh," the letter states. "At each refusal to rely on key evidence, the morass thickens and the water deepens ... As the reader reaches the Report's conclusion, he is left with the sinking and inescapable feeling that something is afoot in the swamp. "
The DHS letter is signed by Chad Mizelle, above the title "Senior Official Performing the Duties of the General Counsel." The position of general counsel at DHS is a Senate-confirmed position, which has been vacant for 11 months.
Our original story:
The Government Accountability Office says that the acting leaders of the Department of Homeland Security, who have been serving in their roles without Senate confirmation, were not appointed through a valid process.
Since November, Chad Wolf has been acting secretary of DHS and Ken Cuccinelli the senior official performing the duties of deputy secretary.
Neither of those appointments is legitimate, the GAO found, because they depended on the actions of an earlier official who himself was improperly placed in charge of the department due to an error in paperwork.
The opinion could prompt judges to dismiss some DHS actions as illegal, and it also suggests it is not clear who has the legal authority to run the department.
"We are referring the question as to who should be serving as the Acting Secretary and the Senior Official Performing the Duties of Deputy Secretary to the DHS Office of Inspector General for its review," Thomas H. Armstrong, general counsel for the GAO, wrote.
A DHS spokesman told NPR, "We wholeheartedly disagree with the GAO's baseless report and plan to issue a formal response to this shortly."
The Trump administration has relied heavily on temporary appointments rather than permanently filling key posts. President Trump has said he prefers acting appointments for the speed and flexibility they offer. Because they do not require Senate confirmation, such postings bypass a layer of legislative oversight over the executive branch.
But even for the Trump administration, the lack of permanent leadership at the Department of Homeland Security has been unusual.
"Next Friday is the 500th day that we have not had a Senate-confirmed secretary of homeland security," said Steve Vladeck, a law professor at the University of Texas. "That's a record for a Cabinet vacancy."
The last Senate-confirmed secretary, Kirstjen Nielsen, resigned in 2019.
NPR reported last fall that Trump wanted Cuccinelli, an immigration hard-liner, to be secretary, but worried the Senate would not confirm him. So instead the president has relied on acting leaders, including Cuccinelli's role as acting deputy.
But the GAO said the acting assignments have been invalid since Nielsen's departure. Nielsen tried to change the rules governing temporary appointments to ensure that Trump's preferred choice, Kevin McAleenan, would lead the department after her. But, the GAO found, she bungled the paperwork. (Technically, she amended the annexes to an executive order, instead of amending the executive order.)
McAleenan did not have a valid appointment to his role, so when he changed the rules of succession to pave Wolf's path to the acting post, it lacked legitimacy, and when Wolf appointed Cuccinelli it wasn't valid, either.
"The big question is, so what?" asked Anne Joseph O'Connell, a law professor at Stanford University.
She noted the GAO's opinion is not binding on DHS or on the court system.
However, under the leadership of Wolf and Cuccinelli, the Department of Homeland Security has attracted intense scrutiny for such actions as deploying federal agents to protests in Portland, Ore., over the opposition of local and state leaders. And new restrictions on asylum-seekers and Deferred Action for Childhood Arrivals, or DACA, applicants have prompted lawsuits from immigration advocates.
Some of those lawsuits seek to throw out DHS actions on the grounds that the department's leadership is not legitimately in power. And now a government body has endorsed that legal argument, which, O'Connell said, "could be very persuasive in the courts."
As a result, some of Wolf's and Cuccinelli's actions could be undone in court rulings.
The GAO said its review only focused on the legality of the appointments — and not on what it means for actions taken by DHS officials. That matter is being referred to another government watchdog for review.