KEY POINTS

  • GAO said the appointment of Wolf as DHS secretary and Cuccinelli as his deputy violated the Vacancies Reform Act
  • GAO said the director of the Cybersecurity and Infrastructure Security Agency should have been appointed acting secretary
  • The Constitution requires the president to seek the advice and consent of the Senate for major appointments

President Trump is known for circumventing the constitutional requirement that top administration officials be approved by the Senate by making temporary appointments, but the Government Accountability Office said Friday he went too far with the leadership of the Department of Homeland Security.

The GAO, which reports to Congress, said the appointments of Chad Wolf as acting secretary of Homeland Security and Kenneth Cuccinelli to serve as his deputy were illegal under the Vacancies Reform Act, which regulates how such temporary appointments are made.

The GAO based its decision on the sequence of events that led up to the resignation of Kirstjen Nielsen in April 2019, herself an acting secretary, who was appointed outside the proper chain of succession.

“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 and Kenneth Cuccinelli, were named by reference to an invalid order of succession,” the GAO said.

The GAO said the director of the Cybersecurity and Infrastructure Security Agency should have been appointed acting secretary. 

The agency said it had not reviewed the legality of the actions taken by Wolf and other DHS officials since his appointment and instead referred that question to the inspector general.

The decision was issued in response to a request by Rep. Bennie Thompson, D-Miss., chairman of the Committee on Homeland Security.

The Constitution requires the president to seek the advice and consent of the Senate for major appointments. Even for posts that don’t require Senate confirmation, Trump has preferred to populate the government with temporary employees.

The Brookings Institution has pegged turnover in the Trump administration at 89%, the highest of any recent president. The Washington Post reported in February, acting officials have occupied 22 Cabinet and Cabinet-level positions.

DHS spokesman Nathaniel Madden rejected the GAO conclusion and promised a formal response shortly.

“GAO’s damning opinion paints a disturbing picture of the Trump administration playing fast and loose by bypassing the Senate confirmation process to install ideologues,” Thompson and Rep. Carolyn Maloney, chair of the House Oversight Committee, said in a press release.

“In its haste to circumvent Congress’ constitutional role in confirming the government’s top officials to deliver on the president’s radical agenda, the administration violated the department’s order of succession, as required by law.”