Government watchdog says Trump's acting homeland security chief is not legally eligible to serve in the role

• Acting Homeland Security Secretary Chad Wolf and acting Deputy Secretary Ken Cuccinelli are legally ineligible to serve in their current roles, a government watchdog concluded on Friday.
• Wolf and Cuccinelli are serving under "an invalid order of succession" under the Vacancies Reform Act, the Government Accountability Office said.

An independent government watchdog that reports to Congress concluded on Friday that acting Homeland Security Secretary Chad Wolf and acting Deputy Secretary Ken Cuccinelli were appointed invalidly and are ineligible to serve in their current roles under a 1998 law.

The Federal Vacancies Reform Act governs how vacant executive-agency positions that require a presidential appointment with Senate confirmation can be temporarily filled. Per the law, Wolf and Cuccinelli are serving under "an invalid order of succession," the Government Accountability Office said on Friday, adding that it was referring the matter to the Department of Homeland Security's inspector general for review.

"Upon Secretary Kirstjen Nielsen's resignation on April 10, 2019, the official who assumed the title of Acting Secretary had not been designated in the order of succession to serve upon the Secretary's resignation," the GAO said. "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."

In short, according to the GAO, Wolf and Cuccinelli were illegally appointed to their roles, which can be traced back to President Donald Trump tapping Kevin McAleenan to be the acting homeland security chief in 2019 after Nielsen resigned. By appointing McAleenan, the president bypassed a senior homeland security official who was legally designated to temporarily lead the agency. Lawmakers questioned the legality of the move at the time.

Trump has repeatedly placed people in acting roles, bypassing the Senate confirmation process.

It's unclear whether Trump will act on the GAO's conclusion, which is not legally binding. The White House did not immediately respond to a request for comment from Insider.

The Department of Homeland Security fervently rejected the GAO's report.

"We wholeheartedly disagree with the GAO's baseless report and plan to issue a formal response to this shortly," a DHS spokesman, Nathaniel Madden, said in a statement first reported by The Washington Post.

Reps. Bennie Thompson, the chairman of the House Homeland Security Committee, and Carolyn Maloney, the chairwoman of the Committee on Oversight and Reform, called on Wolf and Cuccinelli to resign.

"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 Maloney said in a statement. "In its haste to circumvent Congress's 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."