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DHS slams assertions that leaders were illegally appointed

The top lawyer at the Department of Homeland Security slammed Government Accountability Office assertions that top DHS officials were elevated to their acting positions in violation of the law.

In an eight-page letter released late on Aug. 18, Chad Mizelle, the senior official acting as general counsel, took aim at a GAO legal opinion that asserted legal errors were behind the appointment of Kevin McAleenan as acting head of DHS and the subsequent elevation of Chad Wolf to serve as acting secretary and of Ken Cuccinelli to serve as acting deputy secretary.

"The GAO should rescind its erroneous report immediately," Mizelle wrote.

A GAO spokesperson told FCW via that the congressional watchdog agency stood by its decision.

The legal issues behind the GAO report and the DHS response are somewhat arcane, hinging on authorities contained in the Federal Vacancies Reform Act and provisions in an update of the Homeland Security Act that determine the eligibility of officials to serve in "acting" roles and in particular, the order of succession at DHS.

Mizelle argued that the most recent Senate-confirmed head of DHS, Kirstjen Nielsen, was within her rights under the law to name Kevin McAleenan, formerly head of Customs and Border Protection, as her successor, and that subsequent alterations to the order of succession implemented by McAleenan are similarly legitimate.

"Few things constitute a more unambiguous designation of a successor than personally swearing your successor in," Mizelle states. The report includes a photograph of Nielsen swearing in McAleenan as acting head of DHS.

The DHS response also insinuates that politics are to blame for the GAO report, and suggested that GAO, which conducts oversight of federal agencies on behalf of Congress, is itself a partisan player looking to undermine the Trump administration.

"The Report was released a mere 80 days before the Presidential election — but 274 days after the GAO had been asked by congressional Democrats to investigate the matter," Mizelle said. His letter and an accompanying press release – headlined "DHS rebukes GAO’s deeply flawed attempt to revive its partisan impeachment efforts with baseless report" -- also insinuates that the "junior staffer" pegged as the author of the GAO report was inexperienced and potentially influenced by political leanings.

"It should have been easy to find a more seasoned attorney (whose past political work would not have created even the appearance of impropriety," the letter states.

"DHS' response relies on pettiness, rather than law, to boost its position," a Democratic congressional staffer told FCW. "We all know GAO is not a political actor."

Reader comments

Tue, Aug 18, 2020

GAO has always been political. It’s approach has always been— 1. Request from a member of Congress. 2. Assume desired political conclusion. 3. Cook the analysis to provide pre-determined report conclusion. Observation of 37 year Fed now retired.

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