Two top officials at the Department of Homeland Security are not eligible to serve in their current roles, a US congressional watchdog said on Friday, a rebuke to Donald Trump’s widespread use of non-Senate confirmed appointees.

The Government Accountability Office said the appointments of Chad Wolf, the acting DHS secretary, and Ken Cuccinelli, who acts as the agency’s deputy, did not follow federal laws that govern the filling of senior US government jobs.

The finding by the GAO, which reports to Congress, comes as DHS has faced intense scrutiny over the actions of its officers in Portland, Oregon, and the collection of intelligence on journalists who have covered the agency.

DHS has not had a Senate-confirmed leader since April 2019, when Kirstjen Nielsen resigned as secretary. Since then, Mr Trump has inserted officials in an “acting” capacity, avoiding the scrutiny that nominees typically face when they go through a nomination and confirmation process in the Senate.

The GAO’s report on Friday said that the wrong official had succeeded Ms Nielsen when she resigned, meaning that the subsequent changes to the succession process that paved the way for Mr Wolf’s ascension were also unlawful. Mr Wolf had elevated Mr Cuccinelli to a deputy role under the same flawed process, making that move legally void, the GAO said.

“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,” it added.

DHS did not immediately respond to a request for comment.

Although the GAO’s report does not have binding legal authority, its findings raise a question over whether the orders of Mr Wolf and Mr Cuccinelli in their current roles have been lawful. The GAO did not directly address that issue, and said it had referred the matter to the DHS inspector-general for further investigation.

Mr Trump has made use of officials in “acting” positions across several agencies, using the Vacancies Reform Act to avoid appointing permanent successors to appointees he has fired or who have resigned. In 2019, he said: “I sort of like ‘acting’. It gives me more flexibility.”


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