DHS IG won’t investigate after watchdog said Wolf, Cuccinelli appointments violated law

The Department of Homeland Security (DHS) inspector general on Monday announced that the agency would not be investigating whether acting DHS Secretary Chad Wolf and his deputy Ken Cuccinelli are serving in their roles unlawfully, saying it would be “pointless” to get involved in an “inter-branch disagreement.” 

DHS Inspector General Joseph Cuffari said in a letter sent to Homeland Security Committee Chairman Bennie Thompson (D-Miss.) and Oversight and Reform Committee Chairwoman Carolyn Maloney (D-N.Y.) that there were “troubling aspects” with an August Government Accountability Office (GAO) report that found Wolf and Cuccinelli were appointed in an “invalid order of succession.” 

“Neither GAO nor DHS OIG can issue a binding determination on that issue, but a federal court can and probably will,” Cuffari wrote. 

The Democratic lawmakers first requested the investigation into the top DHS officials last November and have called on both men to resign. 

Monday’s announcement from DHS comes a month after the department initially dismissed the GAO report, with acting DHS general counsel Chad Mizelle calling it “baseless and baffling” at the time, adding that the GAO refused to look at an internal memorandum from former DHS Secretary Kirstjen Nielsen that supported the appointment of Wolf and Cuccinelli. 

The GAO’s argument in the August report stemmed from Nielsen resigning in April 2019 and being replaced by Kevin McAleenan, who had previously been leading Customs and Border Protection.

The GAO claimed that McAleenan had not been designated in the order of succession to replace Nielsen, and therefore could not legally alter the order of succession at DHS. He did so anyway, making the appointments of Wolf and Cuccinelli invalid, the GAO said. 

Cuffari’s decision not to investigate the appointment of the DHS officials contrasts a Friday ruling from Maryland judge Paula Xinis, in which she said that Wolf was likely serving in his role “unlawfully.”

“In sum, the Court concludes that Plaintiffs are likely to demonstrate [former acting Homeland Security Secretary Kevin] McAleenan’s appointment was invalid under the agency’s applicable order of succession, and so he lacked the authority to amend the order of succession to ensure Wolf’s installation as Acting Secretary,” Xinis said in a 69-page ruling.