Three days after the Government Accountability Office announced its finding that the two top officials at the Department of Homeland Security weren’t legally eligible to actually hold those jobs, DHS responded by … picking on one of the purported authors of the GAO finding.
The Monday letter from DHS lawyer Chad Mizelle was, ostensibly, a legal rebuttal to the GAO. But it detoured into an attack against a GAO staffer who, Mizelle suggested, was too inexperienced to author the opinion in question.
In a phone call Friday between GAO and DHS staff, Mizelle wrote, the GAO identified a staffer as the “author” of the report, even though the staffer had limited experience practicing law — “having graduated from law school only three years ago,” Mizelle griped.
Mizelle also pointed to the political affiliations of the staffer, who he said previously worked on a Democratic campaign.
“Surely, few things could be more significant than the appointment of the head of a cabinet-level agency,” Mizelle wrote. “It should have been easy to find a more seasoned attorney (whose past political work would not have created even the appearance of impropriety) among the GAO’s 3,000 employees.”
Mizelle was an awkward messenger. As the senior official performing the duties of the DHS general counsel, Mizelle himself is only seven years out of law school. And, as CNN reported in February, he is close with White House adviser Stephen Miller and was an attorney volunteer for the Trump campaign in 2016.
The DHS letter did not name the GAO staffer, and the report was ultimately published under the name of the GAO General Counsel Thomas H. Armstrong. But the quibble about partisanship and the knock on the GAO staffer’s supposed inexperience was representative of the tenor of DHS’ rebuttal to the office’s legal finding.
“As the reader reaches the Report’s conclusion, he is left with the sinking and inescapable feeling that something is afoot in the swamp,” Mizelle’s letter concluded, after dismissing the GAO’s analysis as hopelessly partisan. “The GAO should rescind its erroneous report immediately.”
Anne Joseph O’Connell, an expert on administrative law at Stanford, said she was taken aback.
“I want to tweet on the substance but I can’t get over the inappropriate tone,” she observed.
As far as the law is concerned: According to the GAO, Acting DHS Secretary Chad Wolf and Ken Cuccinelli, the “senior official performing the duties of the deputy secretary,” cannot lawfully serve in their current roles because the man who appointed them, former acting DHS chief Kevin McAleenan, was himself incorrectly picked for the job.
According to the GAO’s reading, McAlennan’s Senate-confirmed successor Kirstjen Nielsen designated McAleenan as her replacement by citing a document that only applied in cases of “disaster or catastrophic emergency” — not a resignation.
Nielsen resigned, and therefore she didn’t have the legal right to choose McAleenan out-of-order as her successor, the GAO found. Wolf and Cuccinelli’s problems flow from there.
But Mizelle countered that Nielsen had made her choice of successor eminently clear. He even included the photo of Nielsen swearing McAleenan in — a ritual that GAO said didn’t amount to anything, legally.
“We are mindful that the timing of Secretary Nielsen’s resignation the next day and the subsequent actions and statements of officials—such as Secretary Nielsen’s farewell message to DHS—may suggest that she intended for Mr. McAleenan to become the Acting Secretary upon her resignation,” the GAO report read. “However, it would be inappropriate, in light of the clear express directive of the April Delegation, to interpret the order of succession based on post-hoc actions.”
Mizelle disagreed, vocally.
“Few things constitute a more unambiguous designation of a successor than personally swearing your successor in,” he wrote, adding: “The moment that Secretary Nielsen invoked her authority, she overrode all past designations.”
A wave of legal fights could ride on judges’ interpretations of Nielsen’s rightful successor — if Wolf and Cuccinelli aren’t operating as legitimate government officials, that means their decisions in office can be challenged and reversed in court.