Trump Considering Legal Loophole To Install Right-Winger At DHS

WASHINGTON, DC - SEPTEMBER 27 : Ken Cuccinelli acting director of USCIS United States Citizenship and Immigration Services speaks to reporters and members of the media outside the West Wing at the White House on Frid... WASHINGTON, DC - SEPTEMBER 27 : Ken Cuccinelli acting director of USCIS United States Citizenship and Immigration Services speaks to reporters and members of the media outside the West Wing at the White House on Friday, Sept 27, 2019 in Washington, DC. (Photo by Jabin Botsford/The Washington Post via Getty Images) MORE LESS
October 30, 2019 3:48 p.m.

The Trump administration is considering yet another tricky legal maneuver to install a far-right Trump ally as the leader of the Department of Homeland Security, according to multiple reports.

The plan involves weapons of mass destruction — or, rather, the office responsible for countering them.

The President has searched for weeks for a replacement, apparently without success, for the outgoing acting DHS secretary Kevin McAleenan. After Trump tweeted on Oct. 11 that McAleenan would resign, the President said he would announce a replacement “next week.”

The self-imposed deadline came and went.

Here’s why, according to multiple reports: Trump’s reported top picks for the job actually aren’t legally eligible. Ken Cuccinelli and Mark Morgan, the acting leaders U.S. Citizenship and Immigration Services and U.S. Customs and Border Protection, respectively, don’t fit the legal standard necessary to fill in at DHS.

That’s because the law governing such federal substitutes — the Federal Vacancies Reform Act (FVRA) — lays out three specific categories of people who can fill in when agency leaders leave their posts: the “first assistant” at the agency, other officials at the agency who’ve been confirmed by the Senate, and others who’ve been at the agency at least 90 days in the year before the vacancy occurred.

While both Cuccinelli and Morgan have held their posts for 90 days, they didn’t serve that time before the vacancy occurred — that is, the vacancy of the actual Senate-confirmed DHS secretary, Kirstjen Nielsen, who resigned in April. Because McAleenan has only filled in for Nielsen on an “acting,” temporary basis, Cuccinelli and Morgan’s service during his tenure doesn’t count in the eyes of the vacancies law.

Thus, the legal work-around. The New York TimesCNN and Politico have reported, citing unnamed sources, that the White House is eyeing a vacant post at the DHS office for Countering Weapons of Mass Destruction to get Morgan or Cuccinelli to the top of DHS proper.

That WMD office currently lacks a permanent assistant secretary. The role is categorized as an “inferior officer,” according to the Times, and thus may be appointed directly by the President. From there, presumably, either Morgan or Cuccinelli would be picked as yet another “acting” DHS secretary.

Notably, Cuccinelli is quite unpopular with even some Republican senators. A handful warned Trump on Wednesday, on the record, not to pursue Cuccinelli for the top DHS job.

But it wouldn’t be the administration’s first attempt to maneuver within and around the FVRA requirements.

McAleenan himself only rose to become acting DHS secretary after the person who was going to fill that role was forced to resign, clearing the way for Trump’s pick. And when bipartisan opposition to Cuccinelli put his prospects of leading USCIS in danger, Trump created an entirely new “first assistant” role and gave it to the right-winger. Cuccinelli’s first day filling in atop the agency was also his first ever day in federal government.

The TPM Journalism Fund: A New Way To Support TPM
We're launching the TPM Journalism Fund as an additional way for readers and members to support TPM. Every dollar contributed goes toward:
  • -Hiring More Journalists
  • -Providing free memberships to those who cannot afford them
  • -Supporting independent, non-corporate journalism
Are you experiencing financial hardship?
Apply for a free community-supported membership
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Senior Editor:
Special Projects Editor:
Editor at Large:
General Counsel:
Head of Product:
Director of Technology:
Associate Publisher:
Front-End Developer:
Senior Designer: