At one pre-pandemic dinner out, my wife and I met another couple. Across the table, they hissed nastiness at one another. Stuck there, my wife intently examined the menu while I took careful stock of the olives in my martini. In these situations you say to yourself, I ain’t gettin’ in the middle of this one.
That’s essentially what the Department of Homeland Security Office of Inspector General told two members of Congress who are feuding with DHS management. In a remarkable, and remarkably short, letter, DHS IG Joseph Cuffari told the members his office would not join in “what has become a bitter inter-branch disagreement.”
It’s such an arcane legal situation fueled by politics that you almost have to laugh.
House Oversight and Reform Committee Chairwoman Carolyn Maloney (D-N.Y.) and Homeland Security Committee Chairman Bennie Thompson (D-Miss.) are bickering with Chad Wolf and Kenneth Cuccinelli. Wolf is acting DHS Secretary. Cuccinelli isn’t even acting. He’s got one of those “performing the duties of” titles for Deputy Secretary. The congresspersons wanted the IG to look into a matter sent over by congressional auditors at the Government Accountability Office.
The GAO’s General Counsel found that the DHS bosses were so named “by reference to an invalid order of succession.” Ultimately this was all wrapped up in the Trump administration’s trouble keeping certain high offices peopled with confirmed appointees, and in how long acting officials can stay in their jobs legally. GAO wanted the IG’s office to figure out who should actually be in these jobs, and what the consequences are of “actions taken by these officials my be ratified” according to an April 19 delegation of authority.
Cuffari didn’t just swipe the GAO referral into the wastebasket. He took issue with the GAO’s decision. Principally that the GAO used the wrong law in doing its analysis. It cited the law on what happens after an acting official acts for longer than 210 days. Cuffari says it should have used the Homeland Security Act instead. The IG chides GAO for acknowledging the president’s right to appoint actings “yet it does not even discuss whether the President validly designated an Acting Secretary” last April.
Adding complication are lawsuits in federal court against actions by Wolf.
He found other points in which he says GAO is inconsistent, ultimately stating that, right or wrong, “GAO’s decision carries no binding force.”
Here’s the Aug. 21 GAO reaffirmation (to DHS) of its original Aug. 14 decision on the legality of Wolf and Cuccinelli’s service. It found, “Messrs. Wolf and Cuccinelli were named to their respective positions of Acting Secretary and Senior Official Performing the Duties of Deputy Secretary by reference to an invalid order of succession.” The documents come from GAO’s General Counsel Thomas Armstrong. Clearly he’s not backing down either.
Lawyers. I ain’t one and can’t say who’s right here. Some will argue, well, Cuffari is a Trump appointee, so you know where he’s coming from. But that would be speculation. He did write to Maloney and Thompson, “There is no reason to believe that all stakeholders, including DHS, Congress, GAO, and private parties who object to decisions of acting DHS leadership, would accept a determination by DHS OIG on the matters referred and treat it as an enforceable ruling.” The man knows futility when he sees it.