The White House personnel office chief has told President Trump that his top two picks to fill the Homeland Security secretary job aren’t eligible under a federal law dictating who can fill the role without Senate confirmation, said people familiar with the matter.
During a meeting Friday at the White House, Sean Doocey, head of the White House Presidential Personnel Office, informed the president that neither Ken Cuccinelli nor Mark Morgan, who head two prominent immigration agencies at the Department of Homeland Security, were legally eligible to lead the agency on an acting basis.
Mr. Trump and many of his top immigration advisers favored Messrs. Cuccinelli and Morgan, who have worked at DHS for only the past few months but who are ardent defenders of the president’s immigration policies on television. The previous acting secretary, Kevin McAleenan, recently submitted his resignation but will remain on the job through the end of the month.
The two men were installed in the spring after the White House pushed out several officials, including former DHS Secretary Kirstjen Nielsen, whom they felt were standing in the way of tougher immigration enforcement.
Mr. Cuccinelli heads the U.S. Citizenship and Immigration Services, the agency overseeing legal immigration and asylum applications. Mr. Morgan leads Customs and Border Protection. Each is serving on an acting basis, and neither has been nominated by Mr. Trump for permanent roles, which would require Senate confirmation.
Mark Morgan, acting commissioner of U.S. Customs and Border Protection, is serving on an acting basis, and hasn’t been nominated by President Trump for a permanent role.PHOTO: ZACH GIBSON/BLOOMBERG NEWS
Although popular with conservative immigration activists, Mr. Cuccinelli in particular isn’t a likely candidate to lead the department permanently. He made powerful enemies in the Senate, including Senate Majority Leader Mitch McConnell (R., Ky.), when he ran the Senate Conservatives Fund, an outside group that challenged incumbent Republicans. Mr. McConnell has said his nomination would inspire a “lack of enthusiasm.”
The federal statute that governs vacancies states that acting officials in cabinet-level positions must either be next in line for a position or hold a Senate-confirmed post. Under a third option, the official being elevated must have served for at least 90 days in the past year under the previous secretary.
During the meeting Friday, Mr. Doocey briefed Mr. Trump on an opinion from the Justice Department’s Office of Legal Counsel that the past secretary was Ms. Nielsen, not Mr. McAleenan, the people familiar with the matter said. Under that interpretation, Messrs. Cuccinelli and Morgan wouldn’t qualify, as they joined the agency after Ms. Nielsen departed.
The meeting with Mr. Trump on Friday included Stephen Miller, a top adviser to the president, and Emma Doyle, deputy chief of staff, the people said.
An administration official said Mr. Trump hoped to announce the next acting DHS secretary in the next few days. Another White House official said the administration doesn’t intend for that person to serve for as long as Mr. McAleenan did.
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The White House didn’t respond to a request for comment.
White House officials are instead considering Chad Wolf, Ms. Nielsen’s former chief of staff, as acting secretary, administration officials said, a move backed by Mr. Miller. In February, Mr. Wolf was nominated to serve as the department’s undersecretary for policy.
The White House is also considering David Pekoske, the Transportation Security Administration head who is serving as acting deputy DHS secretary, and Chris Krebs, head of the Cybersecurity and Infrastructure Security Agency, according to administration officials. Mr. Pekoske has already indicated to DHS colleagues that he doesn’t want the top job, though, and would prefer to return to the TSA full-time, according to a person familiar with the matter.
As Mr. Wolf’s possible appointment began to circulate on Monday, it drew public criticism from outside groups pushing a more restrictive immigration policy.
RJ Hauman, government relations director at the Federation for American Immigration Reform, pointed to Mr. Wolf’s past work for the National Association of Software and Services Companies, which lobbies for the U.S. government to issue more green cards to foreign workers each year. Advocates also said Mr. Wolf’s close relationship with Ms. Nielsen meant he likely wouldn’t steer the department in a more hard-line direction.
A senior DHS official said the criticism of Mr. Wolf is unfounded, as he supported many of the administration’s recent immigration policy goals, including implementing asylum agreements with three Latin American countries.
“If he was selected as acting, he would easily be able to pick up the ball on day one and carry on with the president’s priorities,” the official said.
The legal ineligibility of Messrs. Morgan and Cuccinelli for the acting DHS post isn’t likely to have a big impact on Mr. Trump’s immigration agenda. The two men will continue at their respective agencies, where they have been given wide latitude to set policy and shape the administration’s immigration messaging—sometimes to the chagrin of Mr. McAleenan, the department’s top official.
A White House official said that if the next secretary formally nominated to lead the department doesn’t have a strong immigration background, the president may revive an idea to appoint a “border czar” to oversee the Department’s immigration policy and enforcement. That position wouldn’t require Senate confirmation.
Kirstjen Nielsen is the latest one out of the president’s spiraling cabinet who expressed his cruelty but wouldn’t go as far as he wanted.
There’s no reason to mourn Kirstjen Nielsen’s departure from the Department of Homeland Security. She was an immigration hard-liner working aggressively to carry out President Trump’s restrictionist agenda. She spearheaded efforts to crack down on migrants and asylum seekers. She requested military assistance at the border. She limited the number of people who can legally present for asylum at ports of entry. And she vastly increased the number of immigrants in detention.
She also carried out the president’s “zero tolerance” policy, resulting in the separation of thousands of families at our border with Mexico. Many parents are still searching for their children.
But there were limits to Nielsen’s embrace of Trump’s immigration policies. She pushed back on his demands to break the law to stop migrants from entering the country, according to The Times, and repeatedly reminded the president of “the limitations imposed on her department by federal laws, court settlements and international obligations.”
In almost any other administration, this would be unremarkable. It simply means Nielsen took her job and its legal obligations seriously — what we would expect from any civil servant. But Trump is unusual among modern presidents for his routine elevation of people who lack that basic sense of public ethics. If regular pressure to break the law was part of Nielsen’s decision to leave the administration, then her departure illustrates how any belief in the public good, no matter how slight, is incompatible with working for this president, even if you share his views.
This was evident from previous resignations and firings. Rex Tillerson, Trump’s first secretary of state, seemed to share the president’s skepticism of the department, carrying out an agenda meant to shrink its influence. But when Trump wanted to break the law — which, Tillerson said in an interview after leaving the administration, was “often” — Tillerson would push back, unwilling to completely subordinate himself to the president’s will. “I would have to say to him, ‘Mr. President, I understand what you want to do, but you can’t do it that way. It violates the law.’”
The president’s first attorney general, Jeff Sessions, faced similar pressures after he recused himself from any investigations related to the prospect of Russian interference with the 2016 presidential election. Sessions took that step after The Washington Post revealed his meetings with the Russian ambassador, Sergey Kislyak, during the campaign — the kind of contact he had denied during his confirmation hearing before the Senate Judiciary Committee.
Trump was furious, which grew into rage after the deputy attorney general, Rod Rosenstein, appointed Robert Mueller special counsel. Trump reportedly berated Sessions in the Oval Office — which the attorney general called his “most humiliating experience in decades of public life” — and complained that the recusal was “unfair.”
Trump wanted Sessions to derail the Russia investigation and protect him from scrutiny, essentially making himself above the law. And he spent much of 2018 pressuring the attorney general to do just that, either attacking him in public or cajoling him in private. Sessions, who shared Trump’s politics but not his complete contempt for the rule of law, wouldn’t budge.
The overall pattern is clear. Trump wants to act with impunity, breaking the law if he needs or even just wants to. His appointees, who share his goals but not his methods, resist. He scolds and attacks them until they resign, replacing them with loyalists who may actually bend to his will.
Rex Tillerson was replaced by Mike Pompeo, then serving as director of the C.I.A. Unlike Tillerson, who attempted to contain Trump’s worst instincts, Pompeo has been willing to say or do nearly anything to stay in Trump’s favor. It’s why he would echo the president’s widely criticized flattery of Kim Jong-un and the North Korean government.
Trump says that Kevin McAleenan, until now the commissioner of Customs and Border Protection, will take over for Nielsen as acting secretary of Homeland Security. Like Nielsen, McAleenan backs the president’s harsh border policies. He defended border patrol agents after they used tear gas on hundreds of migrants, including women and children, who tried to enter the United States near Tijuana, Mexico. Some attorneys say it’s unclear if Trump can elevate McAleenan, since the laws regarding succession point to under secretary for management Claire Grady as next-in-line as acting director.
His poll numbers were plummeting. His FBI director was decrying the dysfunction. The nation’s air travel was in chaos. Federal workers were lining up at food banks. Economic growth was at risk of flatlining, and even some Republican senators were in open revolt.
So on Friday, the 35th day of a government shutdown that he said he was proud to instigate, President Trump finally folded. After vowing for weeks that he would keep the government closed unless he secured billions in funding for his promised border wall, Trump agreed to reopen it.
He got $0 instead.
Trump’s capitulation to Democrats marked a humiliating low point in a polarizing presidency and sparked an immediate backlash among some conservative allies, who cast him as a wimp.
Elected as a self-proclaimed master dealmaker and business wizard who would bend Washington to his will and stand firm on his campaign promises — chief among them the wall — Trump risks being exposed as ineffective.
“He was the prisoner of his own impulse and it turned into a catastrophe for him,” said David Axelrod, who was a White House adviser to President Barack Obama. “The House of Representatives has power and authority — and now a speaker who knows how to use it — so that has to become part of his calculation or he’ll get embarrassed again.”
.. This account of Trump’s stymied pursuit of border wall funding is based on interviews with more than a dozen senior administration officials, Trump confidants and others briefed on internal discussions, many of whom requested anonymity to speak candidly.
Trump repeatedly predicted to advisers that House Speaker Nancy Pelosi (D-Calif.) would cave and surmised that she had a problem with the more liberal members of her caucus. But she held firm, and her members stayed united.
“Why are they always so loyal?” Trump asked in one staff meeting, complaining that Democrats so often stick together while Republicans sometimes break apart, according to attendees.
As for their negotiations, Trump and Pelosi had not spoken since their Jan. 9 session in which the president stormed out of the White House Situation Room. In a private meeting with some columnists earlier this week, Pelosi was asked why she thought Trump had not created a more potent nickname for her than “Nancy.” She replied, according to a senior Democratic aide, “Some people think that’s because he understands the power of the speaker.”
Trump and his advisers misunderstood the will of Democrats to oppose wall funding. Jared Kushner, the president’s son-in-law, emerged as the most powerful White House adviser during the shutdown and told colleagues that Trump’s plan for $5.7 billion in wall funding would get Democratic votes in the Senate on Thursday, astonishing Capitol Hill leaders and other White House aides.
Kushner, who Trump jokingly says is to the “left,” pitched a broader immigration deal and had faith that he could negotiate a grand bargain in the coming weeks, according to people familiar with his discussions. He pitched a big deal to Latino groups this week and also with members of the Koch network, the people said.
Trump, who fretted about the shutdown’s impact on the economy and his personal popularity, cast about for blame and pointed fingers at his staff — including Kushner — for failing to resolve the impasse, according to aides.
At a meeting Wednesday with conservative groups, the president accused former House speaker Paul D. Ryan (R-Wis.) of having “screwed him” by not securing border wall money when Republicans had the majority, according to one attendee, Mark Krikorian, executive director of the Center for Immigration Studies. He said Ryan should have gotten him money before he left but he had no juice and had “gone fishing,” according to two attendees.
Ryan had warned the president against a shutdown and told him it would be politically disastrous, according to a person familiar with their conversations.
All the while, Trump vowed he would never capitulate to Democrats. At the Wednesday meeting, “he said there would be no caving,” Krikorian said. “Everybody who spoke up applauded him for not caving, but warned him that any further movement toward the Democrats’ direction would be a problem.”
White House aides had been monitoring Transportation Security Administration data on airport security delays and staffing levels several times a day. Officials said Thursday that the situation was worsening and would probably force the end of the shutdown.
But events at the Capitol on Thursday are largely what triggered Trump to conclude that he had run out of time and that he had to reopen the government, his aides said.
Trump lost control of his party as fissures emerged among exasperated Republican senators. Six of them voted Thursday for a Democratic spending bill, and others privately voiced frustration with Vice President Pence and Senate Majority Leader Mitch McConnell (R-Ky.) during a closed-door, contentious luncheon.
“Everyone who saw the floor action realized we were basically at the same place where we began and we needed a different solution,” a White House official said of Thursday’s votes.
McConnell called Trump on Thursday to say that the shutdown could not hold because some of his members were in revolt. The president did not commit to ending it in that call, but he phoned McConnell back that evening to say he had concluded the shutdown had to end, according to a person with knowledge of the conversations.
Under attack from some Republican colleagues, McConnell told senators on Friday that Trump had come up with the idea for a three-week deal — and that the president would be announcing it.
When Rep. Peter T. King (R-N.Y.) visited the White House on Thursday, he said Trump was in a “pragmatic” mood, mentioning the failed Senate votes and saying he wanted to make a deal.
Pence and Kushner presented the president with several options that would reopen the government, according to a White House official. They included using his executive authority to declare a national emergency and redirect other public funds for the wall, an option Trump said Friday he was holding in reserve. Trump also briefly considered a commission that would study a wall, according to a senior administration official.
On Thursday night, the president grew annoyed at Mick Mulvaney when the acting White House chief of staff talked with him about policy prescriptions for the next three weeks and what an eventual deal might look like, according to one person familiar with the conversation.
Administration officials began immediately on this next phase; Mulvaney and Homeland Security Secretary Kirstjen Nielsen met privately with a handful of Republican senators at Camp David on Friday evening to start discussing what a border security agreement might look like, according to multiple people familiar with the gathering.
Ultimately, aides said, Trump was willing to table debate over wall funding because he is convinced he can win support from some Democratic lawmakers over the next three weeks.
Friday’s agreement allows for a conference committee made up of rank-and-file members from each party to negotiate border security funding, which White House aides said they believe will enable more flexibility than existed during Trump’s stalemate with Pelosi.
.. A senior White House official said the administration’s negotiating team has received “dozens of signals from Democrats that they are willing to give the president wall money,” but declined to name any such lawmakers.
The administration may have been referring to a letter written by freshman Rep. Elaine Luria (D-Va.) and signed by more than 30 House Democrats, which merely called for a vote on Trump’s border security proposal once the government reopens.
But “that vote would obviously fail in the House,” one senior Democratic aide pointed out. “This is just pathetic spin.”
Sen. Richard Blumenthal (D-Conn.) said, “The poll numbers tell a very stark story, but it’s only part of the more enduring longer-term effect on the president’s credibility. He essentially held America hostage for a vanity project and a campaign applause line that the American people saw clearly was never worth shutting down the government to achieve.”
Trump’s approval ratings have fallen in most public polls, including a Washington Post-ABC News survey released Friday that found 37 percent approve of his presidency and 58 percent disapprove.
Trump risks further angering independent voters who do not agree with the prolonged shutdown and conservatives who disapprove of him caving after 35 days with no win.
Conservative commentator Ann Coulter, whose criticism of Trump in mid-December helped inspire the president to shut the government in protest over wall funding, registered her disapproval of his Friday decision.
“Good news for George Herbert Walker Bush: As of today, he is no longer the biggest wimp ever to serve as President of the United States,” Coulter tweeted.
For months, Republican senators had been trying to warn Trump against a shutdown. Last June, Senate Appropriations Committee Chairman Richard C. Shelby (R-Ala.) and Sen. Shelley Moore Capito (R-W.Va.), the chamber’s point person on Homeland Security funding, met privately with Trump not only to tout their bipartisan border security spending package but also to nudge him away from a confrontation over the wall.
“I just said, ‘Shutdowns are miserable,’ ” Capito said Friday, recounting that Oval Office conversation. “The last one was miserable. And this one was double miserable, and so, you know, maybe you have to live through it to really get the sense of it.”
King faulted the conservative Freedom Caucus, led by Reps. Mark Meadows (R-N.C.) and Jim Jordan (R-Ohio), both Trump confidants, for steering the president in the wrong direction.
“I hope he ignores them for the next three weeks,” King said. “It’s the charge of the light brigade. It’s the valley of death.”
Homeland Security Secretary Kirstjen Nielsen could be next to depart
President Trump’s removal of John Kelly as his top aide is part of a rolling staff makeover that could soon result in the departure of Homeland Security Secretary Kirstjen Nielsen, White House officials and people close to the administration said.
.. When Mr. Trump and National Security Adviser John Bolton faulted her for not taking sufficiently bold steps to shore up the border, Mr. Kelly would defend Ms. Nielsen’s performance.
.. With Mr. Kelly on his way out, Ms. Nielsen is increasingly vulnerable. and department officials are bracing for a change, past and present administration officials said. “People there are waiting for the guillotine,”
A current department official said Ms. Nielsen wouldn’t resign, leaving it to the president to fire her. “She loves this,” the official said. “They’d have to drag her out of here.”
.. Having failed to lock in Mr. Ayers, Mr. Trump quizzed some of his advisers about potential candidates, people familiar with the conversations said. One person recommended Matthew Whitaker, now the acting attorney general. Mr. Trump said in reply that he liked Mr. Whitaker, who White House officials said is a viable candidate if not a favorite for the job.
.. Another candidate is Energy Secretary Rick Perry, a former Texas governor, people close to the White House said. Over the weekend, a White House official said Treasury Secretary Steven Mnuchin wasn’t in the running. But another White House official said Tuesday Mr. Mnuchin is being discussed internally as a potential candidate. His preference is to remain Treasury secretary, a person familiar with his thinking said.
.. Another corner of the White House that is in the midst of an overhaul is the White House counsel’s office, which has been hollowed out since the departure of Donald McGahn in October. The counsel’s office will be on the front lines of skirmishes with the new Democratic House majority
.. On Monday, Mr. McGahn’s successor, Washington attorney Pat Cipollone, started work and has been given a mandate to fortify an office that had dwindled to about 20 lawyers— half the number who were there in President Barack Obama’s White House.
