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.
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.
Last Monday, when President Trump tweeted that his Administration would stage nationwide immigration raids the following week, with the goal of deporting “millions of illegal aliens,” agents at Immigration and Customs Enforcement were suddenly forced to scramble. The agency was not ready to carry out such a large operation. Preparations that would typically take field officers six to eight weeks were compressed into a few days, and, because of Trump’s tweet, the officers would be entering communities that now knew they were coming. “It was a dumb-shit political move that will only hurt the agents,” John Amaya, a former deputy chief of staff at ice, told me. On Saturday, hours before the operation was supposed to start in ten major cities across the country, the President changed course, delaying it for another two weeks.
On Sunday, I spoke to an ice officer about the week’s events. “Almost nobody was looking forward to this operation,” the officer said. “It was a boondoggle, a nightmare.” Even on the eve of the operation, many of the most important details remained unresolved. “This was a family op. So where are we going to put the families? There’s no room to detain them, so are we going to put them in hotels?” the officer said. On Friday, an answer came down from ice leadership: the families would be placed in hotels while ice figured out what to do with them. That, in turn, raised other questions. “So the families are in hotels, but who’s going to watch them?” the officer continued. “What happens if the person we arrest has a U.S.-citizen child? What do we do with the children? Do we need to get booster seats for the vans? Should we get the kids toys to play with?” Trump’s tweet broadcasting the operation had also created a safety issue for the officers involved. “No police agency goes out and says, ‘Tomorrow, between four and eight, we’re going to be in these neighborhoods,’ ” the officer said.
The idea for the operation took hold in the White House last September, two months after a federal judge had ordered the government to stop separating parents and children at the border. At the time, the number of families seeking asylum was rising steadily, and Administration officials were determined to toughen enforcement. A D.H.S. official told me that, in the months before the operation was proposed, “a major focus” of department meetings “was concern about the fact that people on the non-detained docket”—asylum seekers released into the U.S. with a future court date—“are almost never deported.” By January, a tentative plan had materialized. The Department of Justice developed a “rocket docket” to prioritize the cases of asylum seekers who’d just arrived in the country and missed a court date—in their absence, the government could swiftly secure deportation orders against them. D.H.S. then created a “target list” of roughly twenty-five hundred immigrant family members across the country for deportation; eventually, the Administration aimed to arrest ten thousand people using these methods.
From the start, however, the plan faced resistance. The Secretary of D.H.S., Kirstjen Nielsen, argued that the arrests would be complicated to carry out, in part because American children would be involved. (Many were born in the U.S. to parents on the “target list.”) Resources were already limited, and an operation on this scale would divert attention from the border, where a humanitarian crisis was worsening by the day. The acting head of ice, Ron Vitiello, a tough-minded former Border Patrol officer, shared Nielsen’s concerns. According to the Washington Post, these reservations weren’t “ethical” so much as logistical: executing such a vast operation would be extremely difficult, with multiple moving pieces, and the optics could be devastating. Four months later, Trump effectively fired them. Vitiello’s replacement at ice, an official named Mark Morgan—who’s already been fired once by Trump and regained the President’s support after making a series of appearances on Fox News—subsequently announced that ice would proceed with the operation.
Late last week, factions within the Administration clashed over what to do. The acting secretary of D.H.S., Kevin McAleenan, urged caution, claiming that the operation was a distraction and a waste of manpower. Among other things, a $4.5 billion funding bill to supply further humanitarian aid at the border has been held up because Democrats worried that the Administration would use the money for enforcement operations. McAleenan had been meeting with members of both parties on the Hill, and there appeared to be signs of progress, before the President announced the ice crackdown. According to an Administration official, McAleenan argued that the operation would also threaten a string of recent gains made by the President. The Trump Administration had just secured a deal with the Mexican government to increase enforcement at the Guatemalan border, and it expanded a massive new program called Remain in Mexico, which has forced some ten thousand asylum seekers to wait indefinitely in northern Mexico. “Momentum was moving in the right direction,” the official said.
On the other side of the argument were Stephen Miller, at the White House, and Mark Morgan, at ice. In the days before and after Trump’s Twitter announcement, Morgan spoke regularly with the President, who was circumventing McAleenan, Morgan’s boss. In meetings with staff, Morgan boasted that he had a direct line to the President, according to the ice officer, who told me it was highly unusual for there to be such direct contact between the agency head and the White House. “It should be going to the Secretary, which I find hilarious, actually, because Morgan was already fired once by this Administration,” the officer said.
Over the weekend, the President agreed to halt the operation. But it’s far from certain whether McAleenan actually got the upper hand. Officials in the White House authorized ice to issue a press release insinuating that someone had leaked important details about the operation and therefore compromised it. “Any leak telegraphing sensitive law-enforcement operations is egregious and puts our officers’ safety in danger,” an ice spokesperson said late Saturday afternoon. This was a puzzling statement given that it was Trump who first publicized the information about the operation. But the White House’s line followed a different script: some members of the Administration, as well as the former head of ice, Thomas Homan, were publicly accusing McAleenan of sharing information with reporters in an attempt to undermine the operation.
For Homan, his involvement in the Administration’s internal fight marked an unexpected return to the main stage. Last year, he resigned as acting head of ice after the Senate refused to confirm him to the post. Earlier this month, Trump announced, on Fox News, that Homan would be returning to the Administration as the President’s new border tsar, but Homan, who hadn’t been informed of the decision, has remained noncommittal. Still, according to the Administration official, Homan and the President talk by phone regularly. Over the weekend, Homan, who has since become an on-air contributor to Fox News, appeared on television to attack McAleenan personally. “You’ve got the acting Secretary of Homeland Security resisting what ice is trying to do,” he said.
Meanwhile, the President spent the weekend trying to leverage the delayed operation to pressure congressional Democrats. If they did not agree to a complete overhaul of the asylum system at the border, Trump said, he’d greenlight the ice operation once more. “Two weeks,” he tweeted, “and big Deportation begins.” At the same time, his Administration was under fire for holding immigrant children at a Border Patrol facility in Clint, Texas. Two hundred and fifty infants, children, and teen-agers have spent weeks in squalid conditions; they have been denied food, water, soap, and toothbrushes, and there’s limited access to medicine in the wake of flu and lice outbreaks. “If the Democrats would change the asylum laws and the loopholes,” Trump said, “everything would be solved immediately.” And yet, last week, when an Administration lawyer appeared before the Ninth Circuit to answer for the conditions at the facility, which were in clear violation of a federal agreement on the treatment of children in detention, she said that addressing them was not the government’s responsibility. Michelle Brané, of the Women’s Refugee Commission, told me, “The Administration is intentionally creating chaos at the border and detaining children in abusive conditions for political gain.” (On Monday, Customs and Border Protection transferred all but thirty children from the Clint facility; it isn’t yet clear where, exactly, they’ll go.)
President Obama was never popular among ice’s rank and file, but the detailed list of enforcement priorities he instituted, in 2014, which many in the agency initially resented as micromanagement, now seemed more sensible—and even preferable to the current state of affairs. The ice officer said, “One person told me, ‘I never thought I’d say this, but I miss the Obama rules. We removed more people with the rules we had in place than with all this. It was much easier when we had the priorities. It was cleaner.’ ” Since the creation of ice, in 2003, enforcement was premised on the idea that officers would primarily go after criminals for deportation; Trump, who views ice as a political tool to showcase his toughness, has abandoned that framework entirely. “I don’t even know what we’re doing now,” the officer said. “A lot of us see the photos of the kids at the border, and we’re wondering, ‘What the hell is going on?’ ” The influx of Central American migrants, the officer noted, has been an issue for more than a decade now, spanning three Presidential administrations. “No one built up the infrastructure to handle this, and now people are suffering at the border for it. They keep saying they were caught flat footed. That’s a bald-faced fucking lie.”
Can’t anybody here play this game?
The Trump administration, if you haven’t noticed, is undergoing one of its frequent paroxysms of incompetence.
On the border, the administration holds hundreds of migrant children in deplorable conditions: filthy, frightened and hungry. The president ordered and then called off a massive immigration raid, and, in the middle of the chaos, the administration’s top border security official resigned Tuesday.
Overseas, the administration is stumbling toward war with Iran, ordering and then canceling an attack. Iran on Tuesday said the White House is “afflicted by mental retardation,” and Trump responded by threatening Iran with “obliteration.”
Here in Washington, Trump just appointed a new press secretary for the third time and a White House communications director for the seventh time. He refuses to say whether he has confidence in his FBI director, his third, and he’s publicly feuding with the Federal Reserve chairman he appointed over whether Trump can fire him. Meantime, Trump is defying a Trump-appointed watchdog who called for the firing of White House counselor Kellyanne Conway for illegal political activities, and he’s brushing off the latest credible accusation of sexual misconduct by saying the accuser is “not my type.” And Trump’s protocol chief is quitting on the eve of the Group of 20 summit, Bloomberg News reported Tuesday, amid allegations that he carried a whip in the office.
The chaos takes on many forms, but most of it stems from a single cause: Trump’s determination to run the country like “The Apprentice.”
The common thread to the mayhem and bungling is Trump’s insistence on staffing his government with officials serving in temporary, “acting” roles at the pleasure of the president and without the stature or protection of Senate confirmation. This allows Trump to demand absolute subservience from appointees. Because he can replace them at will, they don’t contradict him. But this tentative status also means they lack authority within their agencies and the stature to stand up to Trump when he’s wrong.
It’s no mere coincidence that the border debacle is the work of Trump’s Homeland Security Department, where every major border- and immigration-related agency is led by an “acting” official. Trump’s acting commissioner of the U.S. Customs and Border Protection, John Sanders, just resigned after only two months on the job. The Post’s Nick Miroff and Josh Dawsey report that he will be replaced by the current acting director of U.S. Immigration and Customs Enforcement, Mark Morgan (who got the job after praising Trump’s policies on Fox News). Morgan, in turn, has only been on the job for a couple of months since Trump fired yet another acting director of ICE. Trump had also ousted his DHS secretary and his head of the U.S. Citizenship and Immigration Services, and he has tabbed an “immigration czar” who has not yet accepted the job.
It’s no mere coincidence, either, that the Iran debacle is occurring at a time when the Pentagon has been leaderless since Jim Mattis resigned as defense secretary in December. Patrick Shanahan had been the longest-serving “acting” defense secretary in history until last week, when Trump named another acting secretary, Mark Esper. Both men were reportedly with Trump when he ordered the Iran attack, which he later canceled after learning about possible casualties. It’s hard to imagine Trump ordering up a military attack on Mattis’s watch without first getting a casualty estimate.
And it’s no mere coincidence that the man at the fulcrum of chaotic White House decision-making, chief of staff Mick Mulvaney, also serves in “acting” status. Politico’s Nancy Cook reports that Trump is tiring of Mulvaney (he had the nerve to cough during a Trump TV interview), though he might not yet replace him with a fourth chief of staff, because he likes Mulvaney’s “hands-off approach” to Trump’s “whims and decision-making style.” If he weren’t “hands-off,” he’d be fired.
Trump is unabashed in his preference for this “Apprentice”-style, “you’re fired” leadership. It’s a theme of a new book about Trump’s Cabinet, “The Best People,” by Yahoo News national correspondent Alexander Nazaryan. Of his fondness for acting officials, Trump told Nazaryan: “It gives me a lot of leeway. It gives me great flexibility. I do like it. It’s such a big deal to get people approved nowadays. . . . We have actings, and we’re seeing how we like them.”
In other words, the administration is run by people on perpetual tryout, perpetual probation, unable to make long-term plans or to command the respect of those they (nominally) lead. The Federal Aviation Administration, which botched its handling of the Boeing 737 Max crashes, has been led by acting officials. The Consumer Product Safety Commission, which bungled the recall of Fisher-Price’s Rock ’n Play bassinet, has been run by an acting chairwoman. (She announced last week she will step down at the end of her term in October.)
Now, Trump’s “actings” are causing babies to go hungry, and they may soon bumble us into war with Iran. But that’s okay, because Trump likes the “flexibility.”