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.
