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.
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.”
Five of the nation’s 10 largest federal law-enforcement agencies are currently operating with only interim heads amid an unprecedented long-term leadership vacuum that even some of the president’s congressional allies say is untenable.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Drug Enforcement Administration (DEA), Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP) and the Federal Bureau of Prisons all lack permanent heads.
Several of the agencies—ATF, DEA and ICE—have been without Senate-approved leadership for the entirety of Donald Trump’s term in office. That is the case despite unified Republican control of the Senate and presidency during that period, which typically leads to easier confirmation scenarios.
Because of opposition by some gun-rights groups, presidents of both parties have struggled to get ATF nominees through the Senate—but Mr. Trump has never even tapped anyone for the job. The leader of the Bureau of Prisons need not be Senate-confirmed, but even so it has only an acting director.
CBP has been run by an interim leader since mid-April because its current commissioner was tapped to run the entire Department of Homeland Security—as an acting secretary.
In part, the situation reflects Mr. Trump’s management style. He has said he prefers keeping people in “acting” roles rather than going through the Senate nominating process.
“I sort of like ‘acting,’” Mr. Trump said earlier this year. “It gives me more flexibility.”
He is giving himself plenty of that. While vacancies are common toward the end of a presidential administration, the sheer number of them across the Trump administration as well as the turnover in crucial jobs, particularly at prestigious law-enforcement agencies, is without precedent, according to Max Stier, president and chief executive of the Partnership for Public Service.
Of the roughly 700 key positions requiring Senate approval that his organization tracks, only about 400 of them have been filled with a Senate-confirmed official. Some are extremely high profile, like the secretaries of defense and DHS.
But the result is a lack of leadership stability at several agencies that enforce critical parts of Mr. Trump’s agenda. The Drug Enforcement Administration has a prominent role in curbing opioid abuse, a priority of the Trump administration. ATF is a central player in combating gang violence and illegal firearms trafficking, other law-enforcement priorities of the president.
And CBP and ICE both play major roles in enforcing immigration law, the centerpiece of Mr. Trump’s domestic agenda. The president often talks of what he says is a “crisis at the border.”
Steadiness in leadership at government agencies with police powers may be especially crucial. “A law-enforcement organization is dealing with some of the most serious powers of the state and that is the power that involves people’s liberty,” said Mr. Stier.
“One of the purposes of the constitutional system we have is the checks and balances. The Senate, one of their critical roles, is to be able to in essence vet the senior leadership of our government—choices that the president is making,” Mr. Stier said. “That absolutely is a challenge to the system of government that we have.”
Veterans of government service note that it is difficult to be an effective manager with “acting” in your title.
“To effectively lead an agency, you need as much authority and gravitas as you can muster. These are difficult jobs. Senate confirmation definitely helps,” said Robert Bonner, a former federal judge and prosecutor who was successfully nominated to lead both the DEA and U.S. Customs and Border Protection agency under two Republican presidents.
The lack of any nominees has created a messy situation at the top of several agencies—requiring tricky legal maneuvering to even name an acting successor.
ATF is currently being led by Reggie Lombardo, who holds the title of “acting deputy director.” Ms. Lombardo, who took office earlier this month after the departure of her predecessor, cannot hold the title of acting director because of a quirk in federal law caused by the lengthy vacancy and the lack of a nominee.
The current acting head of the DEA, Uttam Dhillon, had to be transferred from his White House job into a Justice Department post first—to qualify for the appointment as acting administrator because of another requirement in the agency secession rules. Mr. Dhillon was involved in the search for a DEA head while he was at the White House.
And Mr. Trump purged the leadership of the Department of Homeland Security last month in a clash over the direction of the agency. He named CBP commissioner Kevin McAleenan as the acting DHS secretary—bypassing a law that required the acting job to go to the undersecretary for Management, Claire Grady. Ms. Grady eventually resigned to resolve the issue—clearing the path for Mr. McAleenan to become acting DHS secretary.