WASHINGTON – The White House has found a way to bypass a federal statute that dictates who can fill secretary positions, potentially allowing President Donald Trump to choose whomever he wants to lead the Department of Homeland Security, according to an administration official. The route may run through an office established to counter weapons of mass destruction.
The Trump administration has encountered legal and personnel challenges in its search for a candidate who is aligned enough with Trump to carry out his hard-line immigration agenda and satisfy the legal credentials to be the acting secretary of a department riddled with vacancies.
After Kevin McAleenan, the acting secretary who had a tumultuous relationship with the White House, announced this month that he would resign, it was widely believed in the administration that Trump would tap someone who would not question his policies. McAleenan has said he will step down Thursday.
But officials leading agencies in homeland security who echo Trump’s fiery language on immigration were initially deemed ineligible under the federal Vacancies Act. The law states that acting officials who take over Cabinet-level positions must be next in the line of succession, have the approval of the Senate or have served 90 days under the previous secretary.
The White House, however, is exploring a loophole in the law, according to an administration official. Under this route, the White House would tap someone to be the assistant secretary of the Countering Weapons of Mass Destruction Office, which is vacant, and then elevate that person to be the acting secretary of homeland security.
The chief of that office is known as an “inferior officer,” and under an exception in the laws governing appointments, such officials can be appointed to acting positions with the sole approval of the president, the official said.
The White House and the Department of Homeland Security did not respond to requests for comment.
This year the Trump administration has purged, installed and transferred leaders in the department, sowing chaos in its ranks and creating a legal maze on personnel matters.
The workaround would allow the White House to choose a hard-liner previously believed to be ineligible for the position.
Mark Morgan and Kenneth Cuccinelli II, who both joined the department in recent months in an acting capacity, were thought to be out of the running for the job after the Justice Department’s Office of Legal Counsel advised that their appointment would violate the Vacancies Act. Neither Morgan, the acting commissioner of Customs and Border Protection, nor Cuccinelli, the acting director of the agency overseeing legal immigration, was confirmed by the Senate or served for at least 90 days under the last Senate-confirmed homeland security secretary, Kirstjen Nielsen.
Cuccinelli, who would face a difficult road to nomination, was widely thought to be a top contender for the position after the acting White House chief of staff, Mick Mulvaney, said that Cuccinelli “would be good at the job.” But Cuccinelli has a tumultuous relationship with Senate Majority Leader Mitch McConnell.