A GAO report challenging the legality of Chad Wolf’s appointment as Acting Homeland Security Secretary injects another dose of uncertainty at a department already grappling with political issues, and raises questions on a range of decisions made over the past 16 months as well as on who will sit in the DHS Secretary’s office.

The Department of Homeland Security has been embroiled in controversy over use of its officers in policing protests in Portland and other cities, drawing condemnation from former officials and calls for a closer examination of its structure. That could include the possibility of separating out component parts such as the Cybersecurity and Infrastructure Security Agency to ensure their independence and nonpartisanship.

Amid that environment, new uncertainties over leadership “can’t be good” for CISA or other DHS agencies, said former DHS official Paul Rosenzweig.

Another former senior DHS official, speaking on background, said, “CISA seems to be doing OK, but there are a lot of non-cyber DHS issues that are distracting senior leadership attention, in my opinion.”

The report issued Friday by the Government Accountability Office found the appointments of Acting Secretary Chad Wolf and his predecessor violated the law covering DHS succession. It said the April 2019 appointment of Kevin McAleenan as Acting Secretary violated the legal order of succession, rendering invalid the subsequent appointment of Wolf to replace McAleenan. The matter has been referred to the DHS inspector General and next steps remain unclear.

A DHS spokesman on Friday rejected the report’s conclusions, calling them “baseless.” Former DHS policy chief Stewart Baker characterized the GAO report as “not just hypertechnical but almost willfully obstructive.” But Baker also criticized the “slippery use of the vacancies rules” by the Trump administration.

Congressional Democrats have called for Wolf to immediately step down and the appointment of an “apolitical career official to run the Department temporarily and follow the Constitution by swiftly nominating a permanent Secretary.”

House Homeland Security Chairman Bennie Thompson (D-MS) and Oversight Chairwoman Carolyn Maloney (D-NY) last November asked GAO to conduct an expedited review of the appointments of Wolf and Acting Deputy Secretary Ken Cuccinelli, saying a series of DHS leadership moves may have violated federal law and the department’s own rules.

Rosenzweig, a former deputy assistant for policy at DHS and a resident senior fellow at the R Street Institute, noted that the GAO finding “calls into legal question everything the department has done” since the McAleenan appointment. That includes regulations, orders and guidances issued by all of its agencies, he said, covering “anything that required the secretary’s signoff, including hiring and budget authority issues, that’s the number one impact.”

“Now, anyone adversely affected by a DHS decision can sue, saying it lacked authority,” Rosenzweig said. That could apply to a wide range of issues, from DHS oversight of chemical facilities to the department’s actions during protests in Portland.

CISA’s work with the private sector is generally on a collaborative basis, so it’s unclear if any of its guidances would be affected but anything with budgetary or personnel implications could come under scrutiny.

A vacancy arising because of this legal finding may be unlikely in the current political situation, Rosenzweig said, but a confusing question would come into play on succession if that were to happen. Under the rules, the FEMA Administrator would be next in line to become Acting DHS Secretary, followed by the CISA Director, he said, but “do you look at when the vacancy originally occurred, or at the current situation?”

When Kirstjen Nielsen resigned under pressure as DHS Secretary in 2019, the office of the FEMA Administrator was vacant, meaning the Acting DHS Secretary job should’ve gone to CISA Director Christopher Krebs at that time, Rosenzweig said.

Now, with a confirmed FEMA Administrator in place – Peter Gaynor – Rosenzweig asked, would the Acting Secretary job go to him or to the person in line at the time of the 2019 vacancy, meaning Krebs?

Krebs continues to earn high marks from industry partners – and mixed views on moving him into the Acting Secretary role, if the need were to arise.

“We like Chris, he’s done well by us,” said a source from a critical infrastructure sector. “I think he would do well in that role.”

But former DHS official Baker told Inside Cybersecurity that “I think most people who care about cybersecurity are glad that Chris Krebs wasn’t thrust into the Acting Secretary meat grinder. We need him where he is.” – Charlie Mitchell (cmitchell@iwpnews.com)

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