It’s being reported this morning that Trump does want Ken Cuccinelli to run DHS but there are problems with ineligibility due to vacancies in the department. The White House may have found what the NY Times is calling a “loophole” that will allow them to appoint Cuccinelli:
THE HILL – The White House is eyeing Ken Cuccinelli to serve as acting Department of Homeland Security (DHS) secretary, The Wall Street Journal reported.
President Trump has told allies that he wants Cuccinelli, the acting director of U.S. Citizenship and Immigration Services, to take on DHS leadership, people familiar with the matter told the newspaper.
Cuccinelli is ineligible to be appointed DHS secretary, however, under a federal statute on governing vacancies.
The New York Times first reported that the Trump administration is hunting for a way to avoid the vacancies statute in order to appoint Cuccinelli.
The federal Vacancies Act 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,” according to the New York Times.
But here’s how Trump plans to get around the statute to appoint Cuccinelli:
A source familiar with the plan to bypass the statute told the Journal that the White House has requested help from the Justice Department’s Office of Legal Counsel to determine the legality of the plan.
To execute the White House’s desired plan, the administration would need to appoint an official to the fourth highest position in the department. Then, the White House would appoint this person as acting secretary of DHS, according to the Times.
Normally, the line of succession requires the White House to nominate one of the top three leaders of the department, but all three of those positions are vacant.
There have been concerns that Trump has wanted to support a Nielsen ally to run DHS, but this report would seem to indicate those concerns may be misplaced.
The other point is that by appointing Cuccinelli as acting head of DHS, Trump can get who he wants and avoid a fight with McConnell in the Senate who does not like Cuccinelli, who backed a conservative candidate in 2014 to beat McConnell.
The report states, however, that Trump has not made up his mind on this yet. So stay tuned…