Kirstjen Nielsen’s tenure as the head of the Department of Homeland Security was perhaps best known for the family separation policy at the border. The recordings of crying toddlers, the children wrapped in silver foil blankets, the detention conditions likened to “cages” — this was her legacy. Nielsen was reviled by almost everyone from the center and leftwards. Ironically, President Trump himself disliked her, in part for not being tough enough on immigration, and would eventually force her out.
Nielsen would be the last legal secretary of homeland security in the Trump administration. What would follow would be a chaotic parade involving governance by tweet, a thicket of laws and regulations, incorrectly amended paperwork, and a strangely hilarious internal legal memo referencing a @DHSgov tweet as though it held some kind of binding authority. Seven months later, Nielsen’s eventual successor, Chad Wolf, would take her place.
It was under Wolf’s direction that a motley crew of federal law enforcement — drawn from Border Patrol, ICE, the US Marshals, and Federal Protective Services — would occupy the city of Portland, Oregon, bathing its downtown district in a pea-souper of tear gas and snatching up its citizens for questioning in unmarked minivans. These brutal yet ineffective tactics were a response to the supposed “lawlessness” of the George Floyd protests in Portland. But Wolf’s own lawless occupation of the secretary’s seat would go largely unchecked.
This is partly because Wolf was not the only one in this position. The tail end of the Trump presidency was riddled with acting officials who were no longer serving in a legal capacity. The laws that govern how these official positions get filled — such as the Vacancies Act — allow the executive branch a good deal of flexibility in appointing acting officials while the Senate confirmation process is pending. The Obama administration had, toward the end, seemingly given up on the Senate confirmation process, keeping a significant number of acting officials in key positions here and there. But the next administration went ahead and blew Obama’s record out of the water and in ways that were in blatant contravention of the law. This was classic Trump: to do what Obama had been doing but a hundred times harder, without restraint or compunction.
“My ‘actings’ are doing really great,” President Trump said to reporters in January 2019. “It gives me more flexibility. Do you understand that? I like ‘acting.’ So we have a few that are acting. … If you look at my Cabinet, we have a fantastic Cabinet. Really good.”
As flexible as the Vacancies Act is, there are still limits. The executive branch has 210 days — a little under seven months — after a vacancy is created to put forth an appointee for Senate confirmation. By the end of the Trump administration, countless key appointments had run out the clock, with over a dozen government officials squatting illegally in their acting roles.
Unlike the vast majority of these cases, the question of who was legally the secretary of homeland security was not governed by the Vacancies Act. The infamous 210-day limit that became so widely known during the second half of the Trump administration was not at play. (Although, if it had been, Chad Wolf — who took office 216 days after Nielsen vacated her position — would still have been an illegal acting secretary).
On April 9th, 2019, Nielsen filed two fateful pieces of paperwork that would haunt the agency for the rest of Trump’s term and beyond. The first was a boilerplate letter written by John Mitnick, the DHS general counsel, specifying that, “By approving the attached document, you will designate your desired order of succession for the Secretary of Homeland Security in accordance with your authority pursuant to Section 113(g)(2) of title 6, United States Code.” (This, importantly, is the Homeland Security Act and not the Vacancies Act.)
The second piece of paperwork was the “attached document,” which amended the succession order so that Kevin McAleenan — a DHS official whose harsh approach to immigration had found favor in Trump’s eyes — would succeed Nielsen, as was intended by the president.
Unfortunately, Nielsen amended the wrong section of the succession order.
There is no question of what Nielsen meant to do. The president, after all, had tweeted out that McAleenan would assume her role. “Please join me in welcoming Kevin as the Acting Secretary,” she wrote in her farewell letter to the department. A tweet sent out by @DHSgov on April 10th showed two photos of Nielsen swearing in McAleenan.
Yet from the start, McAleenan wasn’t supposed to be the guy. Legally, it should have been Claire Grady, who had been serving as acting deputy secretary. On April 7th, the same day that both Trump and Nielsen tweeted that she was stepping down, The New York Times reported that Grady had told her colleagues she had “no intention of resigning to make way for Mr. McAleenan.” Two days later, Grady resigned, and the path seemed clear for McAleenan’s ascension.
The irony here is that it would have probably been fine if Trump had used the Vacancies Act to tap McAleenan — at first, anyway. (By the time Chad Wolf took over from McAleenan on November 12th, 2019, the 210-day window had already elapsed.) But the DHS’s own paperwork declared that the change was happening under the authority of the Homeland Security Act, and if it was happening under that law, one had to use a very specific succession order.
Nielsen thought she had amended the succession order so McAleenan would replace her — but she had made the kind of error that haunts the dreams of anyone who’s attempted to break their lease early or correctly bill their pet insurance. Instead of amending the section of the succession order that applied to cases of resignation, she amended the section that applied to her death or disability.
In subsequent court decisions in Maryland, New York, California, and DC, various federal judges would conclude that McAleenan was never legally the acting secretary of homeland security. This did not seem to bother the White House very much. Trump was too busy tweeting about the illegals at the border to think about the illegals in his Cabinet.
On November 8th, 2019, 212 days after he had taken office, McAleenan amended the succession order yet again to ensure that Chad Wolf — Trump’s favored choice — would become acting secretary and then stepped down from office. This time, he amended the correct portion of the succession order. But the unfortunate part of being an illegal secretary of homeland security is that the things you do are not legal. Under both the original succession order and Kirstjen Nielsen’s incorrectly amended succession order, Chad Wolf was not the next in line. He had been made acting head through the actions of an already illegal acting head; he was a doubly illegal acting secretary of homeland security.
The Government Accountability Office called foul on the DHS succession in August 2020. In a reflection of the extraordinary chaos afoot, DHS responded to the government’s own watchdog agency with an inexplicably combative letter calling the report’s conclusions “baseless and baffling” and demanding that GAO “rescind its erroneous report immediately.” The letter was signed by yet another Chad — Chad Mizelle — who was also one of Trump’s actings, an official who was “performing the duties of the general counsel.” (The general counsel who had assisted Nielsen with her resignation had since been fired by the White House, possibly because he had pushed back too many times on Trump’s more legally dubious plans around immigration). The Mizelle letter included a picture of McAleenan and Nielsen, credited to the @DHSgov Twitter, as though it were proof that McAleenan had legally become the acting secretary, and ended with a strange ad hominem attack on a staffer that Mizelle claimed was the real author of the report, a junior attorney who “appears to have limited experience practicing law — having graduated from law school only three years ago.” (At the time, Chad Mizelle was seven whole years out of law school).
Laws matter, and the process matters, especially when applied to an agency that inflicts a mercilessly exacting process on so many people.
Shortly after the GAO report was released, Trump would officially nominate Wolf for the job. But the nomination itself couldn’t fix the illegal succession — and in any case, the nomination never went through.
For those on the outside looking in, Chad Wolf’s tenure would mostly be remembered for the battle of Portland. Wolf also oversaw an increasingly hostile immigration policy. He suspended — or rather, attempted to suspend — the Deferred Action for Childhood Arrivals (DACA) program. He made sweeping changes to the asylum system that, among other things, would have disqualified many refugees fleeing domestic abuse or anti-LGBTQ persecution. “These regulations aimed to strip immigrants of basic rights to work authorization and due process,” said Zachary Manfredi, an attorney with the Asylum Seeker Advocacy Project, who spearheaded litigation that tested the legality of Wolf’s appointment in court.
Undocumented and semi-documented immigrants — human beings who are declared “illegal” in the mainstream rhetoric of the Republican Party — face overwhelming odds. They are left to navigate an inscrutable legal and regulatory code in a language they may or may not have facility in, often with limited access to legal counsel. Their fates frequently rest on the paperwork they have or have not filed, the declarations they have or have not made. The moment they set foot on American soil, unseen timers begin a countdown. For them, their entire lives can hinge on being able to prove themselves to the great and towering machine of bureaucracy.
Kirstjen Nielsen had all the help of the general counsel of the Department of Homeland Security, and she still filed her paperwork incorrectly. Years later, the Biden administration is paying for that mistake. Biden’s DHS — now headed by a legal, Senate-confirmed secretary — has attempted to retroactively ratify Chad Wolf and Kevin McAleenan’s administrative rulemakings; federal judges have refused to accept this maneuver. These policies originated illegally, and they remain illegal. Laws matter, and the process matters, especially when applied to an agency that inflicts a mercilessly exacting process on so many people.
But these are, in the end, minor inconveniences. The court cases that have taken up the question of the legality of Wolf’s and McAleenan’s tenures have largely been administrative law cases brought by immigration rights groups seeking to block or overturn administrative rules on the basis that they were promulgated by an illegal secretary. These court victories matter to the immigrants who are affected by these rules, but they do not matter to Trump’s illegal secretaries, who will likely not face any personal repercussions for their undocumented time in office.
The actions Chad Wolf ordered in Portland in the summer of 2020 stemmed from Trump’s own obsession with “lawlessness,” and Wolf justified the DHS’s brutality by citing damage to buildings on federal property and violence against law enforcement officers. On January 6th, 2021, a pro-Trump mob would storm federal property and attack federal law enforcement. The next day, Trump withdrew Chad Wolf’s nomination for secretary of homeland security after Wolf urged him to condemn the violence at the Capitol.
There had been a long and predictable lead-up to January 6th, which started with Trump’s refusal to concede and his continuing assertion that the election had been stolen. After Christopher Krebs, the director of the Cybersecurity and Infrastructure Security Agency, openly stated that there were no security anomalies in the 2020 election, Trump fired him via tweet. This was maybe par for the course; Trump had spent the last four years purging various top officials at the Department of Homeland Security for being insufficiently hard-line.
This is the third act, in which Chekhov’s gun makes its inevitable appearance. Krebs was the director of an agency that Trump himself had created in 2018; he had served in that position from the beginning. He was also, according to the last legally amended DHS succession order, the real legal acting secretary of homeland security.