President Donald Trump has been notified by his staff that he can’t select two popular figures — Ken Cuccinelli and Mark Morgan — to serve as an acting secretary of homeland security because a federal law governing agency succession makes them ineligible.
Instead, Sean Doocey, the White House director of presidential personnel, in recent days gave Trump a list of other officials to consider as acting secretary, including top DHS official Chad Wolf and Transportation Security Administration chief David Pekoske, according to three people familiar with the conversation.
The news has infuriated immigration hawks inside and outside the administration who had been lobbying for Cuccinelli to fill the role and now fear Trump will tap Wolf, a former chief of staff to ousted DHS Secretary Kirstjen Nielsen who once worked as a lobbyist on employment visas.
The Trump administration has been divided on the president’s signature issue from the start, with aides disagreeing on how tough to be on immigrants who arrived to the United States illegally, especially those who came when they were children.
Now, some worry that the infighting over the next DHS secretary and the issue itself could hurt Trump as he embarks on a tough reelection campaign that will largely focus again on cracking down on illegal immigration.
“Going with a career official or someone who once lobbied to replace American workers with cheap foreign labor sends the wrong signal right before an election year,” said RJ Hauman, government relations director at the Federation for American Immigration Reform, which has been supportive of Cuccinelli in conversations with the White House. “President Trump can choose to be on the side of his base and American workers, or throw in his lot with the swamp.”
Wolf is being considered to be acting secretary, according to three people, including a person close to DHS. He was registered as a lobbyist for the National Association of Software and Service Companies, which represents Indian and U.S. companies that aim to keep the the H-1B visa program for foreign workers with advanced degrees. In 2016, Trump criticized the H-1B visa program, calling it “a cheap labor” program.
Wolf has spent years advocating for “cheap foreign tech workers,” said a senior DHS official, who said Wolf’s appointment might cause them to resign. “He was the lone voice the previous secretary listened to. Her views on border enforcement, public charge and protecting American workers are his views….I signed up for the Trump message, not the Jeb Bush administration.”
A former DHS colleague of Wolf's pushed back on the notion that Wolf isn't as tough on immigration as Trump. “It’s a bizarre dynamic that these so-called hawks label anybody, other than [senior policy adviser] Stephen Miller, as soft on immigration,“ this person said. “I just don’t know where they’re getting it from that Chad’s immigration views diverge from the president.”
Cuccinelli and Morgan didn’t respond to requests for comment. The White House also didn’t immediately respond to a request for comment.
Trump could still ignore the advice from staff and name Cuccinelli or Morgan as an acting secretary — though he would likely face an immediate legal challenge — or consider them for permanent job if he chooses to nominate someone.
“I think he would look at either of them as more of a permanent nominee than as an acting person,” a White House official said. “I don’t think the goal would be to have another long-term acting. It would be to have somebody acting while the nominee’s confirmed.”
The president has long favored acting officials and, at least one person familiar with the situation says, he is expected to appoint a secretary on a temporary basis as he enters the final year of his term. It would be tough to get the type of leader he wants confirmed by even the Republican-controlled Senate.
Trump has gone through four DHS secretaries in less than three years in part because he and his allies grew dissatisfied with officials they thought were not sufficiently committed to the president’s immigration agenda.
“They can’t agree inside the White House on what immigration policy should be,“ said Mark Krikorian, executive director of the Center for Immigration Studies, which pushes for less immigration.
Trump announced two weeks ago that Kevin McAleenan would step down as acting secretary after serving just six months. Although he oversaw a reduction in the number of migrants caught at the southwest border, Trump allies complained he wasn’t fully implementing the president’s policies.
Next in line to become acting secretary is Pekoske, who has also been serving as acting deputy secretary at DHS, but he has reportedly taken himself out of the running.
Cuccinelli, acting head of the relatively obscure U.S. Citizenship and Immigration Services, is one of the president’s top lieutenants for his aggressive immigration agenda who has the support of leading DHS officials.
Mark Morgan, acting commissioner of Customs and Border Protection, is also being considered, according to the people familiar with the situation. He rejoined the Trump administration in May as acting ICE director, but moved to CBP the next month. The appointment represented a rapid ascent for the former Obama official, who left his post as Border Patrol chief during the early days of Trump’s presidency.
A statute that governs DHS succession places the deputy secretary and under secretary for management in line for the acting secretary role, although both of those positions are currently filled by acting officials.
A separate federal law that outlines procedures for filling vacancies requires that acting officials be either the “first assistant” to the position, a Senate-confirmed official detailed to the role or a senior employee at the agency for 90 days during a 365-day period before the vacancy occurred.
Cuccinelli and Morgan joined after the departure of Nielsen, the last Senate-confirmed DHS chief.