McAleenan could stay longer at Homeland Security as White House eyes loophole for Cuccinelli as possible successor

Less than 48 hours before the acting Homeland Security secretary is set to leave his post, President Donald Trump has yet to pick a successor despite promising to do so two weeks ago.

Trump administration officials have scrambled in recent days to find a legal workaround that would keep two immigration hardliners Trump favors for the job in contention, even after White House officials concluded they were ineligible. But with acting Homeland Security Secretary Kevin McAleenan’s Thursday departure date rapidly approaching, officials said McAleenan could stay up to a week longer to ensure a smooth transition.

McAleenan indicated Wednesday that he is open to the possibility of staying on until a successor is named.

“I hope a plan for the successor is imminent, but if necessary, I will absolutely ensure a smooth transition,” he said during a House Homeland Security Committee hearing, where he was testifying on global terror threats.

Just last week, White House officials determined that nether Ken Cuccinelli, the acting director of Citizenship and Immigration Services, nor Mark Morgan, the acting Customs and Border Protection chief, were eligible to succeed McAleenan as acting secretary because they had not served at least 90 days under the last Senate-confirmed Homeland Security secretary, Kirstjen Nielsen, who left office in April.

White House personnel director Sean Doocey was tasked with conveying the message to Trump, relying on a ruling from the Justice Department’s Office of Legal Counsel.

But in the latest sign that Trump is leaning toward picking Cuccinelli or Morgan, administration officials have apparently found a loophole.

The White House has determined Trump could tap either man to lead the Department of Homeland Security by first appointing him to serve in the currently vacant post of assistant secretary of the Countering Weapons of Mass Destruction Office before naming him acting Homeland Security secretary, according to a DHS official. The official said the White House has determined Trump has that legal authority under a mechanism first reported by The New York Times.

When asked during Wednesday’s congressional hearing about the succession plans at the department, McAleenan said the administration “will follow the law in naming a successor,” but he would not discuss “pre-decisional personnel efforts.” He said he had not discussed nominating someone to be the assistant secretary of the Countering Weapons of Mass Destruction Office with the President, but declined to say whether he’d had discussions about it with anyone else in the administration.

He also said he has “no present plans” to change the order of succession at Homeland Security.

The turbulent and drawn-out process for picking McAleenan’s successor underscores the extent to which the successor will define the agency charged with one of Trump’s top priorities, immigration enforcement. In recent weeks, people inside and close to the administration have battled to push their preferred picks, between hardliners like Cuccinelli and Morgan or career officials.

Cuccinelli refused to say whether the White House has talked to him about the Homeland Security secretary role.

“It’s really not for me to talk about,” he told CNN. “It’s their prerogative.”

McAleenan, who’s served as acting secretary since April, submitted his resignation to the White House earlier this month. Trump applauded McAleenan’s work at the department in announcing the acting secretary’s resignation, and said he would announce a successor in the coming days.

Asked Tuesday if McAleenan was still planning to leave office on Thursday, a DHS official could not confirm the date, but said that “the Secretary has always said he will work with the White House on his departure date to ensure a smooth transition.”

In April, the White House’s growing frustration with leadership led to the ouster that placed McAleenan at the helm. Since then, many of the leading roles in the department have been filled with people serving in an acting capacity, making it more difficult to elevate a successor.

Cuccinelli, who sits at the helm of an immigration agency within DHS and has been out front on Trump’s agenda, has been rumored as McAleenan’s successor.

David Pekoske, McAleenan’s number two, is not expected to take over the top role. Pekoske, who has been filling in as the Homeland Security deputy secretary, has been “clear that he fully intends” to serve out his five-year term as Transportation Security Administration administrator, according to a DHS official.

The White House also considered Chad Wolf to replace the outgoing acting Homeland Security secretary, according to two sources familiar with the process.

Wolf, a senior department official, previously served as chief of staff to Nielsen. He was nominated by Trump in February to serve as undersecretary for the Office of Strategy, Policy, and Plans at DHS, a role he currently fills in an acting capacity.

He is still awaiting Senate confirmation for the position.