The secretary of the Department of Homeland Security, retired General John Kelly, will be the new White House chief of staff starting Monday.
In the calmest of administrations at any time, this would raise questions about what such a decision would mean for the White House and DHS. But in an administration already rife with firings, departures, policy changes, and surprise announcements, Kelly’s new move could end up producing wide-ranging effects from a series of simple decisions — like who will run DHS now.
About two hours after President Trump sent his tweet announcing Kelly’s move to the White House, DHS announced that Elaine Duke, the Senate-confirmed deputy secretary of DHS, will become acting secretary on Monday.
This follows the succession order in place at the department — which then-President Obama signed in Dec. 2016.
Although Trump nominated Duke, there’s no reason to believe that he ever believed that she would be — even temporarily — running the department. (See, for example, his attacks on Rod “Baltimore (but not actually)” Rosenstein, whom he nominated to serve as No. 2 at the Justice Department without apparently knowing much about him.) Duke has worked in DHS under presidents of both parties, and appears to be generally respected by those who know her work.
Now, she is set to be the acting head of DHS over several months, until a successor is nominated and confirmed. Duke would be responsible for overseeing the agencies and offices responsible for several of the policies Trump feels most strongly about — including aspects of the travel ban, deportation and detention policies, and the border wall.
For instance: Under the travel ban, Kelly was responsible for conducting a worldwide review to determine “whether, and if so what, additional information” is needed to determine basis that people seeking visas or other admission to the US are not security threats, on a country-by-country basis. Kelly was required to submit a report “of the information needed from each country for adjudications and a list of countries that do not provide adequate information” to the White House within 20 days of the ban going into effect.
A DHS spokesperson told BuzzFeed News that the report was submitted to the White House the week of July 10. Further questions were referred to the White House, which has not responded to multiple questions about the report over the past week.
Kelly, in his new role, now will be responsible for helping Trump coordinate the response to his own report, which is supposed to be used to set the country’s policies for Trump’s sought-after "extreme vetting."
And now, at DHS, Duke will be responsible for implementing other requirements under the travel ban executive order — and working with the State Department to implement any changes to the vetting procedures.
Trump, though, could end up appointing someone besides Duke to run the department — including, yes, Attorney General Jeff Sessions.
Under the DHS succession order set by Obama and the government-wide Vacancies Reform Act, Trump could name anyone who has been confirmed by the Senate to any position in the administration to serve as the acting secretary of DHS for about seven months. He also could name anyone at DHS who makes roughly $100,000 a year or more and has served in the department for at least 90 days as the acting secretary under the same law.
About 5,000 people appear to qualify under that provision, according to a BuzzFeed News review of federal employment records from the end of March, including about 900 people each from Customs and Border Protection, Immigration and Customs Enforcement, and US Citizenship and Immigration Services. (The March records are the most recent vintage published by the Office of Personnel Management; it’s possible that some of the employees no longer work for DHS.)
Under a domino-effect scenario that is reportedly being backed by some senior staff in the White House and talked about DHS, Trump could move Sessions to run DHS. Because he was confirmed by the Senate to serve as attorney general, Sessions could serve as the acting director of DHS for seven months without any further Senate action needed. In order to serve permanently, however, he would have to be nominated. Once nominated, moreover, he could not serve in an acting role under a recent Supreme Court decision.
There are some reasons, structurally, why this would make some sense. The Justice Department provides the controlling legal advice to DHS about the laws it enforces. The Justice Department also defends DHS and related policies — like Trump’s travel ban — in court. (Lost in the midst of this past hectic week, for example, was the fact that the Justice Department asked a federal appeals court to reverse a lower court ruling that exempts grandparents and other family member from the ban on travel from six Muslim-majority countries.)
Notably, however, there has been significant pushback on this possibility — including from Sen. Lindsey Graham, who called it a “[b]ad idea” on Twitter — and no one is saying on the record that the Sessions move is a real possibility. Nonetheless, given Trump’s other moves, it’s not quite clear (particularly in light of his expressed “disappointment” in Sessions’ recusal decision over the Russia investigation at Justice) that this possibility should be totally discounted.
Such a move, of course, could lead to further changes. Sessions at DHS would, at some point, mean an opening at the Justice Department. Rosenstein — under the Justice Department’s succession order — would then take over as acting attorney general.
If Trump moved Sessions to DHS, though, it’s hard to imagine he would keep Rosenstein running the Justice Department for very long. And if Sessions is gone and Rosenstein isn’t running things, that could put in doubt the future of the special counsel investigation. As BuzzFeed News reported earlier this week, there are, similar to with DHS, thousands of other people who Trump could put in place to run the department on an acting basis for about seven months without needing to seek Senate approval.
In short, the full extent of and fallout from Trump’s Friday move of Kelly to the White House is not yet known — and might not be for several days as everyone figures out who’s doing what where.
Jeremy Singer-Vine contributed to this report.
This story was updated to clarify the circumstances that could lead to a vacancy at the head of the Justice Department.
Chris Geidner is a Supreme Court correspondent for BuzzFeed News and is based in Washington, DC.
Contact Chris Geidner at email@example.com.
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