White House personnel director told Trump that Cuccinelli isn't eligible for DHS chief

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The Justice Department’s Office of Legal Counsel concluded that neither of the two men, who were said to be Trump’s favorites to succeed McAleenan and filling acting posts at the Department of Homeland Security, are eligible to succeed McAleenan because they had not served at least 90 days under the last Senate-confirmed Homeland Security secretary, Kirstjen Nielsen.

The administration is yet again seeking someone to fill the top post at the Department of Homeland Security, after a year of high border apprehension numbers and leadership turnover. In April, the White House’s growing frustration with leadership led to Nielsen’s 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, leaving few choices within the department to fill the acting secretary post.

Ken Cuccinelli's rise at the Department of Homeland Security
McAleenan submitted his resignation earlier this month. A source familiar with McAleenan’s thinking told CNN that the acting secretary felt he had accomplished all he could given the political realities of today — specifically the unlikelihood that any legislative deal on immigration will happen in an election year. He also has two young daughters and a wife with whom he wants to spend more time.

Cuccinelli was immediately rumored to be among the candidates considered for the acting secretary job. The former Virginia state attorney general is currently serving as the acting head of US Citizenship and Immigration Services, where he’s been out front on the President’s immigration agenda.

But there are legal hurdles to installing Cuccinelli as acting Homeland Security secretary.

In order to be eligible to serve as acting secretary, one of three things would have to be true: Cuccinelli would have to be the “first assistant” to the secretary; he’d have to be confirmed by the Senate to some other position; or he’d have to have been a senior DHS official for at least 90 of the 365 days preceding the vacancy, according to Steve Vladeck, a professor at the University of Texas School of Law and CNN contributor.

Cuccinelli joined the department June 10, two months after Nielsen was dismissed.

“The first possibility is precluded by statute (the Deputy DHS secretary is the ‘first assistant,’ and Cuccinelli isn’t that). He hasn’t been confirmed by the Senate, which knocks out the second possibility. And he wasn’t at DHS for any time before Secretary Nielsen resigned, let alone 90 of the 365 days preceding her departure. That ought to be the end of it,” said Vladeck.

Mark Morgan, who’s currently heading Customs and Border Protection in an acting capacity, has also been floated as a possible replacement. Morgan assumed the acting commissioner role earlier this year following a brief stint at Immigration and Customs Enforcement. Other options for the secretary position were also proposed, according to an administration official.

It’s not immediately clear who Trump would tap to replace McAleenan on an acting basis when he leaves his post, expected to be at the end of the month.

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