Loyalty Above All: The “Shallow State” of the Trump Administration

“Perhaps Intelligence should go back to school!” tweeted President Donald Trump in January 2019. He was taking another rhetorical shot at the intelligence community. Those professionals have been one of his favorite punching bags in what he’s repeatedly called the “deep state” of federal agencies and officials, a term and a concept with which we disagree. The individuals in question are generally career civil servants who dare raise legitimate concerns over the actions of the president or his political appointees.

Regardless of that disagreement, Trump’s solution to his so-called “deep state” problem has not been a carefully considered pruning or reorganization of the U.S. government. Instead, he has divested many executive branch positions of competence and expertise, and installed supporters whose most significant attribute appears to be political loyalty to him rather than deep experience and professional excellence. This standard is apparently applied despite an oath of office for federal employees, including political appointees, that swears them to “protect and defend the Constitution of the United States” and to “well and faithfully discharge the duties of the office.” The abrogation of this solemn principle by the Trump administration has created a distinctly shallow state over the past four years.

To make it easier to see the scope of this shallow state, we’ve compiled a list of Trump appointees across the administration’s national security apparatus — the intelligence agencies, the State Department, the Defense Department, the White House, and other elements — whose tenure has been marked by questions about their qualifications and competency or whose appointments appeared to be improper or even illegal. In some cases, the contrast with their predecessors is particularly stark. Those who were replaced in many cases were federal employees who were career professionals with deep expertise or otherwise highly qualified and competent but who were fired or forced out by Trump or his own political appointees for apparently spurious reasons and often with clear evidence of political motivations or retaliation. Even U.S. allies have raised questions about the competence of their counterparts, as their inexperience repeatedly resulted in scandals or gaffes.

Not only has the Trump administration placed a large number of unqualified or otherwise problematic individuals into positions of significant authority, but it has also left many politically appointed positions vacant for unusually long periods of time. Whether due to administrative mismanagement or a desire to escape congressional oversight, these vacancies have left critical gaps in the ability of certain agencies to function, while at the same time facilitating the rise of individuals lacking the requisite competence or expertise.

Often this has taken the form of acting officials, or others who can’t be appointed to the acting positions for various reasons of law or regulation and can only claim the title of “Senior Official Performing the Duties of,” a formal title often employed as a result of appointments that had been made in violation of statutory restrictions on vacancies or lines of succession. As of September 2020, at least 15 senior Trump administration officials do not hold their positions lawfully, according to a previous Just Security analysis by Becca Damante. As the president himself has said, “Acting [officials] give you much greater flexibility. A lot easier to do things.” And that cuts two ways — it eviscerates crucial guard rails that ordinarily would reduce opportunities for abuse of office and ensure the nation’s laws are carried out as intended when they were adopted by Congress. (For more on the implications, see Carrie Cordero and Joshua Geltzer’s “Trump’s Preference for Acting Officials Puts National Security at Risk.”)

In addition, some individuals have held concurrent positions, at times leading multiple offices in vastly different departments at the same time, giving rise to questions of capacity and conflicts of interest. These norm-breaking and at times unlawful appointments bypass the critical check of Senate confirmation, adding further fuel to the very issue we describe: incompetent or unqualified political actors filling essential positions in areas of governmentsuch as the National Security Council and Department of Defense, to the detriment of the nation’s security.

Five main issues contribute to this shallowing of the state:

● Qualifications Issues: Trump and his team have repeatedly appointed individuals to positions without appropriate experience or other major requirements for their positions. Marik String, for example, in May 2019 became the youngest and perhaps least experienced (acting) legal advisor for the Department of State in the department’s history — just five years after having been admitted to the bar and with just three years of legal practice on his record. At the Department of Homeland Security (DHS), the Trump administration recently appointed Chad Mizelle as acting general counsel, with similarly limited experience practicing law. Some appointees who lack qualifications related to foreign policy, national security, or government administration have had long careers in private practice or contract procurement. For instance, Patrick M. Shanahan was acting secretary of defense for a half year, even though his primary qualification was as a mechanical engineer and executive at Boeing for 31 years.

● Issues of Competency During Tenure: Some officials appeared qualified or somewhat qualified upon entering office, but issues of their competency arose during their tenure, calling into question their management of key national security issues. A notable example is Attorney General William Barr, whose tenure has been marred by multiple issues of deception and abuse of power.

● Concurrent Positions: Especially given the high number of vacancies, some Trump administration officials have served concurrently in multiple roles, with very different responsibilities, and potential conflicts of interest. Each position presumably commanded a full work week-plus on its own and full management of staff, raising serious issues of ability to do the job to the level required. Take Sean O’Donnell, for example. During a spree of Trump administration firings of inspectors general (IGs) this year, O’Donnell became the acting IG at the Department of Defense (DOD), in addition to his already significant role in the same position at the Environmental Protection Agency (EPA). The double hat raised concerns about his ability to competently perform his job, including among staff members, according to emails released in June.

● Acting or Appointment Issues: The Trump administration left many positions vacant, and as a result, those departments were run by non-Senate-approved officials serving in an acting capacity. As one Washington Post analysis found, Trump has had acting officials in office for more than three times as many days as the previous administration. In some cases, these vacancies have been found to directly increase security risks, such as in U.S. embassies abroad. The Federal Vacancies Reform Act of 1998 generally limits an acting official’s tenure to 210 days. Failing to fill positions with Senate-confirmed officials bypasses the chamber’s constitutionally-mandated role under the Appointments Clause to approve of crucial positions within the executive branch. (For an analysis of how the Federal Vacancies Reform Act can be revised in light of lessons learned from the past four years, we recommend Steve Vladeck’s recent article at Just Security.)

● Brain Drain: In contrast, some individuals within the national security apparatus who were highly qualified and experienced were fired, for seemingly no legitimate reason, or otherwise pressured to leave in what appeared to be politicalized and other improper personnel actions. These instances included retaliation against an entire cadre of respected career officials for doing their jobs, a phenomenon documented by the State Department’s Inspector General here and here, for instance. The descriptions in the list below includes such instances, since their absence contributes to a drain — the shallowing — of both expertise and institutional memory. This is not meant to be a comprehensive list of qualified civil servants pushed out of government during this administration; instead, we include examples of brain drain only where there is an intersection with one of the other issues outlined above.

All these issues contribute to the weakening of the national security architecture within the federal government. For the past four years, Americans have witnessed the wholesale dismissal of expertise and competency: from the mass exodus of civil servants across many agencies (DOJ, FEMA, overall layoffs due to “budget cuts”) to Trump’s strained relationship with multiple intelligence chiefs and, most recently, to the recent executive order creating a “Schedule-F” in the federal government personnel scale that potentially strips thousands of career civil servants of due process protections and allows loyalists to “burrow in” in what is supposed to be a non-partisan civil service.

To be sure, the U.S. government has not been left with only unqualified or incomptent national security leaders. Many career civil servants have remained in their jobs, despite the Trump administration’s onslaught on the civil service and in some cases on them personally. Moreover, inexperience may not always be a disqualifier in instances where a narrow list of educational requirements shuts out otherwise competent individuals with non-traditional but important skills and viewpoints needed to fortify the U.S. government’s national security system for a rapidly evolving global age.

Nonetheless, in the aggregate, this project highlights the sweeping lack of experience and competence that characterizes too much of the Trump administration’s national security architecture. The result is predictable. Overall, in national security as in other parts of the Trump administration, the White House has emphasized loyalty to the president over a person’s ability to perform the duties of these ever-more demanding roles, putting the nation at risk.

 

WHITE HOUSE

 

STEPHEN MILLER — Senior Advisor to the President and White House Director of Speechwriting (Jan. 20, 2017 – Present)

  • Qualifications Issue: Previously served as communications director for then-Senator Jeff Sessions (R-AL) and press secretary for then-U.S. Representatives Michele Bachmann (R-MN) and John Shadegg (R-AZ). Miller is known as an anti-immigration hardliner and a key architect of some of the administration’s most controversial immigration policies, including the Travel Ban, family separation at the U.S.-Mexico border, drastically reduced admissions of refugees and asylum seekers, and repeated attempts to end the Deferred Action for Childhood Arrivals (DACA) program. He also has promoted white supremacy and conspiracy theories relating to voter fraud.

STEVE BANNON — White House Chief Strategist and Senior Counselor to the President (Jan. 20, 2017 – Aug. 18, 2017)

  • Qualifications Issue: A former Navy lieutenant, investment banker, and executive chairman of Breitbart News, Bannon assumed the role of chief executive of Trump’s 2016 presidential campaign in August 2016, and followed the newly elected president to the White House. 169 Democratic members of the House of Representatives signed a letter calling on Trump to rescind Bannon’s appointment, referring to the aide as a promoter of “anti-Semitism, xenophobia, and racism.”
  • In late January 2017, Bannon was appointed by a Trump executive order as a “regular attendee” at National Security Council Principals Committee meetings, while the chairman of the Joint Chiefs of Staff and the director of national intelligence were relegated to attending only when issues specific to their roles arose. After an intense backlash, Bannon was removed from that role just three months later.
  • Bannon left the White House in August 2017, shortly after the Charlottesville Unite the Right rally, and returned to Breitbart News.
  • In August 2020, Bannon was arrested and charged with defrauding donors to a private fundraising scheme related to Trump’s southern border wall with Mexico.

SEBASTIAN GORKA — Deputy Assistant to the President (Jan. 2017 – Aug. 2017)

  • Qualifications Issue: A former editor for Breitbart News known for his extreme views of Islam and ties to the alt-right and frequent commentator on Fox News, Gorka styled himself as a counterterrorism expert. However, many national security experts questioned his qualifications and characterized his views as extreme,” “fringe,” and “widely disdained within his own field.” One terrorism analyst remarked that Gorka has the level of expertise “one would expect from a congressional intern.” Gorka claims a PhD in political science from Corvinus University of Budapest, though critics have questioned the validity of his academic credentials. Gorka’s own PhD advisor told CNN, “I would not call him an expert on terrorism.”

JARED KUSHNER — Senior Advisor to the President (Jan. 20, 2017 – present)

  • Qualifications Issue: Best known as the president’s son-in-law and husband of Ivanka Trump, Kushner primarily managed his family’s real estate business before joining the 2016 Trump campaign and later the White House. During the presidential transition, Trump reportedly requested top-secret security clearance for Kushner so that he could join the Presidential Daily Briefings on intelligence along with retired General and National Security Advisor Michael Flynn, a highly unusual move for someone with no national security experience. Later, when career officials rejected Kushner (and his wife) for top-secret clearance due to concerns about potential foreign influence and conflicts of interest, the decision was overruled by the White House. Kushner emerged as a significant figure in the Mueller investigation, as a result of his foreign financial and business dealings and Trump tower meetings with Russians during the campaign and transition.
  • Issues of Competency During Tenure: Kushner has a vast portfolio in the White House — highly unusual for someone with no government experience or expertise — ranging from border wall construction to Israel-Palestine peace negotiations to the administration’s bungled COVID response, for which he assembled a “shadow task force” of inexperienced volunteers who, according to a whistleblower, were pressured to “create a model fudging the projected number of fatalities” and fumbled the search for critical supplies.
  • Concerns remain over the national security vulnerabilities caused by Kushner’s ongoing foreign financial and business entanglements. For instance, Kushner’s support for a blockade of Qatar, a U.S. ally, in private meetings with leaders of Saudi Arabia and the United Arab Emirates, without the knowledge of then-Secretary of State Rex Tillerson coincided with a spat over Qatari funding for his family business. Kushner has also been a source of concern among cybersecurity experts for using his personal WhatsApp account to conduct government business and communicate with foreign leaders, including Saudi Crown Prince Mohammed bin Salman.

IVANKA TRUMP — “First Daughter and Senior Advisor to the President” (March 29, 2017 – present)

  • Qualifications Issue: Trump’s daughter and businesswoman known for her fashion brand, Ivanka Trump and her husband, Jared Kushner, joined the 2016 Trump campaign, and later, the White House, as senior advisers. In that capacity, she has appeared at a number of high-level meetings with foreign officials and heads of state, while reportedly continuing to pursue foreign trademarks for her business, some of which have been fast-tracked for approval by the same countries. As with her husband, the White House reportedly intervened to grant Ivanka Trump’s security clearance over the objections of career officials concerned about possible foreign influence and conflicts of interest.

 

NATIONAL SECURITY COUNCIL (NSC)

 

MICHAEL FLYNN — National Security Adviser (Jan. 22, 2017 – Feb. 13, 2017)

  • Qualifications Issue: Flynn resigned after less than a month after revelations that he misled Vice President Mike Pence and others in the White House over conversations he had before Trump took office with the Russian ambassador to the U.S. Flynn pleaded guilty in December 2017 to lying to the FBI in connection with the Mueller investigation into Russian interference in the 2016 election. Attorney General Barr this year moved to dismiss the case against Flynn, but the judge in the case is scrutinizing that move..

K. T. McFARLAND — Deputy National Security Adviser (Jan. 20, 2017 – May 19, 2017) 

  • Qualifications Issue: Previously served as a speechwriter and spokesperson in the Department of Defense during the Reagan administration, and as a political commentator on Fox News, she had been a close ally of Flynn’s and lost internal support after he resigned. She was subsequently nominated to be ambassador to Singapore on May 19, 2017, but never confirmed, and withdrew her nomination on Feb. 2, 2018.
  • Issues of Competency During Tenure: She was named by the Mueller Investigation in events leading up to Michael Flynn’s guilty plea for lying to the FBI and revised her statement concerning the sequence of events multiple times.

MICHAEL ELLIS — Senior Director of Intelligence (Mar. 2020 – Present)

  • Qualifications Issue: Recently promoted to a senior role in the NSC, Ellis was previously accused of serious ethical misconduct in the Trump Ukraine scandal while working as a White House lawyer, including by allegedly abusing the government’s national security classification system. He also allegedly leaked sensitive intelligence to a Republican congress member for political purposes.
  • Issues of Competency During Tenure: Ellis led the second pre-publication review of John Bolton’s book, The Room Where It Happened, and overturned a government expert’s determination that the book did not contain classified information, despite the fact Ellis was not officially trained to be a classification expert at the time of his review.

 

STATE DEPARTMENT

 

REX TILLERSON — Secretary of State (Feb. 1, 2017 to March 31, 2018) 

  • Qualifications Issue: Trump’s first secretary of state, until he was fired by the president after just over a year. Previously served as chairman and CEO of ExxonMobil from 2006 to 2017, with no experience in government or politics.
  • Issues of Competency During Tenure: Upon entering office, Tillerson proposed cutting the State Department budget by 31 percent, and oversaw a hiring freeze lasting 16 months – including 13 months after a Trump-initiated freeze was lifted by the Office of Management and Budget. The State Department’s IG later found the effects of the hiring freeze to have had a “broad and significant [negative] effect on overall Department operations” and a “negative or very negative effect on morale.” Congress rejected the administration’s proposals for massive cuts to the State Department and the U.S. Agency for International Development.

MIKE POMPEO — Secretary of State (April 26, 2018 – Present) 

  • Issues of Competency During Tenure: A well-qualified former CIA director and Republican congressman from Kansas who rose to prominence as an aggressive proponent of the Benghazi investigations into then-Secretary of State Hillary Clinton, Pompeo has since become the subject of numerous inquiries, including by the State Department Office of the Inspector General, into his own conduct in office, including accusations of obstructing the House’s impeachment inquiry into Trump, facilitating “emergency” arms sales to Saudi Arabia without congressional approval, violating the Hatch Act by engaging in campaign-related speeches and activities while on official duty, and misusing department resources and personnel for personal errands. In May 2020, Trump fired the State Department inspector general conducting many of these investigations. Pompeo’s conduct has also raised questions of whether he is violating the constitutional principle of separation of church and state with actions such as speeches he has given about being a “Christian leader” that were promoted on the State Department website.

MARIK STRING — Acting Legal Advisor (June 1, 2019 – Present) 

  • Qualifications Issue: String graduated from Georgetown Law School in 2012 and first passed the bar exam in February 2013. After practicing law for only a few years, String joined the State Department in a non-legal capacity in 2017, and was promoted to acting legal adviser on May 24, 2019, the same day the department filed an emergency waiver to bypass congressional oversight of a controversial arms sale to Saudi Arabia, the United Arab Emirates, and Jordan, for which String reportedly helped formulate the legal justification.
  • Acting Issue: String has been in the position of acting legal adviser for 16 months.

HEATHER NAUERT — Spokesperson (April 24, 2017 – April 3, 2019) and Acting Under Secretary of State for Public Diplomacy and Public Affairs (March 13, 2018 – Oct. 10, 2018)

  • Qualifications Issue: Former Fox News correspondent, co-host of “Fox & Friends,” reportedly Trump’s favorite TV show. On Dec. 7, 2018, Trump announced he would nominate Nauert to replace Nikki Haley as U.S. ambassador to the United Nations. Critics quickly noted her lack of foreign policy experience, and reports surfaced that her family had employed a nanny who was in the country legally but lacked a proper work visa. Nauert was never officially nominated, and withdrew from consideration in February 2019, citing family considerations.

MARI STULL — Senior Adviser in the Bureau of International Organization Affairs (BIOA) (2017 – Jan. 11, 2019)

  • Qualifications Issue: Former lobbyist for the food and beverage industry and wine blogger, Stull had branded herself the “Vino Vixen.”
  • Issues of Competency During Tenure: During her tenure in the State Department, she reportedly engaged in harassment, workplace bullying, and politicization of the diplomatic service, as documented by a Department IG report.

STEPHEN AKARDActing Inspector General (May 15, 2020 – Aug. 7, 2020)

  • Brain Drain: The director of the State Department’s Office of Foreign Missions, Akard was designated to replace Steve Linick (in office Sept. 30, 2013 to June 14, 2020), who served as Inspector General of the State Department under both the Obama and Trump administrations.Trump fired Linick on May 15, 2020, as his office was carrying out several probes into the administration, including regarding an arms sale to Saudi Arabia without congressional approval, and Secretary Pompeo’s alleged use of political appointees for personal errands.
  • Concurrent Positions: Akard insisted upon keeping his position as head of the Office of Foreign Missions while also serving as acting IG. As members of Congress highlighted, this arrangement means he would “report to Secretary Pompeo while simultaneously serving in a role that is required by law to be independent,” in a clear “inherent conflict of interest.” Akard resigned as Acting IG after less than three months.

 

Ambassadors

 

KELLY CRAFT — U.S. Ambassador to the UN (Sept. 12, 2019 – present) and U.S. Ambassador to Canada (Oct. 23, 2017 – Aug. 23, 2019)

  • Qualifications Issue: A former businesswoman and philanthropist who previously served a brief stint as an alternate delegate to the U.N. in 2007, after prominently supporting President George W. Bush in his 2004 re-election campaign. Craft and her husband, billionaire coal executive Joe Craft, donated about $1.5 million to GOP candidates in 2016, including to Trump, Senator Mitch McConnell of Kentucky, and Senator Marco Rubio of Florida. The couple reportedly are “gold”-level members at Trump hotels.
  • During her tenure as ambassador to Canada, she reportedly spent over half her time back in the United States.

GORDON SONDLAND U.S. Ambassador to the European Union (July 9, 2018 – Feb. 7, 2020) 

  • Qualifications Issue: A former hotel magnate and Trump mega-donor with no diplomatic experience, he had donated $1 million to the Trump inaugural committee. Sondland became a key witness in the House impeachment inquiry against Trump, testifying that actions to pressure Ukraine to investigate Joe Biden and his son, Hunter, were undertaken at the president’s direction. The president fired him on Feb. 7, 2020, two days after Trump’s acquittal in the Senate.

CALLISTA GINGRICH — U.S. Ambassador to the Holy See (Dec. 22, 2017 – present)

  • Qualifications Issue: A former congressional staffer, documentary producer, childrens’ book author, and third wife of former Speaker of the House Newt Gingrich. Reverend Gerald Fogarty, professor of religious studies and history at the University of Virginia, called her the “most extraordinarily unqualified ambassador to the Holy See in U.S. history.”

LANA MARKS — U.S. Ambassador to South Africa (Jan. 28, 2020 – present)

  • Qualifications Issue: Luxury handbag designer and member of Mar-a-Lago, Trump’s private club, Marks was born in South Africa but had not lived there in over 40 years. Prior to her appointment in January 2020, the ambassador post had been vacant since December 2016.

ROBIN BERNSTEIN — U.S. Ambassador to the Dominican Republic (Sept. 3, 2018 – Present)

  • Qualifications Issue: Florida businesswoman and insurance agent and founding member of Mar-a-Lago, Trump’s private club.

WOODY JOHNSON — U.S. Ambassador to the United Kingdom (Nov. 8, 2017 – Present)

  • Qualifications Issue: Businessman, heir to the Johnson & Johnson fortune, and co-owner of the New York Jets. Johnson donated over $1 million to Trump’s 2016 campaign and inaugural committee, and was subsequently appointed ambassador.
  • Issues of Competency During Tenure: Johnson was the subject of an IG investigation after a half-dozen current and former embassy employees said he regularly made racist and sexist comments to staff. He also sparked controversy in 2018 after seeking to have the lucrative British Open golf tournament moved to Trump’s Turnberry resort in Scotland, apparently at the request of Trump himself, and against the warning of career diplomats.

 

DEFENSE DEPARTMENT (DOD)

 

PATRICK M. SHANAHAN — Acting Secretary of Defense (Jan. 1, 2019, to June 23, 2019) after previously serving as Deputy Secretary (July 19, 2017 – Jan. 1, 2019) 

  • Qualifications Issue: Mechanical engineer with 31 years at Boeing, the second-largest U.S. defense contractor, before joining the Trump administration. In his last post at Boeing, he was the senior vice president of supply chain operations, having previously been general manager of Boeing’s Missile Defense Systems and Rotorcraft Systems. He had no other military or foreign policy experience. After six months as acting defense secretary, he resigned when an FBI background investigation revealed alleged incidents of domestic violence. During Shanahan’s nomination hearing to be deputy secretary of defense, Sen. John McCain (R-AZ) threatened to block his nomination because his answers during the nomination hearing were “unsatisfactory.” McCain also expressed concern that someone from one of the “big five” defense contractors would take over the number two position at the Pentagon.
  • Issues of Competency During Tenure: As acting secretary, Shanahan also drew bipartisan criticism from the leaders of the House Armed Services Committee for an order that they said would limit congressional oversight.

MICHAEL J.K. KRATSIOS — Acting Undersecretary for Research and Engineering (July 10, 2020 – present)

  • Qualifications Issue: His most significant work experience prior to joining the Trump administration was as chief of staff to Peter Thiel, billionaire co-founder of PayPal and Palantir and Trump supporter. The Defense Department’s press release announcing the appointment touted his then-current position as White House Chief Technology Officer though he had no technology degree. His highest degree was a bachelor’s from Princetonin political science. Kratsios replaced Michael Griffin, a physicist and aerospace engineer who previously served as administrator of NASA and has six advanced graduate degrees.
  • Concurrent Positions: He continues to serve concurrently as the White House Chief Technology Officer.

JASON ABEND — Inspector General (currently nominated, appointment pending)

  • Qualifications Issue: Abend is a senior policy adviser in U.S. Customs and Border Protection (CBP). Gordon Heddell, who previously served as DOD IG from 2008-2012 and as Department of Labor IG from 2000-2009 wrote in DefenseNews that Abend is “inexperienced and untested.” The nominee “has no experience running a large organization, a stark contrast to the past five Senate confirmed or acting Pentagon inspectors general, who possessed a combination of substantial executive, military, law enforcement, or inspector general experience,” Heddell wrote.

SEAN O’DONNELL — Acting Inspector General (April 6, 2020 – Present) 

  • Concurrent Positions: Serving concurrently as the Acting DOD IG as well as EPA IG, leading two major offices with vastly different mandates and concerns. In leaked emails, the dual positions appear to have highly concerned staff over O’Donnell’s ability to lead in both positions. O’Donnell previously was a prosecutor at the Department of Justice (DOJ) for 15 years, most recently in the Criminal Division’s Money Laundering and Asset Recovery Section.
  • O’Donnell replaced Glenn Fine (Acting January 10, 2016 – April 6, 2020), a highly respected, long-time inspector general who had served under both Republican and Democratic administrations. Fine resigned on June 1, 2020, after Trump demoted him from his inspector general post in what appeared to be a move to make him ineligible to serve as chair of the Pandemic Response Accountability Committee (PRAC), a committee designed to oversee and to promote transparency in the government’s spending related to the coronavirus response and the $2 trillion stimulus package. Former Defense Secretary James Mattis said of Fine’s resignation that it was “regrettable seeing such a highly competent, non-partisan patriot and public servant leaving government service.”

ANTHONY TATA — “Performing the Duties of” Deputy Under Secretary of Defense for Policy (July 31, 2020 – Present)

KATHRYN WHEELBARGER — Acting Assistant Secretary of Defense for International Security Affairs (Nov. 3, 2018- June 19, 2019) 

  • Acting Issue: Served as Acting for 7 months; never confirmed. On September 15, 2020, the GAO issued a report stating that her term as Acting Assistant Secretary of Defense violated the Federal Vacancies Reform Act of 1998. She was allegedly forced out due to expressed Trump administration concerns about her willingness to implement the president’s policies.

ELAINE MCCUSKER — Acting Deputy Under Secretary of Defense (Comptroller)

  • Acting Issue: Served as Acting for 18 months; never confirmed.
  • Brain Drain: Resigned under pressure when emails she sent questioning the legality of withholding funding for Ukraine were used by the democrats during the House impeachment proceedings.

 

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (ODNI)

 

RICHARD GRENELL — Acting Director of National Intelligence (Feb. 20, 2020 – May 26, 2020) 

  • Qualifications Issue: Previous career in political media relations, including as a contributor on Fox News. Grenell was “manifestly unqualified for the job, even in an acting capacity,” wrote the Washington Post editorial board when Grennell was nominated to the position. “He has no experience in intelligence or in managing large organizations — like the 17 agencies that will now report to him.”
  • Concurrent Positions: Also retained position as ambassador to Germany, where he encountered backlash from German politicians during his tenure, as well as special envoy for Kosovo-Serbia negotiations.
  • Issues of Competency During Tenure: In what was seen as a blatantly political move, Grenell declassified a list of former Obama administration officials who during their tenure requested the identities of unnamed U.S. persons in Russia-related U.S. intelligence reports, one of whom turned out to be Michael Flynn. Further, Grenell’s firing of a respected head of the National Counterterrorism Center prompted seven former heads of the unit and two other former senior national security officials to write in the Washington Post that the intelligence community was facing an unprecedented attack “from an insidious enemy: domestic politics.”
  • Brain Drain: During Grenell’s tenure, Trump fired Michael Atkinson, the well-regarded inspector general of the Intelligence Community, in retaliation for determining that the Ukraine whistleblower complaint that helped form the basis for the Trump impeachment proceedings was credible, which required it be disclosed to Congress. Grenell also fired both Russell Travers and Peter Hall, highly respected experts who led the National Counterterrorism Center (see above).

JOHN RATCLIFFE — Director of National Intelligence (May 26, 2020 – Present)

  • Qualifications Issue: A personal injury and medical malpractice lawyer, he previously served as a U.S. attorney for the Eastern District of Texas, the mayor of a small town in Texas, and a three-term Tea Party Republican representing the state in the House. He reportedly had embellished the little and tangential national security experience he touted. During the impeachment proceedings, Ratcliffe set himself up as a radical supporter of the president, misrepresenting facts and defending the most serious allegations as acceptable exercises of Executive Branch power. By February 2020, Ratcliffe was seen by some democrats as a better alternative to Richard Grenell but was confirmed by the Senate with the greatest number of ‘no’ votes since the DNI position was created.
  • Deputy CIA Director Mike Morrell and former Undersecretary of Defense for Intelligence Michael Vickers wrote in the Washington Post that “Ratcliffe has some national security experience from his service in Congress and in the U.S. attorney’s office; but, he would come to the (DNI) job with by far the least experience in foreign policy and intelligence of any DNI in two decades.
  • Issues of Competency During Tenure: He has been accused of manipulating decisions based on politics in what is supposed to be an apolitical position, including by declassifying documents that include sensitive intelligence, risking exposing sources to do so, and cancelling in-person election briefings to Congress. Former CIA Senior Intelligence Service Officer Marc Polymeropoulos said: “We have never seen a senior intelligence official so politicized as Ratcliffe.”

BRADLEY BROOKER — Acting General Counsel (March 3, 2020 – Present)

  • Acting Issue: Brooker has been in the acting position for eight months.

 

CENTRAL INTELLIGENCE AGENCY (CIA)

 

GINA C. HASPEL — Director (May 21, 2018 – Present) and Acting Director (April 26, 2018 – May 21, 2018)

  • Qualifications Issue: As first reported by the New York Times in 2018, Haspel oversaw the George W. Bush administration’s “black site” secret prisons, including having some supervisory responsibility during the Abu Zubaydah interrogation and was chief of base during the waterboardings of Abd al Rahim al Nashiri. She has been criticized by many national security experts, including for her role in the destruction of at least 90 videos documenting “aggressive interrogation methods” by U.S. officials.

NATIONAL SECURITY AGENCY (NSA)

 

CURRENTLY VACANT/NO ACTING — General Counsel 

  • Acting Issue/Vacancy Issue: Teisha M. Anthony, the NSA’s Principal Deputy presumably fills the role, but there is currently no official acting general counsel.

HOMELAND SECURITY (DHS)

 

The U.S. Government Accountability Office (GAO) recently concluded that the officials currently acting in the top two roles at DHS — Acting Secretary Chad Wolf and ‘Senior Official Performing the Duties of Deputy Secretary’ Ken Cuccinelli — were invalidly appointed and thus are serving in office illegally. The report found that after Secretary Kirstjen Nielsen’s departure in April 10, 2019, Kevin McAleenan assumed the role of acting secretary in violation of the order of succession provided for under the Homeland Security Act of 2002 (HSA). As a result, the subsequent appointments of Wolf and Cuccinelli were also improper because they relied on an amended designation made by McAleenan. DHS, created in the wake of the 9/11 terror attacks and now with more than 240,000 employees working in critical areas such as border security, cyber security, and emergency management has been without a Senate-confirmed secretary for more than18 months.

CHAD MIZELLE —Senior Official Performing the Duties of the General Counsel(Feb. 2020 – present) 

  • Qualifications Issue: Reportedly a close ally of Stephen Miller (see White House entry above), with whom his predecessor, John Marshall Mitnick, and other former DHS officials clashed. Mizelle earned a JD from Cornell in 2013, giving him less than 10 years’ experience practicing law, causing serious concerns about his qualifications to lead an office of more than 2,500 lawyers. Prior to joining DHS, Mizelle’s resume notes he served as a law clerk at the DC Circuit Court in 2014-2015, and volunteered on the Trump campaign in 2016. He briefly practiced at a law firm, and served as counsel to the deputy attorney general at DOJ for one year.
  • Acting or Appointments Issue: He has been a “Senior Official Performing the Duties of the General Counsel” since February 2020.
  • Brain Drain: Mizelle succeeded Joseph B. Maher and John Marshall Mitnick, the last Senate-confirmed general counsel (March 6, 2018 – Sept. 17, 2019), a former associate general counsel at DHS. Mitnick was fired on Sept. 17, 2019, reportedly as part of a cadre of DHS officials that the White House sought to “purge” following the forced resignation of Secretary Nielsen. A number of the officials forced out “were said to be viewed by [White House adviser Stephen] Miller as obstacles to implementing the president’s policies.” At the time of his firing, Mitnick’s office was defending the department in multiple lawsuits over the administration’s immigration policies.

JOSEPH CUFFARI — Inspector General (July 25, 2019 – Present) 

  • Qualifications Issue: Confirmed by the Senate on July 25, 2019. A former policy advisor to the governor of Arizona, he served in the U.S. Air Force, including in leadership positions with the Air Force Office of Special Investigations (AFOSI) and the DOD Office of the Inspector General (OIG). He also served in DOJ for over 20 years. But Cuffari’s official government biography notes he earned a PhD in Management in 2002 from California Coast University, a private on-line university offering no classroom instruction that reportedly was unaccredited at the time. A 2004 GAO report referred to California Coast University as among a number of “diploma mills” that issue “bogus degrees to federal employees at government expense.”
  • Issues of Competency During Tenure: In March 2020, House Homeland Security Committee Chair Bennie Thompson (D-MS.) wrote a letter to Cuffari expressing “deep concerns” about the quality of two reports issued by Cuffari’s office on the deaths of two children in the custody of Customs and Border Protection.

KIRSTJEN NIELSEN — Secretary (Dec. 6, 2017 – April 10, 2019) 

  • Qualifications Issue: At the time of her nomination in October 2017, she had been serving for a little over a month as principal deputy chief of staff under newly appointed White House Chief of Staff John Kelly, for whom she worked for six months as chief of staff when he was Secretary of Homeland Security. Nielsen had been a special assistant in the White House and an assistant administrator in the Transportation Security Administration during the George W. Bush administration, after which she left government and set up a one-person consulting firm.
  • Issues of Competency During Tenure: Nielsen’s tenure as Secretary of Homeland Security was marked by controversy over the administration’s family separation policy, which she defended and implemented, and other immigration and border-related measures. She resigned in April 2019, after months of media speculation and reports of clashes with the president and immigration hardliners in the White House.

DAVID PEKOSKE — Acting Deputy Secretary (April 11, 2019 – Nov. 13, 2019) 

  • Concurrent Positions: A retired U.S. Coast Guard vice admiral, he formerly served as vice commandant of the Coast Guard. In addition to his acting deputy position, he is the administrator of the Transportation Security Administration (TSA).

ELAINE DUKE — Acting Secretary (July 31 – Dec. 6, 2017) 

  • Acting Issue: Longtime Homeland Security official under three administrations, but served in the acting secretary position for more than four months after John Kelly’s move to the White House, until the Senate confirmed Kirstjen Nielsen..

KEVIN K. MCALEENAN — Acting Secretary (April 11, 2019 – Nov. 13, 2019) 

  • Acting Issue: Assumed the role after the resignation of Kirstjen Nielsen. Previously served as deputy commissioner of U.S. Customs and Border Protection (CBP) under Obama, and Commissioner of CBP under Trump. The GAO later concluded that McAleenan’s assumption of the acting position violated the statutorily mandated order of succession, according to which the position should have gone to Claire Grady, then-acting deputy secretary (April 16, 2018 – April 10, 2019), who Trump reportedly forced out to make way for McAleenan.
  • Shortly before McAleenan resigned on Oct. 11, 2019, he amended the designated order of succession, setting up the appointments of Wolf and Cuccinelli as acting secretary and deputy secretary, respectively, in a manner that the GAO also found unlawful.

CHAD WOLF — Acting Secretary (disputed) (Nov. 13, 2019 – present) 

  • Acting or Appointment Issue: Wolf assumed the position of acting secretary after McAleenan’s departure. He previously served in a number of positions in the department, including chief of staff of the TSA, deputy chief of staff and aide to Deputy Secretary Duke, chief of staff to Nielsen, and assistant secretary of Homeland Security for Strategy, Plans, Analysis & Risk. Wolf was nominated to an under secretary role in February 2019 and his Senate confirmation was still pending when he was named acting secretary, following McAleenan’s departure. As with McAleenan, the GAO later concluded that Wolf was invalidly appointed and is thus illegally serving in office.
  • Issues of Competency During Tenure: Wolf was reportedly an architect of the administration’s family separation policy while serving as chief of staff to Nielsen. As acting secretary, Wolf played a prominent role in the deployment of federal law enforcement to Portland and other cities (including in unmarked, military-style uniforms), where they used tear gas on protesters, who Wolf called a “violent mob”, “violent criminals” and “violent anarchists.” A whistleblower complaint also alleges that Wolf instructed a staff member not to disseminate intelligence products on Russian threats to the presidential election because it “made the president look bad.”

KEN CUCCINELLI — “Senior Official Performing the Duties of the Deputy Secretary” (Nov. 13, 2019 – present) and “Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services” (June 10, 2019 – Present)

  • Acting or Appointment Issue: The former attorney general of Virginia, Cuccinelli was named “Senior Official Performing the Duties of the Deputy Secretary” in November 2019 by the then-newly sworn-in Acting Secretary Chad Wolf, and continues to serve concurrently as “Senior Official Performing the Duties of the Director” of the department’s U.S. Citizenship and Immigration Services (USCIS). Both roles raise serious acting or appointment issues. In March 2020, a federal district court found that Cuccinelli’s appointment to the USCIS director position was unlawful, in violation of the Federal Vacancies Reform Act of 1998 (report). Similarly, the GAO concluded in August 2020 that, as with McAleenan and Wolf, Cuccinelli was invalidly appointed to the deputy secretary role as well, and is thus illegally serving in both offices.
  • Issues of Competency During Tenure: A whistleblower complaint alleged that Cuccinelli ordered a senior intelligence officer to change the final findings of intelligence reports, attributing the reports to “unknown ‘deep state intelligence analysts’” who were “compiling intelligence information to undermine President Donald J. Trump’s policy objectives with respect to asylum.” Cuccinelli also ordered a senior intelligence officer to identify the analysts “who compiled the intelligence reports to either fire or reassign them immediately.” He also oversaw the compilation of national security intelligence reports on American journalists who covered the Black Lives Matter protests in Portland, Oregon.

JOSEPH B. MAHER — “Senior Official Performing the Duties of the Under Secretary, Office of Intelligence and Analysis” (Aug. 3, 2020 – Present), Principal Deputy General Counsel (est. 2011 – Present), and former Acting General Counsel (est. Sept. 2019 – Feb. 2020).

  • Acting Issue: Maher was elevated to acting general counsel after the firing of John Marshall Mitnick (see above), the last Senate-confirmed DHS general counsel (March 6, 2018 – Sept. 17, 2019). Maher appears to have served in the acting position for about six months, before the appointment of Chad Mizelle, and was then appointed “Senior Official Performing the Duties of the Under Secretary, Office of Intelligence and Analysis.”
  • Concurrent Positions: After leaving the position of acting general counsel, Maher appears to have returned to his role as principal deputy general counsel, and in August 2020 was appointed concurrently as “Senior Official Performing the Duties of the Under Secretary, Office of Intelligence and Analysis.”
  • Issues of Competency During Tenure: Maher was subpoenaed in September by the House Intelligence Committee to testify related to the whistleblower complaint against DHS leadership for politicizing intelligence, after the agency failed to turn over key documents in what committee Chairman  Adam Schiff (D-CA.) called “unlawful obstruction.”
  • Maher appears to have assumed the position of “Senior Official Performing the Duties of the Under Secretary, Office of Intelligence and Analysis” after the whistleblower, Brian Murphy, was pushed out of that same position. Murphy, a career official, was reassigned after reports surfaced that his office had gathered intelligence on several U.S. journalists covering the unrest in Portland, Oregon.

JOHN V. KELLY — Acting Inspector General (Dec. 1, 2017 – June 2019) 

  • Acting Issue: Assumed the role of acting IG in December 2017, after serving as deputy IG since June 2016.
  • Issues of Competency During Tenure: Kelly retired early in June 2019, after the Washington Post reported findings that he had ordered auditors to cover up problems with the Federal Emergency Management Agency’s response to disasters.

 

JUSTICE DEPARTMENT (DOJ)

 

WILLIAM BARR — Attorney General (Feb. 14, 2019 – Present) 

MATTHEW WHITAKER — Acting Attorney General (Nov. 7, 2018 – Feb. 14, 2019)

  • Qualifications Issue: Previously served as chief of staff to then-Attorney General Jeff Sessions, during which time Whitaker was accused of violating the Hatch Act several times. Before entering the Trump administration, Whitaker worked at a hot tub design company that was shut down by the Federal Trade Commission (FTC) for systematically deceptive practices.
  • Issues of Competency During Tenure: The New York Times reported in October that, during his tenure, Whitaker rejected the Southern District of New York’s request to file criminal charges against a major Turkish bank after Turkish President Recep Tayyip Erdogan pressured Trump to drop the case.
  • Acting Issue: Multiple constitutional law experts have argued that Whitaker’s appointment to acting attorney general was unconstitutional since he was not working in a Senate-confirmed position at the time.

KELLEN DWYER Deputy Assistant Attorney General in charge of the Office of Law and Policy in the National Security Division (Aug. 2020 – Present) 

  • Qualifications Issue: Dwyer is known for accidentally revealing that federal charges had been filed against Julian Assange, the Wikileaks founder. Dwyer, a 36-year-old cyber-crimes prosecutor, had been in government just six years and replaced a 23-year career civil servant. Former officials raised concerns over his appointment so close to the election and in the face of rising issues of domestic terrorism.

 

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Image: JIM WATSON/AFP via Getty

 

About the Author(s)

Danielle Schulkin

Fellow at Just Security. JD, New York University School of Law. Prior to entering law school, she worked at the United States Department of Justice on the 2008 Financial Crisis Task Force and at the Geneva Initiative, an Israeli-Palestinian peace process think tank. Follow her on Twitter (@DaniSchulkin).

Julia Brooks

Julia Brooks is a Furman Public Policy Scholar and J.D. candidate at NYU School of Law, where she is also a Student Scholar at the Reiss Center on Law and Security. She previously served as a Senior Legal Research Associate at the Harvard Humanitarian Initiative, and spent several years working in Germany, Bosnia, and The Hague on international law and justice. Follow her on Twitter (@Julia1Brooks).