WASHINGTON — Nearly a year before the 2020 election, President Trump is running out of options in his search for a leader for the Department of Homeland Security who could win Senate confirmation or even serve in an acting capacity — and still carry out the president’s immigration crackdown.
The White House’s top personnel official advised Mr. Trump on Monday that two potential choices to lead the department, Kenneth T. Cuccinelli II, the acting director of the agency overseeing legal immigration, and Mark Morgan, the acting commissioner of Customs and Border Protection, are both ineligible for the position of acting homeland security secretary under the federal law that dictates who can fill secretary positions without Senate confirmation. The Wall Street Journal and Politico first reported the development.
Kevin K. McAleenan announced more than a week ago that he would leave as the fourth head of the department in Mr. Trump’s nearly three years in office.
A White House spokesman did not immediately respond to a request for comment.
While Mr. Trump has never said publicly that he would tap Mr. Cuccinelli or Mr. Morgan, they were widely thought to be top contenders for the job. In a matter of months, both went from defending the administration’s most aggressive immigration policies on television as pundits to implementing them as top Homeland Security Department officials.
Others in line for the position of acting secretary have either privately expressed distaste for it or are facing resistance from White House advisers.
The hole at the top of the sprawling Department of Homeland Security is only the latest staffing struggle at the agency, created after the Sept. 11 attacks to secure the country. The agency has been left riddled with vacancies and marred by instability as Mr. Trump has turned it into the mechanism of his signature campaign issue — a crackdown on illegal immigration — and ignored more mundane procedures attached to immigration policy.
The top three positions in the agency — secretary, deputy secretary and under secretary for management — are now filled by people working in an acting capacity. The leaders of Immigration and Customs Enforcement, Customs and Border Protection, and United States Citizenship and Immigration Services, the department’s agencies handling immigration enforcement and policy, also have not been nominated to their posts. And the White House must now find someone legally fit to head the department but tough enough to satisfy Mr. Trump.
“If what the president is looking for is someone who sounds like him, then not only are you not going to get good policy and implementation, but you may be shortchanging the many things D.H.S. should be doing,” said Cecilia Muñoz, who was director of the White House Domestic Policy Council under President Barack Obama. “What makes it an impossible job is the president doesn’t understand what the job involves and what authorities the position has.”
The White House’s personnel director, Sean Doocey, provided Mr. Trump with findings from the Justice Department’s Office of Legal Counsel on Monday that concluded tapping Mr. Cuccinelli or Mr. Morgan would violate the Vacancies Act. It stipulates that the position of secretary must go to ranked officials in the department who have cleared Senate confirmation. Mr. Doocey has advised that another option would be to name David Pekoske, who was confirmed as administrator for the department’s Transportation Security Administration but is serving as acting deputy secretary, or Chad Wolf, assistant secretary for the agency, according to administration officials.
Christopher C. Krebs, the director of the department’s cybersecurity agency, has also been floated as a temporary replacement for Mr. McAleenan but has no interest, administration officials said. Both Mr. Pekoske and Mr. Krebs have expressed to those close to them that they want to stick to their Senate-confirmed responsibilities rather than take up the acting secretary position. Some White House aides are resisting Mr. Wolf as the choice because they believe he would be too lenient on immigration policy.
While Mr. Cuccinelli and Mr. Morgan would face a difficult road to Senate confirmation, their fiery pronouncements and willingness to go along with Mr. Trump’s more extreme policies have pleased him. Last week, Mr. Cuccinelli received the public endorsement of the acting White House chief of staff, Mick Mulvaney, who said, “Ken would be good at the job.”
The Office of Legal Counsel, however, found that the next acting secretary must have served at least 90 days under Kirstjen Nielsen, the last Senate-confirmed person in the post. Mr. Trump forced her out, creating the vacancy of a Senate-confirmed chief. White House officials are also aware that elevating Mr. Cuccinelli could sow discord with Senator Mitch McConnell of Kentucky, the majority leader, who will have to manage Senate Republicans through a trial to determine the future of Mr. Trump’s presidency if the House impeaches him.
Mr. Cuccinelli endorsed an effort by hard-line conservatives to force Mr. McConnell to step down and backed Mr. McConnell’s primary challenger in 2014. Mr. McConnell previously voiced his disappointment to the White House over Mr. Cuccinelli’s appointment to the Department of Homeland Security. Mr. Cuccinelli told reporters last week that Mr. McConnell’s comments were “political.”
“I don’t know whether his view has changed, but certainly what I’ve been doing now is months removed from those comments you’re referencing,” Mr. Cuccinelli said, referring to his past as an anti-McConnell activist.
Democrats have also condemned the hard-liner, who said earlier this year that the poem on the Statue of Liberty referred to “people coming from Europe.”
Mr. Trump has grown accustomed to keeping officials at the Department of Homeland Security in acting positions as long as possible to give more leeway to White House aides like Stephen Miller, who have directed his immigration agenda behind closed doors. But former and current Homeland Security Department officials have said it has led to chaos.
Once Mr. Trump finds an acceptable candidate, that person will face difficult tasks: extending his border wall 400 more miles before the election and reducing illegal border crossings, which nearly totaled one million in the last fiscal year.
“It’s like a baseball player,” said David Lapan, former press secretary for the Department of Homeland Security. “If I’m going to be judged on my batting average, great, that’s on me. The secretary can’t affect the batting average. That requires an entire government.”