By Alyssa Aquino

Law360 (September 17, 2020, 5:56 PM EDT) -- Chad Wolf, acting head of the U.S. Department of Homeland Security, spurned a subpoena and missed a U.S. House hearing Thursday, depriving lawmakers of testimony on whistleblower allegations of political interference in the department and other national security issues.

House Committee on Homeland Security Chairman Bennie Thompson, D-Miss., rebuked Wolf's absence in his opening remarks, saying the public should be "appalled" by his refusal to submit to questioning over the department's response to domestic terrorism, foreign interference in the 2020 election and the coronavirus health emergency.

"Mr. Wolf may attempt to evade oversight and the department may try silly stunts to distract from this hearing, but we will not waiver," Thompson said. "The stakes are just too high."

The hearing was scheduled to take place days after a nurse filed whistleblower claims that hysterectomies were being forced onto women at a private Georgia facility where U.S. Immigration and Customs Enforcement, a part of DHS, detains migrants.

A DHS employee also blew the whistle on claims that Wolf instructed department officials to modify intelligence reports on Russian election interference, immigration and white supremacist groups to align them with the Trump administration's policy objectives. Thompson referenced these claims as he repudiated Wolf's no-show, suggesting that lawmakers were prepared to grill the official on them.

Wolf's appointment as acting secretary has faced its own challenges. In August, the U.S. Government Accountability Office concluded in a report that the Trump administration had invalidly installed Wolf as DHS head, a finding that the department blasted as a "brazenly partisan product."

Immigration advocates looking to strike down Wolf's recent policies included the GAO's findings in their ongoing suits. Last week, a Maryland federal judge said that Wolf was likely illegally helming DHS, marking the first judicial input on the issue.

On Sept. 10, President Donald Trump formally nominated Wolf as DHS secretary. The department flagged the nomination to the House Committee days before it went out, saying in a Sept. 8 letter that it was inappropriate for Wolf to testify.

"It is standard practice for nominated officials not to testify in their acting roles in front of a congressional committee before they have been confirmed," wrote Beth Spivey, DHS Assistant Secretary for Legislative Affairs.

The committee subpoenaed Wolf on Sept. 11, with Thompson saying the "standard practice" didn't hold the force of law and was unreasonable in light of Wolf's nearly 10-month stewardship of the department.

Kris Kolesnik, who spent 19 years as senior counsel for Sen. Charles Grassley, R-Iowa, told Law360 on Thursday that DHS' explanation for Wolf's no-show was bogus. Wolf has spoken on television on several occasions and — as acting secretary — was duty-bound to report to Congress unless he's barred by a "really, really good constitutional reason," Kolesnik explained.

Moreover, there was no one else who could provide the information Congress was seeking, Kolesnik said.

In a letter to the committee, DHS offered to have Ken Cuccinelli, the senior official performing the duties of the deputy secretary, testify instead of Wolf. The committee refused the offer, prompting Cuccinelli to call the hearing "political theater" in a Thursday statement.

"A deputy can speak to the policy of the administration, but lawmakers now want to know what Wolf has already done. They're not looking forward to policy," Kolesnik said. "It's not appropriate for Cuccinelli to pinch-hit for Chad Wolf; this is an oversight hearing."

But Jeff Robbins, who served as chief counsel to the Democratic Senators on the Senate Permanent Subcommittee on Investigations, said there was nothing Congress could do as lawmakers barrel toward another election.

Lawmakers could attempt to go through the time-consuming process of holding Wolf in contempt and seek a court order enforcing the subpoena, but the effort would moot in a couple of months, either because a new congressional class is voted in or because the Trump administration is voted out, Robbins said.

"Everybody knows there's not much — as a practical matter — that the Democrats can do about what is essentially the middle finger being given to Congress," he said.

Thompson said the committee was reviewing its options in a statement issued after the hearing.

"[W]e will certainly not hesitate holding Mr. Wolf in contempt for defying our lawful subpoena," he said.

--Additional reporting by Vin Gurrieri and Suzanne Monyak. Editing by Adam LoBelia.

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