This should be a lay-up confirmation, but the president and his minions could make it more interesting than it should be.
A month ago, I related that, after nominating his Manhattan U.S. attorney, Jay Clayton, to become director of national intelligence in an effort to forge a compromise that would at least temporarily extend the government’s statutory foreign surveillance authority (FISA Section 702), President Trump abruptly scotched his own plan by directing Clayton not to show up to his confirmation hearing — to the chagrin of Senate Intelligence Committee chairman Tom Cotton, who’d tried to help the White House by accelerating the hearing.
The president was in a fit of pique because (a) Republicans won’t abandon the filibuster — which would be a massive coup for Democrats — to pass his voter ID legislation (the so-called SAVE Act), and (b) Democrats would not extend Section 702 unless Trump rescinded the appointment of Bill Pulte as acting DNI, replacing Tulsi Gabbard, Trump’s confirmed DNI, who was stepping down.
We’re back to square one, sort of. While today’s Senate Judiciary Committee confirmation hearing for Todd Blanche (the acting AG vying to become full-fledged AG) has gotten most of the attention, the Senate Intelligence Committee will simultaneously be holding a confirmation hearing for Clayton.
Blanche will deservedly be grilled aggressively. Clayton is expected to get an easier time.
I’d have said a much easier time a month ago, since there are Democrats who are favorably disposed toward Clayton and want to hasten the renewal of Section 702 (importantly including the Intel Committee’s ranking member, Senator Mark Warner (D., Va.)). Nevertheless, in the ensuing weeks, it’s become obvious that Pulte, the Trump loyalist whose day job is director of the Federal Housing Finance Agency, was installed at ODNI — despite his lack of qualifications and despite Trump’s knowledge that his appointment would cause the nation’s surveillance authority to lapse — in order to mine intelligence reporting for nuggets that might support the president’s insistence that the 2020 election was stolen from him. The president is poised to give a speech on Thursday night, reportedly to allege that U.S. intelligence reporting supports his claim — to the extent that at least one foreign nation sought to interfere in the election (presumably on Biden’s behalf); the White House is pooh-poohing earlier reports that Trump’s speech would focus on the 2020 election in Georgia.
Pulte, who has a journalism degree, has no national security experience, and he similarly has no legal background — much less prosecutorial experience. It should be no surprise, then, that the cases against Trump’s political enemies that Pulte has urged on the Justice Department based on his mining of FHFA mortgage files have alternatively (a) collapsed and been dismissed; (b) been rejected by grand juries, which refused to indict; or (c) been so weak the Trump DOJ (whose standards are not exactly rigorous in this regard) has declined to charge them. It’s only natural, given the way things go these days, that Pulte has thus been loosed to work his magic at ODNI — where Gabbard had previously been tasked by Trump to immerse herself in the FBI’s controversial 2020 election probe in Fulton County, Ga., (in which a Trump-appointed judge recently quashed the Justice Department’s grand jury subpoenas).
The president will not be giving his big speech until Thursday night, which will enable both Blanche and Clayton to try to deflect questioning about it. Both will surely say they can’t comment on a speech that hasn’t been given yet. Clayton will also say that, as the top federal prosecutor in the Southern District of New York, he is not involved in the intelligence analyses and investigations of election fraud in other districts. Having been deputy AG and acting AG throughout the election fraud investigations (none of which have led to charges), Blanche will not have that luxury; but there are many other things to ask him about and, on the 2020 front, he is certainly better off testifying before rather than after the president’s speech.
Though they are anxious to see Pulte’s exit from ODNI, Democrats are sure to press Clayton on the 2020 election. He would not be a Trump nominee if he were not prepared to refuse to acknowledge that Trump lost that election. I assume Clayton and Blanche will be asked whether they concede that the 22nd Amendment bars Trump from seeking reelection in 2028. After Trump judicial nominees dodged this question at a recent confirmation hearing, it will be interesting to hear what the prospective DNI and AG have to say on the subject.
I still believe Clayton’s confirmation is highly likely. But depending on how the hearing goes and then what the president alleges Thursday night in reliance on ODNI files, it may not be the sure thing it seemed to be a month ago.