The Senate considers concrete, statutory ways to thwart the appointment.
There have been interesting developments regarding President Trump’s naming of Bill Pulte as acting director of national intelligence (DNI), which I posted about yesterday.
As I explained, Pulte is a loyalist who has figured prominently in the lawfare campaign against Trump political foes waged by the president and the Trump Justice Department. He is currently the Senate-confirmed director of the Federal Housing Finance Agency (FHFA).
That last detail matters because, to appoint Pulte as acting DNI, to succeed former DNI Tulsi Gabbard, the president is relying on the Vacancies Reform Act (Title 5, U.S. Code Section 3345 et seq.). It authorizes the president to fill a vacant office requiring Senate confirmation with an officer who is already Senate-confirmed. There is no requirement in the statute that there be a functional connection between the office the appointee currently holds and the one in which the president wants to place the appointee.
Because Pulte is Senate-confirmed, I said I didn’t see how his DNI appointment could be stopped, even though he is utterly bereft of intelligence experience, and even though a number of senators (mainly Democrats) are already protesting. Well, instead of looking just at the Vacancies Act, I should also have looked at the relevant DNI statute.
Senator Mitch McConnell (R., Ky.), the longtime former Senate majority leader, was a member of the upper house and of GOP leadership a quarter century ago, when the Office of the Director of National Intelligence (ODNI) was created following the 9/11 attacks that killed nearly 3,000 Americans. The senator remembered what I didn’t: By statute (Section 3023(a)(1) of Title 50, U.S. Code), Congress mandated: “Any individual nominated for appointment as Director of National Intelligence shall have extensive national security experience” (emphasis added).
Punchbowl News’s Jake Sherman reports on X that McConnell seems poised to oppose Pulte because he falls short of this statutory requirement. I’m not sure such opposition would be sufficient to thwart Pulte’s appointment.
For now, as I understand it, Trump is appointing Pulte as an acting DNI, not formally nominating him for the full-fledged position. The latter would require Senate confirmation. I don’t believe McConnell and other senators are going to be asked to confirm Pulte as DNI, so I’m not sure Pulte will need support from any of them to take the reins for the 210-day acting period.
Moreover, let’s assume that (a) lawmakers tried to claim Pulte’s appointment violated the DNI statute, and (b) Trump nevertheless felt strongly enough about the matter to persist. My guess is that the president would have the Justice Department argue that intelligence collection and analysis are executive responsibilities and that, even if Congress had constitutional power to create the DNI position, Congress could not legitimately impose limitations on whom the president could pick to fill it. I do not believe this contention would be correct, but it would not be frivolous. More to the point, I doubt the courts would get involved; they’d leave it to the political branches to fight it out.
More consequential than McConnell’s objection, perhaps, is the objection reportedly lodged by Senator Mark Warner (D., Va.), the ranking Democrat on the Intelligence Committee. Andrew Desiderio, also of Punchbowl, has reported on Senator Warner’s admonition to current Senate Majority Leader John Thune (R., S.D.), that if Pulte’s appointment is not withdrawn, congressional Democrats will withhold support for an extension of the Foreign Intelligence Surveillance Act (FISA). That would put at risk the executive branch’s statutory authority to conduct an array of intelligence-gathering operations outside the United States.
Would Democrats risk imperiling American intelligence collection, even with our forces currently in harm’s way, knowing they’d be blamed if something terrible happened while they’d let FISA lapse? Would the president risk the loss of FISA authority for no better reason than to install the unqualified Pulte as DNI? I guess we’re going to find out.
As Dan pointed out in his excellent post regarding the Trump administration’s retreat on the so-called Anti-Weaponization Fund in the face of heavy congressional opposition, including threats to cut funding for Trump priorities, Congress has many ways to rein in executive malfeasance, and the political reality imposed by the imminence of elections (such as the midterms, coming up in November) has a way of eroding an incumbent president’s grip on Congress. That’s especially so, I’d add, when the president’s approval ratings have plummeted and members of his party in Congress have begun to fear a wave mounting against them.
It’s worth watching how the Pulte controversy shakes out. A few final thoughts.
It doesn’t bode well for Pulte’s standing with Congress that, in addition to having no intel background, he’d be a part-time DNI while simultaneously continuing to run FHFA. It’s true that I don’t think much of the DNI position, but as far as Congress is concerned, the DNI — at least nominally — leads the “community” of 18 U.S. intelligence agencies. Congress annually pours about $80 billion in taxpayer funds into the IC, so I’m just guessing that lawmakers think DNI should be a full-time gig.
Furthermore, the statute to which Senator McConnell referred also stipulates that the DNI post “shall not be located within the Executive Office of the President.” Consistent with this, the ODNI is not in the EOP. My point is not to imply that Pulte is a White House staffer (he’s not — FHFA is also not in the EOP). My point is to call attention to why Congress wanted the DNI post to be separate from the White House (as opposed to, for example, the national security adviser and the National Security Council, which are EOP components that deal heavily in classified intelligence). The thinking was that the principal intelligence voices in the president’s ear should not be in political jobs. The hope was to ensure that the president is given a clear-eyed picture of the world and the threats confronting the United States from a seasoned intelligence pro with distance from administration politics.
A minion whose administration function, to this point, has been to mine government files for confidential information that the president might be able to spin as inculpatory evidence against his political enemies would not seem to be a model DNI candidate.