Pulte’s appointment may be statutorily infirm, but Congress isn’t likely to take the kind of drastic remedial measures that might induce Trump to back down.
Today is slated to be the effective date of President Trump’s appointment of Bill Pulte, his director of the Federal Housing Finance Agency, as acting director of national intelligence. Pulte will keep the former position while, in the latter, replacing Tulsi Gabbard, Trump’s Senate-confirmed DNI, who is stepping down.
As I explained earlier this week, the president, in what is apt to be a futile attempt to pressure Congress to enact voter-ID restrictions into federal election law, has withdrawn the nomination of Jay Clayton, currently his U.S. attorney for the Southern District of New York (in Manhattan), to become DNI. This was after Democrats balked at a temporary extension of the government’s statutory foreign surveillance authority (FISA Section 702), which lapsed last weekend. For the moment, then, there is no timeline for when Pulte’s acting DNI tenure will end or when Section 702 will be reauthorized.
The objections to Pulte owe to his key contributions to Trump’s lawfare investigations of political enemies, mainly Democrats, by mining FHFA files for damaging information. The stalemate on Section 702 involves whether it sufficiently protects the privacy of Americans whose communications are incidentally intercepted in the electronic monitoring of foreign operatives outside the United States; were it not for the Pulte appointment, a bipartisan agreement would almost certainly have been forged for a temporary extension of Section 702 authority while a three-year reauthorization was being hammered out.
As I’ve noted, Senator Mitch McConnell (R., Ky.) has objected to Pulte’s acting-DNI appointment because of Section 3023 (of Title 50, U.S. Code). It is a provision of the Intelligence Reform and Terrorism Prevention Act (IRTPA) in 2004 (a post-9/11 statute), which makes “extensive national security experience” a mandatory credential for the DNI position. Pulte has no such experience, so he is clearly unqualified (and would be by common sense even if there weren’t an express statutory experience requirement).
That said, it’s unclear that the statute can be applied to Pulte. It literally applies to “any individual nominated for appointment” as DNI. Trump has not nominated Pulte for Senate confirmation as DNI; he appointed him as acting DNI under the Federal Vacancies Reform Act (FVRA), Section 3345 (of Title 5, U.S. Code), which allows the president to fill an opening in an office requiring Senate confirmation with another Senate-confirmed officer. (Pulte was confirmed by the Senate after Trump nominated him to run FHFA.)
Another legal objection to Pulte’s appointment making the rounds is that, with respect specifically to the DNI position, the FVRA is superseded by another provision of the intelligence reform statute (the IRTPA mentioned above). As University of Texas law professor Robert Chesney contended back in 2019 (when Trump, in the first term, needed to replace Dan Coates as DNI), Section 3026(a)(6) states that the “Principal Deputy Director of National Intelligence shall act” as the DNI during a vacancy in the DNI post (emphasis added). When Congress invokes “shall” in a statute, courts generally interpret it to be a mandate, not a matter of discretion (which is how courts interpret “may”).
The Trump administration will argue that Section 3026(a)(6) is not mandatory but discretionary if read in conjunction with the president’s afore-described FVRA authority to appoint an officer already confirmed by the Senate to fill a vacancy. But, Chesney pointed out, another FVRA provision, Section 3347, says that the president does not have discretionary FVRA authority if a different statutory provision “expressly . . . designates an officer or employee to perform the functions” of the office in question. The theory is that Trump lacks authority under the FVRA to name Pulte as acting DNI; instead, he must, under Section 3026(a)(6), have the current Deputy DNI — who is Aaron Lukas — perform the DNI’s functions until he nominates and the Senate confirms a new DNI.
This may well be right, but it makes no difference unless Congress does something about it. Of course, Congress has already countered the Pulte appointment by refusing to extend foreign surveillance authority (a reckless reaction, in my view). But that has not induced the president to back down.
Congress has other arrows in its quiver, but it’s not going to impeach Pulte (much less the president), strike ODNI funding, or take similarly drastic measures over this. The courts, moreover, are not going to enmesh themselves in a dispute between the political branches over foreign intelligence operations. Consequently, I doubt any comparatively mild step Congress may be willing to take would persuade Trump to relent on Pulte.