Meanwhile, Democrats kill a House proposal to extend foreign surveillance authority, as the Friday deadline looms.
In a post this morning (following one from Wednesday), I explained that President Trump was appealing to congressional Democrats to agree to a temporary extension of foreign-intelligence-collection authority, despite their objections to his installation of Bill Pulte as acting director of national intelligence, by promising to appoint a “permanent” DNI (i.e., one who would be proposed to the Senate for confirmation). I noted that a name being floated was that of former House Intelligence Committee Chairman Pete Hoekstra (now Trump’s ambassador to Canada and previously to the Netherlands).
Today, the president announced (on Truth Social) that, instead, he has nominated Jay Clayton, the Senate-confirmed United States attorney for the Southern District of New York (SDNY). Clayton has impressive legal credentials: the SDNY is the premier federal district prosecutor’s office in the country, and he was previously head of the Securities and Exchange Commission as well as a partner at a major firm (Sullivan & Cromwell). It is not clear, however, that Clayton has extensive intelligence expertise (as the DNI statute mandates).
As an SDNY alumnus, I can attest that the office has historically handled many national security investigations. These often require dealing with top intelligence officials and applying aspects of the Foreign Intelligence Surveillance Act, the PATRIOT Act, the International Emergency Economic Powers Act, and other national security measures. Whether the SDNY still has a heavy national security caseload, and whether Clayton’s running of the SDNY therefore checks the statutory credentials box, is a matter that will presumably be explored in the confirmation process.
I have no information about why Clayton was selected rather than Hoekstra or another candidate with a more obvious intel background. As his post reflects, Trump likes Clayton and wants him in the cabinet, and this is a way to accomplish that.
If the point of making the announcement today was to persuade Democrats to approve a temporary extension of surveillance authority under FISA Section 702, however, it didn’t work.
As expected, the proposed extension was easily voted down in the House this afternoon. In the Senate, Democrats have also blocked temporary extension proposals, Politico reports. As covered in my prior posts on this topic, while there appears to be bipartisan consensus that FISA Section 702 should be reauthorized, the latent objections to doing so at this time trace to Pulte, Trump’s director of the Federal Housing Finance Agency.
At FHFA, Pulte has mined government mortgage files in hopes of making bank fraud cases on a number of Democrats who are Trump’s top political enemies. Plus, Pulte lacks national security experience. The president has indicated that Pulte’s tenure as acting DNI will be brief and limited — and today’s nomination of Clayton is obviously meant to underscore that commitment. But Democrats will not relent on FISA Section 702 unless Trump rescinds the Pulte appointment, which Trump refuses to do.
To repeat what I explained in the previous posts, although the FISA statutory authority expires at midnight on Friday, it is likely that foreign intelligence collection will continue with minimal interruptions for months to come. Court orders already issued under Section 702, which approve surveillance programs and generally last for a year, will remain in effect until their terminations.