In an effort to prevent statutory surveillance authority from expiring, the president signals that he will nominate a DNI with intelligence experience.
Facing significant blowback from Congress and the possibility of losing intelligence-gathering authority, while the nation is at war no less, President Trump signaled in a Truth Social post that his installment of Federal Housing Finance Agency chief Bill Pulte as director of national intelligence (DNI) is a short-term measure that has more to do with shrinking the DNI’s office (ODNI) than hands-on operating it as an intelligence agency.
Democrats had threatened, if Pulte took the helm at ODNI, to withhold support for the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is scheduled to expire at midnight on Friday. Section 702 is the government’s statutory authority to collect intelligence relating to non-Americans outside the United States, in particular communications. The president is asking Congress to enact “a short-term extension” of the provision.
To attract support for such an extension, Trump added that he is “looking for a permanent ODNI Nominee with experience in National Security.”
Last week (as I discussed here), the president named Pulte as acting DNI, to replace Tulsi Gabbard, who was confirmed by the Senate at the start of the second Trump term. She is scheduled to step down next Friday (June 19), with Pulte then taking over.
Pulte has no national security or intelligence experience, despite the fact that “extensive national security expertise” is a statutorily required qualification for the DNI post. (See Section 3023 of federal intelligence law.) The 38-year-old Pulte, who has a journalism degree and a business background in private equity, is a Trump loyalist with a persistent social media presence. At FHFA, he is best known for scouring government mortgage files in an effort to develop fraud cases against such Trump political enemies as Letitia James, Adam Schiff, Jerome Powell, and Lisa Cook. (The Trump Justice Department tried to bring cases against James, but they were thrown out by the court and otherwise rejected by the grand jury. There have been no indictments against the others, though the president did rely on Pulte’s claims in an attempt, thus far unsuccessful, to remove Cook from the Federal Reserve Board.)
Pulte has removed several executives and staff at Fannie Mae and Freddie Mac, as well as at FHFA itself. The president now says Pulte’s main task as acting NID will be “to execute the immediate and needed downsizing” of ODNI.
Ordinarily, I’d be inclined to say it would be preferable for such cuts in an intelligence agency to be made by someone with sufficient experience in the subject matter to know what could best be cut without harming the mission. I can’t say that here because (to repeat) ODNI should never have been established in the first place, so the president is right to want it downsized. (Only Congress, which created it, can eliminate it entirely, which it should do . . . but, of course, won’t.)
In any event, to underscore that his mission seems to be to slash ODNI rather than run it, the president has said that Pulte will keep his job at FHFA while he is acting DNI.
As I noted in the earlier post, Democrats have said they will not support an extension of Section 702 unless Trump rescinds Pulte’s appointment as acting DNI. It appears that today’s post, apparently committing to a nominee who will have the necessary experience and be proposed to the Senate for confirmation as the full-fledged DNI, is intended by the president as an olive branch to get Democrats to agree to a temporary extension. In the interim, Senate leadership from both parties would presumably work on legislation for a more lengthy Section 702 extension. It would be better to pass it without a sunset provision, but Section 702 has a controversial history, and it has been Congress’s custom to reauthorize it for a few years at a time (as many as six years and as few as two).
It seems long ago and far away, but the FISA controversy that originally led to the enactment of Section 702 in 2008 involved the president’s constitutional authority to collect foreign intelligence outside the statutory parameters of FISA. If Section 702 were to lapse, Trump could argue that he maintains inherent Article II power to conduct foreign intelligence. As a practical matter, though, after 18 years of training and operating under the statutory framework with court approval and supervision, it would be difficult to sustain surveillance programs without that structure.
Even if the statute is allowed to expire on Friday, intelligence collection programs operating under existing court orders would be allowed to continue until those court orders lapse. The duration of those orders is generally a year; they are not on the same calendar schedule as the statutory authorization.