The president’s move will not induce Democrats to budge on opposition to the election law or Bill Pulte as acting DNI, so what happens next is unclear.
Last week, I related that President Trump had nominated Jay Clayton, his Senate-confirmed U.S. attorney for the Southern District of New York, to become director of national intelligence. (See here, here, and here.) Today, he pulled the nomination, entangling it in the fight over his proposed election law with strict voter identification mandates, on which the Republican-controlled Senate will not move because it lacks the votes needed for passage.
Clayton was to replace Tulsi Gabbard, who is scheduled to depart Friday (June 19). The point of nominating the well-regarded Clayton was to quell congressional turmoil over the president’s naming of Bill Pulte, Trump’s director of the Federal Housing Finance Agency (FHFA), as acting DNI to replace Gabbard.
Pulte is a Trump loyalist whose DNI appointment is vigorously opposed by Democrats, and even by some Republicans, because he lacks national security experience and has been instrumental in Trump’s lawfare against political foes. Democrats reacted to the Pulte nomination by refusing to reauthorize the government’s statutory foreign surveillance authority, FISA Section 702, which expired last Saturday (June 13).
The idea was that Clayton could be confirmed quickly, shortening the time Pulte would be acting DNI. Trump bolstered this suggestion by directing that Pulte would retain his FHFA post (i.e., he’d be only part-time at ODNI) and concentrate on paring back bureaucratic bloat at ODNI (i.e., not on intelligence gathering per se). Democrats would not budge, however, maintaining that they would not extend Section 702 — even briefly, so a more permanent provision could be agreed upon — if Trump did not rescind the Pulte nomination.
In the resulting political impasse, Section 702 lapsed and the government lost its statutory authority to collect foreign intelligence. (As I explained, this is probably not yet a catastrophe but could become one if pending Section 702 court orders expire without a renewed statute.)
The president has apparently decided that two can play the game of tying important legislation to personnel moves.
On Wednesday, with Clayton scheduled to have a confirmation hearing, Trump pulled his nomination. It’s nothing personal regarding Clayton, whom Trump wants in his cabinet and who has bipartisan respect on Capitol Hill. Instead, the president is ratcheting up pressure on lawmakers to enact his election law legislation.
Senate Majority Leader John Thune (R., N.D.) has told the White House that there is no point trying to move on the measure because, in a chamber that Republicans control by a 53–47 margin, the legislation lacks the 60 votes needed to overcome a Democratic filibuster. Trump has nevertheless demanded that the Senate drop its filibuster debate rules and ram the legislation through on a simple majority vote.
Even assuming that the election bill would pass (no sure thing), the GOP’s ending of the filibuster would pave the way for Democrats to pass progressive priorities (e.g., Court-packing, the complete federalization of elections, wealth tax, etc.) by simple majorities the next time they control the Senate (which could be next year). Thune has said there is scant support to end the filibuster rule; the president counters that he believes Democrats will end it at the next opportunity, so Republicans might as well end it now.
By pulling Clayton’s nomination, Trump ensures that, come Friday, Pulte will be acting DNI for the foreseeable future. Moreover, despite having previously regarded Section 702 reauthorization as vital, Trump is now threatening to torpedo it unless the Senate attaches the election legislation to it.
Obviously, the president’s maneuver would not induce Democrats to pass the election legislation: (a) They deeply oppose the voter ID mandates, (b) Thune has told the White House that Democrats would not pass a Section 702 reauthorization if the election provision is attached, and (c) Democrats have already let Section 702 lapse over the Pulte appointment, so why would they reverse course over something to which they are equally opposed?
In view of the president’s move and his order that Clayton not appear for today’s scheduled confirmation hearing, Senator Tom Cotton (R., Ark.), who chairs the Intelligence Committee, postponed it. What happens next is not clear.