Statutory foreign-intelligence-collection authority will lapse at midnight, but there’s the makings of a deal to get it reauthorized quickly.
President Trump’s nomination of Jay Clayton to be the next director of national intelligence has not only gotten a warm reception on Capitol Hill. It has prompted the Senate Intelligence Committee to schedule a confirmation hearing for Clayton next Wednesday, June 17.
That is lightning speed. But is it fast enough to obviate the problem that has induced congressional Democrats to allow the government’s statutory surveillance authority, FISA Section 702, to lapse? Maybe . . . although Section 702 is definitely going to expire tonight, at least for a few days.
Clayton is currently the Senate-confirmed U.S. attorney for the Southern District of New York. Complementing his impressive legal credentials, Clayton’s supervision of national security cases at the SDNY checks the box of expertise in intelligence matters, a statutory requirement for the DNI post. Clayton should sail to confirmation and may even pick up Democratic votes, a rarity these days.
As I understand it, even though the confirmation hearing will happen next week, Senate rules provide for a committee review and vote, which would send the nomination to the full Senate for debate and a vote. This will take some time and surely won’t be done by next Friday.
That’s important because next Friday, June 19, is the day Tulsi Gabbard, the incumbent, Senate-confirmed DNI, is scheduled to step down, with the reins handed over to putative acting DNI Bill Pulte (as we’ve covered repeatedly, Trump’s current director of the Federal Housing Finance Agency, a job he would keep while taking on the acting DNI role). As I related again this morning, it is Pulte’s appointment that prompted Democrats to refuse even a temporary extension that would have preserved Section 702 authority while lawmakers work out a more stable reauthorization (probably a three-year sunset).
In noting his “great respect” for Clayton, the Democrats’ ranking Intelligence Committee member, Senator Mark Warner of Virginia, told CBS News that, while Democrats still object to extending Section 702 if Pulte is installed at ODNI, “if there was a way that Tulsi Gabbard will stay in her position until we could get [Clayton] confirmed, that could be a way out.”
Would the president be agreeable to asking Gabbard to stay on for a bit longer to allow a transition directly to Clayton? That would be a way to get Section 702 at least temporarily reauthorized without forcing the president to formally rescind his appointment of Pulte — i.e., Trump could say he didn’t back down and retract his naming of Pulte, but Pulte would never actually become acting DNI.
I suspect Trump would see it as too much of a cave to Democrats to go along. But it does appear to be a gettable deal if the president wants one.
Meantime, there is no question that Section 702 will lapse at midnight tonight, even if a deal could be reached on a direct ODNI transition from Gabbard to Clayton. House members scattered for the weekend after Speaker Mike Johnson’s fast-track proposal to extend the provision failed on Thursday, so there is no way Congress could vote to approve a Section 702 extension prior to tonight’s midnight expiration.