Clayton confirmation as new DNI delayed after Trump social media post

By Thérèse Boudreaux
The Center Square

Only days after urging the U.S. Senate to confirm Jay Clayton as Director of National Intelligence, President Donald Trump ordered senators to halt the process until Congress confirms a replacement U.S. Attorney for the southern district of New York.

“Regarding the approval of our Great Patriot, Jay Clayton, we are cancelling the Senate Hearing RE: DNI today, and will not be going forward until Jamie McDonald is approved to be U.S. Attorney,” Trump declared in a Wednesday morning social media post. “In the meantime, Bill Pulte will remain as the Acting Director of National Intelligence.”

Clayton was originally set to appear Wednesday before the Senate Intelligence Committee. Republican leadership had hoped to speedrun Clayton’s confirmation to prevent the inexperienced Bill Pulte from ever taking the helm.

Democrats are demanding Pulte’s removal in exchange for their votes to renew a critical government surveillance authority, Section 702 of the Foreign Intelligence Surveillance Act, which expired last week.

Senate Intelligence Committee Chairman Tom Cotton, R-Ark., expressed disappointment with Trump’s decision on social media, calling it “regrettable.”

“Mr. Clayton is a patriot and a highly qualified nominee, as the president has said repeatedly,” Cotton said. “While today’s hearing is now unfortunately postponed, I look forward to proceeding with his confirmation in the near future.”

Trump further complicated matters, however, by doubling down on his previous demand that Congress attach the SAVE America Act, Republicans’ doomed voter-ID bill, to any FISA 702 extension.

“[T]o add a slight bit of intrigue but, for the Good of the Nation, and the People of our Country, I will not approve FISA without THE SAVE AMERICA ACT going along with it. Not complicated, actually,” Trump added in his post.

The directive is politically impossible for Republicans, who don’t have enough votes in the Senate for the House-passed legislation to overcome the 60-vote threshold.

“The only way you can get this done is to nuke the legislative filibuster. And this is not something that we have anywhere close to the votes to do,” Senate Majority Leader John Thune, R-S.D., told Fox News Wednesday. “We are bound by arithmetic in the United States Senate. The votes currently aren’t there.”

Democrats lambasted Trump’s cancellation of the hearing, with Senate Intelligence Committee Vice Chairman Mark Warner, D-Va., dubbing the action “an extraordinary display of dysfunction from a president who seems determined to turn America’s national security into a political bargaining chip.”

“National security cannot be governed by social media post,” Warner added. “The president’s latest intervention only underscores a simple reality: the biggest obstacle to resolving these issues has not been Senate Democrats or Senate Republicans. It has been the chaos and confusion coming from the White House itself.”

Although congressional authorization for FISA Section 702 has expired, government surveillance and data collection activities can still continue without interruption through March 2027.

That’s because the FISA Court approves year-long certifications for Section 702, which remain in effect even if the underlying authority has expired.

Democrats’ support for reauthorization is crucial, given that dozens of Republicans in Congress have opposed a clean extension due to concerns that it violates the Fourth Amendment.

On paper, FISA Section 702 allows federal intelligence agencies to conduct warrantless electronic surveillance on foreign nationals of suspicion.

In practice, however, the electronic data of American citizens – including emails, text messages, and phone calls – are routinely collected as well.

Not only can intelligence agencies store that data for up to five years, but intelligence agents can and do routinely search that data without obtaining a warrant, known as “backdoor searches.”

Declassified government documents and reports from agencies like the Privacy and Civil Liberties Oversight Board show that federal intelligence agencies have performed millions of “backdoor” searches over the span of decades, including 57,000 in 2023 alone.