Senators signaled that President Donald Trump’s pick for director of national intelligence, Jay Clayton, could help jump-start restoring a crucial spy powers tool following his confirmation hearing on Wednesday.
The Senate Intelligence Committee is expected to vote on Clayton’s nomination as soon as next week. Even without Democratic support, Clayton is likely to be confirmed by the Republican-controlled Senate.
Senate Democrats have repeatedly blocked a key surveillance law, known as the Foreign Intelligence Surveillance Act, from being renewed over their objections to acting intelligence chief Bill Pulte. The director of the Federal Housing Finance Agency, Pulte has been criticized by members of both parties as a partisan with no intelligence background.
“FISA is not going to get done until Bill Pulte is out, until there’s a permanent DNI,” Sen. Mark Warner (D-Virginia), the top Democrat on the Senate Intelligence Committee, said following the hearing.
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Sen. Mark Kelly (D-Arizona), another member of the committee, agreed.
“We just have to get Pulte out,” he told NOTUS when asked about the requirements for Democrats to move forward on FISA.
Democrats are more open to Clayton’s appointment than Pulte’s. Warner has said he previously worked with Clayton in his capacity as the U.S. attorney for the Southern District of New York and the chair of the Securities and Exchange Commission.
Though Warner said Clayton’s comments throughout the hearing gave him some pause, including his refusal to weigh in on the legitimacy of the 2020 election, he acknowledged Clayton’s experience with intelligence matters as a prosecutor.
“Mr. Pulte poses a national security risk because I don’t think he understands anything about intelligence,” Warner said. “Mr. Clayton said what I wanted to hear in terms of the importance of classification of information and speaking truth to power.”
Senate leadership had initially hoped that Clayton’s nomination would push Democrats to vote to extend FISA in June, but that plan was derailed after Trump abruptly instructed Clayton not to attend his scheduled hearing.
Senators seemed close to an agreement earlier in June to renew FISA for three years with some reforms, but that deal was scrapped after Pulte’s appointment.
Sen. Angus King (I-Maine), who caucuses with Democrats, told reporters that he hopes Clayton’s confirmation will be a positive step toward continuing FISA. Though he and Warner both declined to clarify whether they think the three-year extension deal is still viable, King said he thought a new intelligence director would be helpful.
“I think that it may be a step in the right direction,” King said of Clayton being DNI.
Other senators were more cautious. Sen. Ron Wyden (D-Oregon), one of FISA’s most vocal critics in the upper chamber, told NOTUS he was disappointed by Clayton’s answers to his questions during the hearing about election security and tax audits of Trump.
“Not only did Clayton not move anything, he set it back,” Wyden said. “He flunked every one of the big three issues that are fundamental to liberty and American values.”
Still, Wyden said he’s hopeful there will be some movement on FISA under Clayton in the coming weeks.
“We’re pulling out all the stops,” Wyden said. “It is possible, as we did in the Senate, to write a bipartisan bill that shows that liberty and security aren’t mutually exclusive.”
Senate Republicans also stressed the need for Clayton’s appointment in order to move ahead on FISA. Sen. Todd Young (R-Indiana) noted that there wasn’t any discussion of the lapsed surveillance tool during the hearing, and added that he doesn’t know what the path forward might be.
Sen. Susan Collins (R-Maine) told NOTUS that she hopes to see Democrats move on the spy powers law, although she said it wasn’t immediately clear to her what the outcome of the hearing was. “I certainly hope so, because we can’t let FISA continue to be in limbo,” she said.
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