Trump, Congress, and the FISA Fiasco

The congressional chaos that has become the “new normal” of the 119th Congress just got a little weirder. President Donald Trump kicked the legislative hornet’s nest when nominating Bill Pulte to be acting director of national intelligence. It almost cost him his reconciliation bill – and it has, so far, made reauthorizing FISA Section 702 much more difficult.

But then he tried to smooth things over by nominating Jay Clayton – a much less controversial choice – to be DNI instead. The Senate was ready to rush the approval. Flash forward almost a week, and the president stopped the confirmation hearing. What’s going on here?

Is Clayton in or Out?

President Trump named Jay Clayton to lead the nation’s national intelligence community back on Thursday, June 12. Republicans and Democrats alike were relieved – until about a week later, that is, when Trump pushed to cancel Clayton’s confirmation hearing in the Senate. What made him change his mind?

“The Republicans agreed with Dumocrats to remove very fair, and talented, William Pulte, from serving as Acting DNI in return for getting FISA approved by the Dumocrats,” Trump wrote on Truth Social on Wednesday, June 17, leaning heavily on his latest nickname for his left-wing nemeses. “However, the Republicans moved so fast with the hearings of the Great Jay Clayton, current U.S. Attorney for the Southern District of New York, that Pulte would be gone before the Dumocrats would vote on FISA. Now, the Dumocrats are saying they will vote against FISA — So, the Republicans wound up having fulfilled their commitment, but Dumocrats broke the Deal.”

Trump also tied Clayton’s confirmation to that of Jamie McDonald, his pick for US Attorney. To complicate things further, he added that he wouldn’t sign the FISA Section 702 reauthorization unless the SAVE America Act is passed as well.

It does seem clear that the president sees this as a potential loss of leverage. If Senate Republicans push through the nomination the Democrats want – more importantly, if they get rid of Pulte – too quickly, what reason would the Democrats then have to hold up their end of the bargain? In his defense, that has happened multiple times before – so why not again?

The telling question would be whether or not Democrats actually want to reauthorize FISA. It seems they do, and if that’s so, they can likely be counted on for this vote. But perhaps the even bigger question is: Does Trump?

Senate Minority Leader Chuck Schumer (D-NY) proposed that the president actually doesn’t want to renew it. “He doesn’t give a damn about the American people’s safety, plain and simple,” Schumer said. “And every action he takes undercuts our safety through his own ridiculous, sometimes even indiscernible political motivation. Trump’s actions overnight make it clear, the fact that Trump withdrew Jay Clayton should erase anyone’s doubts: Trump wants FISA to stay expired.”

Set aside Schumer’s vitriol for a moment, and he may still have a point; President Trump very well might not actually want FISA Section 702 to be reauthorized. It certainly calls into question whether he really wants Jay Clayton in the office permanently, as well, or if that was simply a move to appease the angry legislature after his Bill Pulte appointment backfired so spectacularly. As Sen. Adam Schiff (D-CA) pointed out, Trump did urge Congress to “KILL FISA” when it last came up for renewal during the 2024 presidential campaign.

SAVE America, FISA, and the Filibuster

Here’s the holdup: Democrats (and some Republicans) won’t vote in favor of the FISA renewal without assurances that Bill Pulte won’t serve a day as acting DNI. That means either Trump drops him (which he has refused to do) or Clayton gets confirmed and takes over. Meanwhile, the president has promised to keep Clayton from showing up to any confirmation hearings the Senate tries to hold and that he won’t sign any FISA bill that doesn’t include his voting security bill, the SAVE America Act. Then flip back again to congressional Democrats. Schumer responded to Trump’s social media post by saying the Senate “will never pass the SAVE Act – never.”

Oh, what a tangled web we weave. Can a Clayton confirmation save FISA, or will both confirmations and bills simply continue to spiral perpetually through this seemingly endless doom loop? It’s enough to make one wonder if perhaps Trump really does want Section 702 to end – and to keep Pulte in charge as the DNI, to boot. But, then, there’s yet another angle to consider: Perhaps this is Trump’s way of tying up legislation to drive the GOP to take extreme measures and bypass Democrats on both legislations.

“Anybody who doesn’t want to Terminate the Filibuster is a FOOL, a very stupid one, at that! The Dumocrats will end it within minutes of taking office, and then rapidly proceed to destroy our Country, adding 2 Radical Left States, 4 Dumocrat Senators, many Congressmen/women, their dream of 21 Supreme Court Justices (Not just 13, an unlucky number!), an impossible to beat number of Electoral College Votes (and that’s the Ballgame!), ‘Popular’ Vote Landslides, and so much else,” the president posted on Truth Social a day after announcing the delay in Clayton’s confirmation. “The Republican Party will never win another Election. I will, sadly, be the last Republican President. Senate Majority Leader John Thune, and the Republican Senate, must not let this ‘carnage’ happen. They will go down on the wrong side of History, as will all Republicans who just stood by and watched. The Republican Party isn’t at stake, our Country is. TERMINATE THE FILIBUSTER, AND IMMEDIATELY APPROVE THE SAVE AMERICA ACT. GOD BLESS THE U.S.A. President DONALD J. TRUMP.”

Could that be the real plan: entangle must-pass legislation and a confirmation with bipartisan support to a bill one side simply never will support to force a reset of the Senate rules? With the filibuster gone, Trump could – with a cooperative GOP in both chambers, that is – get his SAVE America Act, a FISA Section 702 renewal, and perhaps even this third “reconciliation” bill without even having to jump through all those extra hoops. Whether that’s his plan or not, however, the immediate result is chaos and conflict on Capitol Hill – and an end to the authorization of warrantless surveillance via FISA Section 702.