For the first time in its nearly 18-year history, a key U.S. surveillance authority is headed for a lapse in authorization, after Democrats refused to back an extension unless President Donald Trump abandoned his plan to install Bill Pulte as acting director of national intelligence.
Both the House and Senate rejected a three-week extension of Section 702 of the Foreign Intelligence Surveillance Act on Thursday, with lawmakers leaving Washington after the failed votes and all but ensuring the authority will expire at midnight Friday.
The unsuccessful votes marked the culmination of a remarkable standoff in which Democrats drew a hard line against extending one of the government’s most important intelligence tools unless Trump reversed course on Pulte.
For days, Democrats have raised concerns with Pulte’s appointment, citing his lack of intelligence experience, pointing to the mortgage fraud referrals he brought against the president’s opponents, and openly worrying that he may use sensitive intelligence for political purposes.
The depth of that opposition became clear Thursday when top Democrats brushed aside Trump’s decision to nominate Jay Clayton — the current U.S. attorney for the Southern District of New York — to serve as director of national intelligence.
Despite that apparent olive branch from the White House, Democrats insisted they wouldn’t support a FISA extension unless Trump formally withdraws Pulte’s appointment.
“Pulte has got to go,” Senate Minority Leader Chuck Schumer, D-N.Y., told reporters shortly after the Clayton announcement. “The DNI role is too important. He cannot be there, no ifs ands or buts.”
Asked what he thought of Clayton, Schumer said it was irrelevant.
“Doesn’t matter what else they do,” he said. “Pulte’s got to be gone. He’s still in that role.”
Sen. Mark Warner, the top Democrat on the Senate Intelligence Committee, struck a similar tone. In a statement, Warner called Clayton “a capable public servant” but said until the Pulte matter is taken care of, he’ll withhold his vote for FISA.
“While I am glad to see the president finally come to his senses, before the Senate can take up a FISA extension there needs to be a clear guarantee that Mr. Pulte will not serve as acting DNI,” the Virginia Democrat wrote.
Part of the problem, Democrats argued, is that even with Clayton’s appointment, Pulte could still have time to misuse his perch as the director of national intelligence. Clayton would need to be confirmed by the Senate before assuming the position, which could take weeks — or longer.
Clayton is scheduled to appear before the Senate Intelligence Committee for a confirmation hearing on June 17 at 2 p.m. Senate Majority Leader John Thune, R-S.D., told reporters Thursday he expects to move through the process quickly.
Meanwhile, Pulte is set to assume the acting director of national intelligence job on June 19, according to Trump, which means that if Clayton isn’t confirmed in a speedy fashion, Pulte could spend some time at the helm of the intelligence community. It’s clearly a concern for Democrats.
“Trump’s choice of Jay Clayton for Director of National Intelligence does not resolve the President’s Pulte problem,” said Sen. Adam Schiff, D-Calif., who sat on the Intelligence Committee when he served in the House.
“Bill Pulte cannot be allowed to weaponize the intelligence community, misuse it for purposes of election interference, politicize the conclusion of analysts to suit the President’s false narratives, or rifle through the private data of the America people,” Schiff said.
In the interim, Democrats have raised a number of potential off-ramps, including having the current director of national intelligence, Tulsi Gabbard — who many dislike — remain in the role, or giving the job to principal deputy director of national intelligence, Aaron Lukas, in the meantime.
Trump, for his part, is continuing to push for Pulte.
“He’s only there for a little while,” Trump said of Pulte. “He’s running it for a short while.”
The impasse is now poised to push Section 702 into its first-ever expiration, alarming national security hawks in both parties.
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On Thursday, all but seven House Democrats voted against the three-week patch, leaving the vote at 198-218 — far short of the two-thirds threshold needed to pass the bill under the fast-track suspension of the rules process.
Across the Capitol, Sen. Ron Wyden, D-Ore., objected to a unanimous consent request to extend FISA to July 2.
After the House vote, Speaker Mike Johnson, R-La., called the outcome “shameful.”
“It is detestable, it is dangerous, it is going to jeopardize the safety and security of the American people,” he said, pointing to the start of the World Cup in the U.S. and upcoming “America 250” events scheduled across the country.
“Those things are in jeopardy right now, because the Foreign Intelligence Surveillance Act is exactly what the name implies, it is how we monitor terrorists who are plotting and planning dangerous events in the country, in our homeland,” Johnson added.
FISA section 702 allows the U.S. to spy on foreigners located outside the country, a key national security tool established in 2008 that advocates say has thwarted attacks in the past. According to the U.S. Privacy and Civil Liberties Oversight Board, information gathered through the program contributed to 63% of the articles included in the president’s daily brief.
If Congress blows past Friday’s deadline, the future of FISA is up for debate — in large part because an expiration is unprecedented.
The Foreign Intelligence Surveillance Court recertified FISA for a year in March. But without congressional authorization, some lawmakers and experts say the program enters a legal gray area — a fact that is fueling concerns about a lapse in the authority.
Some Democrats have argued the immediate consequences may be limited because existing investigations can continue.
“My understanding is that investigations can continue under the authority that has existed before now, and there need be no total shutdown,” Sen. Richard Blumenthal, D-Conn., said Thursday. “It’s a matter of authority, not funding, and ongoing investigations or imminent threats can be investigated.”
But the situation seems open to interpretation. Some lawmakers fear that the tech providers who turn over data to the government may not cooperate with warrants if the authority has expired.
When Warner was asked Thursday about what would happen, his response was: “We don’t know the answer to that.”
“It is obviously a high-risk proposition,” he said.
Kevin Frey contributed to this repor