Senate fumes as Clayton chaos unwinds path to renew FISA

President Trump’s scuttling of a hearing to review his pick for director of national intelligence has once again plunged Congress into chaos over who will lead the intelligence community and how lawmakers can renew the nation’s lapsed spy powers.

The Senate spent the morning ping-ponging over whether members would even hear from nominee Jay Clayton, who serves as a U.S. attorney. Trump said the hearing was canceled, but Senate Intelligence Committee Chair Tom Cotton (R-Ark.), an ally of the president, initially rebuffed him, saying the hearing would still go on. Cotton later backtracked and announced the “regrettable” decision that the president had directed his nominee to not show.

Democrats and Republicans alike complained about the lack of certainty on all fronts.

In addition to delaying Clayton’s confirmation, which Democrats say is a prerequisite for reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA), Trump said just before 4 a.m. EDT that he wouldn’t approve the spy powers unless his voting bill, the SAVE America Act, was attached.

In a sign of the confusion that ensued, Sen. Mark Warner (Va.), the top Democrat on the Intelligence panel, said he wasn’t even sure if Clayton was still the nominee.

“I am not sure whether Jay Clayton has simply been postponed or withdrawn. I wonder whether Jay Clayton knows whether he has been postponed or withdrawn,” he told reporters, complaining about the “level of chaos [and] incompetence” from the Trump administration.

Negotiations over Section 702 of FISA were already delicate even before Trump inflamed the issue by announcing Bill Pulte, the head of a housing agency who has made criminal referrals for numerous Trump foes on allegations of mortgage fraud, would serve as acting director of national intelligence.

It was a move that sparked outrage from both Republicans and Democrats, with the left refusing to pass FISA’s Section 702 if Pulte was in office.

Now, the nation’s foremost national security tool, which allows the government to spy on foreigners overseas, has expired, while the Senate is back to square one on confirming a top intelligence chief.

Trump announced Clayton’s nomination last week only after a FISA reauthorization bid failed in both the House and Senate.

“I was enthusiastic,” Sen. Todd Young (R-Ind.), a member of the Senate Intelligence Committee, said about Clayton.

“I visited with Jay. I think he is highly qualified. I commend the president on the nomination, and I regret that his confirmation is going to be delayed, apparently. But it is what it is. This is the president’s prerogative,” he said, adding he was unsure how the Senate would move forward on FISA.

“I, too, am trying to make sense of where we head from here. There is uncertainty that needs to be resolved by the administration working with Congress.”

Sen. Kevin Cramer (R-N.D.) questioned whether Trump’s decision came amid “sleep deprivation” as he travels abroad.

“Strategically it didn’t make a lot of sense,” he said.

“One of the things may very well be, as I try to explain it in my own brain, sort of maybe a lack of trust or faith in [Senate Majority Leader] John Thune’s clear-eyed understanding of the sequence of things that have to happen. And in this case the sequence being the nomination of Jay Clayton, the fast tracking of his confirmation to avoid Bill Pulte from even having a minute as the acting [director of national intelligence], resulting then in Democrats going back to their roots, which would be to support FISA 702 reauthorization,” Cramer said, noting that most Democrats do support FISA 702 renewal.

“I think, when the president read that the Democrats hadn’t assured passage of FISA authorization prior to the fast tracking of Jay Clayton, he saw that as we lost leverage, and I think those of us that work in this institution and understand Democrats, first of all, Democrats want to support FISA — they largely do.”

Democrats held a press conference Wednesday with a sign taking snippets from Trump’s morning post, framing it as “Trump’s hostage note.”

“Now it’s up to the White House to figure out a path forward. Here we had a path forward as of yesterday, and today we don’t, and that’s because of this president and his advisers,” Sen. Mark Kelly (D-Ariz.) said.

“It’s up to them,” Senate Minority Leader Chuck Schumer (D-N.Y.) said. “This is Republican president, Republican House, Republican Senate, all screwing up with each other. They’ve got to come to an agreement, and they’ve got to have the courage to buck the president, who clearly doesn’t want a DNI director, and doesn’t want FISA renewed.”

Trump’s delay complicated FISA 702 in a number of ways. Beyond holding up Clayton and allowing Pulte to take over the Office of the Director of National Intelligence (ODNI) on Friday, Trump also said he won’t approve the spy powers without the SAVE America Act, which would require proof of citizenship to vote. The president has repeatedly pushed Senate Republicans to attach the bill to other measures, even as it doesn’t have the votes to pass in the upper chamber.

Senate Majority Leader John Thune (R-S.D.) earlier Wednesday described the Senate as being “bound by arithmetic” on the SAVE America Act, saying, “The votes currently aren’t there.”

Trump described his early morning move as adding “a slight bit of intrigue,” a comment that earned disdain from Schumer, who also said the Senate “will never pass the SAVE Act – never.”

“There can be no intrigue when it comes to protecting our national security,” Schumer said.

Republican national security hawks in Congress also lamented the uncertainty around FISA.

“We don’t have FISA 702 in effect right now, or at least has not been reauthorized yet, and that is not good for our country. This is the place that we find out what the bad guys are doing when they’re outside of the United States and what they’re planning to do. It is not a good situation,” said Sen. Mike Rounds (R-S.D.), who also serves on the Senate Intelligence Committee.

Asked if he feels that Trump understands the gravity of the situation, he replied, “I hope so.”

Senate Democrats accused Trump of playing so fast and loose with Section 702 they questioned whether he even wants to renew FISA.

“He doesn’t give a damn about the American people’s safety, plain and simple. 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,” Schumer said.

Sen. Adam Schiff (D-Calif.), one of the people Pulte referred for criminal prosecution, noted that Trump has often waffled on FISA 702, and when it was last up for renewal in 2024 while he was running to return to office, Trump had encouraged Congress to “KILL FISA.”

“It’s really unclear, given the back-and-forth and back-and-forth, just in the last 24 hours on the DNI [director of national intelligence] position and on 702 it’s very opaque what the president wants, if he even understands himself what he wants. But one thing is pretty clear, and that is he is willing to sacrifice our national security by appointing an acting DNI who has absolutely no experience in national security matters, and his only experience is in weaponizing the private data of Americans. That’s the last thing we should want in a DNI or acting DNI,” Schiff said.

Even if the White House and Senate soon resolve the intelligence director issue, many roadblocks still lay ahead on Section 702, where reformers have halted prior bills as they demand a warrant requirement before national security officials can review information on Americans swept up as they communicate with foreign targets.

Sen. Ron Wyden (D-Ore.), one such reformer, argued the Senate needs to begin work on a different bill as Trump could “swap his people around any time he feels like it” by seeking to install a new acting director, once again sidestepping Congress.

“I plead guilty to not knowing that such a bizarre thing would happen overnight, because having served on the committee for quite a while, I never saw anything close to what happened, apparently at four or five in the morning, and I continue to make the point that the only path out of this is real reform,” Wyden said.

“Because Trump is going to change people’s chairs all around the way he always does, and the only way to have some certainty and predictability is to have a set of rules that are black letter law, and they guide everything.”

Warner on Wednesday called the situation an unusual case of a largely aligned Senate left to feud with a president.

“What we’re witnessing today is an extraordinary display of dysfunction from a president who seems to turn America’s national security into a political bargaining chip at every turn,” he said.

“The president has interjected uncertainty into a process that should be focused on keeping the American people safe. Let’s make it into a simple fact. This is not a normal Democrats versus Republicans.”

Senate fumes as Clayton chaos unwinds path to renew FISA

Related stories

Trump says he'll delay nomination for Clayton to be his next intel chief

Pulte appointment ups pressure for Congress to punt on reauthorizing spy powers

Trump presses on with plan to install Bill Pulte as acting intelligence chief

Trump faces tough choice: Save spy powers or stick with Pulte