POLITICIZING INTELLIGENCEWilliam Pulte Served Illegally as Acting Director of National Intelligence for Nearly a Week
The plain text of the Federal Vacancies Reform Act (FVRA) and its contemporaneous understanding by both the legislative and executive branches all point to the same conclusion: William Pulte’s authority to exercise the powers of the DNI ended the moment Jay Clayton was confirmed by the Senate. By continuing to act as if he had such authority for all of last week, Pulte has put any actions that he or the agency may have taken during that time in legal jeopardy.
Last Tuesday (July 28), the Senate confirmed Jay Clayton to be the new director of national intelligence (DNI). Yet Clayton was not sworn in until today, with William Pulte continuing to purportedly serve as the acting director of national intelligence for all of last week. Bizarrely, both men attended the cabinet meeting on Friday at Camp David. But while the administration was within its rights to delay Clayton’s swearing in as long as it wished, it could not extend Pulte’s acting service. Under the plain language of the Federal Vacancies Reform Act, Pulte’s time limit as acting DNI expired the moment the Senate confirmed Clayton. Everything Pulte has done as acting DNI since that moment has been legally illegitimate and is vulnerable to a court challenge.
First, the basics of the Federal Vacancies Reform Act (FVRA). The FVRA allows the president to temporarily designate “acting officers” to immediately fill vacant offices that normally require Senate confirmation. But the FVRA places a time limit on acting service to incentivize the president to make a nomination for a permanent replacement. That is because acting officers are supposed to be only placeholders, not permanent solutions. Acting officers serve without having been confirmed by the Senate to the office in question, which means they have not received the vetting that Senate-confirmed officeholders receive. Although acting officers may be necessary to keep an office’s core functions running, their lack of vetting for the office they temporarily hold means their service should be no longer than necessary.
To that end, the FVRA gives the president a time limit of 210 days after a vacancy arises to make a nomination to the office. If the president fails to do so within 210 days, the acting officer’s time limit expires. But if the president does make a nomination in time, then the acting officer’s time limit continues “from the date of such nomination for the period that the nomination is pending in the Senate.” The reasoning behind this approach is that once the president has made a nomination, the ball is in the Senate’s court. If the Senate is slow to decide whether to confirm or reject a nominee, it might seem unfair to punish the executive branch for that slowness by allowing an acting officer’s tenure to expire while a nomination is still in limbo.
