President Donald Trump on Thursday floated using an executive order to extend Section 702 of the Foreign Intelligence Surveillance Act after the House and Senate failed to clear a short-term renewal, leaving the warrantless surveillance authority on track to lapse at midnight Friday.
"Congress wants me to do it," Trump told reporters in the Oval Office when asked whether he would consider the move. "Let's see what happens. It's very important for our military."
The House earlier rejected a fast-tracked measure that would have pushed the expiration to July 2, voting 218-198, well short of the two-thirds majority Speaker Mike Johnson, R-La., needed under suspension of the rules.
Senate Republicans then tried and failed to advance the same extension by unanimous consent.
With the chamber set to leave Washington until June 23, no legislative path remains before the deadline.
Democrats withdrew support after Trump installed Federal Housing Finance Agency Director Bill Pulte, who has no intelligence background, as acting director of national intelligence, effective June 19.
House Minority Leader Hakeem Jeffries, D-N.Y., said Pulte "cannot serve a minute" in the role, and other top Democrats said the appointment defies the statute requiring the intelligence chief to have national security experience. A bipartisan three-year renewal deal had been close before the Pulte announcement.
Trump moved Thursday to defuse the standoff by nominating Jay Clayton, the U.S. attorney for the Southern District of New York and former Securities and Exchange Commission chair, as permanent director of national intelligence.
"Few people anywhere in the Legal Community are respected at the level of Jay," Trump wrote on Truth Social, urging swift Senate confirmation.
The announcement came after the House had adjourned, prompting complaints from Democrats, including Sen. Richard Blumenthal of Connecticut, that the timing prevented any deal before the deadline.
Whether Trump can keep the program alive by fiat is unsettled.
Section 702 is a statutory authority, and letting it lapse would push collection into legal gray territory, with telecommunications carriers potentially unwilling to comply absent congressional authorization.
House Intelligence Committee Chair Rick Crawford, R-Ark., said: "We're going into uncharted water, so I'm not sure what can be done with an EO [executive order]. We'll find out."
Sen. Mark Warner, D-Va., the top Democrat on the Senate Intelligence Committee, told reporters that carriers could balk on liability grounds.
Trump has framed the stakes in terms of the 2026 World Cup and the America 250 celebrations.
"FISA 702 is very important to our Military, and keeping the American People safe, especially during the World Cup and America250 Celebrations," he wrote Wednesday on Truth Social.
The statute allows U.S. agencies to collect communications from foreign targets abroad, with critics pressing for a warrant requirement when such sweeps capture Americans' communications.
The program is on track to expire at midnight Friday.
Jim Thomas ✉
Jim Thomas is a writer based in Indiana. He holds a bachelor's degree in Political Science, a law degree from U.I.C. Law School, and has practiced law for more than 20 years.