Trump casts uncertainty over top intelligence role

President TrumpDonald John TrumpWarren unveils Native American policy plan Live-action 'Mulan' star spurs calls for boycott with support of Hong Kong police Don't let other countries unfairly tax America's most innovative companies MORE has created massive uncertainty about who will serve in his top intelligence post — even on an interim basis.

On Friday, Trump abruptly dropped plans to tap Rep. John RatcliffeJohn Lee RatcliffeNew intel chief inherits host of challenges Hoekstra emerges as favorite for top intelligence post The Hill's Morning Report — Will Congress do anything on gun control? MORE (R-Texas) to replace outgoing Director of National Intelligence (DNI) Daniel Coats, and he has not yet announced who will be acting DNI after Coats leaves the administration later this month. The moves fuel concerns that Trump will try to circumvent a federal statute requiring that Sue Gordon, as Coats’s deputy, assume his duties.

Trump told reporters Friday afternoon that he likes Gordon and that she would be “considered” for the acting role, indicating a decision would be made in the coming days.

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“Sue will be there now and certainly she will be considered for the acting," Trump said.

Meanwhile, a person familiar with the process told The Hill earlier Friday that the White House is weighing removing the career intelligence officer so Trump can name someone else as acting DNI.

A move to pass over or oust Gordon would be met with frustration among lawmakers on Capitol Hill who have built relationships with her. Some have emphasized their respect for Gordon in recent days and noted that the law states she should replace Coats when he leaves his post on Aug. 15.

“The statute is very clear, the deputy takes over as acting,” Senate Intelligence Committee Chairman Richard BurrRichard Mauze BurrHoekstra emerges as favorite for top intelligence post Trump casts uncertainty over top intelligence role Trump withdraws Ratcliffe as Intelligence pick MORE (R-N.C.) told reporters Thursday.

When asked what would happen if the White House ignores the statute, Burr replied, “It’s a legal issue.”

Legal experts agree, pointing to the 2004 Intelligence Reform and Terrorism Prevention Act, which states that the principal deputy director of national intelligence “shall act” as DNI during a vacancy in that position.  

They say that outweighs the Federal Vacancies Reform Act, another law that gives the president broader discretion generally in choosing officials to fill acting roles.

“I think there would be serious legal questions about the validity of the appointment of any acting DNI who isn’t sue Gordon,” said Steve Vladeck, a University of Texas law professor. “But, it’s not clear to me who would raise them.”  

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Congress has limited recourse to protest such a move. Lawmakers could, for example, threaten to withhold funding for programs or impeach the acting director who is chosen, but such options are unlikely to be politically viable.

Vladeck also said that, because the DNI does not sign many contracts or other documents that directly implicate private parties, it’s harder for individuals on the outside to challenge the appointment.

If Gordon were to resign or be removed — something that Sen. Mark WarnerMark Robert WarnerFacebook users in lawsuit say company failed to warn them of known risks before 2018 breach New intel chief inherits host of challenges Overnight Defense: US, Russia tensions grow over nuclear arms | Highlights from Esper's Asia trip | Trump strikes neutral tone on Hong Kong protests | General orders ethics review of special forces MORE (Va.), the Intelligence panel’s top Democrat, raised concerns about — that would allow Trump to choose from a larger group of officials to serve as acting DNI.

Under the Federal Vacancies Reform Act, the president can appoint a person who has already been Senate-confirmed to serve in an executive branch agency to an acting role, or non-Senate-confirmed employee of the same agency if the person has served in that position for at least 90 days of the past year.

“My fear is this administration may try to once again go around the law or fire that career professional so they can put in a political hack,” Warner told reporters Thursday.

Neither the White House nor the DNI responded to requests for information about the plans for acting director.

Gordon is a career intelligence official, having served for three decades in the intelligence community. She worked in the CIA for 27 years and served as deputy director of the National Geospatial-Intelligence Agency (NGA) during the Obama administration.

Gordon was sworn in as the principal deputy director of national intelligence in August 2016, about seven months before Trump took office.

She is well-liked on Capitol Hill, and senators from both parties who sit on the Intelligence Committee have sung her praises.

“I think she’s a straight shooter, and she and I certainly wouldn’t agree on everything. I think Ms. Gordon is very professional and responsible,” Sen. Ron WydenRonald (Ron) Lee WydenWyden calls for end to political ad targeting on Facebook, Google Ex-CIA chief worries campaigns falling short on cybersecurity Overnight Energy: Trump sparks new fight over endangered species protections | States sue over repeal of Obama power plant rules | Interior changes rules for ethics watchdogs MORE (D-Ore.) said Thursday.

Rod RosensteinRod RosensteinWhy the presumption of innocence doesn't apply to Trump McCabe sues FBI, DOJ, blames Trump for his firing Rosenstein: Trump should focus on preventing people from 'becoming violent white supremacists' MORE, Trump’s former deputy attorney general, also endorsed Gordon in a tweet Friday, describing her as a “proven patriot who understands foreign threats, respects the nonpartisan truth, and protects America 24/7.”

Trump has previously moved to install hand-picked acting officials in top roles, stirring legal debate.

His decision to replace former Secretary of Homeland Security Kirstjen NielsenKirstjen Michele NielsenTrump casts uncertainty over top intelligence role Juan Williams: Trump, his allies and the betrayal of America Trump taps Texas Rep. Ratcliffe to replace Dan Coats as top intelligence official MORE with Customs and Border Protection Commissioner Kevin McAleenan prompted questions of legality earlier this year.

Claire Grady, the acting deputy secretary who was in line to replace Nielsen under federal law, ultimately resigned, clearing the way for McAleenan to take over.

The president sparked a firestorm on Sunday when he announced that Coats would be leaving — something rumored for months — and that he intended to nominate Ratcliffe. Trump often clashed with Coats publicly on issues including Russian interference and North Korea, and it was long expected he would tap someone who shares views more in line with his own. 

Trump also sowed doubt about Gordon’s tenure by saying he would name an acting director “shortly” and not immediately announcing that she would take over the role, as was expected.

Ratcliffe endured a wave of scrutiny over the past five days, foretelling a brutal battle over his confirmation in the Senate. Democrats described him as under-qualified and too political for the role, and many Republicans chose to withhold their opinions until they knew more about him. News reports have suggested he exaggerated his résumé with respect to his work as a federal prosecutor.

Trump announced Friday afternoon that Ratcliffe would withdraw from consideration, blaming the media for treating him “very unfairly” and saying he had decided to remain in Congress.

Trump later told reporters he had three people he is considering for the permanent role of DNI, though he didn’t offer any names.

“I do have a shortlist. I have a list of a few people. We’re looking at very well-known people. People where the vetting would go very easily because that’s what they’ve been doing. They’re in the intelligence world,” Trump said.

The Senate left Washington for its August recess on Thursday and won’t return until Sept. 9. Even if Trump moves to swiftly nominate a person for DNI, it will likely be weeks or more between the time Coats leaves and the new intelligence chief is confirmed.