Trump's New Director of National Intelligence Is a Menace to Liberty
As U.S. attorney, Jay Clayton subpoenaed journalists for reporting embarrassing information about the president's new plane.
This week, by a vote of 51–47, the U.S. Senate confirmed Jay Clayton, President Donald Trump's latest nominee for director of national intelligence (DNI).
Clayton has already shown a tendency to back the president at the expense of individual liberty. His confirmation to a position with such considerable power is a poor omen.
Last month, The New York Times published multiple stories about the luxury jet Trump received from the government of Qatar. The paper alleged that the plane, which is nominally intended to take the place of Air Force One, was still not secure enough to fill that role, requiring the president to take the original plane.
Days later, the Times' reporters received subpoenas directing them to testify before a grand jury about their reporting on the plane. The summonses were signed by Clayton, who was at the time the U.S. Attorney for the Southern District of New York.
A Department of Justice (DOJ) spokesperson claimed the inquiry was not targeting reporters, merely tracking down leakers of classified information.
Still, the subpoenas were troubling. Free speech organizations decried them as brazen interference into the journalistic process. If the Times reporters refused to appear, or declined to answer questions about their sources, they risked being held in contempt of court.
In 1972's Branzburg v. Hayes, the U.S. Supreme Court ruled that the First Amendment did not allow reporters to refuse to answer questions about their sources before a grand jury.
In 2005, Times journalist Judith Miller spent nearly three months in jail for refusing to testify about a confidential source.
Last week, the DOJ withdrew the Times subpoenas, after both considerable public backlash and skeptical questioning from the federal judge assigned to the case. But it should have been clear from the start that they represented a gross overreach of government power.
DOJ policy dictates that "the use of certain law enforcement tools, including subpoenas…to seek information from, or records of, non-consenting members of the news media [are] extraordinary measures, not standard investigatory practices."
But even if one allows that the government could demand a reporter's testimony in severe situations, this clearly did not rise to that level.
Last year, when Qatar offered Trump the plane, experts noted that it posed a significant security risk and would require lengthy and expensive retrofitting before it could be used to carry the president.
The Times' reporting claimed the plane was still not secure enough, requiring Trump to take Air Force One back from a NATO summit in Turkey. An FBI official reportedly asked the paper to hold the reporting, which the Times did not do. But this reporting came after the plane had returned to the U.S. Exactly what damage did this information pose to national security?
Clayton has also entertained Trump's ludicrous and long-debunked theories about widespread voter fraud against Republicans.
During his confirmation hearing, Clayton declined to assert that Joe Biden had won the 2020 election—instead merely saying that Biden was "certified" the winner, a more careful stipulation likely designed to stay on Trump's good side.
But Clayton has gone further: Last month, when the president alleged fraud in the Los Angeles mayoral race, Clayton told CNBC there was "a deep problem with voting in America….On the integrity side, we're doing an absolutely terrible job, and the American people are right to question it." When pressed, Clayton insisted he was not alleging fraud, merely that certain laws that make it easier to vote also create "opportunity for fraud."
Clayton will now have considerable power as the head of the U.S. intelligence community.
The DNI is the president's primary advisor on matters of national intelligence and manages the federal government's $115 billion intelligence budget. The office of the DNI also produces and presents the President's Daily Brief.
It's troubling enough that such a role even exists, much less for it to be filled by someone who has shown himself to be a Trump toady.
"I'm concerned Jay Clayton lacks the independence necessary to successfully lead our intelligence community," Sen. Michael Bennet (D–Colo.) said in a statement. "While I recognize his prior public service, Clayton's repeated deference to the Trump White House—whether in indulging Trump's false claims about the integrity of our election system or the improper issuance of subpoenas to reporters who wrote a story that President Trump disliked—suggests his top priority will be placating Donald Trump."
"It's crystal clear that Clayton abused his subpoena power to violate the press freedom rights of several reporters, in direct contradiction of the DOJ's own rules and established law," added Trevor Timm, executive director of the Freedom of the Press Foundation. "If he's willing to sign off on a violation of DOJ's policies at Donald Trump's request, what will he do now that he's in charge of the intelligence community's incredibly powerful surveillance apparatus?"
