Former acting attorney general Sally Yates and James R. Clapper Jr., the former director of national intelligence, are testifying at a Senate Judiciary subcommittee hearing on Russian interference in the 2016 presidential election. This is the transcript:
SEN. LINDSEY GRAHAM, R-S.C.: … Our two witnesses are well known and will be sworn in but Mr. Clapper, the former director of national intelligence has served his country for decades in uniform and out and dedicated his life to intelligence gathering and we appreciate that. Ms. Yates was the former deputy attorney general, is well respected by people in the legal profession. Thank you both for coming.
If you’ll please rise. Raise your right hand, please. Do you affirm that testimony you’re about to give this subcommittee is the truth, the whole truth, and nothing but the truth so help you God?
SALLY Q. YATES, FORMER ACTING ATTORNEY GENERA: (OFF MIKE)
GRAHAM: Mr. Clapper.
JAMES R. CLAPPER JR., FORMER DIRECTOR OF NATIONAL INTELLIGENCE: (OFF MIKE). Chairman Graham, Ranking Member Whitehouse and members of the subcommittee, certainly didn’t expect to be before this committee or any other committee of the Congress again so soon since I thought I was all done with this when I left the government. And this is only my first of two hearings this week. But understandably, concern about the egregious Russian interference in our election process is so critically serious as to merit focus, hopefully bipartisan focus by the Congress and the American people.
Last year, the intelligence community conducted an exhaustive review of Russian interference into our presidential election process resulting in a special intelligence community assessment or ICA as we call it. I’m here today to provide whatever information I can now as a private citizen on how the intelligence community conducted its analysis, came up with its findings, and communicated them to the Obama administration, to the Trump transition team, to the Congress and in unclassified form to the American public.
Additionally, I’ll briefly address four related topics that have emerged since the ICA was produced. Because of both classification and some executive privilege strictures (ph) requested by the White House, there are limits to what I can discuss. And of course my direct official knowledge of any of this stopped on 20 January when my term of office was happily over.
As you know, the I.C. was a coordinated product from three agencies; CIA, NSA, and the FBI not all 17 components of the intelligence community. Those three under the aegis of my former office. Following an extensive intelligence reporting about many Russian efforts to collect on and influence the outcome of the presidential election, President Obama asked us to do this in early December and have it completed before the end of his term.
The two dozen or so analysts for this task were hand-picked, seasoned experts from each of the contributing agencies. They were given complete, unfettered mutual access to all sensitive raw intelligence data, and importantly, complete independence to reach their findings. They found that the Russian government pursued a multifaceted influence campaign in the run-up to the election, including aggressive use of cyber capabilities.
The Russians used cyber operations against both political parties, including hacking into servers used by the Democratic National Committee and releasing stolen data to WikiLeaks and other media outlets. Russia also collected on certain Republican Party- affiliated targets, but did not release any Republican-related data. The Intelligence Community Assessment concluded first that President Putin directed and influenced campaign to erode the faith and confidence of the American people in our presidential election process. Second, that he did so to demean Secretary Clinton, and third, that he sought to advantage Mr. Trump. These conclusions were reached based on the richness of the information gathered and analyzed and were thoroughly vetted and then approved by the directors of the three agencies and me.
These Russian activities and the result and (ph) assessment were briefed first to President Obama on the 5th of January, then to President-elect Trump at Trump Tower on the 6th and to the Congress via a series of five briefings from the 6th through the 13th of January. The classified version was profusely annotated, with footnotes drawn from thousands of pages of supporting material. The key judgments in the unclassified version published on the 6th of January were identical to the classified version.
While it’s been over four months since the issuance of this assessment, as Directors Comey and Rodgers testified before the House Intelligence Committee on the 20th of March, the conclusions and confidence levels reached at the time still stand. I think that’s a statement to the quality and professional of the — of the intelligence community people who produced such a compelling intelligence report during a tumultuous, controversial time, under intense scrutiny and with a very tight deadline.
Throughout the public dialogue about the issue over the past few months, four related topics have been raised that could use some clarification. I’d like to take a few moments to provide — attempt to provide that clarification.
First, I want to address the meaning of quote, “unmasking,” which is an unofficial term that’s appeared frequently in the media in recent months and was often I think misused and misunderstand. So it frequently happens that in the course of conducting lawfully authorized electronic surveillance on validated foreign intelligence targets, the collecting agency picks up communications involving U.S. persons, either their direct interface with a validated foreign intelligence target or where there is a discussion about those U.S. persons by validated foreign intelligence targets. Under intelligence community minimization procedures, the identities of these U.S. persons are typically masked in reports that go out to intelligence consumers and they’re referred to each report at a time as U.S. person one, U.S. person two, et cetera.
However, there are cases when, to fully understand the context of the communication that has been obtained or the threat that is posed, the consumer of that collected intelligence may ask the identity of the U.S. person be revealed. Such requests explain why the unmasking is necessary and that explanation is conveyed back to the agency that collected the information. It is then up to that agency whether to approve the request and to provide the identity. And if the U.S. person’s identity is revealed, that identity is provided only to the person who properly requested it, not to a broader audience. This process is subject to oversight and reporting, and in the interest of transparency, my former office publishes a report on the statistics of how many U.S. persons’ identities are unmasked based on collection that occurred under section 702 of the FISA Amendment Act, which I’ll speak to in a moment. And in 2016, that number was 1,934. On several occasions during my six and a half years as DNI, I requested the identity of U.S. persons to be revealed. In each such instance, I made these requests so I could fully understand the context of the communication and the potential threat being posed.
At no time did I ever submit a request for personal or political purposes or to voyeuristically look at raw intelligence nor am I aware of any instance of such abuse by anyone else.
Second is the issue of leaks. Leaks have been conflated with unmaskings in some of the public discourse, but they are two very different things. An unmasking is a legitimate process that consists of a request and approval by proper authorities, as I’ve just briefly described. A leak is an unauthorized disclosure of classified or sensitive information that is improper under any circumstance.
I’ve long maintained during my 50-plus year career in intelligence that leaks endanger national security, they compromise sources, methods and tradecraft and they can put assets’ lives at risk. And for the record, in my long career, I’ve never knowingly exposed classified information in an inappropriate manner.
Third is the issue of counterintelligence investigations conducted by the Federal Bureau of Investigation. While I can’t and won’t comment in this setting on any particular counterintelligence investigation, it’s important to understand how such investigations fit into and relate to the intelligence community and at least the general practice I followed during my time as DNI with respect to FBI counterintelligence investigations.
When the intelligence community obtains information suggesting that a U.S. person is acting on behalf of a foreign power, the standard procedure is to share that information with the lead investigatory body, which of course is the FBI. The bureau then decides whether to look into that information and handles any ensuing investigation if there is one. Given its sensitivity, even the existence of a counterintelligence investigation’s closely held, including at the highest levels.
During my tenure as DNI, it was my practice to defer to the FBI director, both Director Mueller and then subsequently Director Comey, on whether, when and to what extent they would inform me about such investigations. This stems from the unique position of the FBI, which straddles both intelligence and law enforcement. And as a consequence, I was not aware of the counterintelligence investigation Director Comey first referred to during his testimony before the House Permanent Select Committee for Intelligence on the 20th of March, and that comports with my public statements.
Finally I’d like to comment on Section 702 of the Foreign Intelligence Surveillance Act Amendment Acts, as it’s called, what it governs and why it’s vital. This provision authorizes the Foreign Intelligence Surveillance Court to approve electronic surveillance of non-U.S. person, let me repeat that, non-U.S. person, foreign intelligence targets outside the United States. Section 702 has been a tremendously effective tool in identifying terrorists and other threats to us, while at the same time protecting the privacy and civil liberties of U.S. persons.
And as the — as Chairman Graham indicated, Section 702 is due for reauthorization by Congress this year. It was renewed in 2012 for five years and it expires on 31 December of this year. With so many misconceptions flying around, it would be tragic for Section 702 to become a casualty of misinformation and for us to lose a tool that is so vital to the safety of this nation.
In conclusion, Russia’s influence activities in the run-up to the 2016 election constituted the high water mark of their long running efforts since the 1960s to disrupt and influence our elections. They must be congratulating themselves for having exceeded their wildest expectations with a minimal expenditure of resource. And I believe they are now emboldened to continue such activities in the future both here and around the world, and to do so even more intensely. If there has ever been a clarion call for vigilance and action against a threat to the very foundation of our democratic political system, this episode is it.
I hope the American people recognize the severity of this threat and that we collectively counter it before it further erodes the fabric of our democracy.
I’ll now turn to my former colleague, Acting Attorney General Sally Yates, for any remarks that she has to make.
YATES: Thank you. Chairman Graham, Ranking Member Whitehouse and distinguished members of the subcommittee, I’m pleased to appear before you this afternoon on this critically important topic of Russian interference in our last presidential election and the related topics that this subcommittee is investigating.
For 27 years, I was honored to represent the people of the United States with the Department of Justice. I began as an assistant United States attorney in Atlanta in the fall of 1989, and like all prosecutors, I investigated and tried cases and worked hard to try to ensure the safety of our communities and that those who violated our laws were held accountable. Over time, through five Republican and Democratic administrations, I assumed greater leadership positions within the department.
In the U.S. Attorney’s Office in Atlanta, I served as chief of the fraud and public corruption section as first assistant United States attorney and then was appointed United States attorney. And then, I had the privilege of serving as deputy attorney general for a little over two years, and finally, the current administration asked me to stay on as acting attorney general.
Throughout my time at the department, I was incredibly fortunate to be able to work with the talented career men and women at the Department of Justice, who followed the facts and applied the law with tremendous care and dedication and who are, in fact, the backbone of the Department of Justice.
And at every step, in every position, from AUSA to acting attorney general, I always try to carry out my responsibility to seek justice in a way that would engender the trust and the confidence of the people whom I served. I want to thank this subcommittee for conducting an impartial and thorough investigation of this vitally important topic.
The efforts by a foreign adversary to interfere and undermine our Democratic processes and — and those of our allies pose a serious threat to all Americans. This hearing and others this subcommittee has conducted and will be conducting in the future are an important bipartisan step in understanding the threat and the best ways to confront it going forward.
As the intelligence community assessed in its January of 2017 report, Russia will continue to develop capabilities to use against the United States and we need to be ready to meet those threats. I sincerely appreciate the opportunity to take part in today’s discussion.
Now, I want to note that in my answers today, I intend to be as fulsome and as comprehensive as possible, while respecting my legal and ethical boundaries. As the subcommittee understands, many of the topics of interest today concern classified information that I cannot address in this public setting.
My duty to protect classified information applies just as much as a former official, as it did when I led the department. In addition, I’m obviously no longer with the Department of Justice and I am not authorized to generally discuss deliberations within DOJ or more broadly, within the executive branch, particularly on matters that may be the subject of ongoing investigations.
I take those obligations very seriously. And I appreciate the subcommittee’s shared interest in protecting classified information and preserving the integrity of any investigations that the Department of Justice may now be conducting.
I look forward to answering your questions. Thank you.
GRAHAM: Senator Grassley, would you like to make a statement?
SEN. CHARLES E. GRASSLEY, R-IOWA: (inaudible)
GRAHAM: OK.
GRASSLEY: I don’t want to.
GRAHAM: OK.
GRASSLEY: I’ve got questions.
GRAHAM: All right, you’ll get to ask them. Senator Feinstein?
SEN. DIANNE FEINSTEIN, D-CALIF.: Thank you very much, Mr. Chairman and I’ll be very brief. We have prepared for the committee and I’d like to ask the staff to distribute it, a background and timeline on Lieutenant General Michael Flynn and some of the key dates involved, which may be of help to the subcommittee.
And I would just like to take this opportunity to thank the subcommittee, Chairman Graham and — and the Ranking Member Whitehouse, I think you’ve done a good job and your whole subcommittee has. And so thank you very, very much.
I’d just like to make a few comments, if I might, and put all the remarks in the record. I think it is a foregone conclusion about Russia’s involvement and we see it replicated even in the French election, perhaps not to the extent or in the way, but certainly replicated.
On February 9th, 2017, the Washington Post reported that either Flynn had misled the vice president or that Pence had misspoken. Lieutenant General Flynn resigned his post on February 13th, four days after the Post broke this story. There are still many unanswered questions about General Flynn, including who know what — who knew what and when.
For example, the press is now reporting that in addition to the warning from Sally Yates, concerns were raised by former President Obama directly to then President-elect Trump, 95 days before Flynn resigned. So the question, what role did Flynn play in communications with the Russians, both after the first warning by President Obama and then after the warning by Sally Yates? And I hope to ask that today. What role did Flynn play in high-level national security decisions, again both during the 95 days and the 18 days when the White House was on notice?
So, I look forward to hearing more about this from you, acting Attorney General Yates. You have stated that you warned the White House on January 26, nearly three weeks before Flynn resigned that he had not been truthful and might be vulnerable to Russian blackmail.
And finally, there are other troubling questions regarding Russia’s relationships and connections with Trump advisors and associates. And there are questions about whether anyone was the target of Russian intelligence, either to be exploited or cultivated.
So, I will put my whole remarks in the record, Mr. Chairman. And I hope to ask some questions around these few comments. Thank you very much for this opportunity.
GRAHAM: Yes, ma’am, without objections.
SEN. SHELDON WHITEHOUSE, D-R.I.: Mr. Chairman, may I also put into the record a letter dated November 18, 2016 from the ranking member on the House Committee on Oversight Government Reform, Representative Elijah Cummings, giving then Vice President-elect Pence notice about certain — what he called apparent conflicts of interest regarding General Flynn?
GRAHAM: Without objection. General Clapper, on March 5, 2017, you said the following to a question. Here’s the question.
Does intelligence exist that can definitely answer the following question, whether there were improper contacts between the Trump campaign and Russian officials? You said we did not include any evidence in our report.
And I say our, that’s the NSA, the FBI, the CIA, with my office, the Director of National Intelligence, that had anything — that had any reflection of collusion between members of the Trump campaign and the Russians. There was no evidence of that included in our report.
Chuck Todd (ph) then asked, I understand that, but does it exist? You say no, not to my knowledge. Is that still accurate?
CLAPPER: It is.
GRAHAM: Ms. Yates, do you have any evidence — are you aware of any evidence that would suggest that in the 2016 campaign anybody in the Trump campaign colluded — colluded with the Russian government intelligence services in improper fashion?
YATES: And Senator, my answer to that question would require me to reveal classified information. And so, I — I can’t answer that.
GRAHAM: Well, I don’t get that because he just said he issued the report. And he said he doesn’t know of any. So, what would you know that’s not in the report?
(CROSSTALK)
CLAPPER: Are you asking me, or …
GRAHAM: No, her.
CLAPPER: Oh.
YATES: Well, I think that Director Clapper also said that he was unaware of the FBI counter intelligence investigations.
GRAHAM: Would it be fair to say that the counter-intelligence investigation was not mature enough to come to his — to get in the report. Is that fair, Mr. — Mr. Clapper?
CLAPPER: I — that’s an — that’s a possibility.
GRAHAM: What I don’t get is how the FBI can have a counter- intelligence investigation suggesting collusion, and you, as director of National Intelligence not know about it, and the FBI sign on to a report that basically said there was no collusion.
CLAPPER: I can only speculate why that’s so. There wasn’t — the evidence, if there was any, didn’t reach the evidentiary bar in terms of the level of confidence that we were striving for in that intelligence community assessment.
GRAHAM: OK, that makes perfect sense to me. Follow up on that, are you familiar with a dossier about Mr. Trump compiled with some guy in England?
CLAPPER: I am.
GRAHAM: Did you find that to be a credible report?
CLAPPER: Well, we didn’t make a judgment on that. And that’s — that’s one reason why we did not include it in the body of our intelligence community assessment.
GRAHAM: You didn’t find it credible enough to be included?
CLAPPER: We couldn’t corroborate the sourcing, particularly the second — third-order sources.
GRAHAM: Ms. Yates, are you familiar with the dossier?
YATES: (OFF-MIKE)
CLAPPER: Microphone.
GRAHAM: Microphone.
YATES: If I could try to clarify one answer before as well, because I think, Senator Graham, you may have misunderstood me. You asked me whether I was aware of any evidence of collusion, and I declined to answer because answering would reveal classified information.
I believe that that’s the same answer that Director Comey gave to this committee when he was asked this question as well. And he made clear, and I’d like to make clear, that just because I say I can’t answer it, you should not draw from that an assumption that that means that the answer is yes.
GRAHAM: OK, fair enough.
CLAPPER: I also think, if I may, sir, that this illustrates what I was trying to get at in my statement about the unique position that FBI straddles between intelligence and law enforcement.
GRAHAM: I just want the country to know that whatever they’re doing on the counterintelligence side, Mr. Clapper didn’t know about it, didn’t make it in the report and we’ll see what comes from it. Ms. Yates, what did you tell the White House about Mr. Flynn?
YATES: I had two in-person meetings and one phone call with the White House Counsel about Mr. Flynn. The first meeting occurred on January 26, called Don McGahn first thing that morning and told him that I had a very sensitive matter that I needed to discuss with him, that I couldn’t talk about it on the phone and that I needed to come see him. And he agreed to meet with me later that afternoon.
I took a senior member of the national security division who was overseeing this matter with me to meet with Mr. McGahn. We met in his office at the White House which is a skiff (ph) so we could discuss classified information in his office. We began our meeting telling him that there had been press accounts of statements from the vice president and others that related conduct that Mr. Flynn had been involved in that we knew not to be the truth.
And as I – as I tell you what happened here, again I’m going to be very careful not to reveal classified information.
GRAHAM: Well the reason you knew it wasn’t true was because you had collected some intelligence from an incidental collection system, is that fair to say?
YATES: And I can’t answer that because that again would call me – for me to reveal classified information.
GRAHAM: Let me ask you this, did anybody ever make a request to unmask the conversation between the Russian ambassador and Mr. Flynn?
YATES: And again, Senator, I can’t answer a question like that, it would call for classified information…
GRAHAM: …Mr. Clapper, do you know if that was the case?
CLAPPER: I don’t.
GRAHAM: Is there a way to find that out?
CLAPPER: Well, in another setting it could be discussed.
GRAHAM: But there is a record somewhere of who would make a request to unmask the conversation with General Flynn and the Russian ambassador?
CLAPPER: Well, I’m…
GRAHAM: …If one was made, there’d be a record of it?
CLAPPER: I can’t speak to this specific case but I can generally comment that in the case of 702 requests, yes, those are all documented.
GRAHAM: OK and I don’t mean to interrupt you but this is important to me. How did the conversation between the Russian ambassador and Mr. Flynn make it to the “Washington Post?”
YATES: Which one of us are you asking?
GRAHAM: Ms. Yates.
CLAPPER: That’s a great question.
GRAHAM: I thought so…
CLAPPER: …All of us would like to know that and I don’t know the answer to that.
YATES: Yeah. Nor do I know the answer to that.
GRAHAM: Is it fair to say that if somebody did make an unmasking request, we would know who they were and we could find out from them who they shared the information with? Is that fair to say, the system would allow us to do what I just described?
YATES: Well, unmasking requests are not made to the Department of Justice.
GRAHAM: No but to the agency who does the collection.
YATES: That’s my understanding is that yes…
GRAHAM: …So there should be a record somewhere in our system whether or not an unmasking request was made for the conversation between Mr. Flynn and the Russian ambassador. We should be ale to determine if it did – if it was made, who made it. Then we can ask, what did they do with the information? Is that a fair statement, Mr. Clapper?
CLAPPER: Yes.
GRAHAM: OK. Now what did you finish? What did you tell the White House?
YATES: So I told them again that there were a number of press accounts of statements that had been made by the vice president and other high-ranking White House officials about General Flynn’s conduct that we knew to be untrue. And we told them how we knew that this – how we had this information, how we had acquired it, and how we knew that it was untrue.
And we walked the White House Counsel who also had an associate there with him through General Flynn’s underlying conduct, the contents of which I obviously cannot go through with you today because it’s classified. But we took him through in a fair amount of detail of the underlying conduct, what General Flynn had done, and then we walked through the various press accounts and how it had been falsely reported.
We also told the White House Counsel that General Flynn had been interviewed by the FBI on February 24. Mr. McGahn asked me how he did and I declined to give him an answer to that. And we then walked through with Mr. McGahn essentially why we were telling them about this and the first thing we did was to explain to Mr. McGahn that the underlying conduct that General Flynn had engaged in was problematic in and of itself.
Secondly, we told him we felt like the vice president and others were entitled to know that the information that they were conveying to the American people wasn’t true. And we wanted to make it really clear right out of the gate that we were not accusing Vice President Pence of knowingly providing false information to the American people.
And, in fact, Mr. McGahn responded back to me to let me know that anything that General Flynn would’ve said would have been based — excuse me — anything that Vice President Pence would have said would have been based on what General Flynn had told him.
We told him the third reason was — is because we were concerned that the American people had been misled about the underlying conduct and what General Flynn had done, and additionally, that we weren’t the only ones that knew all of this, that the Russians also knew about what General Flynn had done.
And the Russians also knew that General Flynn had misled the vice president and others, because in the media accounts, it was clear from the vice president and others that they were repeating what General Flynn had told them, and that this was a problem because not only did we believe that the Russians knew this, but that they likely had proof of this information.
And that created a compromise situation, a situation where the national security adviser essentially could be blackmailed by the Russians. Finally, we told them that we were giving them all of this information so that they could take action, the action that they deemed appropriate.
I remember that Mr. McGahn asked me whether or not General Flynn should be fired, and I told him that that really wasn’t our call, that was up to them, but that we were giving them this information so that they could take action, and that was the first meeting.
GRAHAM: Thank you, and I’ll go to Senator Whitehouse — one very quick question. Was…
YATES: Yeah.
GRAHAM: … are you either one of you aware of incidental collection by our intelligence community — of any presidential candidate, staff or campaign during the 2016 election cycle?
CLAPPER: Say that again, sir. I’m sorry (ph).
GRAHAM: Was there any incidental collection, where our intelligence community collects information, involving a presidential candidate on either side of the aisle during 2015 or 2016?
CLAPPER: No, not to my knowledge.
YATES: I believe Director Comey was also asked this question and declined to answer it, so I’m — I need to follow the same lines the DOJ has drawn. Again, you should not draw from that that my answer is yes, but rather, that the answer would require me to reveal classified information.
GRAHAM: Thank you.
Senator Whitehouse.
CLAPPER: My — my response is all within the context of intelligence — foreign intelligence, not the domestic consideration.
YATES: (OFF-MIKE)
GRAHAM: Exactly.
WHITEHOUSE: Following the Comey line, the director testified a few days ago in the full committee that the FBI had interviewed Mr. Flynn a day before, or two days before, your meeting at the White House, and you’ve just testified that you had told the White House counsel that the FBI had interviewed Flynn and he’d asked — McGahn had asked, how’d he do?
YATES: Right.
WHITEHOUSE: Did you have the 302 with you when you were in the White House? Did you show it to White House counsel? And had you seen it at the time you went up to the White House?
YATES: No. The FBI had conducted the interview on the 24th. We got a readout from the FBI on the 25th, a detailed readout specifically from the agents that had conducted the interview.
But we didn’t want to wait for the 302, because we felt that it was important to get this information to the White House as quickly as possible, so we had folks from the national security division who spent a lot of time with the agents, not only finding out exactly how the interview went but how this impacted their investigation.
WHITEHOUSE: So did you take that summary with you? Do you have any document with you that described the FBI interview of General Flynn?
YATES: At the time that I was there, I had notes that described that interview, as well as the individual that was with me — the senior career official from the national security division — had been part of all of those discussions with the FBI.
WHITEHOUSE: Did you discuss criminal prosecution of Mr. Flynn — General Flynn?
YATES: My recollection is that did not really come up much in the first meeting. It did come up in the second meeting, when Mr. McGahn called me back the next morning and asked the — the morning after — this is the morning of the 27th, now — and asked me if I could come back to his office.
And so I went back with the NSD official, and there were essentially four topics that he wanted to discuss there, and one of those topics was precisely that. He asked about the applicability of certain statutes, certain criminal statutes and, more specifically, about…
WHITEHOUSE: This was (ph) the second meeting at the White House Council’s Office in his office again?
YATES: In his office again.
WHITEHOUSE: With the same two individuals?
YATES: Exactly.
WHITEHOUSE: On the following day?
YATES: Right.
WHITEHOUSE: And you went back pursuant to a phone call request or a — was…
YATES: Yes, the morning of the 27th after our meeting had occurred on the afternoon of the 26th, the morning of the 27th, Mr. McGahn called me and asked if I could come back to the White House to discuss this further. And we set up a time and I went over there that afternoon, bringing again the same career official with me from the national security division, who was overseeing this investigation.
He had the same associate from the White House Council’s Office and we talked through four to five more issues.
WHITEHOUSE: You could perhaps have waited until you actually had seen the agents 302 from the interview of General Flynn. Why go ahead of that? Why not wait?
YATES: Well, because this was a matter of some urgency, we…
WHITEHOUSE: Describe.
YATES: In making the determination about notification here, we had to balance a variety of interest. For the reasons that I just described a few minutes ago, we felt like it was critical that we get this information to the White House, because in part because the vice president was unknowingly making false statements to the public and because we believed that General Flynn was compromised with respect to the Russians.
We were balancing this though, against the FBI’s investigation, as you would always do, and take into account the investigating agency’s desires and concerns about how a notification might impact that ongoing investigation. But once General Flynn was interviewed, there was no longer a concern about an impact on an investigation.
WHITEHOUSE: Do you know where that interview took place or under what circumstances?
YATES: I believe it took place at the White House.
WHITEHOUSE: The Flynn interview?
YATES: Yes.
WHITEHOUSE: OK. Do you know if Flynn was represented by council at the time?
YATES: I don’t believe he was.
WHITEHOUSE: OK. And the scenario that you were concerned about was that you were seeing all these statements coming from the White House that were inconsistent with what you knew, you presumed that the White House was being truthful which meant that Flynn was misleading them.
YATES: Right.
WHITEHOUSE: Which meant that he was vulnerable to manipulation by the Russians, who knowing what had actually taken place could call up the national security advisor to the president and say, you got to do this for us or we’re going to out you with all your folks and your career is done.
YATES: That’s right, because one of the questions that Mr. McGahn asked me when I went back over the second day was essentially, why does it matter to DOJ if one White House official lies to another White House official?
And so we explained to him, it was a whole lot more than that and went back over the same concerns that we had raised with them the prior day, that the concern first about the underlying conduct itself, that he had lied to the vice president and others, the American public had been misled.
And then importantly, that every time this lie was repeated and the misrepresentations were getting more and more specific, as — as they were coming out. Every time that happened, it increased the compromise and to state the obvious, you don’t want your national security advisor compromised with the Russians.
WHITEHOUSE: Were there any takeaways from the first meeting or action items that you left with?
YATES: Well, there was an action item in the second meeting because I got — we talked about several issues but…
WHITEHOUSE: To get the order right, you said earlier that there were two meetings and a phone call.
YATES: Right.
WHITEHOUSE: Was the phone call the phone call that set up the second meeting or was there a third…
YATES: There was a third substantive phone call. There was a…
WHITEHOUSE: Go ahead, I can…
YATES: Sorry about that. One of the — one of the issues that Mr. McGahn raised with me in this second meeting that again was on the 27th, the day after the first meeting, was his concern because we had told him before that we were giving him this information so that they could take action.
And he said that they were concerned that taking action might interfere with the FBI investigation. And we told him, both the senior career official and I, that he should not be concerned with it, that General Flynn had been interviewed, that their action would not interfere with any investigation and in fact, I remember specifically saying, you know it wouldn’t really be fair of us to tell you this and then expect you to sit on your hands.
WHITEHOUSE: Was the interview of General Flynn accelerated once you became aware of this information and felt you needed to get his statement quickly?
YATES: Well, we had wanted to tell the White House as quickly as possible and we’re working with the FBI and in the course of the investigation but certainly, we did…
(CROSSTALK)
WHITEHOUSE: And the first thing you know is that you have information that one thing was said and the White House is saying something different. And you know that that information irrespective of who is involved needs to get up to the White House quickly. And so at that point, the decision was made to do the interview so that that was locked down before you went up to White House counsel?
YATES: Right, so that that would not have a negative impact on the FBI investigation at that point.
And there was a request made by Mr. McGahn, in the second meeting as to whether or not they would be able to look at the underlying evidence that we had that we had described for him of General Flynn’s conduct. And we told him that we were inclined to allow them to look at that underlying evidence, that we wanted to go back to DOJ and be able to make the logistical arrangements for that. This second meeting on the 27th occurred late in the afternoon, this is Friday the 27th. So we told him that we would work with the FBI over the weekend on this issue and get back with him on Monday morning. And I called him first thing Monday morning to let him know that we would allow them to come over and to review the underlying evidence.
WHITEHOUSE: And was that the phone call or is there a separate phone call?
YATES: There was the phone call initially to let him know I needed to come see him.
WHITEHOUSE: Yeah?
YATES: Two meetings and then a phone call at the end to let him know…
WHITEHOUSE: That the material was available if he wanted to see it.
YATES: … that the material was available. He had to call me back. He was not available then and I did not hear back from him until that afternoon of Monday the 30th.
WHITEHOUSE: And that was the end of this episode, nobody came over to look at the material?
YATES: I don’t know what happened after that because that was my last day with DOJ.
WHITEHOUSE: Got it. OK.
(LAUGHTER)
GRAHAM: Senator Grassley.
GRASSLEY: Mr. Clapper, you said that you’ve never exposed classified information in an inappropriate manner. I asked Director Comey these questions last week, so for both of you, yes or no. As far as you know, has any classified information relating to Mr. Trump or his associates been declassified and shared with the media?
CLAPPER: Not to my knowledge.
GRASSLEY: Ms. Yates?
YATES: Not to my knowledge either.
GRASSLEY: OK. Next question; have either of you ever been an anonymous source in a news report about matters relating to Mr. Trump, his associates or Russia’s attempt to meddle in the election?
CLAPPER: No.
YATES: Absolutely not.
GRASSLEY: OK. Third question; did either of you ever authorize someone else at your respective organizations to be an anonymous source in a news report about Mr. Trump or his associates?
CLAPPER: No.
YATES: No.
GRASSLEY: OK. As far as either of you know, have any government agencies referred any of the leaks over the past several months to the Justice Department for potential criminal investigation?
CLAPPER: I don’t know. As you know, Senator, there is a process for that — for doing that. I don’t know if that — that’s happened.
GRASSLEY: Ms. Yates?
YATES: I’m not at DOJ anymore, so I don’t know what’s been referred.
GRASSLEY: So then I guess to kind of sum up, neither one of you know whether the department authorized a criminal investigation of the leaks?
CLAPPER: I do not, sir. YATES: No, sir.
GRASSLEY: OK. Have any of you been questioned by the FBI about any leaks?
CLAPPER: I have not been.
YATES: No.
GRASSLEY: OK. I want to discuss unmasking.
Mr. Clapper and Ms. Yates, did either of you ever request the unmasking of Mr. Trump, his associates or any member of Congress?
CLAPPER: Yes, in one case I did that I can specifically recall, but I can’t discuss it any further than that.
GRASSLEY: You can’t, so if I ask you for details, you said you can’t discuss that, is that what you said?
CLAPPER: Not — not here.
GRASSLEY: OK.
Ms. Yates, can you answer that question? Did you ever request unmasking of Mr. Trump, his associates or any member of Congress?
YATES: No.
GRASSLEY: Question two. Did either of you ever review classified documents in which Mr. Trump, his associates or members of Congress had been unmasked?
CLAPPER: Yes.
GRASSLEY: You have? Can you give us details here in this…
CLAPPER: No, I can’t.
GRASSLEY: Ms. Yates, have you?
YATES: Yes, I have and no, I can’t give you details.
GRASSLEY: OK. Did either of you ever share information about unmasked (ph) Trump associates or members of Congress with anyone else?
CLAPPER: Well, I’m thinking back over six and a half years, I could have discussed it with either my deputy or my general counsel.
GRASSLEY: Ms. Yates?
YATES: In the course of the Flynn matter, I had discussions with other members of the intel community. I’m not sure if that’s responsive to your question.
GRASSLEY: And in both cases, you can’t give details here.
YATES: No.
CLAPPER: No.
GRASSLEY: The FBI notified the Democratic National Committee of the Russian’s intrusion into their systems in August of 2015, but the DNC turned down the FBI’s offer to get the Russians out and refused the FBI access to their servers. Instead, it evidently eventually hired a private firm in the spring of 2016. WikiLeaks began releasing the hacked DNC e-mails last July. It took roughly 27,000 of the 27,500 DNC e-mails it released were e-mails sent after the FBI notified the DNC of the breach.
Mr. Clapper, would you agree that one of the lessons of this episode is that people should cooperate with the FBI when notified of foreign hacks instead of stone walling?
CLAPPER: Yes, sir. I generally think that’s a very good idea.
GRASSLEY: Mr. Clapper, you sent the Russians — you said the Russians did not release any negative information on Republican candidates. I believe that that’s not quite right. On June the 15th, 2016, Guccifer 2.0 released to Gawker and The Smoking Gun more than 200 pages of the DNC’s opposition research on Mr. Trump’s — hundreds of pages of what I would call dirt. This happened just two days after The Wall Street Journal published a plan for Republican Convention delegates to revolt to prevent Mr. Trump from securing the nomination.
Why wasn’t – why wasn’t the Russian release of harmful information about Mr. Trump addressed in the Russia report? And was this even evaluated during the review?
CLAPPER: I would have to consult with the analysts that were involved in the report to definitively answer that. I don’t know personally whether they considered that or not.
GRASSLEY: Can you submit that as an answer in writing?
CLAPPER: Well, I’m a private citizen now, sir. I don’t know what — what the rules are on my…
GRASSLEY: Well, give me the name…
CLAPPER: … obtaining classified — potentially classified information, so I will look in to it.
GRASSLEY: OK. Mr. Clapper, you testified that the intelligence community conducted an exhaustive review of Russian interference and the analysts involved had complete, unfettered access to all sensitive raw intelligence data. Do you have any reason to believe that any agency withheld any relevant information?
CLAPPER: I don’t believe so, with one potential caveat, which is that there is the possibility, again acknowledging this role that the FBI plays in straddling both intelligence and law enforcement, that for whatever reason they may have chosen to withhold investigatory sensitive information from the report. I don’t know that to be a fact. I was not apprised of that, I’m just suggesting that as a possibility.
GRASSLEY: My time’s up, Mr. Chairman. Thank you.
GRAHAM: Thank you.
Senator Feinstein.
FEINSTEIN: Thanks very much, Mr. Chairman.
Ms. Yates, I’m not going to ask you anything that deserves a confidential or secure answer, but after your second in-person meeting with Mr. McGahn, you said there were four topics he wanted to discuss. Would you list those four topics?
YATES: Sure. The first topic in the second meeting was essentially why does it matter to DOJ if one White House official lies to another. The second topic related to the applicability of criminal statutes and the likelihood that the Department of Justice would pursue a criminal case. The third topic was his concern that their taking action might interfere with an investigation of Mr. Flynn. And the fourth topic was his request to see the underlying evidence.
FEINSTEIN: Were all those topics satisfied with respect to your impression after the second meeting?
YATES: Yes. The only thing that was really left open there would (ph) — was the logistics, for us to be able to make arrangements for them to look at the underlying evidence.
FEINSTEIN: And you did make those arrangements?
YATES: We did make those arrangements, but again, I don’t know whether that ever happened, whether they ever looked at…
FEINSTEIN: OK.
YATES: … that evidence or not.
FEINSTEIN: Fair enough.
Apparently, Lieutenant General Flynn remained national security adviser for 18 days after you raised the Justice Department’s concern. In your view, during those 18 days, did the risk that Flynn had been or could be compromised diminish at all?
YATES: You know, I don’t know that I’m in a position to really have an answer for that. I know that we were really concerned about the compromise here, and that was the reason why we were encouraging them to act. I don’t know what steps they may have taken, if any, during that 18 days to minimize any risk.
FEINSTEIN: Well, did you discuss this with other DOJ career professionals?
YATES: Certainly, leading up to our notification on the 26th. It was a topic of a whole lot of discussion, in DOJ and with other members of the intel community, and we discussed it at great length. But after the 30th, again, I wasn’t at DOJ anymore, so I didn’t have any further discussions after that point about what was being done with respect to that. FEINSTEIN: Did you consult with other career prosecutors?
YATES: Absolutely. We had, really, the experts within the national security division. As we were navigating this situation, they were working with the FBI on the investigation, and we were trying to make a determination about how best to make this notification so that we could get the information to the White House that they needed to be able to act.
FEINSTEIN: So what’s the point that you were trying to make — yes or no will be fine — that General Flynn had seriously compromised the security of the United States, and possibly the government, by what he had done, whatever that was?
YATES: Well, our point was — is that logic would tell you that you don’t want the national security adviser to be in a position where the Russians have leverage over him. Now, in terms of what impact that may have or could have had, I can’t speak to that, but we knew that was not a good situation, which is why we wanted to let the White House know about it.
FEINSTEIN: The Guardian has reported that Britain’s intelligence service first became aware in late 2015 of suspicious interactions between Trump advisers and Russian intelligence agents. This information was passed on to U.S. intelligence agencies.
Over the spring of 2016, multiple European allies passed on additional information to the United States about contacts between the Trump campaign and Russians. Is this accurate?
YATES: I — I can’t answer that.
FEINSTEIN: General Clapper, is that accurate?
CLAPPER: Yes, it is and it’s also quite sensitive.
FEINSTEIN: OK. Let me ask you this.
CLAPPER: The specifics are — are — are quite sensitive.
FEINSTEIN: When did components of the intelligence community open investigations into the interactions between trump advisers and Russians?
What was the question again, ma’am, I’m sorry?
FEINSTEIN: When did components of the intelligence community open investigations into the interactions between Trump advisers and Russians?
CLAPPER: What was the question, again, Ma’am? I’m sorry.
FEINSTEIN: When did components of the intelligence community open investigations into the interactions between Trump advisers and Russians? CLAPPER: Well, I can — I refer to Director Comey’s statement before the House Intelligence Committee on the 20th of March — is when he advised that they’d open an investigation in July of ’16.
FEINSTEIN: And what was the reaction when you advised that the investigation be opened as early as July 15th?
CLAPPER: I’m sorry?
FEINSTEIN: I — I thought you said that you advised on July…
CLAPPER: No, Director Comey did, before the House Intelligence Committee…
FEINSTEIN: The director (ph) — I see.
CLAPPER: … announced that the FBI had initiated investigation in July of 2016.
FEINSTEIN: Well, what did the intelligence agencies do with the findings that I just spoke about that The Guardian wrote about?
CLAPPER: Well, I’m not sure about the accuracy of that article, so clearly over actually going back to 2015, there was evidence of Soviet, excuse me, Freudian slip, Russian activity. Mainly, in an information gathering or recon ordering mode, where they were investigating voter registration rolls and the like.
And that activity started early, and so, we were monitoring this as it progressed, and certainly as it picked up, accelerated in spring, summer and fall of 2016.
FEINSTEIN: OK.
So let me go back to you, Miss Yates, I take it you were very concerned. What was your prime worry during all of this? Now, you were worried that General Flynn would be compromised? What did you think would happen, if he were, and how do you believe he would have been compromised?
YATES: Well, we had two concerns, compromise was certainly the number one concern and the Russians can use compromised material, information, in a variety of ways, sometimes overtly and sometimes subtly. And again, our concern was, is that you have a very sensitive position, like the National Security advisor and you don’t want that person to be in a position, where again, the Russians have leverage over him.
But, I will also say, another motivating factor is that we felt like the Vice President was entitled to know that the information he had been given, and that he was relaying to the American public, wasn’t true.
FEINSTEIN: So, what’s you’re saying is that General Flynn lied to the Vice President? YATES: That’s certainly how it appeared, yes, because the Vice President went out and made statements about General Flynn’s conduct, that he said were based on what General Flynn had told him, and we knew that that just flat wasn’t true.
FEINSTEIN: Well, as the days went on, what was your view of the situation? Because there were, I guess two weeks before, or was it 18 days before Director Flynn was dismissed?
YATES: Well, again, I was no longer with DOJ after the 30th, and so I wasn’t having interaction or any involvement in this issue after that day.
FEINSTEIN: Thank you, Mr. Chairman.
GRAHAM: Senator Cornyn.
SEN. JOHN CORNYN, R-TEXAS: Thank you, Chairman Graham.
And Senator Whitehouse, for today’s hearing.
This is important, the American people have every right to know as much as possible about Russian interference in our elections. But, as I think, as the Director has told us before many times, this is not anything new.
Although, perhaps, the level and intensity, and the sophistication, of both Russian overt and covert operations is really unprecedented, and I thank the intelligence community for their assessment.
I do regret that, while these two witnesses are certainly welcomed and we’re glad to have them here, that former National Security Advisor Susan Rice, has refused to testify in front of the Committee. It seems to me, there are a lot of questions that she needs to answer.
I would point out, though, Mr. Chairman, that both Senator Feinstein and I, are fortunate enough to be on the Senate Intelligence Committee, which is also conducting a bipartisan investigation under the leadership of Chairman Burr and Vice Chairman Warner.
One of the benefits of that additional investigation, is that we have been given access to the raw intelligence collected by the intelligence community, which I think, completes what understandably is an incomplete picture. When you can only talk in a public setting about part of the evidence, but it is important for the American people to understand what’s happening.
I think this subcommittee hearing is playing an important role in that.
I want to ask Director Clapper, because, I think, unfortunately some of the discussion about unmasking is casting suspicion on the intelligence community in a way that I think is, frankly, concerning. Particularly when we’re looking at reauthorizing Section 702 of the Patriot Act by the end of next year.
because as many have said, I can’t recall your specific words, but I know Director Comey has called that the crown jewels of the intelligence community, and I’m very concerned that some of the information that’s been discussed about unmasking, for example, might cause some people to worry about their legitimate privacy concerns.
CORNYN: So when it comes to incidental collection on an American person, and that is unmasked at the request of some appropriate authority, can you describe, briefly, the paper trail and the series — and the approval process that is required in order to allow that to happen? That’s not a trivial matter, is it?
CLAPPER: The — and the — the process is that, first of all, the judgment as to whether or not to unmask or reveal the identity is rendered by the original collection agency so normally that’s going to be, in the case of 702 — going to be NSA.
And I know, for my part, because, as I indicated in my statement, over my six and a half years of DNI, I occasionally ask for identities to be unmasked to understand the context.
What I was concerned about, and those of us in the intelligence community are concerned about, is the behavior of the — the validated foreign intelligence target. Is that target trying to co-opt, recruit, bribe, penetrate or what?
And it’s very difficult to understand that context by the labels “U.S. person one,” “U.S. person two.” And as well, I should point out, doing that on an anecdotal basis, one SIGINT report at a time, in which you need to look at is there a — is there a pattern here, and so I tried on my part to be very, very judicious about that.
It’s a very sensitive thing. But I did feel an obligation, as DNI, that I should attempt to understand the context and who this person was, because that had a huge bearing on how important or critical it was, and what threat might be posed by virtue of the — again, the behavior of the validated foreign intelligence target.
So our focus was on the target, not — not as much as the U.S. person — only to understand the context.
CORNYN: Well, the fact that some appropriate authority might request and receive the unmasking of the name of the U.S. person does not then authorize the release of that information — that classified information — into the public domain? that remains a crime, does it not?
CLAPPER: Yes. Again, that’s why I attempted to make — to clarify, in my statement…
(CROSSTALK)
CORNYN (?): Push the button.
CLAPPER: That’s why, in my statement, I attempted to make that distinction between unmasking, an authorized, legitimate process with approval by the appropriate authorities, and leaking, which is an unauthorized process under any circumstance.
CORNYN: Mr. Chairman, I think it’s really important that, in order to determine who actually requested the unmasking, and in order to establish whether appropriate procedures were undertaken under both legislative oversight and judicial oversight, that we determine what that paper trail is and follow it…
CLAPPER: Senator Cornyn, if I may, I just — and I have to be very careful here about how I phrase this, but I would just repeat to you the definition of what 702 is used for…
CORNYN: Foreign intelligence (ph).
CLAPPER: … which is collection against a non-U.S. person overseas.
CORNYN: I don’t think you can say that enough, Director Clapper. It’s important, because people need to understand that…
CLAPPER: Happy to say it again.
CORNYN: … we are both getting necessary foreign intelligence…
(CROSSTALK)
CORNYN: … to keep the American people safe, but also respecting the privacy rights and the constitutional rights of American citizens.
CLAPPER: Absolutely.
CORNYN: Ms. Yates, this is the first time that you’ve appeared before Congress since you left the Department of Justice, and I just wanted to ask you a question about the — your decision to refuse to defend the president’s executive order.
In the letter that you sent to Congress, you point out that the executive order itself was drafted in consultation with the Office of Legal Counsel, and you point out that the Office of Legal Counsel reviewed it to determine whether, in its view, the proposed executive order was lawful on its face and properly drafted.
Is it true that the Office of Legal Counsel did conclude it was lawful on its face and properly drafted?
YATES: Yes, they did. The office of…
CORNYN: And you overruled them?
YATES: … I did. The office of legal…
CORNYN: Did you (ph) — what — what is your authority to — to overrule the Office of Legal Counsel when it comes to a legal determination?
YATES: The Office of Legal Counsel has a narrow function, and that is to look at the face of an executive order and to determine purely on its face whether there is some set of circumstances under which at least some part of the executive order may be lawful. And importantly, they do not look beyond the face of the executive order, for example, statement that are made contemporaneously or prior to the execution of the E.O. that may bear on its intent and purpose.
That office does not look at those factors, and in determining the constitutionality of this executive order, that was an important analysis to engage in and one that I did.
CORNYN: Well, Ms. Yates, I thought the Department of Justice had a long standing tradition of defending a presidential action in court if there are reasonable arguments in its favor, regardless whether those arguments might prove to be ultimately persuasive, which of course is up to the courts to decide and not you, correct?
YATES: It is correct that often times, but not always, the civil division of the Department of Justice will defend an action of the president or an action of Congress if there is a reasonable argument to be made. But in this instance, all – all arguments have to be based on truth because we’re the Department of Justice. We’re not just a law firm, we’re the Department of Justice and the…
(CROSSTALK)
CORNYN: You distinguish the truth from lawful?
YATES: Yes, because in this instance, in looking at what the intent was of the executive order, which was derived in part from an analysis of facts outside the face of the order, that is part of what led to our conclusion that it was not lawful, yes.
CORNYN: Well, Ms. Yates, you had a distinguished career for 27 years at the Department of Justice and I voted for your confirmation because I believed that you had a distinguished career. But I have to tell you that I find it enormously disappointing that you somehow vetoed the decision of the Office of Legal Counsel with regard to the lawfulness of the president’s order and decided instead that you would counter man (ph) the executive order of the president of the United States because you happen to disagree with it as a policy matter.
YATES: Well, it was…
CORNYN: I just have to say that.
YATES: I appreciate that, Senator, and let me make one thing clear. It is not purely as a policy matter. In fact, I’ll remember my confirmation hearing. In an exchange that I had with you and others of your colleagues where you specifically asked me in that hearing that if the president asked me to do something that was unlawful or unconstitutional and one of your colleagues said or even just that would reflect poorly on the Department of Justice, would I say no? And I looked at this, I made a determination that I believed that it was unlawful. I also thought that it was inconsistent with principles of the Department of Justice and I said no. And that’s what I promised you I would do and that’s what I did.
CORNYN: I don’t know how you can say that it was lawful and say that it was within your prerogative to refuse to defend it in a court of law and leave it to the court to decide.
YATES: Senator, I did not say it was lawful. I said it was unlawful.
GRAHAM: Senator Durbin is next, but I have one quick, if you don’t mind Senator Durbin, about how 702 works. You said something, General Clapper, I don’t quite understand. Is it unlawful to surveil with a FISA warrant a foreign agent in the United States?
CLAPPER: No, it’s not. But that’s another provision. I was – I was saying…
GRAHAM: OK. CLAPPER: I was saying what 702 does.
GRAHAM: I just want to make sure there is a procedure to do that.
CLAPPTER: There is.
GRAHAM: OK.
Senator Durbin?
(UNKNOWN): Just to your point, you said the word overseas. Ambassador Kislyak was not overseas on December 29th, was he?
CLAPPER: That’s correct.
(UNKNOWN): Thank you.
SEN. RICHARD J. DURBIN, D-ILL.: Thank you, Mr. Chairman.
Let me say at the outset in response to Senator Cornyn, in your conclusion about the unlawful nature of the Muslim travel ban was, of course, a position which was supported by three different federal courts that stopped the enforcement of that ban and ultimately led to the president withdrawing that particular travel ban. Is that not true?
YATES: That’s correct.
DURBIN: Thank you.
I want to mention at the outset here that this is a critically important hearing and I want to thank Senator Graham and Senator Whitehouse for the bipartisan nature and the cooperation in this hearing. I think the testimony we’ve received from these witnesses and the presence of so many other of my colleagues is an indication of how we view the severity and gravity of the issue before us.
I’m troubled that this great committee with its great chairman and all its members does not have professional staff assigned to this investigation. It’s the ordinary staff of the subcommittee who are working it. I think that what we have seen with this situation calls for the appointment of an independent commission, presidential commission or congressional commission, one that is clearly independent, transparent and can get to the bottom of the Russian involvement in our last election process and the threat that faces — we face in the future because of it.
Short of that, we’ll continue to do our best on a committee level with meager resources in both the Intelligence Committee and here. And this is, I think, an issue that begs for so much more. I might also say that I’m starting to hear from the Republican side of the table some real concerns about Section 702, which Senator Lee, Republican member of the committee and myself, have been calling for reform on for several years. Unfortunately, we didn’t have the support from the other side of the table when we did. I hope that we can get it now when we talk about real reform to (ph) the 702 and protecting the rights of individuals in America.
Ms. Yates, let me ask you about this meeting on January the 26th with White House Counsel Don McGahn. You shared the Justice Department’s concern about his communications with Russia, his apparent dishonesty about those communications and his vulnerability to blackmail. Is that correct?
YATES: That’s right.
DURBIN: Was there anything else about the relationship of General Flynn and the Russians other than his representations that he had no conversation that you warned Don McGahn about?
YATES: No.
DURBIN: So it didn’t go back to his trip to Moscow, money received and so forth?
YATES: No, it did not.
DURBIN: It was strictly on that question?
YATES: Yes.
DURBIN: And then you had a second meeting the next day.
YATES: That’s right.
DURBIN: Is that correct, on January 27th?
YATES: At his request, yes.
DURBIN: At Mr. McGahn’s request. And at that second meeting, did Mr. McGahn say anything about whether he had taken the information you’d given him the previous day to the president? YATES: No, he didn’t tell us.
DURBIN: Are you aware of the fact that Mr. Spicer, the White House press secretary, on February 14th said, and I quote, “Immediately after the Department of Justice notified the White House counsel of the situation, the White House counsel briefed the president and a small group of senior advisors?”
YATES: I’ve seen media reports to that effect, but that’s all I know is from the media.
DURBIN: So there was no statement by Mr. McGahn that he had either spoken to the president about your concerns with his national security advisor or with any other members of the White House?
YATES: No, he didn’t advise us in the second meeting anyone he may have discussed this with the prior evening.
DURBIN: I guess I want to also go to the question which keeps gnawing at me here that Mr. McGahn asked of you. Is there anything wrong with one White House official lying to another White House official?
YATES: Well, to be fair to Mr. McGahn here, I wouldn’t say that he said is there anything wrong. His question was more essentially what’s it to the Justice Department if one White House official is lying to another? In other words, why is this something that DOJ would be concerned about? And that’s why went back through the list of issues and reasons why this was troubling to us.
DURBIN: Did you think there was a legal reason to be concerned if one White House official lied to another White House official?
YATES: We didn’t go into that. And to the extent you may be talking about like 1001 violation, that was not something that we were alluding to or discussing with Mr. McGahn. I think his point when he made that point to me was that he wasn’t sure why the Department of Justice would care about one lying to another, not to be discussing whether that was in fact a crime.
DURBIN: And the reason you told him was what?
YATES: Was that, again, it was a whole lot more than one White House official lying to another. First of all, it was the vice president of the United States and the vice president had then gone out and provided that information to the American people who had then been misled and the Russians knew all of this, making Mike Flynn compromised now.
DURBIN: You said earlier, I believe, that Mr. McGahn asked you if you thought they should fire General Flynn at that point.
YATES: Right.
DURBIN: And what was your response? YATES: Told him that it was not our call as to whether General Flynn was fired, that we were giving them this information so that they could take action, the action that they believed was appropriate.
DURBIN: On February 14th, after General Flynn resigned, Sean Spicer said, and I quote, “There was nothing in what General Flynn did in terms of conducting himself that was an issue.” Do you have any idea what he meant by those words?
YATES: No. I’m not — all I can say is he didn’t reach that conclusion from his conversation with us. I can’t speak to how he arrived at that.
DURBIN: Let me ask you, there was a period of time, 18 days, that we’ve referred to (inaudible) and during that period of 18 days, a number of things occurred; General Glynn continued to serve as the national security advisor for 18 days after you had briefed the White House about the counterintelligence risk that he posed. And during those 18 days, General Flynn continued to hire key senior staff on the National Security Council, announced new sanctions on Iran’s ballistic missile program, met with Japanese Prime Minister Shinzo Abe along with President Trump at Mar-a-Lago and participated in discussions about responding to a North Korean missile launch and spoke repeatedly to the press about his communications with Russian Ambassador Kisliak.
DURBIN: Ms. Yates, in — in your view, were there national security concerns in these decisions being made after the information you shared with the White House?
YATES: I was no long with DOJ after January 30th, so I wasn’t aware of any actions that the General Flynn was taking. So I — I couldn’t really opine on that.
DURBIN: General Clapper? Would you comment? If you had the warning from the White House — pardon me, from the Department of Justice to the White House about General Flynn possibly being compromised here, and then these important national security decisions had followed, would you have concern about that?
CLAPPER: Well, I would. Hypothetically, yes. I mean, again, I was gone from the government as well when all this happened.
DURBIN: But — but you’ve had quite a career in intelligence and national security. And here, you have a man that’s been told — the White House has been told his — he could be compromised and blackmailed by the Russians — continuing to make the highest level decisions of our government.
CLAPPER: Well, that’s — that’s — it is certainly a potential vulnerability, there’s no question about it.
DURBIN: I would say so. Thank you very much.
Thanks, Mr. Chairman.
GRAHAM: (OFF-MIKE)
SEN. TED CRUZ, R-TEXAS: Thank you, Mr. Chairman. Thank you to the witnesses for being here today.
Mr. Clapper, you — you testified as to the harms that come from leaks — the harms that come to our national security — and you also testified about the importance of protecting classified information and keeping it classified.
During your many years in intelligence, and at the DNI, have you ever knowingly forwarded classified information to a non-government employee on a non-government computer who did not have authorization to receive that information?
CLAPPER: Not to my — not to my recollection, no, sir.
CRUZ: And, Director Clapper, what would you do, at the DNI, if you discovered that an employee of yours had forwarded hundreds or even thousands of e-mails to a non-government individual, their spouse, on a non-government computer?
CLAPPER: Well, you know, I’m not a investigatory or prosecutorial element. But if I were aware of it, I would certainly make known to the appropriate officials that that was going on.
CRUZ: Would that strike you as anything ordinary?
CLAPPER: Hopefully not.
CRUZ: What — what concerns would that raise for you?
CLAPPER: Well, it raises all kinds of potential security concerns. Again, depending on — on the — the content of the e-mail, what the intent was, there’s a whole bunch of variables here that would have to be considered. But, you know, potentially, and again, this is a hypothetical scenario, it could be quite concerning.
CRUZ: What would you expect to happen if you made a referral of an individual who had forwarded hundreds or even thousands of classified information…
CLAPPER: Well…
CRUZ: … to a non-government employee…
CLAPPER: … whether (ph)…
CRUZ: … on a non-government computer?
CLAPPER: … whatever the transgression — potential transgression was, if there were sufficient evidence of a compromise, we would file a crimes report. That’s standard procedure that we use when there’s the potential for investigating and prosecuting someone.
CRUZ: Last week, I asked similar questions to FBI Director Comey, and — and he said an individual who did that would be subject to, quote, “significant administrative discipline,” but that he was highly confident they wouldn’t be prosecuted. Do you share that assessment?
CLAPPER: Well, I don’t — I — I don’t know. I think the — the track record is that the prior administration, I think, prosecuted more people for leaking than anyone in any — in any other administration in the past.
So it’s difficult to do that. And there are many cases we could not prosecute or even seek a crimes report because the potential audience of people that could have been the perpetrator of — of — of these insecurities could not be identified.
CRUZ: It is true that other individuals who were not the direct employee of the Democratic nominee for president were prosecuted for that conduct. Let me — let me shift to a different topic.
Director Clapper, you — you also testified that you’re not aware of any intercepted communications of any presidential candidates or campaigns, other than the Trump campaign that’s been discussed here. Is — is that correct?
CLAPPER: Yes. But that’s to my knowledge. But, you know, prior administrations, prior campaigns — they wouldn’t have been visible to me. So I — I can’t — I can’t say…
CRUZ: But — but in 2016, you’re not aware any other campaigns or candidates?
CLAPPER: … no.
CRUZ: And, Ms. Yates, same question to you.
YATES: I’m not aware of any interceptions of the Trump campaign.
CRUZ: And are you aware of any intercepted communications of any other candidates or campaigns?
YATES: No.
CRUZ: Okay. Because earlier, when Chairman Graham had asked you that, I — I thought you’d declined to answer. So perhaps I misunderstood that.
YATES: And I may have misunderstood the question. I thought the question I declined to answer was a different one than that. So I’m — I’m glad I got a chance to clear it up.
CRUZ: OK. So you have no information of any interceptions of the Bernie Sanders campaign, Hillary Clinton campaign…
YATES: No.
CRUZ: … or any other candidate…
YATES: No.
CRUZ: … in 2016, or campaigns? YATES: No.
CRUZ: OK. Let’ revisit the topic, Ms. Yates, that — that you and Senator Cornyn were talking about.
YATES: OK.
CRUZ: It is correct that the constitution vests the executive authority in the president?
YATES: Yes.
CRUZ: And if an attorney general disagrees with a policy decision of the president — a policy decision that is lawful — does the attorney general have the authority to direct the Department of Justice to defy the president’s order?
YATES: I don’t know whether the attorney general has the authority to do that or not. But I don’t think it would be a good idea. And that’s not what I did in this case.
CRUZ: Well, are you familiar with 8 USC Section 1182?
YATES: Not off the top of my head, no.
CRUZ: Well, it — it — it is the binding statutory authority for the executive order that you refused to implement, and that led to your termination. So it — it certainly is a relevant and not a terribly obscure statute.
By the express text of the statute, it says, quote, “whenever the president finds that entry of any alien or of any class of aliens into the United States would be detrimental to the interest of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem appropriate.”
Would you agree that is broad statutory authorization?
YATES: I would, and I am familiar with that. And I’m also familiar with an additional provision of the INA that says no person shall receive preference or be discriminated against an issuance of a visa because of race, nationality or place of birth, that I believe was promulgated after the statute that you just quoted.
And that’s been part of the discussion with the courts, with respect to the INA, is whether this more specific statute trumps the first one that you just described.
(CROSSTALK)
YATES: But my concern was not an INA concern here. It, rather, was a constitutional concern, whether or not this — the executive order here violated the Constitution, specifically with the establishment clause and equal protection and due process. CRUZ: There is no doubt the arguments you laid out are arguments that we could expect litigants to bring, partisan litigants who disagree with the policy decision of the president.
I would note, on January 27th, 2017, the Department of Justice issued an official legal decision, a determination by the Office of Legal Counsel, that the executive order — and I’ll quote from the opinion — “the proposed order is approved with respect to form and legality.”
That’s a determination from OLC on January 27th that it was legal. Three days later, you determined, using your own words, that although OLC had — had opined on legality, it had not addressed whether it was, quote, “wise or just.”
YATES: And I also, in that same directive, Senator, said that I was not convinced it was lawful. I also made the point that the office of — OLC looks purely at the face of the document and, again, makes a determination as to whether there is some set of circumstances under which some portion of that E.O. would be enforceable, would be lawful.
They, importantly, do not look outside the face of the document. And in this particular instance, particularly where we were talking about a fundamental issue of religious freedom — not the interpretation of some arcane statute, but religious freedom — it was appropriate for us to look at the intent behind the president’s actions, and the intent is laid in and out his statements.
CRUZ: A final, very — very brief question. In the over 200 years of the Department of Justice history, are you aware of any instance in which the Department of Justice has formally approved the legality of a policy, and three days later, the attorney general has directed the department not to follow that policy, and to defy that policy?
YATES: I’m not. But I’m also not aware of a situation where the Office of Legal Counsel was advised not to tell the attorney general about it until after it was over.
Transcript provided by ASC Services, on behalf of Bloomberg Finance (Government Division).
