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Continuing Coverage of Senate Judiciary Hearing. Aired 4-4:30p ET

Aired May 8, 2017 - 16:00   ET


SEN. DICK DURBIN, D-ILLINOIS: -- communications with Russian Ambassador Kislyak.


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.


CRUZ: 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?


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...


CRUZ: ... or any other candidate...


CRUZ: ... in 2016, or campaigns?


CRUZ: OK. Let' revisit the topic, Ms. Yates, that -- that you and Senator Cornyn were talking about.


CRUZ: It is correct that the constitution vests the executive authority in the president?


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.


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.

CRUZ: Thank you, Ms. Yates. I -- I -- I would note, that might be the case, if there's reason to suspect partisanship.

GRAHAM: Senator Klobuchar.

KLOBUCHAR: Thank you.

I want to thank you very much for your service Ms. Yates. From beginning to end your distinguished career as a prosecutor and I just was putting this time table together and I realize that you're second meeting, when you went over to the white house to warn them of General Flynn's line, and his connections with Russia was the same day that this Refugee order came out and it was the same day that you had to leave the justice department. So you -- when did you meet with the White House council on that day?

YATES: I met with White House Council as best as I can recall about 3:00 in the afternoon on the 30th.

KLOBUCHAR: And during that meeting did they mention -- anyone mention that this refugee order was about to come out?


KLOBUCHAR: Did the acting Attorney General of the United States?

YATES: No and that was one thing that was of concern to us, is that not only was department leadership not consulted here and beyond department leadership, really the subject matter experts, the national security experts, not only was the department not consulted, we weren't even told about it. I learned about this from media reports.

KLOBUCHAR: So you learned about it after the meeting at the White house Council from the media.

YATES: Right.

KLOBUCHAR: And then it's true that during your hearing, then Senator Sessions, now the Attorney General actually asked you if the views the President wants to execute are unlawful, should the Attorney General or Deputy Attorney General say no? And what did you say?

YATES: And I said yes, the Attorney General should.

KLOBUCHAR: And then moving forward here, as was mentioned by Senator Durbin, this order was (inaudible) after a lawsuit from the State of Washington and Minnesota, the court basically challenged -- the constitutionality of the order. The order is now taken effect, but what I want to get to right now is the fact that the administration then withdrew its request for an appeal of the court ruling blocking implementation of the same order and then they changed the order that you would not implement.

YATES: Right. And there were a number of important distinctions between travel ban one and travel ban two. At the time I had to make my decision for example, the executive order still applied to green card holders, lawful permanent residents and those who had visas.

There were a number of other distinctions as well. And look, let me say ...

KLOBUCHAR: Thank you.

YATES: Oh, OK sorry.

KLOBUCHAR: I want to get on to -- but go ahead very quickly.

YATES: Look I understand that, you know people of good will and -- who are good folks can make different decisions about this. I understand that. But all I can say is that I did my job the best way I knew how. I looked at this E.O., I looked at the law, I talked with the folks at the Department of Justice, gathered them all to get their views and their input and I did my job.

KLOBUCHAR: OK. I appreciate that. Let's go to Russia. December 29th, this is the date that actually Senator Graham and I were with Senator McCain hearing about Russian interference, meeting with leaders in the Baltic's, Georgia and Ukraine. This is the date that the President expanded the sanctions against Russia and this is the date that Michael Flynn reportedly talked to the Russians, perhaps several times about sanctions.

He then went on to not tell the truth to the Vice President. And one of the White House officials has described the notification that you provided warning them of this as a heads up. How would you describe a heads-up?

YATES: Well at the risk of trying to characterize. I mean we were there to tell the White House about something we were very concerned about and emphasized to them repeatedly. It was so they could take action.

KLOBUCHAR: So it was much more formal than just a simple hey this is happening. Michael Flynn did not resign his position as national security advisor until February 13th. That is 18 days after you went over there with a formal warning. And in particular after they knew about this on January 28th Flynn was allowed to join President Trump on an hour long telephone call with Russian President Vladimir Putin. Do you have any doubt that the information that you conveyed to the White House on January 26th should have been made clear that Flynn had been potentially compromised by Russia? That this information was clear?

YATES: Well the purpose in our telling them again was so that they could act and so that they could convey that information. So I would hope that they did.

KLOBUCHAR: If a high ranking national security official is caught on tape with a foreign official saying on thing in private and then caught in public saying another thing to the Vice President, is that material for blackmail?

YATES: Certainly.

KLOBUCHAR: Do you want to add anything to that Director Clapper?

CLAPPER: No (inaudible).

KLOBUCHAR: OK. I think it's pretty clear. And I think it's pretty clear why we had this hearing today. I wanted to ask you, Director Clapper, a few things about just in general this Russian influence.

When Director Comey was here last week, he said, "I think that one of the lessons that the Russians may have drawn from this," he's talking about the election influence, "is that this works."

Those were Comey's words, do you agree?

CLAPPER: Absolutely. And as I said in my statement, the Russians have to be celebrating the success of what -- for what they set out do with rather minimal resource expenditure.

And the first objective was to sow discord and dissension, which they certainly did.

KLOBUCHAR: And when you look at this, in addition to the hacking into the DNC and Podesta's e-mails, all of those things, we also had the fake news propaganda, which is referenced in the report.

I believe it's $200 million, is that all they spent in the scheme of things? Something like that?

CLAPPER: If that, which doesn't include government support to -- subsidies to RT.

KLOBUCHAR: And how does RT work, when you look at this?

CLAPPER: Well, RT is essentially a propaganda mouthpiece for the government, since the predominance of its funding comes from the government and the management is close to Putin. So it's, as I say, I think a governmental -- Russian governmental mouthpiece.

KLOBUCHAR: Ms. Yates, I'm asking you in your capacity as a former attorney general and deputy attorney general, I would ask this of Director Comey, about the use of shell corporations.

Now something like 50 percent real estate deals over $5 million are now done with shell corporations. We're trying to push so that the Treasury Department puts more transparency. This is something that European countries are working on right now.

And I'm very concerned that this is another vehicle where money is laundered. I'm concerned about loopholes in our campaign finance laws as well. But could you address this just from your experience as a criminal prosecutor?

YATES: Sure. And those are all valid concerns. We're actually lagging behind other countries in the world. And we don't want to become a haven then where you can have shell corporations that can be used for all sorts of nefarious purposes. They can have national security implications as well as criminal implications.

KLOBUCHAR: Director Clapper, did you want to add anything to that? And, again, this is why I believe an independent commission -- in addition to the great work that's being done by this subcommittee and the Senate Intelligence Committee, which is so important, as well as the investigation, an independent commission would allow a panel of experts to go into the next election, go into 2020, where Director Comey had said "I expect to see them back in 2018 and especially 2020."

Those are his words. Do you agree with that, Director?

CLAPPER: Absolutely.

KLOBUCHAR: And that is why an independent commission would allow us to come up with some ideas and how we can stop this from happening again, whether it is how the media handled these things, how campaigns handled these things, how intelligence agencies, when they find out, handle these things, because we cannot allow foreign countries to influence our democracies.

Do you agree, Director Clapper?

CLAPPER: I certainly do. And I understand how critical leaks are and unmasking and all these ancillary issues. But to me, the transcendent issue here is the Russian interference in our election process, and what that means to the erosion of the fundamental fabric of our democracy.

And that to me is a huge deal. And they're going to continue to do it. And why not? It proved successful.

KLOBUCHAR: Thank you.

GRAHAM: Until they pay a price, I hope which they will soon pay.

Senator Sasse?

SASSE: Thank you, Mr. Chairman.

Thank you, both, for being here.

Director Clapper, how likely do you think it is that foreign intelligence services are trying to compromise congressional IT systems?

CLAPPER: Well, I think that's -- congressional IT systems are a target, and have been. And certainly I saw examples of that during my time as DNI and then the -- this is one case where we expeditiously informed the Congress when we saw evidence of that.

And, again, that's not just Russians, there are others out there doing the same thing.

SASSE: And what intel value would it provide to them?

CLAPPER: Well, depending on the nature of the material that they've purloined, it could be quite sensitive. That -- hard to make a general statement about it. But just as a general rule, it could be quite damaging.

SASSE: And could you talk a little bit about the relationship between that particular intel gathering on legislators and the interface with propaganda campaigns such as you say Russia? I've heard you testify in other places about Russia's activity among their near neighbors.

What is the relationship between propaganda and director intel gathering?

CLAPPER: You mean, on the part of the Russians?

SASSE: Yes, on their neighbors.

CLAPPER: Well, they would certainly use that, as they have and examples of that in places like Georgia and the Baltics where they will turn evidence that or -- or what they've gathered and use that as -- as leverage or if they can, to use kompromat (ph), the -- the Russian acronym for compromise of material or the real tribes (ph) so there's all kinds of nefarious things they can potentially do if -- if they gather information like that.

SASSE: One of -- one of the unhelpful ways that we talked about this issue in the present context in D.C.'s polarized context, is it's almost always retrospective about our election in 2016. And so it devolves into a shirts and skins exercise about what candidate you allegedly supported. Director Comey last week said he expects as Senator Klobuchar just quoted him, he expects the Russians to be back in 2018 and back with a vengeance in 2020. I think it would be helpful for the American people to understand what Russia does among its near neighbors now. So could you unpack a little bit more of how that works?

CLAPPER: Well, they're -- if anything, in many ways, particularly those countries that were in the former soviet orbit which they still feel, shall I say, paternal about. And so places like Moldova, or the Baltics, Georgia, they are very aggressive in using all the multitude of tools that were on Senator Whitehouse's checklist, wherever they can, however they can, to influence the outcome of elections towards candidates of for whatever office whom they think will be more pliant with them.

And -- and of course, what's new and different here is that -- that aggressiveness is -- is spreading into Western Europe. As we've seen I believe in France and will in Germany. And -- and their relatives, in their minds success at doing this is simply going to reinforce.

So all the tools available to them, active propaganda, financing, candidates sympathetic to -- to their cause, trolls, hacking, revelations of -- of confidential e-mails, whatever it is, they'll -- they'll use that fairly well (ph).

SASSE: And could you give us some sense of the -- without revealing classified information, the order of magnitude of their financial investment in these kind of efforts? If you're a near neighbor of Russia and you've got your Army, Navy, Air Force, Marines then you might have a little bit of an Intel community and a little bit of a -- of a sort of Intel ops, info ops campaign going. How does -- what is the Russian investment?

CLAPPER: Well, I can't -- I can't give you a figure. I will say though that in -- in comparison to a classical military expenditures, its -- it's a bargain for them. And of course, what they're looking for particularly in Europe is so dissension, split unity, and of course end sanctions.

And if they can drive wedges between and among the European nations by and particularly by their manipulating and influencing elections, they're going to do it.

SASSE: Director, do you stand by the IC's January assessment that WikiLeaks is a known propaganda platform for Russia?

CLAPPER: Absolutely, and I am in agreement with Director Pompeo's characterization of WikiLeaks as a non-nation state intelligence service.

SASSE: Unpack that a little bit more, if that's the case, then you're saying that Julian Assange is not a journalist.

CLAPPER: You're asking the wrong guy a question like that, absolutely not. SASSE: I mean, reasonable people in the American debate are worried when they hear people in the IC talk about something that sounds like its just information. I'm obviously highly skeptical of Mr. Assange and I've been pushing the Justice Department to ask why we have not been taking steps to prosecute him for particular crimes that have endangered American intelligence assets.

But across the continuum of journalists who are legitimate journalists who are trying to get information to help the American people under our First Amendment to be fully informed about the operations of our government, there are people in the journalistic community who will lean on IC resources to say, we want to know all that you're able to tell us.

And the burden of -- the burden is on the intelligence official not to leak classified information. The burden is not on the journalists to not ask hard questions.

CLAPPER: That is correct, that's absolutely correct.

SASSE: And so it's useful for the American people to hear you explain, why is Assange something other than just an American journalist asking hard questions?

CLAPPER: Well, I think and there's -- there's obviously judgment, here. And when a journalist does -- does harm to the country, harms our national security, compromises sensitive sources and methods and trade craft and puts the company -- the -- the country -- deliberately puts the country in jeopardy, I think that -- that's -- the line is -- is -- that's a red line, to use a -- use a phrase, that I think is -- is unacceptable.

SASSE: Have any unauthorized disclosures from Assange and WikiLeaks directly endangered Americans and American interests?

CLAPPER: In the -- yes, absolutely.

SASSE: Thank you.

Ms. Yates, I wanted to ask you a couple of questions. But I'm almost at my time, so I'll -- I'll limit it to one. Could you please explain the bureaucratic process in which concerning information about political appointees would be brought to the attention of the attorney general? Just give us a few steps in how that process would happen.

YATES: When you say concerning information, what do you mean? If (ph)...

SASSE: I'm trying to elicit an answer from that you doesn't require you to say that, related to Flynn particularly, you can't disclose how this happened. I think it would be useful for the public to understand, more generally, how information about a political appointee would be brought to the attorney general from the FBI and other...

YATES: I understand. SASSE: ... aspects of the intelligence community.

YATES: Generally, if we discovered information -- let's say an investigative agency like FBI discovered information about a political appointee, they would first get in contact with the relevant division of the Department of Justice that would have jurisdiction over it, whether it's the criminal division, the national security division -- whatever it might be.

They would report that information there, and then, depending on the seriousness of that information, it would probably make its way to me, when I was deputy attorney general, or, then, acting attorney general.

SASSE: Thank you.


COONS: Thank you, Senator Graham.

I want to thank both of you for your decades of dedicated service in intelligence and law enforcement, and for your testimony here today.

The question before us is one of really grave consequence, as you suggested in your opening statements. Really an existential threat to our democracy, which, if not faced appropriately, will simply encourage increased aggressive actions.

The reality is that a foreign adversary intentionally influenced our 2016 presidential election, and our president may not want to confront this, but it is a reality, and one that our U.S. intelligence community agreed about with very high confidence.

I greatly appreciate Senators Graham and Whitehouse in convening this hearing, and in treating this very real threat to our democracy with the seriousness that it deserves.

Former Director Clapper, in your opening statement, you suggested that the Russians should be celebrating, and that they are likely emboldened, because they succeeded beyond their wildest dreams and at minimal cost, and they are likely to continue.

In the French national elections, which concluded yesterday, there was a -- a stunning dump of hacked e-mails at the last moment in an attempt -- I, at least, believe -- to influence the outcome of that election in a way designed to help advance a candidate favored by the Kremlin.

And in that instance, there was a significant amount of fake news, of manufactured articles, mixed in with, seemingly, actual e-mails that had been hacked, and there are allegations that there was coordination between alt-right news sites trying to forward this information and to get it out around France and around the world.

Is that your understanding of what's just happened in France? And, more importantly, was there any evidence that you saw of comparable coordination between alt-right news sites and released information in the attempts to influence the 2016 American presidential election?

CLAPPER: Senator Coons, I -- I honestly -- all I know is what I'm reading in the media, and so I -- I don't have access to any intelligence information that would help me cast any light -- could authoritatively answer your question. All I know is -- is what's -- what's in the media.

COONS: But, during the period when you did have regular access to intelligence, did you see any evidence to suggest that the longstanding Russian practice of spreading misinformation and fake news was being amplified by news sites in the United States, and any reason to believe that might have been coordinated or intentional?

CLAPPER: Well, I don't know about the latter. But I -- and I think some news outlets were -- were probably unwitting of that. It certainly went on. But I can't say to what extent that was coordinated intentionally with -- with certain news outlets.

COONS: And you...

CLAPPER: Again, that's a -- kind of in the domestic realm.

COONS: ... you said that the Russians will continue this behavior until we impose some significant costs. Could you speak briefly to what sort of actions you think we might take that would deter them in this action?


CLAPPER: That's a little over my labor grade as an intelligence guy.