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Continued Coverage of Senate Judiciary Hearing with Susan Yates and James Clapper. Aired 3-3:30p ET

Aired May 8, 2017 - 15:00   ET


SALLY YATES, FORMER ACTING ATTORNEY GENERAL: -- 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?

GRASSLEY: (inaudible)


GRASSLEY: I don't want to.


GRASSLEY: I've got questions.

GRAHAM: All right, you'll get to ask them.

Senator Feinstein?

FEINSTEIN: 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 time line 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.

WHITEHOUSE: 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?


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?


CLAPPER: Are you asking me, or... GRAHAM: No, her.


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?


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?


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?


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.


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. McGann 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...


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?


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. McGann 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. McGann 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...


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.


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.



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?


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?



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.


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.


Ms. Yates, can you answer that question? Did you ever request unmasking of Mr. Trump, his associates or any member of Congress?


GRASSLEY: Question two. Did either of you ever review classified documents in which Mr. Trump, his associates or members of Congress had been unmasked?


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 en

masse (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