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Coverage of Senate Judiciary Hearing with Susan Yates and James Clapper Continues. Aired 3:30-4p ET

Aired May 8, 2017 - 15:30   ET


SEN. CHUCK GRASSLEY, R-IOWA: -- 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.



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...


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.


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.

CORNYN: 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...


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...


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...


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...


CLAPPER: I was saying what 702 does.

GRAHAM: I just want to make sure there is a procedure to do that.

CLAPPTER: There is.


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.

DURBIN: 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?


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 Kislyak.


DURBIN: Ms. Yates, in -- in your view, were there national security c