Law & the Courts

What to Make of Sally Yates’s Senate Testimony

Former U.S. Deputy Attorney General and later acting Attorney General Sally Yates is sworn in to testify remotely via videoconference at a Senate Judiciary Committee oversight hearing in Washington, August 5, 2020. (Senate Judiciary Committee/Handout via Reuters)
The Justice Department has portrayed Yates as something of a dupe. I am not convinced.

Former Obama administration deputy attorney general Sally Yates will testify before the Senate Judiciary Committee this morning. The Committee chairman, Senator Lindsey Graham, has said her appearance might provide insight into the Russiagate probe — i.e., the Obama administration’s monitoring of Donald Trump and his campaign — as well as into the abuse of FISA-surveillance powers. I suspect the testimony will be a dud, although there is some intrigue to it.

Yates became acting attorney general when AG Loretta Lynch stepped down toward the end of the Obama administration. She was thus present at the important January 5, 2017, Oval Office meeting, when she and the FBI’s then-director, James Comey, met with President Obama, Vice President Biden, and Susan Rice, Obama’s national-security adviser. The meeting centered around a scheme to withhold from the incoming Trump administration information about the Trump-Russia investigation — what’s now often called “Russiagate” because of its similarity to Watergate-era domestic spying, part of what led to President Nixon’s resignation to stave off impeachment.

Yates stayed on as acting AG in the early days of the Trump administration, but she was quickly fired for insubordination when she declined to enforce the new president’s travel-restriction order. Prior to that, it was she who informed Trump’s then-White House counsel, Don McGahn, that, on January 24, the FBI had interviewed retired Army general Michael Flynn, then Trump’s national-security adviser, in connection with Flynn’s late December 2016 conversation with Russian ambassador Sergey Kislyak.

Committee Republicans expect to home in on three aspects of Yates’ tenure: The fact that the FBI informed President Obama of the Flynn-Kislyak call before Yates learned about it at the January 5 Oval Office meeting; her role in the Flynn investigation; and her approval of the second application for a FISA-surveillance warrant against Carter Page.

None of this will be very illuminating because, for the most part, we already know Yates’s version of events. She was interviewed by the FBI in connection with the Mueller investigation. When the Justice Department moved to dismiss the charge against General Flynn earlier this year, included in its motion was the extensive report summarizing Yates’s interview (see the motion, Exhibit 4). Furthermore, in 2017, Yates testified before the Senate Judiciary Committee and was interviewed by the House Intelligence Committee regarding some of these matters.

While the January 5 meeting itself has sinister overtones, there is nothing significant about the fact that Obama knew about the Flynn-Kislyak call before Yates did, even though the FBI reports to the Justice Department. On January 4, Comey’s then-deputy, Andrew McCabe, provided a briefing about the call to Mary McCord, then the head of DOJ’s National Security Division, with the expectation that she would brief Yates. Apparently not realizing Yates was scheduled to meet with the president on the morning of January 5, McCord scheduled the briefing for that afternoon. The information was not kept from Yates — indeed, Comey and Obama freely discussed it in front of Yates (and Biden and Rice) in the Oval Office. Her failure to be up to speed is explained by a scheduling snafu at the Justice Department, not by anything devious. (McCord’s FBI interview is Exhibit 3 in the Justice Department’s motion to dismiss Flynn’s case, linked above.)

After the Trump administration took power on January 20, 2017, Yates is said to have believed that the FBI should notify McGahn, the new president’s White House counsel, about the bureau’s investigation of Flynn. She got angry on January 24, when she called Comey to instruct him to notify McGahn about the bureau’s desire to interview Flynn . . . only to learn that it was too late — Comey had already dispatched two agents (Peter Strzok and Joe Pientka) to interview Flynn at his White House office. Yates and McCord subsequently went to the White House to tell McGahn that the interview had taken place.

On the FISA issue, Yates will undoubtedly say that it is not the attorney general’s job to vet a FISA application to ensure that the probable-cause information provided by the FBI is verified, corroborated, and accurate. She will say that Congress requires the AG’s sign-off on an application to make sure that the Justice Department believes all the legal requirements of the statute have been met.

Having been a federal prosecutor for many years, and having worked on high-profile investigations, I believe it was a dereliction of duty for top DOJ officials to have approved the Trump-Russia warrants before carefully examining them and making certain that their factual allegations were reliable. The investigation, implicating the president of the United States, was extraordinarily significant and sensitive. Every responsible supervisor I ever worked for in the Justice Department would have demanded to be fully informed before proceeding in court on such a matter. That said, though, it is true that, during the investigative phase of a case (i.e., before any charges are filed), Justice Department lawyers heavily rely on the FBI’s assessment of the reliability of sources and their information.

The intrigue regarding Yates involves her role in the investigation of the Trump campaign and, later, of the Trump administration. In its Flynn-case submissions, the Justice Department has portrayed Yates as something of a dupe, shifting responsibility for investigative irregularities to a small group of upper-echelon FBI officials during Comey’s tenure.

I am not convinced. The goal of the Obama White House and the FBI was to continue the investigation after Trump took office. That could not have happened without the cooperation of Yates, who transitioned into the Trump administration as the nation’s top law-enforcement official (and was planning to remain in that slot until Jeff Sessions was confirmed as AG). Yates may not have been briefed early about the Flynn-Kislyak communications, but she was fully informed about them, and Obama and Comey had no hesitation about discussing with her the absurd suggestion of charging Flynn under the Logan Act and the plan to withhold information from the incoming Trump administration.

Moreover, while Yates may have been angered by Comey’s violation of protocol in sending agents to interview Flynn without getting pre-approval from Yates and McGahn, she ended up supporting the Flynn investigation. In informing McGahn about it, she speciously suggested that Flynn’s communications with Kislyak had been inappropriate and potentially illegal.

Memorably, when Yates was fired by Trump, she was lauded for her insubordination by Andrew Weissmann, the high-ranking Obama Justice Department official and overt Hillary Clinton supporter who became Robert Mueller’s top deputy on the Trump-Russia special-counsel investigation. In a highly politicized Justice Department, Yates knew which side she was on.

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