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Continuing Coverage of Senate Judiciary Hearing. Aired 4:30-5p ET

Aired May 8, 2017 - 16:30   ET


SEN. CHRIS COONS, D-CONNECTICUT: -- 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. I thought the sanctions that we did impose on the -- on the -- as -- and I was part of that, as part of the former -- the former administration -- were a great first step. And (inaudible).

COONS: Well, I'll simply say that I agree with you, and a bipartisan bill led by my colleague, Senator Graham, and co-sponsored by 20 senators, Republican and Democrat, would be a terrific next step.

Ms. Yates, we established, in the course of these questions, that, on December 27th and 29th, former national security adviser General Flynn discussed sanctions with the Russian ambassador. So when the Trump transition team told the Washington Post on January 13th that sanctions were not discussed, was that false?

YATES: I understand that there have been news reports to that account. But I can't confirm whether in fact those conversations regarding sanctions occurred, because that would require me to reveal classified information.

COONS: Understood. So I have a whole series of questions about things that would have been untrue were that the case. You're not going to be able to answer any of those.

YATES: Not to the extent that it goes to General Flynn's underlying conduct. I can't address that.

COONS: Well, then let me move to that, if I might.

YATES: Sure.

COONS: On January 24th, you just testified that National Security Adviser Flynn was interviewed by the FBI about his underlying conduct, and that that underlying conduct was problematic because it led to the conclusion the vice president was relying on falsehoods.

What was that underlying conduct? And are you convinced that the former national security adviser was truthful in his testimony to the FBI on January 24? YATES: Again, I -- I hate to frustrate you again, but I think I'm

going to have to, because my knowledge of his underlying conduct is based on classified information. And so I can't reveal what that underlying conduct is.

That's why I had to do sort of an artificial description, here, of events, without revealing that conduct.

COONS: I understand that.

On January 27th you just testified that you discussed with White -- White House Counsel McGahn four different topics, and one of them included the possibility of criminal prosecution of the former national security adviser, and what would the applicable statutes be.

What applicable statutes did you discuss, and in your conclusion, should the national security adviser face criminal prosecution?

YATES: Senator Coons, I'm going to strike out here, because, if I identified the statute, then that would be insight into what the conduct was. And, look, I'm not trying to be hyper-technical here. I'm trying to be really careful that I observe my responsibilities to protect classified information. And so I -- I can't identify the statute.

COONS: OK. Do you believe the administration took your warnings seriously when you made this extraordinary effort to go to the White House and, in person, brief the White House counsel on the 26th and 27th? Do you think they took appropriate steps with regards to General Flynn as the national security adviser, given that he remained a frequent participant in very high level national security matters for two weeks?

YATES: Well, certainly, in the course of the meetings, both on the 26th and 27th, Mr. McGahn certainly demonstrated that he understood that this was serious. So he did seem to be taking it seriously.

I -- you know, I don't have any way of knowing what, if anything, they did. If nothing was done, then certainly, that would be concerning.

COONS: So you don't know whether they took any steps to restrict his access to classified information, to investigate him further, up and until the -- the Washington Post published information that made it clear that he had been lying to the vice president?

YATES: No, again, I was gone after the 30th. And so it's -- I wouldn't know if -- if any steps had been communicated to the Department of Justice, but I was not aware of any, no.

COONS: Had you not been summarily fired, would you have recommended to the White House counsel that they begin further investigations into the national security adviser, or that they restrict his access to sensitive and classified information?

YATES: Well, it's -- it's a bit of a hypothetical. Had I remained at the Department of Justice, and if I were under the impression that nothing had been done, then, yes, I would have raised it again with the White House.

COONS: Thank you. Ms. Yates. Thank you, Mr. Graham (ph).


KENNEDY: Ms. Yates, Dr. Clapper, thank you both for your years of service to the American people.

Ms. Yates, I want to start with you. You declined to support -- to defend President Trump's executive order because you thought it was unconstitutional. Is that correct?

YATES: That's correct. Yes.

KENNEDY: And you believe there was no -- you believe that no reasonable argument could be made in its defense, is that correct?

YATES: I don't know that I would put it in that -- in that way, Senator. I -- this was the analysis that we went through.

KENNEDY: Let me -- let me -- let me stop you, because I've got a whole bunch of questions.

YATES: Okay.

KENNEDY: I just want to understand your thinking from my perspective.

YATES: Sure.

KENNEDY: Did you believe, then, that there were reasonable arguments that could be made in its defense?

YATES: I believed that any argument that we would have to make in its defense would not be grounded in the truth, because, to make an argument in its defense, we would have to argue that the executive order had nothing to do with religion, that it was not done with an intent to discriminate against Muslims. And based on a variety of factors...

KENNEDY: And you were looking at intent?

YATES: Yes, and I believe that that's the appropriate analysis. And in fact, that's been borne out in several court decisions since that time, that that's the appropriate analysis when you're doing a constitutional analysis is to look to see what are you trying to accomplish here?

KENNEDY: OK. Suppose instead of an executive order, this had been an act of Congress. Would you have refused to defend it?

YATES: If it were the same act, yes. And in fact, the Department of Justice has done that in the past. For example, with DOMA, the Defense of Marriage Act, when the Department of Justice refused to defend DOMA.

KENNEDY: But that was a political decision, was it not? YATES: Well, I wasn't at main justice at that time, so I can't speak

to that. But that was another example of when DOJ did not defend the constitutionality of a statute in that sense.

KENNEDY: OK. But in your opinion, the executive order is unconstitutional.

YATES: I certainly was not convinced that it was constitutional, and given that I wasn't in the import of this, I couldn't in good conscience send Department of Justice lawyers in to defend it.

KENNEDY: Well, I want to be sure I understand. Do you believe it's constitutional or unconstitutional?

YATES: I believed -- I was not convinced that it was constitutional. I believed that it was unconstitutional in the sense that there was no way in the world I could send folks in there to argue something that we didn't believe to be the truth.

KENNEDY: So you believe it's unconstitutional?


KENNEDY: OK. I don't mean to wax two (ph)...

YATES: And if I can say, I can understand why might be a little frustrated with the language here...

KENNEDY: I'm not frustrated. I'm happy as a clown.

YATES: And here's - here's the reason. Let me give you a little idea of the timing of this.

KENNEDY: Let me stop you because I don't have much time. I've got a lot of ground to cover.


KENNEDY: I don't mean to wax too (ph) metaphysical here, but at what point does an act of Congress or an executive order become unconstitutional?

YATES: Well, it all depends on what the act does.

KENNEDY: No, but I mean, at what point -- is it become -- I can look at a statute and say I think that's unconstitutional. Does that make it unconstitutional?

YATES: I think the issue that we faced at the Department of Justice is to defend this executive order would require lawyers to go in and argue that this has nothing to do with religion, something that...

KENNEDY: But at what point does a statute or an executive order become unconstitutional? Is it some apriori (ph) determination? It become -- let me - telling you what you I'm getting at and I don't mean you any disrespect. Who appointed you to the United States Supreme Court?

YATES: I was appointed...

KENNEDY: That determined -- isn't it a court of (ph) final jurisdiction decides what's constitutional and not? In fact, aren't most acts of Congress presumed to be constitutional?

YATES: They are presumed but they're not always constitutional, and of course, I was not on the Supreme Court. And I can tell you, Senator, look, we really wrestled over this decision. I personally wrestled over this decision and it was not one that I took lightly at all. But it was because I took my responsibilities seriously...


KENNEDY: I believe you believe what you're saying.

YATES: Yes, I do.

KENNEDY: I just find it - understand, this is likely to come up in the future.

YATES: Well...

KENNEDY: At what point does an executive order or statute become unconstitutional? When I think it's unconstitutional or you think it's unconstitutional or a court of final jurisdiction says it's unconstitutional?

YATES: I believe that it is the responsibility of the attorney general if the president asks him or her to do something that he or she believes is unlawful or unconstitutional to say no, and that's what I did.

KENNEDY: OK, I get it.

All right. Let me ask you both a couple questions. Can we agree, Director and Counselor, that the Russians attempted to influence the outcome of the election?

CLAPPER: Yes, sir, absolutely.


KENNEDY: Do you believe that the Russians did in fact influence the outcome of the election?


CLAPPTER: In our intelligence community assessment, we made the point that we could not make that call. The intelligence community has neither the authority, the expertise or the resources to make that judgment. The only thing we said was we saw no evidence of influencing voter tallies at any of the 50 states. But we were not in a position to judge whether -- what actual outcome on the election.

KENNEDY: How about you, Ms. Yates?

YATES: I don't know the answer to that and I think that's part of the problem, is we'll never know.

KENNEDY: OK. Have you ever -- the Russians have been doing this for years, have they not? I'm not minimizing what they did. I think they did try to influence the election.

CLAPPER: It's absolutely true. As I pointed -- as I mentioned in my opening statement, sir, the -- they've been doing this since at least the '60s.


CLAPPER: The difference, however, was this is unprecedented in terms of its aggressiveness and the multifaceted campaign that they mounted. That's new.

KENNEDY: Isn't it a fact that in 1968, the Kremlin -- actually Service A, which was part of the AGB (ph), attempted to subsidize the campaign of Hubert Humphrey?

CLAPPER: I don't know the specifics of that. I'd want to research that, but again, that certainly comports with what Russian tactics would be.

KENNEDY: OK. Isn't it a fact that in 1984, the Kremlin tried to stop Ronald Reagan from being re-elected?

CLAPPER: Again, I'd have to do some research to verify that. But again, it certainly comports with what, if they chose a candidate for whatever reason they had an aversion to, they would do that.

KENNEDY: OK. General Clapper, have you ever leaked information, classified or unclassified, to a member of the press?

CLAPPER: Not wittingly or knowingly, as I said in my statement.

KENNEDY: Classified or unclassified?

CLAPPER: Well, unclassified is not leaking.


Unclassified -- that's -- that's somewhat of a (inaudible).

KENNEDY: And have you ever given information to a reporter that you didn't want to have your name connected with, but you wanted to see it in the paper?

CLAPPER: I have not. I've had many encounters with media over my career.

KENNEDY: I'm sorry about that.

(LAUGHTER) How you about, Ms. Yates?

YATES: Other than situations where the Department of Justice would arrange, for example, for me to talk on background with reporters about a particular issue to educate them about that, no. I certainly never provided classified information and that would be the only kind of background information...


KENNEDY: Do you know...

CLAPPER: I might have done the same thing, but certainly not -- that doesn't include sharing classified information.

KENNEDY: Do you know anybody else at Justice who has ever leaked classified or unclassified information to the press?


KENNEDY: Ms. Yates?



Thank you, Mr. Chairman. I went over. I apologize.


GRAHAM: Senator Leahy?

LEAHY: Thank you, Mr. Chairman.

General Clapper, Ms. Yates, good to see you again. Good to have you back here.

I -- Ms. Yates, I remember so well your confirmation hearing. I remember one senator just bearing in on you, intensely bearing in on you saying, "Would stand up to the president of the United States if you thought he was asking you to do something unlawful? He's demanding under oath for you to say yes, you would stand up?" And you told then Senator Jeff Sessions of Alabama that's what you would do and appears to me that you kept your word. Apparently, it's OK to keep your word depending upon who the administration is.

But I'm proud of you for keeping your word when the president tried to set a religious test for entrance into this country, something (inaudible) it was unconstitutional. You said you aren't going to uphold it. I wish that Mr. Sessions and others had kept as consistent in this administration as they did in the last. That's my editorial judgments.

Now, you wrote to the Justice Department, "I am responsible for ensuring that the positions we take in court remain consistent with this institution's solemn obligation to always seek justice and stand for what is right. At present, I'm not convinced that the (inaudible) executive order's consistent with these responsibilities, nor am I convinced the executive order is lawful." Is that an accurate statement of what you said?

YATES: Yes, it is, Senator.

LEAHY: And do you still feel that way today?

YATES: Yes, I do.

LEAHY: The White House claimed that you betrayed the Department of Justice? Do you feel you betrayed the Department of Justice?

YATES: No, Senator, I feel to have done anything else would have been a betrayal of my solemn obligation to represent the people and to uphold the law and the Constitution.

LEAHY: Was the White House trying to tell the Justice Department how to carry out that executive order?

YATES: Well, I didn't have a lot of discussion with the White House about this executive order. They -- I'm sorry. I don't entirely understand the question.

LEAHY: No, but I mean, did anybody from the White House try to direct the Justice Department how they should respond on that executive order?

YATES: Well, certainly there was discussion with the White House about litigation strategy, but that occurred, to my knowledge, over the weekend. But, after the 30th, when I issued my directive, I was gone then that evening around 9:00, so I don't know what other discussions occurred after that.

LEAHY: Well, one, I applaud you for keeping your word to then Senator Sessions, who apparently has a different standard as Attorney General.

FBI Director Comey testified before this committee, he has told why he appointed a special counsel to investigate the law plainly, back in 2003, he was Deputy Attorney General, Attorney General Ashcroft has refused, himself. Some of the senior officials and Trump campaign administration are connected to this Russian investigation, and Attorney General was forced to recuse himself.

I do think this is the kind of situation where we should do what, then Deputy Attorney General Comey as acting Attorney General did in the flame (ph) investigation, and appoint a special counsel.

YATES: Well, Senator, I think that my successor, Rod Rosenstein has a big job ahead of him. And, I don't think I'm going to be giving him any advice from the cheap seats about how he needs to do it.

LEAHY: Well, let me ask you this, we know about General Putin's vulnerability to Russian blackmail, Attorney General Sessions misled this committee about his contacts, and then he had to change his testimony.

The President's son-in-law and senior adviser, also reported he failed to disclose contacts on his security clearance forms.

Do you have or did you have, or did you have, any concerns about the Attorney General, about Mr. Kushner or other trump officials, vulnerability to blackmail?

YATES: All this information came to light after I was no longer with DOJ.

LEAHY: Did you have concerns, though, while you were at DOJ, that General Flynn might be vulnerable to blackmail?

YATES: Yes, I did, and expressed those to the White House.

LEAHY: You say why you feel he may have been vulnerable to blackmail, and if somebody else fell into that same category, might they be vulnerable to blackmail?

YATES: Well, certainly any time the Russians have compromising information on you, then you are certainly vulnerable to blackmail.

LEAHY: Let me ask General Clapper this. You've looked at a lot of these, the other cases of the senior government officials. If they have hidden financial information, things that normally disclose when you take a senior official position, is that an area where they could be blackmailed, if it's discovered?

CLAPPER: Yes, it is, of course.

LEAHY: And, is it your experience that Russians search for that kind of thing?

CLAPPER: Absolutely, they do.

LEAHY: January, the intelligence community, the FBI, CIA, NSA, concluded high conference (ph) that Russia interfered in the 2016 election, to denigrate Secretary Clinton, help elect Donald Trump.

Last week, President Trump contradicted that consensus, he said while it could have been China, it could have been a lot of different groups. Do you feel Russia was responsible?

CLAPPER: Absolutely. And regrettably, certainly he, although the conclusions that we rendered were the same as in the highly classified report, as the unclassified, unfortunately a lot of the substantiation for that could not be put in the unclassified report because of the sensitivity of it.

To me, the evidence was overwhelming, and very compelling, that the Russians did this.

LEAHY: Does it serve any purpose for high officials, like the President, to say, "Well it could have been somebody else, it could have been china"? I mean does that really, does that help us, or does that help Russia?

CLAPPER: Well, yes, I guess it could be -- you could rationalize that it helps the Russians by obfuscating who was actually responsible.

LEAHY: Thank you, thank you very much, General.

Thank you, Miss Yates.

It's good to have you, both, here.

GRAHAM: Senator Franken.

FRANKEN: Thank you, Mr. Chairman.

I want to thank both you and the ranking member for -- for this hearing and these hearings.

And I want to thank General Clapper and -- and Attorney General Yates for -- for appearing today. We have -- the intelligence communities have concluded all 17 of them that Russia interfered with this election. And we all know how that's right.

CLAPPER: Senator, as I pointed out in my statement Senator Franken, it was there were only three agencies that directly involved in this assessment plus my office...

FRANKEN: But all 17 signed on to that?

CLAPPER: Well, we didn't go through that -- that process, this was a special situation because of the time limits and my -- what I knew to be to who could really contribute to this and the sensitivity of the situation, we decided it was a constant judgment (ph) to restrict it to those three. I'm not aware of anyone who dissented or -- or disagreed when it came out.

FRANKEN: OK. And I think anyone whose looked at even the unclassified border's pretty convinced that this is what happened. And one of the questions is, why do they favor Donald Trump? There are a number of contacts and communications that between Trump campaign officials and associates and members of the Trump administration, Jeff Sessions as Senator Leahy mentioned.

Carter Page, a former campaign advisor, Paul Manafort who was a former campaign manager and chief strategist, Rex Tillerson, secretary of state, friend of Russia war (ph) Roger Stone, and of course, Jared Kushner, White House senior advisor, Simon Law (ph) and Michael Flynn. All -- that's a lot, in -- in my mind.

Now, going to Flynn, he appeared during the campaign on Russia Today. Russia Today is the propaganda arm, one of the propagandas arms. And now you, General, since you've retired have you appeared on Russia today?


CLAPPER: No, no, not willingly, you know.

FRANKEN: OK. And -- and General Flynn received $37,000 for sitting next to Putin at the 10th anniversary of Russia today. It seems -- all this seems very odd to me and raised a lot of questions.

I was struck that Mr. McGahn did not ask you in the second meeting why DOJ, General Yates, would have concerns that the -- that the national security advisor had lied to the vice president. In the first meeting, did you mention that? That that was -- that he might be compromised?

YATES: Certainly, we went through all of our concerns in the first meeting. And it was in the second meeting that he just raised the question of essentially, why is this an issue for the Department of Justice if one White House official lies to another.

FRANKEN: OK I don't understand why he didn't understand that.

YATES: I'm not sure I can help you with that, Senator.

FRANKEN: This is -- General Flynn after that, for 18 days stayed there and was in one classified thing after another. There are policies that deal with who gets clearance, security clearance and not.

The executive order 12968 outlines the rules for security clearances and says that when there is a credible allegation that raises concern about someone's fitness to access classified information, that person's clearance should be suspended, pending investigations, is that right?

The executive order also states that clearance holders must always demonstrate, quote, "trustworthiness, honesty, reliability, discretion and sound judgment, as well as freedom from allegiances and potential for coercion." Is that right?

And yet, the White House Council did not understand why the Department of Justice was concerned.

YATES: Well, to be fair to Mr. McGahn, I think the issue that he raised, he wasn't clear on was why we cared that Michael Flynn had lied to the vice president and others, why that was a matter of ...


FRANKEN: I think that's clear.

YATES: Within DOJ jurisdiction.

FRANKEN: I think that's so clear, I can't...


FRANKEN: And the president had told -- President Obama had told the incoming president-elect two days after the election, don't hire this guy. YATES: I don't know anything about that.

FRANKEN: Well, that's what we've heard.


FRANKEN: And we have McGahn doesn't understand what's wrong with this? And then we have Spicer, the press secretary, saying the president was told about this. The president was told about this in late January, according to the press secretary.

So now he's got a guy who has been, the former president said, don't hire this guy. He's clearly compromised. He's lied to the vice president. And he keeps him on, and he lets him be in all these classified phone -- lets him talk with Putin. President of the United States and the national security adviser sit in the oval office and discuss this with Putin.

Is it possible that the reason that he didn't fire him then was that, well, if I fire him for talking to the Russians about sanctions, and if I fire -- what about all the other people on my team, who coordinated? I mean, isn't it possible that the reason -- because you ask yourself, why wouldn't you fire a guy who did this? And all I can think of is that he would say, well, we've got all these other people in the administration who have had contacts. We have all these other people in the administration who coordinated, who are talking. Maybe that. I'm just trying to -- we're trying to put a puzzle together here, everybody.

And maybe, just maybe, he didn't get rid of a guy who lied to the vice president, who got paid by the Russians, who went on Russia Today, because there are other people in his administration who met secretly with the Russians and didn't reveal it until later, until they were caught. That may be why it took him 18 days, until it became public, to get rid of Mike Flynn, who is a danger to this republic.

Care to comment?


YATES: I don't think I'm going to touch that, senator. Thank you.

GRAHAM: Senator Blumenthal.

BLUMENTHAL: Thank you, Mr. Chairman. And I want to thank you, Senator Graham, and Senator Whitehouse for conducting this hearing in a bipartisan way and for prioritizing this issue, which is of such gravity to our Democracy.

I want to thank each of you not only for your long and distinguished service, but also for the conscience and conviction that you have brought to your jobs. Whether we agree or disagree with you. I hope that there are young prosecutors around the country and young members of our intelligence committee who will watch this hearing and say, that's the kind of professional I want to be. Not just expert, but people of deep conviction and conscience. And I agree with my colleagues that there ought to be an independent

commission that can have public hearings, produce recommendations and a report.


But I also believe that there has to be a special prosecutor.