tv MSNBC Live MSNBC May 8, 2017 12:00pm-1:01pm PDT
over time through five democratic and republican administrations, i assumed greater leadership positions within the department. in the u.s. attorney's office in atlanta, i served as chief of the fraud and corrupt had administration, and then was appointed the united states attorney. and then i had the privilege of serving the 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 formt to be able to work the talented, career men and women at the department of justice who followed facts and applied the law with tremendous care and dedication. and who are in fact back bone of the department of justice. in every step, in every position, from a u.s.a to acting
attorney general. i tried to carry out my job in a way that would enagendater trust and the confidence of the people that i served. i want to thank this sub committee for investigating an impartial and thorough investigation of this vitally important topic. the efforts by a foreign adversary to interfere in our democratic processes and those of our allies pose a serious threat to all americans. the hearings conducted are an important bipartisan step in understanding the threat and the best ways to confront it going forward. as the intelligence community assess in the its january 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 in my answers today, i intend to be as
comprehensive as possible. while respecting my legal and ethical boundaries. as the sub committee understands, many of the topics of interest 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 i it did when i led the department. i'm no long we are the department. 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 sub committee's shared interest in pregting 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.
>> senator grassley, would you like the make a statement? okay. okay. all right. you'll get to and them. senator feinstein? >> i'll be very brief. we have prepared for the committee and i would like the and the staff to distribute it. a back ground and time line on lieutenant general michael flynn and some of the key dates involved which may be of help to the sub committee. and i would like the take this opportunity to thank the sub committee. chairman graham and ranking member white house, i think you've ghana job in your whole committee has. so thank you very, very much. i would 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. we see it recommendly indicated even in the french election. perhaps not to the extent or in the way but certainly replicated. on february 9, 2017, the "washington post" reported that flynn had misled the vice president or pence had misspoken. lieutenant gentle flynn resigned hisser post on february 13, four days after the post broke the story. there are still many unanswered questions about general flynn, including who knew what and
when. fr for example, is press is now reporting that concerning sally yates, concerns were raised to 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 and 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 26th, 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 rushing's relationships and connection with trump advisers 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 the and some questions around these few comments. thank you very much for this opportunity. >> mr. chairman, may i also put into the record a letter dated november 18, 2016, from the ranking member on the house committee, elijah cummings, giving then vice president elect pence notice about certain, what
he called apparent conflicts of interest, regarding general flynn. >> 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 white house and russian officials. you said we did not include any evidence in our report, i say our, the fbi, the cia, the nsa, with my office, the director of national intelligence, that had any reflection of collusion between members of the trump campaign and the russians. the was no evidence of that included in our report. chuck todd then asked, i understand that, but does it exist? you said no, not to my knowledge. is that still accurate? >> it is. >> miss 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 clueded with the russian government or intelligence services in an improper fashion? >> senator, my answer to that question would require flow reveal classified information. so i can't answer that. >> 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? >> if i may, are you asking me? >> well, i think the director clapper also said that he was unaware of the fbi counter intelligence investigation. >> would it be fair to say the counter intelligence campaign was not mature enough to get into the report? is that fair, mr. clapper? >> that's a possibility. >> what i don't get is how the fbi can have a counter intelligence investigation
suggesting collusion and you as director of nat intelligence not know about it and the fbi sign on to a report that basically said there was no collusion. >> i can only speculate why that is 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. >> okay. that makes perfect sense to me. are you familiar with the dossier about mr. trump compiled by some guy in england? >> i am. >> did you find to be a credible report? >> well, we didn't make a judgment on that. that's one reason why we did not include it in the body of our intelligence community assessment. >> you didn't find it credible enough to be included. we couldn't corroborate the sourcing, between the second and third sources. >> are you familiar with the
dossier? >> if i could try clarify one answer before as well. i think he may have misunderstood me. you asked if i was aware of any evidence of collusion and i declined to answer because answering would reveal classified information. inthat's the same answer that director comey gave when he was asked this question as well. and he made clear and i would like the make clear, that just because i say i can't answer it, you should not draw from that an spumings means the answer is yes. >> if i may, there illustrates what i was trying to get at in my statement about the unique information fbi straddles between he intelligence and law enforcement. >> i just want the country to know whatever they're doing on the counter intelligence side, mr. clammer didn't know about it, didn't make it in the report and we'll see what comes of it. miss yates, what did you tell the white house about mr. flynn? >> i had two in-person meetings
and one phone qual the white house counsel with mr. flynn. the first meeting was on january 26. i called don mcgann first thing that morning and said i had a very sensitive matter that i couldn't talk to about on the phone and i needed to come see him. he agreed to meet with me later that afternoon. i took a senior mental of the national security division who was overseeing this matter with me to meet with mr. mcgann. we met at his office in the white house so we could discuss classified information in his office. we began our meeting telling him 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. as i tell you what happened, i'm
going to be very careful not to reveal -- >> the reason you knew wasn't true is because you had collected some jernls if an incidenceal collection system? >> i can't answer that. that would call fore to reveal classified information. >> did anyone ever make request to unnascar conversation between russian ambassador and mr. flynn? >> again, senator. i can't answer a question like that. it calls for classified information. >> do you know that that's the case? >> i don't. >> is there a way to find out? >> well, in another setting it could be discussed. >> there is a record somewhere of who would make request to unmask the conversation with general flynn and the russian ambassador? if one was made, there would be a record of it? >> i can't speak to this specific case. but i can generally comment that in a case of 702 requests, yes. those are all documented. i don't mean to interrupt you but this is important to me. how did the conversation between
the russian ambassador and mr. nine make it to the "washington post"? >> which one of us are you asking? >> that's a great question. >> i thought so. >> all of us would like to know that. i don't know the answer to that. >> nor do i know the answer. >> is it fair to say if someone made 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? >> well, unmasking request or not made to the department of justice? >> to the agency who collects the information. there should be a record somewhere in our system, whether or not an unmasking request was made between mr. flynn and the russian ambassador. if it was made, who made it, and then we can and what they did with the information. is that a fair statement, mr.
clapper? >> yes. >> what did you tell the white house? i said there were a number of press accounts, statements that could be made between vice president and other high ranking officials about general flynn's could not dpukt we knew to be untrue. 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 had an aociate with him, thrgh general flynn's underlying conduct, the contents i cannot go through with you today because it is classified. we took him through a tremendous am of detail. what general flynn had done and then we walked through the various press accounts and how it had been falsely reported. we also told how general flynn had been interviewed by the fbi on february 24th. mr. mcgann asked me how did he
and i declined to give him an answer to that. we then walked through with him why we were telling them about this. and the first thing we did was to explain to mr. mcgann that the underlying conduct that mr. flynn had engage in the was problematic in and of itself. slicked we told them 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. in fact, mr. mcgab responded to me to say anything that general flynn -- excuse me, anything vice president pence would have said would have been based on what general flynn had told him. we said the first reason was we believe the american people had been misled about what general
flynn had done. and 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. saying this was a problem because not only did we believe the russians knew this, but they like had proof of this information. that created a compromise situation. a situation where the national security adviser could be black mailed by the russians. finally we told tm that we were giving them all of this information so that they could take action. the action they deemed appropriate. i remember he asked me wlornl general flynn should be fired.
i said that really wasn't our call. that was up to them but we were giving them this information so they could take action. that was the first meeting. >> a very quick question. are either one of you aware of incidental collection by our intelligence community of any presidential candidate, staff or campaign, during the 2016 election cycle? >> say that again? >> was there any incidental collection by our intelligence community collects information involving a presidential candidate on either side of the aisle during 2015 or 2016? >> not to my knowledge. >> i believe director comey was also asked this question and declined to answer it. i need on follow same lines the doj has drawn. you should not draw from that that my answer is yes, but
rather that the answer to require me to reveal classified information. >> my response is regarding domestic intelligence. >> 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 just testified that you had told the white house counsel and he had asked, how did did he do? did you have the 302 with you when you were in the white house? did you show to it white house counsel and had you seen it at the time you went to the white house? >> no. the fbi had conducted the interview on the 24th west got a
readout on the 25th. specific will you from the agents had that conducted the inrview. we did not want to wait for the 302. we felt it was important to get this informati 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 how the interview went but how this impacted the investigation. >> so did you take summary with you? do you have any document with you that described the fbi interview of general flynn? >> at the time that i was there, i had notes that describe that had interview, as well as the individual that was with me. the senior career official from the national security division had been part of all those discussions with the fbi. >> did you discuss criminal prosecution of mr. flynn? general flynn? >> my recollection is that did not come up much in the first
meeting. it did come up in the second meeting when he called me back the next morning and asked the morning, this is the morning of the 27th. he asked me if i could come back to the office so i went back. there were four topics that he wanted to discuss. one of those was precisely that. he asked about the miamilkabili of certain statutes. he? white house in his office again? >> in his off again with the same two individuals? >> exactly. >> on the following day. >> right. >> and you went back that you are soont to a phone call request? >> yes. after our meeting of the 26th. the morning of the 27th, he called me and asked if i could come pack to the white house to discuss this further. and we set up a time. it went over there that afternoon bringing of course, 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 counsel's office and we talked through four to five more issues. >> you could perhaps have waited until you had sustain agents 302 from the interview of general flynn. why go ahead of that? why not wait? >> this was a matter of some urgency. >> describe. >> in makg the derrellation of notification, i had balance a variety of interests. for the reasons that i just described, we felt like it was xrik 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 request to the russians. we were balancing this 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. >> do you know where the interview took place? >> i believe it took place at the white house. >> the flynn interview. >> yes. >> do you know if flynn was represented by counsel at the time? >> i don't believe he was. >> and the scenario 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 believed the white house was being truthful which meant flynn was misleading them, which meant he was vulnerable to ma anymore lags by the russians, that he could call up the national security adviser to the president and say you have to do this for us or we'll out you with all your folks and your career is done. >> that's right. one of the questions he asked me when i went back over, why does it matter to doj is one white
house official lies to another white house official? so we explained to him, it was a whole lot more than that. and went back over the same kernels 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 specifics as they were coming out, every time that happened, it increased the compromise to. state the obvious, you don't want your national security adviser compromised with the russians. >> were there any takeaways from the first meeting or action items that you left with? >> well, there was an action item in the second meeting. we talked about several issues. >> you said there were two meetings and a phone call.
was the phone call, the phone call to set up the second meeting? >> a third substantive phone call. >> go ahead. >> sorry about that. one of the issues that mr. mcafghan raised with me in this second meeting that was on the 22nd, the day after the first meeting, was his concern. we had told him before that they were giving him this information so they could take action. and he said 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 speaker viewed. that their action would not interfere with any investigation. in fact, i'll remember specifically saying it wouldn't really be fair of us to tell you this and then expect to you sit on your hands. >> with the interview of general flynn accelerated once you became aware of this zpogs felt you needed to get his statement
quickly? >> well, we wanted to tell the white house as quickly as possible. we're working with the fbi in the course of the investigation. certainly we did -- >> the first thing you know is that you have information that one thing was said and the white house saying something different. and you know that that information irrespective of who is involved needs on get to the white house quickly and so at that point, the decision was made to do the interview so that was locked down before you went to white house counsel? >> right. so that would not have a negative impact on the fbi investigation at that point. and there was a request made mcg they could look at the underlng evidence that we had that we could describe general flynn's conduct. we said we were inclined to look temperature underlying evidence. that we want to go back to doj
and make the long it is particularal arrangements. this second meeting occurred late in the afternoon. this is friday the 27th. so we told them he would work the fbi evidence to weekend this and get back on monday morning. and i called in first thing monday morning to let them know that we would allow them to review the underlying evidence. >> was that a phone call in. >> there were the initial phone call to let him know we would see him, two meetings and then a phone call at the end to let him know the material was available. towed call me back. he was not available and i did not hear back until that afternoon. >> that was the else. nobody came over to look at the material. >> i don't know what happened after that. that was my last day with doj. >> okay. 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 classifiednformati relating to mr. trump or his associates been classified and shared with the media? >> not to my knowledge. >> miss yates? >> not to my knowledge either. >> 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 on meddle in the election? >> absolutely not. >> okay. 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?
>> no. >> no. >> as far as either of you know, have any government agencies referred any of the leaks over the past few months to the justice department for potential criminal investigation? >> i don't know. as you know, there is a process for doing that. i don't know if that has happened. >> i'm not at doj anymore so i don't know what has been referred. >> so then i guess to kind of sum up, neither one of you know whether the department authorized a criminal investigation of the leaks. >> i do not, sir. >> no, sir. >> have any of you been questioned by the fbi about any leaks? >> i have not been.
>> no. >> i want to discuss unmasking. mr. clapper, miss yates. did either of you ever request thunmaskin of mr. trump, his associates or any members of congress? >> yes. in one case i did. i can specifically recall but i can't discuss it any further than that. >> so if i and you for details, you said you can't discuss that. is that what you said? >> not here. >> okay. miss yates, can you answer that question? did you ever request unmasking of mr. trump, his associates or any members of congress? >> no. >> question two. did either of you ever review classified documents in which mr. trump, his associates or members of congress had been unmask told?
>> yes. >> you have. >> can you give us details here? >> no. i can't. >> miss yates, have you? >> yes, i have, and no, i can't give you details. >> did either of you ever share information about unmasked trump associates or members of congress with anyone else? >> well, i'm thinking back over six and a half years, i could have discussed it with either my deputy or my general counsel. >> miss yates? >> in the course of the flynn matter, i had will discussions with other members of the intel community. i'm not sure if that's responsive to your question. >> in both cases, you can't give details here. >> no. >> no.
>> the fbi, the democratic national community of the russians are' intrusion into their systems in august of 2015, but the dnc turned down the offer to get the russians out and refuse the fbi access to their servers. instead, it evidently eventually hired a private firm in the ring 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, where e-mails were sent after the fbi notified the dnc of the breach. mr. clapper, would you agree that one of the lessons of this else is that people should cooperate with the filibuster
when notified of foreign hacks instead of stone walling? >> yes, sir. i think that's a very good idea. >> mr. clapper, you sent the russians -- you said the russians did not release any negative information on republican candidates. the i believe that's not quite right on. june 15, 2016, 2.0 released to gawker and the smoking gun more than 200 pages of the dnc's opposition research on mr. trump, hundreds of pages of what i would call dirt. this happened just two days after the "wall street journal" publish ad plan to prevent mr. trump from securing the nomination. 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? >> i would think to consult with the analyst that's were involved in the report. i don't know personally whether they considered that or not. >> can you submit that as an answer in writing? >> well, i'm a private citizen now, sir. i don't know what the rules are on my obtaining classified -- potentially classified information. i will look into it. >> mr.clapper, you testified that the intelligence community conducted an exhaustive review of russian interference in the analysts involved had complete unfettered access to all sensitive raw intelligence data. do you any reason to believe that any agency would have withheld any relevant
information? >> i don't believe so. with one potential caveat. which is that there is the possibility again acknowledging this parole the filibuster plays in straddling both intelligence and law enforcement, that for whatever reason they may have chosen to withheld sensitive information from the report. i was not apprised of that. injust suggesting it as a possibility. >> my time is up. >> senator feinstein. >> thanks very much. mr. chairman, miss yates, i won't and you anything deserves a confidential or secure answer. but after your second in-person meeting with mr. mcgann, you said there were four topics you wanted to discuss. would you list they will? >> sure. the first topic in the second meeting was why does it matter to doj if someone white house
official lies to another? the second topic related to the applicable activity, would pursue a criminal case. the third topic was his concern that they're taking action might he interfere with an investigation of mr. flynn. and the fourth topic was his request to see the underlying evidence. >> were all those topics satisfied we respect to your impression after the second meeting? >> yes. the only thing that was really left open there was the logistics, for to us make arrangements to look at the underlying evidence. >> and you did make those arrangements. >> we did. but i don't know whether that ever happened. whether they looked at it or not. >> fair enough. apparently, lieutenant general flynn remaineder national
securitydviser for 18 days, after you raised the justice department's concern. if your view, during those 18 days, did the risk that flynn had been or could be compromised diminish at all? >> i don't know that i'm in a position to really have an answer for that. i know we were really concerned about the compromise. that was why we were encouraging them to act. i don't know had a steps they may have taken if any during that 18 days to minimize. >> did you discuss this with other doj career proeffessional? >> certainly leading up to our notification on the 26th. it was a topic of a whole lot of discussion. with doj and other members of the intel committee. we discussed it at great length. after the 30th, i wasn't at doj so i didn't have any further discussions about what was being
did you know. did you consult with other career prosecutors? >> absolutely. we had the experts within the national security investigation. as we were navigating it, they were working with the fbi and we were trying on make a determination about how best to make this notification so quo get information to the white house if they needed to be able to action. >> 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 is government, by whatever he had done? >> well, our point was 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. in terms of what impact may have had or could have had, i can't
speak to that. we knew that was not a good situation which is why we wanted to let the white house know about it. >> 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? >> i can't answer that. >> general clapper, is that accurate? >> yes, it is, and it is also quite sensitive. >> okay. let me and you.
>> they are quite sensitive. >> when did components. intelligence community open investigations into the interactions between trump advisers and russians? >> what was the question again? >> when did components of the intelligence community open investigations into the interactions between trump advisers and russians? >> well, i would refer to director comey's statement before the house intelligence committee on the twef12th of ma. they opened the investigation in july of '16. >> and what was the reaction when you advised it be open as
early as july 15th? >> i'll sorry. >> i thought you said, that you advised -- >> no. director comey did before the house intelligence committee announce that had the fbi had initiated an investigation in july of 2016. >> well, what did the intelligence agencies doh the findings that i just spoke about, that the guardian wrote about? >> i'm not sure about the accuracy of that article. so clearly, over, going back to 2015, there was evidence of soviet, russian, excuse me, freudian slip, russian activity, mainly information gathering, they were investigating voter registration rolls and the like. that activity started early. so we were monitoring this as it
progressed, and certainly as it picked up, accelerated in spring, summer and fall of 201016. >> okay. >> 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? you were worried that general e flynn would be compromised. what did you think would happen if we? and how do you believe he would have been compromised? >> well, we had two concerns. compromise was certainly the number one concern. the russians can use compromised material, information, in a varietyf ways. sometime ohevertly and sometime
subtly. you had a very sensitive position like the national security adviser. you don't want that person to be in a position where the russians have leverage over him. another motivating factor is that we felt like the vice president was entitled to know that the information he had been given and he was relaying to the american public wasn't true. >> so what you're saying is, that general flynn lied to the vice president. >> that's certainly how it appeared, yes. the vice president went out and made statements about general flynn's conduct that he said were based on what general flynn told him. and we knew that flat wasn't true. >> as the days went on, what was your view of the situation? because there were i guess two weeks before, was it 18 daysett before director flynn was dismissed? >> well, again, i was no long we are doj after the 30 thith.
so i wasn't having any interaction or involvement after that day. >> thank you. >> thank you, senator, 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. as the director has told us many times, this is not anything new. perhaps the level and intelligence at this and sophistication of both russian overt and covert operations is unprecedented and i thank the intelligence community for their assessment. i do regret that while these two witnesses are certainly welcome and we're glad to have them here. that the former national security adviser susan rice has refused to testify in front of the committee. it seems there are a lot of questions that she needs answer.
i would point out that both senator feinstein and i are fortunate enough to be on the senate intelligence committee, which is also could not a bynum investigation under the leadership of chairman burr and vice chairman warner. one of the additional benefits is that we have access to the raw intelligence collected by the intelligence community which i think completes what is understandably an incomplete picture when you can only talk in a public setting about part of evidence. but it is important for the american people to understand what is happening. i think this sub committee hearing is playing an important role in that. >> i want to and director clapper. 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 back it the end of next year. as many have said, i can't recall your specific words but i know director comey has called at this time crown jewels of the intelligence commutnity. i am very concerned that some of the information about unmasking might cause some people the worry about their legitimate privacy concerns. 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 approval process that is required in order the allow that to happen? that's not a trivial matter, is
it? >> no. the process is that first of all, the judged as to whether or not to unmask or reveal the identity is rendered by the original collection agency. so normally that would be with the 702, going to be nsa. and i know for my part, as i indicated in my statement, my six and a half years of dni, i occasionally and for identities to be unmasked to understand the context. what i was concerned about, those in the intelligence community are concerned about, the validated foreign intelligence target. is that target trying to co-ment on, recruit, penetrate or what? it is very difficult to understand that context by the labels u.s. person one, u.s. person two. and as well, i shouldoint out,
going to on a anecdotal basi one signature report at a time. you need to look at. is there a pattern here? so i tried on my part to be very, very judicious about that. a very sensitive thing. did i feel an obligation that i should attempt to understand the context of who this person was. that had 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 targets. our focus was on target. not as much as the u.s. person, not to understand the context. >> the fact that some authority might request and receive the unmasking 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? >> yes. again, that's why i attempted on clarify in my statement. that's why in my statement i attempted to make distinction between unmasking, an authorized legitimate process with approval by the authorities, and leaking, which is an unauthorized process under any circumstance. >> mr. chairman, i think it is really important that in order to determine who actually requested the unmasking, in order to establish whether appropriate procedures were undertaken, both legislative oversight and judicial oversight, that we determine what that paper trail is. >> i have to be very careful here about how i phrase this. i would just repeat to you the definition of what 702 is used
for. collection against a nonu.s. person overseas. >> i don't think you can say that enough, director clapper. >> i'm happy to say it again. >> to keep the american people safe and also respecting the privacy rights and constitutional rights of american people. >> miss yates, this is the first time you've heard congress since before you left the department of justice. i wanted to and you a question about your decision to refuse. in the letter you said to congress, you point pout the executive order itself was drafted in consultation with the office of legal counsel, and you point out that they reviewed it to determine whether in its view
the order was lawful on its face, and properly drafted. is it true that the office of legal counsel did conclude that it was lawful on its face and properly legal counsel did approve it was lawful on its face -- >> yes, they did. >> you overruled them? >> i did. the office of -- >> what is your authority to overrule the office of legal counsel when it comes to a legal determination? >> 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, statements that are made contemporaneously or prior to the execution of the eo, 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. >> miss yates, i thought the department of justice had a longstanding tradition of defending a presidential action in court if there are reasonable arguments in its favor regardless of whether those arguments might prove to be ultimately persuasive which of course is up to the courts to decide and not you, correct? >> it is correct that oftentimes, 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 in this -- >> can you distinguish the truth from lawful? >> yes, because in this instan, 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. >> miss yates, you had a distinguished career for 27 years with the department of justice and i -- i voted for your confirmation because i believed that you had a distinguished career but i have to tell you i find it enormously dis appoiappointing that you so 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 counterman the executive order the president of the united states because you happened to disagree with his as a policy matter. >> i have to -- >> i just have to say that. >> i appreciate that, senator, and let me make one thing clear, it was not purely as a policy matter. in fact, i remember my confirmation hearing, an exchange i had with you and other 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, 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 believeds that it was unlawful. i also thought that it was inconsistent with the principles of the department of justice and i said no and that's what i promised you i would do and what's that i did. >> i don't know how you could say it was lawful and say it was within your prerogative to refuse to defend it in a court of law and leave it for the court to decide. >> senator, i did not say it was lawful. i said it was unlawful. >> senator durbin's next, but i have one quick -- if you don't mind, senator durbin, about h 70 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? skbl >> no, it's not, but that's another provision. i was saying what 702 does.
>> i just want to make sure there is a procedure to do -- >> there is. >> okay. senator durbin. >> just to your point, you said the word, "overseas." ambassador kislyak was not overseas on december 29th, was he? >> that's correct. >> thank. >> 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? >> that's correct. >> thank you. i want to mention at the outset here that this is a critically important hearing. i want to thank senator graham and senator whitehouse for the bipartisan nature and the cooperation in this hearing. i think the testimony we 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 what we have seen with this situation calls for the -- 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'll say also i'm starting to hear from the republican side of the table real concern about section 702 which senator lee, republican member of 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 we can get it now when we talk about real reform of the 702 and protecting the rights of individuals in america. miss yates, let me ask you about this meeting on january the 26th with white house counsel don mcgahn. you shared the justice d department's concerns about his communication with russia, dishonesty about the communications and vulvulnerabiy of blackmail. >> that's right. >> general flynn, other than his representations he had no conversations that you bawarned don mcgahn about? >>. >> didn't go back to his trip to moscow, money received? >> no, it did not. >> strictly on that yes? >> yes. >> you had a second meeting the next day. >> that's right. >> correct? january the 27th. >> at his request, yes. >> at mr. mcgahn's request. at that second meeting, did mr. mcgahn say anything about whether he'd taken the
information you'd given him to the president? >> no, de hadn't tell us. >> are you aware of the fact mr. spicer, the white house press secretary, on february 14th, said, i quote, "immediately aft the department of justice notified the white house council of the situation, the white house counsel briefed the president in a small group of senior advisers." >> i've seen media reports to that effect, but that's all i know is from the media. >> so there was no statement by mr. mcgahn he had either spoken to the president about your concerns with his national security adviser, or with any other members of the white house? >> no, he didn't advise us. in the second meeting, anyone he may have discussed this with the prior evening. >> i guess i want to 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? >> well, i -- to be fair to mr. mcgahn here, i wovuldn't say tht 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? that's why we went back through the list of issues and reasons why this was troubling to us. >> did you thinkhere was a legal reason to be concerned if one white house official lied to another white house official? >> we didn't go into that, and to the extent you may be talking about 1,000 in 1 violation, that's not something we were alluding to or discussing with mr. mcgahn. i think his point when he made that -- 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. >> and the reason you told him was what? >> 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. >> you said it earlier, i believe, that mr. mcgahn asked you if they thought they should fire general flynn with that point. >> right. >> and what was your response? >> told him 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. >> 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 have any i meant by those words? >> all i can say, he didn't reach that conclusion from his conversation with us. i can't speak to how he arrived at that. >> let me ask you, there was a period of time, 18 days we referred to during the course of this, and during that period of 18 days, a number of things occurred. general flynn continued to serve as the national security adviser for 18 days after you had
briefed the white house about the counterintelligence risk that he posed. 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 nor korean missile launch and spoke repeatedly to the press about his communications with russian ambassador kislyak. miss yates, in your view, were there national security concerns in these decisions being made after the information you shared with the white house? >> i was no longer with doj after january 30th, so i wasn't aware of any actions that general flynn was taking, so i couldn't really opine on that. >> general clapper? would you comment? if you had the warning from the white house, or pardon me, from the department of justice to the white house about