White House sought to block Yates from panel

The ad­min­is­tra­tion con­sid­ers tes­ti­mony to be suf­fi­ciently cov­ered

The Denver Post - - NEWS | NATION & WORLD - By Devlin Bar­rett and Adam En­tous

washington» The Trump ad­min­is­tra­tion sought to block for­mer act­ing at­tor­ney gen­eral Sally Yates from tes­ti­fy­ing to Congress in the House in­ves­ti­ga­tion of links be­tween Rus­sian of­fi­cials and Don­ald Trump’s pres­i­den­tial cam­paign, The Washington Post has learned, a po­si­tion that is likely to anger Democrats who have ac­cused Repub­li­cans of try­ing to dam­age the in­quiry.

Ac­cord­ing to let­ters The Post re­viewed, the Jus­tice De­part­ment no­ti­fied Yates this month that the ad­min­is­tra­tion con­sid­ers a great deal of her pos­si­ble tes­ti­mony to be barred from dis­cus­sion in a con­gres­sional hear­ing be­cause the top­ics are cov­ered by the pres­i­den­tial com­mu­ni­ca­tion priv­i­lege.

Yates and other for­mer in­tel­li­gence of­fi­cials had been asked to tes­tify be­fore the House In­tel­li­gence Com­mit­tee this week, a hear­ing that Chair­man Devin Nunes, R-Calif., abruptly can­celed. Yates was the deputy at­tor­ney gen­eral in the fi­nal years of the Obama ad­min­is­tra­tion, and served as the act­ing at­tor­ney gen­eral in the first days of the Trump ad­min­is­tra­tion.

Pres­i­dent Trump fired Yates in Jan­uary af­ter she or­dered Jus­tice De­part­ment lawyers not to de­fend his first im­mi­gra­tion or­der tem­po­rar­ily ban­ning en­try to United States for cit­i­zens of seven Mus­lim-ma­jor­ity coun­tries and refugees from around the world.

As act­ing at­tor­ney gen­eral, Yates played a key part in the in­ves­ti­ga­tion sur­round­ing Michael Flynn, a Trump cam­paign aide who be­came na­tional se­cu­rity ad­viser be­fore rev­e­la­tions that he had dis­cussed sanc-

tions with the Rus­sian am­bas­sador to the United States in late De­cem­ber led to his ouster.

Yates and an­other wit­ness at the planned hear­ing, for­mer CIA direc­tor John Bren­nan, had made clear to gov­ern­ment of­fi­cials by Thursday that their tes­ti­mony to the com­mit­tee prob­a­bly would con­tra­dict some state­ments that White House of­fi­cials had made, ac­cord­ing to a per­son fa­mil­iar with the mat­ter who spoke on the con­di­tion of anonymity. Ken Wain­stein, a lawyer for Bren­nan, de­clined to com­ment.

On Fri­day, when Yates’ lawyer sent a let­ter to the White House in­di­cat­ing that she still wanted to tes­tify, the hear­ing was can­celed.

A White House spokesper­son called the story “en­tirely false. “The White House has taken no ac­tion to pre­vent Sally Yates from tes­ti­fy­ing, and the De­part­ment of Jus­tice specif­i­cally told her that it would not stop her and to sug­gest oth­er­wise is com­pletely ir­re­spon­si­ble,’’ the White House said in a state­ment.

Rep. Adam Schiff, Calif., the rank­ing Demo­crat on the In­tel­li­gence Com­mit­tee, said the panel was aware that Yates “sought per­mis­sion to tes­tify from the White House. Whether the White House’s de­sire to avoid a public claim of ex­ec­u­tive priv­i­lege to keep her from pro­vid­ing the full truth on what hap­pened contributed to the de­ci­sion to can­cel to­day’s hear­ing, we do not know. But we would urge that the open hear­ing be resched­uled with­out de­lay and that Ms. Yates be per­mit­ted to tes­tify freely and openly.’’

In Jan­uary, Yates warned White House coun­sel Don­ald McGahn that state­ments White House of­fi­cials made about Flynn’s con­tact with the am­bas­sador were in­cor­rect and could there­fore ex­pose the na­tional se­cu­rity ad­viser to fu­ture black­mail by the Rus­sians.

In a March 23 let­ter to Act­ing As­sis­tant At­tor­ney Gen­eral Sa­muel Ramer, Yates’ at­tor­ney David O’Neil de­scribed the gov­ern­ment’s po­si­tion, af­ter a meet­ing he at­tended at the Jus­tice De­part­ment on the is­sue.

O’Neil, who de­clined to com­ment, noted in the let­ter that Yates is will­ing to tes­tify, and that she will avoid dis­cussing clas­si­fied in­for­ma­tion and de­tails that could com­pro­mise in­ves­ti­ga­tions. The cor­re­spon­dence was later shared with the In­tel­li­gence Com­mit­tee.

“The De­part­ment of Jus­tice has ad­vised that it be­lieves there are fur­ther con­straints on the tes­ti­mony Ms. Yates may pro­vide at the (In­tel­li­gence Com­mit­tee) hear­ing. Gen­er­ally, we un­der­stand that the de­part­ment takes the po­si­tion that all in­for­ma­tion Ms. Yates re­ceived or ac­tions she took in her ca­pac­ity as Deputy At­tor­ney Gen­eral and act­ing At­tor­ney Gen­eral are client con­fi­dences that she may not dis­close ab­sent writ­ten con­sent of the de­part­ment,’’ the lawyer wrote.

That let­ter in­di­cates that gov­ern­ment lawyers ini­tially ar­gued that Yates was bound by at­tor­ney-client con­fi­den­tial­ity.

“We be­lieve that the de­part­ment’s po­si­tion in this re­gard is over­broad, in­cor­rect, and in­con­sis­tent with the de­part­ment’s his­tor­i­cal ap­proach to the con­gres­sional tes­ti­mony of cur­rent and for­mer of­fi­cials,’’ the let­ter con­tin­ues. “In par­tic­u­lar, we be­lieve that Ms. Yates should not be ob­li­gated to refuse to pro­vide non­clas­si­fied facts about the de­part­ment’s no­ti­fi­ca­tion to the White House of con­cerns about the con­duct of a se­nior of­fi­cial. Re­quir­ing Ms. Yates to refuse to pro­vide such in­for­ma­tion is par­tic­u­larly un­ten­able given that mul­ti­ple se­nior ad­min­is­tra­tion of­fi­cials have pub­licly de­scribed the same events.’’

The fol­low­ing day, Scott Schools, a se­nior Jus­tice De­part­ment lawyer, replied in a let­ter to O’Neil, say­ing the Yates con­ver­sa­tions with the White House “are likely cov­ered by the pres­i­den­tial com­mu­ni­ca­tions priv­i­lege and pos­si­bly the de­lib­er­a­tive process priv­i­lege. The pres­i­dent owns those priv­i­leges. There­fore, to the ex­tent Ms. Yates needs con­sent to dis­close the de­tails of those com­mu­ni­ca­tions to (the in­tel­li­gence panel), she needs to con­sult with the White House. She need not ob­tain sep­a­rate con­sent from the de­part­ment.’’

That let­ter, in essence, marked Jus­tice De­part­ment of­fi­cials back­ing away from the dis­pute, say­ing that al­though they thought ex­ec­u­tive priv­i­lege prob­a­bly ap­plied to Yates’ dis­cus­sions, that was a con­ver­sa­tion she would have to have with lawyers at the White House, not the Jus­tice De­part­ment.

In re­sponse, O’Neil then sent a let­ter Fri­day to McGahn, the White House coun­sel, say­ing that any claim of priv­i­lege “has been waived as a re­sult of the mul­ti­ple public com­ments of cur­rent se­nior White House of­fi­cials de­scrib­ing the Jan­uary 2017 com­mu­ni­ca­tions. Nev­er­the­less, I am ad­vis­ing the White House of Ms. Yates’ in­ten­tion to pro­vide in­for­ma­tion.’’

On Tuesday, Nunes de­clined to say if the White House had asked him to can­cel the hear­ing.

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