You remember Sally Yates. She was the deputy Attorney General under Obama who became acting Attorney General in the first days of the Trump administration, while the new White House was waiting for Jeff Sessions to be confirmed. After Trump signed his first travel-ban executive order, Yates put out the word to the DOJ that they were not to enforce it. And that was the end of Sally Yates’s tenure as acting Attorney General.
Yates was in the news for another reason in January, though. According to WaPo, as acting AG, she was briefed on Mike Flynn’s now infamous phone call with the Russian ambassador, Sergei Kislyak, in late December in which the topic of sanctions came up. Yates allegedly thought Flynn might have violated the Logan Act; she was also alarmed that White House officials, up to and including Mike Pence, were publicly denying that Flynn had talked sanctions with Kislyak, either because they were deliberately lying or because Flynn had misled them. Yates reportedly worried that if the truth wasn’t publicly known, the Russians would be able to blackmail Flynn by threatening to reveal the sanctions talk themselves — a dangerous predicament for the president’s national security advisor. So Yates went to the White House counsel, Don McGahn, and apparently told him what Flynn had actually said to Kislyak. A few weeks later, Flynn resigned for having misled Pence about the phone call.
Now the House Intelligence Committee wants Yates to testify. Yates is willing. The White House is not. Can they block her on grounds that her communications with the White House were privileged presidential communications? Yates’s lawyer says no:
“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.
“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 non-classified 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 DOJ, naturally, says yes:
Scott Schools, another Justice Department official, replied in a letter the following day, saying the 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.’’
Two questions for legal eagles. One: Is Yates’s lawyer right that Trump’s privileges have been effectively waived by the fact that so many White House officials, including Trump himself, have discussed the circumstances of Flynn’s firing publicly? It’s hard to believe Trump saying something like “Mike Flynn had to go because he misled Mike Pence” means carte blanche legally in exposing everything that was said in a meeting between the acting Attorney General and the White House counsel. But that raises question two: Even if the White House can use executive privilege to block Yates from testifying about what was said between her and McGahn, can they block her from testifying what she knows about Flynn and Kislyak?
Presumably not, which might explain why the hearing at which she was supposed to testify was canceled late last week by Republican Intel Committee chair Devin Nunes. Adam Schiff, the ranking Democrat, flatly accused Nunes this morning of scrapping the hearing for fear of what Yates might say:
Was today's open hearing cancelled because WH did not want Sally Yates to testify re Gen Flynn's deception? Didn't want to assert privilege? pic.twitter.com/qO63IfPtAP
— Adam Schiff (@RepAdamSchiff) March 28, 2017
The big mystery: What could Yates possibly have to say at a hearing that would be so damaging to the White House that it would try to bottle her up? It could be that she would reveal Flynn went much further than is publicly known in hinting at sanctions relief in talking to Kislyak, but various reports about what was said on the call have appeared in the media since Flynn’s firing and none of them have alleged anything grossly inappropriate. On the contrary, the conversation has been described as ambiguous, with Flynn making no overt promises. The other possibility is that Trump doesn’t want it publicly known that he learned of Flynn’s deceptions about the Kislyak call long before Flynn resigned, suggesting that the White House might have been prepared to cover up the contents of the call until Yates forced them to confront Flynn about it. The problem with that theory, though, is that … we already know that’s true. Trump found out that Flynn had misled Pence in late January; Pence himself reportedly wasn’t told for another 15 days. Sean Spicer even admitted during a briefing in February that the White House had known about Flynn’s call with Kislyak for weeks before he resigned and had spent the time “reviewing and evaluating this issue on a daily basis trying to ascertain the truth.”
So, again: What is the White House worried about here? Even if Yates reveals that Flynn’s conduct was more incriminating than thought, Trump can shrug and say that he solved the problem by forcing Flynn out. Maybe they’re fighting hard to assert this privilege as a matter of principle, in the expectation that they might need to assert it for other officials in due time. Or maybe they’re worried about something McGahn said to Yates? If he tried to get the DOJ to back off Flynn in the hope or expectation that Flynn might stay on as NSA, that would be damaging to Trump. But that communication would be privileged. Wouldn’t it?
Update: Maybe the answer to the question is … that the White House isn’t worried about anything here? We haven’t tried to block Yates, they insist:
Statement from White House on Washington Post story concerning Sally Yates: pic.twitter.com/tur7D06vLS
— Zeke Miller (@ZekeJMiller) March 28, 2017