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 further anger Democrats who have accused Republicans of trying to damage the inquiry.
According to letters The Post reviewed, the Justice Department notified Yates earlier 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 T. Flynn, a Trump campaign aide who became national security adviser before revelations that he had discussed sanctions 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’s lawyer sent a letter to the White House indicating that she still wanted to testify, the hearing was canceled.
During a briefing Tuesday, White House spokesman Sean Spicer denied that the White House sought to hinder Yates’s testimony. “I hope she testifies, I look forward to it,’’ he said. “To suggest in any way, shape or form that we stood in the way of that is 100 percent false.’’
Rep. Adam B. 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’s attorney David O’Neil described the government’s position, following 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 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 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’s 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.’’
He closed the letter by saying that if he did not hear back from the White House by 10 a.m. Monday, he would assume that the it “does not exert executive privilege over these matters with respect to the hearings or other settings.’’
The same day O’Neil sent that letter, Nunes, the Intelligence Committee’s chairman, said he would not go forward with the public hearing that was to feature Yates’ testimony, among others. The cancellation of the hearing made O’Neil’s deadline moot.
On Tuesday, Nunes declined to say if the White House had asked him to cancel the hearing.
Reporters also asked Nunes if the Trump administration sought to prevent Yates from testifying, to which he replied: “Look, you guys are just speculating. I’m sorry, whenever there’s time we’ll do a press conference.’’
Karoun Demirjian contributed to this report.