These Questions Remain Unanswered After Yates’ High-Profile Testimony

Former acting Attorney General Sally Yates and former National Intelligence Director James Clapper testifying on Capitol Hill in Washington, Monday, May 8, 2017, before the Senate Judiciary subcommittee on Crime and Terrorism hearing: "Russian Interference in the 2016 United States Election." (AP Photo/Pablo Martinez Monsivais)
Former acting Attorney General Sally Yates takes her seat on Capitol Hill in Washington, Monday, May 8, 2017, prior to testifying before the Senate Judiciary subcommittee on Crime and Terrorism hearing: "Russian Inte... Former acting Attorney General Sally Yates takes her seat on Capitol Hill in Washington, Monday, May 8, 2017, prior to testifying before the Senate Judiciary subcommittee on Crime and Terrorism hearing: "Russian Interference in the 2016 United States Election." (AP Photo/Pablo Martinez Monsivais) MORE LESS
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For the first time on Monday, former acting Attorney General Sally Yates provided an on-the-record account of exactly how she informed the White House that then-national security adviser Michael Flynn had himself become a national security concern.

Because much of what Yates discussed before a Senate Judiciary subcommittee on crime and terrorism touched on classified information, and because it did not line up with the Trump administration’s description of the “heads up” they received from her, Yates’ testimony left a series of glaring questions unanswered. Senators from both parties also repeatedly cut Yates off mid-response, leaving the impression that she wasn’t given space to share all that she knew.

We’re still unsure of exactly how and when top-level White House officials were briefed on what Yates told White House Counsel Don McGahn about Flynn; what specific “underlying conduct” led the Justice Department to believe that Flynn was “compromised with respect to the Russians”; or why it took 18 days after Yates first aired DOJ’s concerns to McGahn for Flynn to be forced out of his post.

These are the central questions that may be raised in congressional hearings and White House press briefings in the weeks to come.

What was Flynn’s “underlying conduct” that set off alarm bells at DOJ?

Yates said not only was she alarmed that Flynn misled Vice President Mike Pence about the content of his conversations with the Russian ambassador to the U.S., but testified that his “underlying conduct was problematic in and of itself.”

Yates said she could not discuss the nature of that conduct because it was drawn from classified information, but emphasized that Russia both knew and “likely had proof” of Flynn’s actions.

That tidbit bolsters a February Washington Post story that revealed Flynn discussed U.S. sanctions against Russia with Ambassador Sergey Kislyak during the transition. Flynn initially denied doing so before his spokesman walked that assertion back, saying “he couldn’t be certain that the topic never came up.”

A spate of reports on Flynn’s work for foreign governments, and his failure to disclose payments he received for that work, provide insight into other possible causes for concern.

After he left the White House, Flynn registered as a foreign agent with the Justice Department. During his tenure with the Trump campaign and transition, Flynn was paid $530,000 to lobby for a firm run by a Turkish businessman with extensive business ties to Russia, his filings under the Foreign Agent Registration Act showed.

Flynn also failed to disclose tens of thousands of dollars he received in speaking fees from three Russia-linked businesses in the initial financial disclosure firms he provided to the White House.

Robert Deitz, senior counselor to the CIA director during the George W. Bush administration and a former general counsel for the National Security Agency, told TPM those gigs raised huge red flags.

“I would like to know whether the White House gave Flynn the White House version of the SF-78, which is a financial disclosure statement,” Deitz said. “I’d like to know whether he mentioned he was paid half a million dollars by the Turks. I’d like to know if he reported that half a million dollars to the Internal Revenue Service. And I’d like to know whether he was doing advocacy work for the Turkish government such that he was violating the Logan Act.”

The Logan Act is an eighteenth-century federal law prohibiting U.S. citizens from negotiating with foreign governments in their private capacity.

Did Flynn lie in his interview with the FBI?

In her testimony, Yates confirmed another Washington Post story reporting that Flynn had been interviewed by the FBI at the White House on Jan. 24, two days before Yates first met with McGahn in his White House office.

It remains unclear whether Flynn denied discussing sanctions with Kislyak in his conversation with bureau agents, as current and U.S. officials who spoke to the newspaper said he did.

“What was not said was the conclusion naturally drawn from the fact he’d been interviewed by the FBI and had presumably told the FBI a story consistent with the story he told the Vice President,” Richard Ben-Veniste, the chief special prosecutor on the Watergate scandal and a member of the 9/11 Commission, told TPM. “That means, assuming that the government has hard evidence of what actually happened in the Kislyak conversations, you have the national security adviser speaking untruthfully in his interview with the FBI. The implications of that are very consequential.”

“Lying to the FBI in a formal interview is itself a potential crime, depending on whether the false statement was both material and knowingly false, under Title 18 United States Code Section 1001,” Ben-Veniste continued. “If the national security adviser violated 18 USC Sec. 1001, this is a felony and must be taken extremely seriously.”

Flynn offered to be interviewed by the FBI and House and Senate Intelligence Committees, all probing Trump campaign staffers’ potential ties to Russian officials, in exchange for immunity, but none of those bodies appear to have accepted his offer.

Did any White House officials review the DOJ’s evidence on Flynn?

Yates disclosed that McGahn had asked her if the White House could look at the “underlying evidence” regarding Flynn’s conduct during their second in-person meeting on Jan. 27. She said that after consulting with the FBI over the weekend, she called McGahn on Jan. 30 to let him know his team would be allowed to review that evidence.

McGahn was unavailable and did not return her call until late that afternoon, Yates testified.

“And that was the end of this episode? Nobody came over to look at the material?” Sen. Sheldon Whitehouse (D-RI) asked.

Yates replied that she didn’t “know what happened after that” because she was fired later that day for instructing the DOJ not to enforce the Trump administration’s initial travel ban.

Why did it take the White House 18 days to give Flynn the boot?

Yates testified that she detailed her concerns about Flynn to McGahn in two separate in-person meetings, urging him to take action. The administration did nothing, and openly defended Flynn amid reports of his conversations about sanctions. Then, on Feb. 13, the Post published a bombshell report detailing Yates’ warnings to the White House about his conduct. Flynn was gone hours later.

In a press briefing on Feb. 14, Spicer said Yates gave the White House a “heads-up” and that McGahn “briefed the President and a small group of his senior advisers” “immediately” after their first conversation.

“The President asked them to commit a review of whether there was a legal situation there,” Spicer continued, saying Trump “instinctively” believed Flynn behaved appropriately. “That was immediately determined there wasn’t.”

This remained the basic line from the White House for months. Anonymous senior administration officials suggested in media reports that Flynn was let go not because he might have been “compromised” by Russia, but because he lied to Pence.

What exactly McGahn communicated to Trump and the White House, and why they did not act on that information at the time, remain open questions.

Where do the investigations into Trump’s campaign staffers stand?

Yates was unable to comment on the status of any probe into Trump’s associates ties to Russia, citing department policy not to comment on ongoing investigations.

She did acknowledge that failure to disclose payments from foreign sources, lying to the FBI under oath and failing to register as a foreign agent are all criminally punishable offenses,

She offered no comment on the FBI’s looking into former Trump foreign policy adviser Carter Page, former campaign chairman Paul Manafort or onetime campaign adviser and longtime Trump confidant Roger Stone.

Philip Bobbit, a former senior government lawyer who now serves as director for the Center for National Security at Columbia Law School, called the status of the FBI probe the “biggest unanswered question” coming out of Yates’ testimony.

“How wide is the net?” Bobbit said in a phone interview with TPM. “She couldn’t even say the progress of the criminal investigation against Flynn, but what about Stone, what about Manafort, what about Carter Page. Where is that going? Are they going to seek an indictment?”

What are Trump’s own business ties with Russia?

Former Director of National Intelligence James Clapper suggested in an exchange with Sen. Lindsey Graham (R-SC) during the same hearing that the intelligence community was investigating the President’s own business ties with Russia. Asked if Clapper had ever come across “a situation where a Trump business interest in Russia” caused him “concern,” Clapper said he “can’t comment on that because that impacts the investigation.”

CNN reported on air Tuesday that Graham now wanted to look into Trump’s Russian business connections.

Trump’s adult sons, Eric and Donald Jr., who now run the Trump Organization, have both suggested that a disproportionate amount of the family real estate company’s assets come from that country.

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