Newly revealed details about how White House Counsel Don McGahn remembered his late January 2017 meetings with Sally Yates, then the acting Attorney General, confirmed much of Yates’ own account of the meetings. Yates has testified that she informed McGahn of false statements given by then-National Security Advisor Mike Flynn to Vice President Mike Pence about Flynn’s conversations with a Russian official.
But the account laid out by McGahn in a memo that partially became public Saturday differs from Yates’ testimony, given to the Senate Judiciary committee in early May 2017, in a few key areas. Those differences point to the major questions still lingering in Special Counsel Robert Mueller’s investigation into Russian election meddling, and particularly his probe into whether President Trump obstructed justice.
McGahn and Yates disagree on whether Yates signaled to McGhan that Flynn gave the FBI, as well as Pence, a false account of his phone calls with Russian ambassador Sergey Kislyak during the presidential transition. In December, Flynn pleaded guilty to lying to the FBI in a January 24, 2017 interview about whether the topic of Russian sanctions came up.
The question matters because what Trump knew by February 2017 about whether Flynn lied to the FBI could help explain why Trump allegedly asked then-FBI director James Comey to go easy on Flynn before firing him in May. If Trump did make that request, it could be evidence of obstruction of justice.
McGahn’s account of his two January meetings with Yates comes in the form of a memo he wrote about two weeks after the meetings, which is quoted repeatedly by Trump’s personal attorneys in their recently leaked January 2018 letter to Mueller. In the letter, Trump’s attorneys argued that the White House concluded from McGahn’s discussion with Yates that Flynn was not under FBI investigation. Yates’ testimony casts doubt on that assumption, and it’s not even fully backed up by the portions of the McGahn memo that Trump’s attorneys quote.
In many places, McGahn’s memo lines up with Yates’ testimony. But some of the details don’t match, or at the very least, define the holes in the story. Because the Trump attorneys’ letter only quotes selectively from McGahn’s memo — and the memo hasn’t been released in full — it’s hard to know which gaps between the two accounts are outright contradictions, or just products of what the lawyers left out about McGahn’s memorialization of the meeting.
Neither Yates nor the White House responded to TPM’s questions about the discrepancies. The February 15 McGahn memo has been turned over to Mueller’s investigation, according to the Trump attorneys’ letter.
January 26: The First Yates-McGahn Meeting
According to McGahn’s memo, Yates told him at the meeting, which took place in a McGahn’s office at the White House, “that Flynn may have made false representations to others in the Administration regarding the content of the calls.” Yates also explained why that made him vulnerable to blackmail, according to the memo.
Yates’ testimony backed up that recollection. But the two accounts differ in a major way. McGahn’s memo says that “Yates claimed that Flynn’s statements to the FBI were similar to those she understood he had made to Spicer and the Vice President.” Yates, meanwhile told Congress that, when she informed McGahn that Flynn had been interviewed by the FBI, she declined to answer McGahn’s question about how Flynn did in the FBI’s questioning.
The question of how the White House knew that Flynn had misled FBI agents in the same way he misled Pence came up previously, when Trump in a December 2017 tweet claimed he fired Flynn for both his lies to Pence and to the FBI. Up until that tweet, the White House’s line was that Flynn was fired for misleading just Pence. If Trump knew in early 2017 that Flynn also lied to the FBI, that could be evidence that he obstructed justice when he allegedly urged Comey to go easy on Flynn.
Later January 26: McGahn Briefs Trump, Priebus, and “Other Advisors” About Yates’ Flynn Claims
After his meeting with Yates, McGahn briefed Trump, then-chief of staff Reince Priebus and “other advisors” about Yates’ Flynn claims, according to the Trump attorneys’ letter.
Among the concerns expressed during the briefing “was a recognition by McGahn that it was unclear from the meeting with Yates whether an action could be taken without jeopardizing an ongoing investigation,” McGahn’s memo said. “President Trump asked McGahn to further look into the issue as well as finding out more about the calls.”
According to her testimony, Yates had told McGahn at the first meeting that it was up to the White House what to do about Flynn. It’s not clear if she told him anything more about how such action would affect an ongoing probe.
McGahn would go on to request a second meeting with Yates.
Yates testified that McGahn did not indicate to her during the second meeting that he had discussed their first Flynn meeting with anyone else. A February 14 2017 statement from then-White House Press Secretary Sean Spicer recounted McGahn’s briefing of Trump and “a small group of senior advisors.”
January 27: Second Yates-McGahn meeting
Yates and McGahn both said that McGahn had raised concerns about whether the White House taking action against Flynn would affect an ongoing investigation.
“We told him, both the senior career official and I, that he should not be concerned with it, that General Flynn had been interviewed, that their action would not interfere with any investigation and in fact, I remember specifically saying, you know it wouldn’t really be fair of us to tell you this and then expect you to sit on your hands,” Yates testified. In addition to a DOJ lawyer that accompanied Yates, a White House associate working with McGahn also was at the meeting.
McGahn’s memo, likewise, said that Yates indicated “that the DOJ would not object to the White House taking action against Flynn,” but also recounted that Yates refused to confirm or deny an investigation.
The McGahn memo revealed for the first time his recollection that Yates “indicated that the DOJ would not object to the White House disclosing how the DOJ obtained the information relayed to the White House regarding Flynn’s calls with Ambassador Kislyak.”
The New York Times interpreted that to be a reference to the wiretap on Kislyak that picked up his conversations with Flynn.
Trump’s attorneys, in their letter, argued that Yates’ green-lighting of such a disclosure helped the White House conclude that there was no active investigation into Flynn — and thus Trump couldn’t have been obstructing it with his request to Comey.
But when Yates, in her testimony, went through the topics that had come up in her meeting with McGahn, she didn’t mention giving him permission to disclose the surveillance.
“The first topic in the second meeting was essentially why does it matter to DOJ if one White House official lies to another. The second topic related to the applicability of criminal statutes and the likelihood that the Department of Justice would pursue a criminal case,” she testified. “The third topic was his concern that their taking action might interfere with an investigation of Mr. Flynn. And the fourth topic was his request to see the underlying evidence.”
Yates testified that she told McGahn it was likely he’d be able to look at the underlying evidence, but that she wanted to work it out with the FBI first over the weekend. That Monday morning, she called McGahn to let him know he could come over to the Justice Department. Yates was fired by Trump later that night over her refusal to defend his travel ban.
Conversations With Flynn After the Yates Meetings
The Trump attorneys’ letter doesn’t say whether McGahn continued to seek the underlying evidence against Flynn. But it documents other conversations White House officials had with Flynn about Yates’ claims.
McGahn was in a February 8 meeting with Priebus, Flynn and another White House official where Priebus “asked Flynn whether Flynn spoke about sanctions on his call with Ambassador Kislyak,” according to the letter. Flynn said he wasn’t sure and didn’t remember doing so. Asked about the FBI interview, Flynn told Preibus “that FBI agents met with him to inform him that their investigation was over.”
Flynn would claim on another phone call with McGahn on February 10 that “the FBI told him they were closing it out,” according to the letter.
That day, McGahn and Preibus would tell Trump he had to let Flynn go, and by February 13, his resignation letter was handed in. McGahn wrote the memo two days later, the day after Trump had dinner with Comey and allegedly asked him for his loyalty.