Former Acting Attorney General Sally Yates testified last week in Congress. While the overarching media narrative focused on former National Security Adviser Michael Flynn’s potential compromise by Russia, here are other important facts we learned:
1. Yates reviewed classified documents in which Flynn was “unmasked.”
Sen. Chuck Grassley (R-IA) asked Yates and former Director of National Intelligence James Clapper whether they had ever reviewed classified documents where Trump, his associates, or members of Congress had been “unmasked” — or identified in intelligence intercepts — and whether they shared the information with anyone else.
Yates replied that she had reviewed such documents, and said: “In the course of the Flynn matter, I had discussions with other members of the intel community.”
This is important because it confirms that Flynn — or another Trump associate — was indeed unmasked, and that there should be an electronic trail showing who requested the unmasking and why.
While unmasking is not illegal, leaking classified information to the media is illegal. Flynn’s conversations with Russian Ambassador Sergei Kislyak on December 29 would later be leaked to the Washington Post.
Clapper said the number of people that can request unmasking of American citizens is “fairly limited, because it’s normally fairly high level officials.”
Yates also said “oftentimes we receive intelligence reports where the name of the American citizen is already unmasked, and it’s unmasked by the intel agency because, not based on anybody’s request, but because the name of that citizen is essential.”
However, she could not say whether that happened in Flynn’s case, and either way, there should be a trail showing whether Flynn’s name was requested to be unmasked or not.
2. Some DOJ, FBI, and intelligence officials knew about Flynn’s conversation with Russian Ambassador Kislyak.
Yates and Clapper denied leaking Flynn’s call to the Washington Post, but they provided some clues as to who knew the intimate details about the call.
Yates said leading up to her meeting with White House counsel Don McGahn on January 26, Flynn’s conversation “was a topic of a whole lot of discussion, in DOJ and with other members of the intel community.”
Yates said she, Clapper, then-FBI Director James Comey, and then-CIA Director John Brennan all knew and debated going to the White House.
But she also said she “absolutely” consulted with career officials at the DOJ’s national security division, who were “conversant” on the details.
Yates also said she brought then-head of the National Security Division of the Department of Justice, Mary B. McCord, with her to the meeting with McGahn to discuss Flynn. McCord would later announce her resignation in April.
All this is important in finding out who was aware of the details of Flynn’s conversation, particularly between December 29 and January 12, when Flynn’s conversation was first leaked to the Post. The Post attributed the leak to “a senior U.S. government official.”
Another Post article, with more details, on Flynn’s conversation published on Feb. 9, citing “nine current and former officials, who were in senior positions at multiple agencies at the time of the calls.”
3. Officials weighed informing the White House about Flynn against the impact it would have on the FBI’s Russia investigation.
Yates said in notifying the White House of Flynn’s conversation, officials had to balance a variety of interests.
“We were balancing this though, against the FBI’s investigation, as you would always do, and take into account the investigating agency’s desires and concerns about how a notification might impact that ongoing investigation,” she said.
This fact is important for two reasons.
One, this means that Kislyak and/or Flynn’s communications on December 29 were considered a part of the FBI’s investigation on Russia and any coordination between the Trump campaign. Trump had tweeted on March 4 that he found out his transition team was being surveilled by the Obama administration. It turns out he was right.
Two, it means that Yates and others would decide the value of squealing on Flynn outweighed the value of secretly collecting more intelligence on him. That could mean there was no other good evidence on Flynn, or that they had already collected enough. Whatever the evidence, it was not included in the intelligence community’s January 5 assessment for the White House.
According to a February 16 Washington Post article, Yates, Clapper, Brennan and Comey debated informing the White House on the last day of the Obama administration on January 19, and only Comey had argued it could interfere with the bureau’s ongoing investigation of collusion between the Trump campaign and Russia.
Yates said once the FBI interviewed Flynn on January 24, “there was no longer a concern about an impact on an investigation.” A February 14 New York Times article said Flynn was “grilled” about the phone during the interview, according to “current and former” government officials.
4. Nothing had risen to the level of evidence by the time James Clapper left office in January 20.
Clapper said in March that he had seen no evidence of collusion between the Trump campaign and Russia.
During last week’s hearing, he added a huge caveat — that he did not know about an ongoing FBI counterintelligence investigation into whether there was collusion.
But Clapper said any evidence from that investigation was apparently not sufficient to include in their assessment on January 5, when three intelligence agencies issued a statement that Russian President Vladimir Putin had interfered with the U.S. elections against Clinton.
“The evidence, if there was any, didn’t reach the evidentiary bar in terms of the level of confidence that we were striving for in that intelligence community assessment,” he said.
Thus, even though there was an investigation he did not know about, it did not provide good enough evidence to be included in any assessment that he would have known about.
Clapper also later told Grassley that he had no reason to believe that any agency withheld any relevant information from him.
And he said there was also not enough evidence of a Trump business interest in Russia to put into the intelligence community’s assessment, by the time he left in January.
“It wasn’t enough to put into the report?” Graham asked.
“That’s correct,” Clapper responded.
5. The intelligence community could not corroborate the Trump dossier.
Clapper also said the dossier — produced by ex-British spy Christopher Steele and paid for by anti-Trump and pro-Clinton donors, could not be corroborated.
“We couldn’t corroborate the sourcing, particularly the second — third-order sources,” Clapper said.
The dossier claimed wild and unproven claims about Trump conducting sexual acts with prostitutes.
The dossier was reportedly used as the basis of a FISA warrant on former Trump foreign policy adviser Carter Page, and as the “roadmap” for the FBI’s investigation on Trump.
6. Clapper revealed that he requested the unmasking of another Trump associate — besides Flynn.
Clapper revealed that he had requested the unmasking of both a Trump associate and a member of Congress at least once each. He also said he didn’t know who unmasked Flynn, meaning he had unmasked a different Trump associate.
Since Clapper had left office on January 20, this means the Trump associate he had requested the unmasking for was a Trump campaign or transition team official, again confirming Trump’s assertion that Trump Tower was being surveilled.
Clapper did not say who he unmasked or why, just that his focus was on the “foreign target.”
He also revealed that 1,934 Americans had their names unmasked during surveillance of foreign targets in 2016.
Sen. Rand Paul (R-KY) said he has been told by two reporters that his name had been unmasked or searched for by the Obama administration, and he’s been told by one other senator that he has been surveilled, too.
Graham told MSNBC after the hearing: “What did I learn? I learned that apparently there was an unmasking of a Trump campaign operative and maybe a member of Congress during the 2016 election, that’s the first time I’ve ever heard of that.”