I previously discussed the dubious decision taken by former Acting Attorney General Sally Yates to order the entire Justice Department to stand down and not to assist the president in the defense of his first executive order on immigration. In a letter to the president, Yates said she was not convinced that the law is just or right. Yates effectively dared Trump to fire her over the immigration order and he did so. Now Yates has volunteered to testify before the House Permanent Select Committee on Intelligence — a hearing that was abruptly cancelled by its Chairman. Such an appearance is relatively rare and fraught with difficult constitutional and ethical questions for Yates. She would be testifying in the committee’s investigation into Russian interference in the presidential election. However, she is testifying as someone who was recently in a prosecutorial position about subjects related to an ongoing investigation where no one has yet to be indicted. Even if she can manuever around the privilege issues, she could raise serious ethical issues with her testimony.
The Washington Post reported that the Justice Department sought to prevent Yates from testifying. That opposition has been portrayed as based on a political calculation because she is expected to testify that she warned the Trump White House Counsel Don McGahn that former National Security Advisor Lt. Gen. Michael Flynn’s contacts with the Russian ambassador to the United States had compromised him. Yet,at least when it comes to the Justice Department’s initial objections, it was more likely career Justice officials who are raising obvious concerns over executive privilege as well as the release of confidential or protected information on their ongoing investigation. This is hardly a routine act for a recent Justice Department official to appear in public to discuss aspects of a current investigation and potential targets. I have litigated against the Justice Department for many years and they assert very broad (and in my view too broad) privilege claims.
Yates’ lawyer insisted that Yates would avoid discussing any confidential information on the investigation of Flynn. However, that is scant assurance for career prosecutors and investigators. Even her discussions with McGahn would touch upon the level of knowledge and actions of key players in the investigation. Again, for that reason, it is exceptionally rare to see a former prosecutor appear to discuss matters related to any ongoing investigation. Clearly Justice officials and White House officials have testified in the past, but the fact that this is still relatively early in a criminal investigation makes the decision particularly difficult.
There are a host of privileges that complicate such an appearance. Yates’ lawyer says that such privilege arguments have been waived due to public comments of other officials. I am not sure that that would hold up as a general proposition.. There are legal differences in who speaks about such matters and prosecutors tend to be under particularly tight limits. Yates participated in deliberative communications with both the White House and her staff. It is not enough to say that the information has appeared in the press and Yates’ lawyer is not very specific on the prior disclosures.
Since Yates will receive a variety of questions from both sides in the hearing, she would have to be prepared to cite privilege on the fly and without much guidance from the Justice Department. That is why a written question and answer is preferable if the subject is solely her decision to contact the White House.
The White House took the unusual step of dropping any objection to her appearance. This is a sharp departure from prior administrations which would have likely invoked privilege limits. Clinton invoked privilege on 14 separate occasions and Obama’s use of privilege in the Fast and Furious investigation led to a formal contempt vote against Attorney General Eric Holder. Even with the statement of the White House, however, Yates is still subject to protecting privileged material and her letter suggested a very narrow scope of discussion.
This could be a minefield of potential privilege and ethical traps. There are potential executive privilege claims under deliberative process privilege and presidential communications privilege. Yates’ role at Justice was heavily laden with deliberative privilege issues in playing a key role in decisionmaking and discussions on how to handle the allegations. This covers not just communications but documents. Given the stage of the investigation, there are all pre-decisional. Moreover, she went to the White House to raise issues with the executive staff. This raises potential presidential communications privilege.
Congress can overcome such privilege arguments, particularly when investigating potential criminal conduct or through the valid use of subpoena authority. However, those privileges are held by the executive branch and not Yates. She is expected to protect such information.
There are also ethical and confidentiality rules. It is highly problematic for a former prosecutor to volunteer to discuss a case under investigation where key figures, including Gen. Flynn, have not been indicted. Her comments could be highly damaging to parties still under investigation but presumed innocent. In discussing any warnings given to the White House Counsel, she would presumably be referring to her view of the seriousness of the allegations or connections of General Flynn. That could do great harm not only to his reputation but the investigation. That is why this is rarely done by a prosecutor and the standard approach is to subject questions to the Justice Department for written answers before calling in prosecutors to discuss their actions or views.
Yates could also face withering questions over her handling of the defense of the immigration executive order. Some of those questions might raise deliberative issues like her interactions with the White House and the Office of Legal Counsel. It could also raise some questions of Yates’ motivations, particularly given reports that she is being discussed as a candidate for Georgia governor and other political offices. Yates is viewed as eager to testify to contradict the Trump Administration and she has chosen the most risky method of conveying information to Congress. In the view of criticism over her handling of the immigration order, Yates is already under a cloud with some over her actions with regard to the immigration order. Some have debated whether Yates was acting out of her own aspirations or those of her department in ordering Justice personnel to refuse to help a sitting president. Seeking to voluntarily appear to discuss aspects of an ongoing investigation only serves to magnify those concerns.
In the end, the statement of the White House clears the way for Yates to testify but testimony is everything but clear from a professional standpoint. Beyond a monosyllabic testimony, Yates risks serious complications in testifying. She may be able to thread that needle but the question is why to do so when the limited information could be obtained through other means.
What do you think?