Can Yates Testify Without Violating Privilege or Ethics Rules?

sally_q-_yatesI 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?

109 thoughts on “Can Yates Testify Without Violating Privilege or Ethics Rules?”

  1. Ha Ha Ha! You said “Sally Yates” and “ethics” in the same sentence!

    On point, how refreshing it is that Trump isn’t trying hush somebody up! So unlike that miscreant Obama.

    Squeeky Fromm
    Girl Reporter

  2. Yates may have been in a prosecutorial position but that should not prohibit her from offering testimony. The American people have a right to know.

    1. Partisan Democrats are incapable of conceiving of a public interest, much less pursuing it.

    2. Excuse me FishWings? You’ve got that bass ackwards. I disagree entirely with your statement. Best not to use absolutes. However, if you replace the word ‘always’ with ‘sometimes’ – I might agree. And if you include the word ‘Democrat’ alongside the word ‘Republican’ in that comment, I would wholeheartedly agree. Let’s just call it what it is: Politics.

  3. If one were to assume for argument’s sake the allegation Trump colluded with Putin through Flynn (2015-2016’s version of James McCord and his Cuban freedom fighters at the Watergate) to access Podesta’s emails, for example, or something else of such gravity, then Congress should give her immunity if she’s willing to speak about it. We should commend whistleblowers, not castigate them, if we’re going to clean house.

    So what if she loses her license to practice for breach of national security or confidentiality were we to have a crook in the White House?

      1. (music to tune of Short People)

        Swamp people got no reason.
        Swamp people got NO reason!
        Swamp people got no reason to live!

        They got little bitty eyes and little bitty feet.
        Little bitty voices that go peep peep peep.

        Don’t want no swamp people!
        Don’t want no swamp people round here!

        — Randy Newman song about Short People, with some changes.

  4. A cog in the Holder-Lynch lawfare operation. Make her squirm. If she gets hauled up on ethics charges, it’s likely condign punishment.

  5. This is neoclassical of propaganda. Yates was invited by the Committee. The letter stated that she would appear voluntarily. After Nunes trip to the Whitehouse, and media speculation of his motives we see the real reason to shut the committee down when Yates was supposed to talk. Just like Comey, they can answer questions and then defer to the immunity of the Executive Office. A lawyer may testify at hearings, a lawyer is required to disclose on going criminal actions that a client is taking. A lawyer may not disclose past criminal conduct if the client is not continuing to commit these acts.

    You see it all the time in drug conspiracy, the cog and the ongoing criminal enterprise. There is no difference here.

      1. Clear? Hardly. What specific evidence are they referring to? There have been ongoing investigations for 20+ months. The FBI, CIA, NIA, etc, etc. Where is the evidence? What is the alleged crime? Specifically? Comey is compromised. So is Clapper. So is Brennan. Who are we to believe here? Where is the concrete evidence of a specific crime? Susan Rice went on TV and knowingly lied about Benghazi. David Rhodes has knowingly deceived the press and lied – and was even denied his initial security clearance by the FBI. Why? Who finally cleared him? There are many many questions here and they are not all pointing to Trump and his associates. Politics is at play here moreso than anything else.

        1. btw….I’m listening to James Comey on C-Span right now. He’s clearly enjoying his position of power in Washinton DC right now. Not sure where he is speaking, but my gut and my inner radar is screaming “he is so full of sh*t” and I’m going to listen to this. I don’t buy the talking point that Comey is above board, straight shooter, beyond reproach. Bull sh*t. The guy has gone political. Someone got to him like they got to Justice John Roberts before his ACA decison. Roberts, imo, was clearly compromised. If you want to believe otherwise, buy my bridge.

  6. Every time I read these stories from JT where he describes how these processes have worked in the past reminds me of the question: “and how has that been working out so far?” We are a horribly divided nation with endless wars, $20 trillion in debt and 2 major political parties unable and/or unwilling to agree on most anything. Enough with the immunity and privileges and protocol. Get to the truth and the law. Eliminate everything that has enabled the political class to be shielded from justice. I don’t care who gets locked up or loses a license; our nation is not made better by having a ruling class unaccountable for what they do. It’s time to try a different approach than what has “worked” in the past.

  7. Ms. Yates seems to be motivated equally by animus towards the Trump administration and personal ambition in the Democratic party.

    Seems that there are two sets of ethics for lawyers: a fairly rigid code that governs most lawyers; and another very flexible code that governs Washington lawyers. There is almost no chance that Ms. Yates will be sanctioned – regardless of what she says.

  8. SMH (shake my head): More irrefutable evidence of just how corrupt and political the DOJ actually was under Holder She makes no pretense of being an impartial, analytical and adult public servant. She wears her politics proudly. There is no room in her mind for such silly concerns as privilege. It’s the French Revolution for her: “off with their heads!” It’s a sad day for us all when the mass-media Kool-aid has been so thoroughly quaffed by those who should be above the fray.

  9. This is an interesting if not necessary adventure if only to expose the double standards expressed by those on one or the other side of our political, ethical, moral, legal, etc system. The missing part here would be an unbiased legal advisory entity to restrict the questions and subsequent answers so as not to overstep. However, in this bipolar nation that seems to be an impossibility. Witness Nunes suspending the investigations into his pal DDT regarding Russia’s part in the elections, DDT’s business, DDT’s family, etc. The one constant is the hypocrisy.

    1. Sorry, Isaac, I must be thick-headed. I don’t see the connection. You’re saying that because Nunes won’t go on a vast, conspiracy-fueled, witch-hunt he’s somehow in the same boat as Yates? A lawyer who refuses to defend her clients’ interests and instead decides to breach all ethics and privilege and testify against him? Hmm. I just don’t get it. Enlighten me please!

      1. The Senate Committee will have to do the work because of the compromised fool, Nunes.

        1. Please. Show me a Senate Committee that “does the work” and I’ll show you something I got right here. Benghazi? Plenty of evidence and facts, but did you listen to the questions that were asked? And the answers that Hillary gave that went unchallenged? And the MSM reporters and pundits who applauded Hillary’s “performance”?!!! NOT getting to the bottom of the scandal, but Hillary’s “performance”. Please.

          And did you listen to the FBI director detail an unquestionabley indictable case against Hillary Clinton only to say, oops, she didn’t really INTEND to do wrong, she just did it by mistake, soooo no indictment. Case closed. Say what???!!!! Oh, and I, the FBI director, the investigator, not the prosecutor, made this decision because the Attorney General Loretta Lynch was busy breaching all ethical standards known to mankind by meeting on her plane with Bill Clinton whose wife was under FBI criminal investigation and was only found out because one local reporter got wind of the clandestine meeting broke the story that was supposecd to remain secret. So, she, the Attorney General said she would accept ANY recommendation/decision by the FBI Director!!!! What???!!!! So please spare me any idea that you think these committees are actually about FINDING THE TRUTH. BS. Complete and utter BS. It is ALL Politics ALL the time. Period.

        2. The other interesting question is why Obama is all the way in French Polynesia all by himself “writing his memoirs.” Ha hahhhhhaaaaaahahahahaha!!! Yeah, right. Like Obama ever wrote any of his books….!!! Please. Dude ain’t as smart or literate or articulate or well read as ANY OF THE SYCOPHANTIC media portrays him to be. He never was. Never will be. No matter how much the media props this fake crap up. Dude is a FRAUD. Always was. Always will be. Only now more people will hopefully find out the truth. I hope to God that Trump unseals and releases all of Obama’s sealed records before he leaves office. Expose the fraud. I know it won’t happen, but we can all dream, can’t we?

          1. The sitting president’s connections to the money laundering mobster oligarchs are far more relevant than what the losers did or did not do. More and more connections are revealed with each passing day per the USA Today article.

                    1. John Podesta and others associated with the Clinton campaign did plenty of their own “lobbying” and “laudering” so name the specific crime being alleged against Trump and any of his campaign staff.

            1. Perhaps the fact that this says PAID ADVERTISEMENT above it should tell you something.

          2. TerBer,
            …-“…not a word about the Podesta brothers..”
            That’s why my main source of news is the Weekly World News.😉
            I made reference to John Podesta’s “statement” in the Nov.25, 2016 WWN.

      2. Thick-headed is an apt description. Nunes is in DDT’s pocket. That has been illustrated for some time and especially with his latest running home with the ‘evidence’. The issue is not the defense of one’s client’s interests but the manipulation of the system using this excuse. Whatever use Yates can be in getting to the truth, without sacrificing her ethical obligations should be had. What is going on here is the elimination of an entire process of investigation by citing the issues of one part. This is the same argument DDT uses for not releasing his tax returns. DDT states that he is being audited. Yet, there are many examples of politicians, including Presidents, releasing their tax returns while being audited. The tax returns could be investigated within a review that protected all but the treasonous activities, which would trump the argument given by DDT. It takes thick heads to allow this hypocrisy.

        1. issac – will you show me where in the Constitution it says the candidate for President, or President has to expose his tax returns.

    2. issac – Dude, you have got to read a high school American civics books so you can get a handle on this politics thing.

  10. The inference that a “career prosecutor” is an apolitical attorney just doing his/her job is hopelessly naive, and certainly not reflective of the highly political DOJ, especially when it comes to DOJ officials. These individuals are, as a whole, highly political and many are deeply resentful of the Trump election and the resulting changes from the uber leftist salad days of Holder and Lynch. The fact that Yates wants to testify indicates as much. She wants to take revenge on Trump for his policies and her being sacked. Otherwise she would simply cite client confidentiality rules and keep her yap shut. The fact that she is eager to tiptoe through the ethical minefield of testifying tells us what we can expect. It should be interesting to watch, but a foolharding move on her part.

    1. TIN – this is like dancing on top of Bouncing Bettys. There is no way she come out of this alive.

          1. How exactly would an impeachment proceed? Who is in control of both House and Sentate?

  11. After having watched a ton of British crime shows, I like the response “No comment.” She can either do that or 5th her way thru the hearing.

  12. I think the fear is not so much that she will violate ethics but that she will tell the truth. No one seems concerned about the lack of truth coming from several of the parties her testimony will contradict which her proffer indicates.

  13. Ethical violations only increase the influence for attorneys looking to advance in the current Dem cesspool. This woman reminds me of the Baltimore DA. A political hack, looking to advance and way out over her skis.

    1. She doesn’t remind me of Marilyn Mosby at all. Stylistically totally different. I suspect Sally Yates’ professional skills will shield her from accountability and grease the skids toward a handsomely compensated gig in some BigLaw or MidLaw firm.

      Re Mosby, she was admitted to the bar in December 2006 consequent to the July 2006 Maryland bar examination. That was the 3d time the exam was given after she completed law school. It could be that she skipped the exam the other times, but it is a reasonable guess that she failed the examination twice. The share of those admitted to practice in Maryland who require at least three passes at the bar exam in order to gain a law license is < 10%. The smart money says she's not a skilled lawyer and likely belongs in a fairly undemanding position if she's going to be practicing law (say, workman's comp practice). She was actually an employee in the State's Attorney's office at the time she took the examination, and continued to be for six or seven years thereafter. There were stories (true or not, I'm not sure) that after taking office as State's Attorney, she went round the office stopping at the desks of particular people and silently running her finger across her throat. Given her public conduct, that story is credible. With Mosby, I suspect you’re looking at an ambitious hack in a state of cold fury at people who made her feel small, and that her settling of scores has left her with people on the verge of retirement and people who cannot get hired outside that office.

      Another thing about Mosby is her family history. She kept rattling on about ‘five generations in law enforcement’. It’s actually three generations. A scrum of her relations were employed by police forces in greater Boston, and most of them departed said forces under an ethical cloud or concluded their service by filing a lawsuit. IOW, she comes from a family of contentious, difficult, and arguably unscrupulous people. She eschewed the state schools in Massachusetts and enrolled at a black college in Alabama, for whatever reason, then went to law school. She is atypical in one respect: she finished all of her schooling on schedule and without a hitch and her summer employment consisted of temporary jobs and internships which meshed with her academic program. She’s single minded and organized if nothing else.

      1. dds – most HBCs are very good. She likely would have gotten a good education.

        1. No, some of them are satisfactory. In Maryland, Virginia, and DC, you have seven state HCBUs. Two of them (Bowie State and, IIRC, Virginia State) have four year completion rates about what you’d expect of an ordinary (not-so-selective) state college. The others have wretched completion rates, and are likely padding the rolls with students who are not college material (“at risk” in socialworkerspeak) in order to meet fixed costs. The stream of degree awards suggest that the state governments in question should extend to four or five of these schools a special endowment to assist in meeting fixed costs and implement a general institutional downsizing, while closing two or three of them. Coppin State and UMES in Maryland should be closed.

    2. Not all that glitters is gold, keep searching for those shiny baubles, at least they have value in NO.

  14. Why do I keep wanting to call this one Sally Rand? Not to worry about Silly Sally. She’ll be well taken care of and is out of the line of fire unliike the others still left behind and with no pardon available.

    1. I haven’t been out of work since the day I took my pants off.

      —Sally Rand.

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