Last Thursday morning, I sat down with Sally Yates, the former acting Attorney General, whom President Trump fired on January 30th, after she refused to defend his original executive order banning travel to the U.S. from seven Muslim-majority countries.
Yates testified before Congress last Monday; our interview was her first since her dismissal. We spoke for more than four hours in her Washington apartment, near Dupont Circle, covering her early life in Georgia, her career in the U.S. Attorney’s office, where she prosecuted high-profile criminals such as the Olympic Park bomber, Eric Rudolph, and her dramatic ten days in the Trump Administration.
“I expected this to be an uneventful few weeks,” Yates said, of her role minding the Justice Department until Jeff Sessions was confirmed by the Senate. Instead, she was embroiled in two of the biggest controversies of Trump’s early Presidency. On January 26th, Yates informed the White House that Michael Flynn, then the national-security adviser, was vulnerable to blackmail by Russia. Four days later, she wrote in a letter to Justice Department lawyers that she was not convinced the travel ban was lawful.
A profile of Yates, including a detailed account of her role in the Flynn matter, will appear in next week’s issue of The New Yorker. In the meantime, here are some highlights from our interview.
Michael Flynn’s name appeared, unredacted, in intelligence reports on his calls with the Russian Ambassador, Sergey Kislyak.
On December 29th, the day that President Obama announced sanctions against Russia in response to its interference in the Presidential election, Flynn talked to Kislyak about the sanctions, and the conversation was captured by U.S. intelligence. In February, the Washington Post_ _reported that Flynn had spoken to Kislyak about the sanctions, which raised a number of concerns, including that Flynn had violated an obscure law called the Logan Act.
Some Republicans, including the White House press secretary, Sean Spicer, and the House Intelligence Committee chairman, Devin Nunes, claimed that, because Flynn is an American citizen, his identity would have been concealed—or “masked,” or “minimized”—in any intelligence report about the conversation. They have repeatedly asked who, through a formal process in which officials can request that masked names be revealed to them, “unmasked” Flynn and leaked information about his phone call with Kislyak to the press.
Yates declined to talk about any classified information, including underlying evidence in the Flynn case, but it seems clear that Flynn’s name was not masked in the reports on the phone call that she saw. She said, “I oftentimes would get intel reports that included the name of the U.S. person. Not because I or anybody else had asked for it to be unmasked, but because that intelligence only made sense if you knew who the identity of the U.S. person was, and that’s an exception to the minimization requirements.” In other words, the authors of these intelligence reports included the names, because the reports could not be understood without them. She noted that there was one other common instance in which an American’s name would be included: “If it’s evidence of a crime.”
Yates said that she never made an unmasking request, adding, “This idea that there’s this dramatic unmasking of a name—in my experience, that never happened.”
Yates had two conflicting responsibilities in the Flynn matter: to preserve the F.B.I. investigation of Flynn, and to notify the White House that Flynn had engaged in improper conduct in his conversation with Kislyak.
In Justice Department discussions about when to notify the White House, Yates said, “We were consulting with F.B.I. because F.B.I. was the investigative agency on this matter, but we were also consulting with the other intel agencies that we felt had an equity in this issue.” She went on, “We wanted to do it as quickly as we possibly could. Yet we also wanted to be respectful of how a notification like that might impact the F.B.I.’s underlying investigation.
“So look, there’s no playbook for this. The good news is this doesn’t come up very often.”
The balance between pursuing a criminal investigation and notifying the White House shifted when Flynn told White House officials that he had not discussed sanctions with Kislyak, and they publicly repeated these claims. On January 15th, Vice-President Mike Pence said in an interview with CBS that Flynn and Kislyak had not discussed sanctions. On January 23rd, Spicer gave a summary of Flynn and Kislyak’s discussion, which did not include sanctions. Yates said, “It started out as general stuff, and then you’ve got the Vice-President, and then Sean Spicer on the 23rd gets very specific.” That meant that Flynn was now “compromised” by the Russians, who knew that he had lied to the Vice-President and others and could use that to blackmail him. Yates went on, “Flynn is interviewed on the 24th. We get the readout on the 25th and have consult about impact on investigation, and I call first thing on the 26th.” That day, she had the first of two meetings with the White House counsel, Don McGahn, where she told him her concerns about Flynn.
Yates said that it appeared that McGahn did not know that the F.B.I. had interviewed Flynn until Yates told him, in their meeting the day after the interview.
Yates said, “When I told him General Flynn had been interviewed”—by the F.B.I.—“it was clear to me that this was not something he already knew about.” (McGahn did not respond to requests for comment.)
Yates gave the White House much more than a “heads-up” about Flynn, and expected them to act immediately.
In a press briefing on February 14th, the day after Flynn resigned, Spicer downplayed the importance of Yates’s meetings with McGahn, saying, “the acting Attorney General informed the White House counsel that they wanted to give a ‘heads-up’ to us on some comments.” Yates said, about the “heads-up,” “I certainly never used that term. And so I’m not sure where that came from.”
I asked, “You didn’t just text, “Heads-up, your N.S.A. might be a spy”?
No, Yates replied, “Is there an emoji for that?”
I asked her whether she expected the White House to fire Flynn.
Yates said, “We had just gone and told them that the national-security adviser, of all people, was compromised with the Russians and that their Vice-President and others had been lying to the American people about it. We expected them to act.” She added, “We expected them to do something immediately.”
Yates did not learn about the executive order banning travel from seven Muslim-majority countries until it was made public.
On the afternoon of Friday, January 27th, Yates had a second meeting with McGahn, where they agreed that the F.B.I. would make evidence in the Flynn case available to McGahn the following Monday. An hour later, Yates was in a car on the way to the airport, to take a flight home to Atlanta, when, she recalled, her deputy called and said, “ ‘You’re not going to believe this but I just read online that the President has executed this travel ban.’ ” Yates noted, “I had been sitting in Don McGahn’s office an hour before to talk about the Flynn issue and he didn’t tell me.”
Yates struggled with whether to resign over the order or stay on and refuse to defend it.
Yates told me that she had considered resigning, “but here’s the thing: resignation would have protected my own personal integrity, because I wouldn’t have been part of this, but I believed and I still think that I had an obligation to also protect the integrity of the Department of Justice.” She went on, “We’re not just another law firm. There really is something different about the Department of Justice,” and Yates did not want it to defend an order “that I was not at all convinced was not based on religion.” She said, “I thought back to Jim Crow laws, or literacy tests. Those didn’t say that the purpose was to prevent African-Americans from voting. But that’s what their purpose was.”
Yates said she has ruled out running for governor of Georgia in 2018, but that doesn’t mean she’ll be staying out of public life completely.
Democrats in Georgia are trying to draft Yates to run for governor next year. She said, “I am totally ruling out the governor’s race. I am not running for governor.” But, she said, “I recognize that I may have a voice that I didn’t have before. And part of what I want to be able to do is to figure out how I can responsibly use that voice in a way to impact things that I think really matter. I just don’t know what form that takes.” She added, “I’ve got to give something more back.”
