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The controversy over Sally Yates’s planned testimony before Congress, explained

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Andrew Prokop is a senior politics correspondent at Vox, covering the White House, elections, and political scandals and investigations. He’s worked at Vox since the site’s launch in 2014, and before that, he worked as a research assistant at the New Yorker’s Washington, DC, bureau.

The House Intelligence Committee’s investigation into Russian interference in the 2016 election is embroiled in yet another controversy.

A new report from the Washington Post’s Devlin Barrett and Adam Entous says that Trump administration officials wouldn’t approve former acting Attorney General Sally Yates’s planned testimony before the committee on certain topics, claiming they were “likely covered by the presidential communications privilege.”

According to documents obtained by the Post, Yates was planning to testify “about the [Justice] Department’s notification to the White House of concerns about the conduct of a senior official” — Michael Flynn, Trump’s fired national security adviser — at a House Intelligence Committee hearing.

In these documents, the Trump administration never explicitly tells Yates she can’t testify. However, a Justice Department official writes that Yates’s communications with the White House were “likely covered by the presidential communications privilege.” Therefore, the official continued, if Yates wanted explicit permission to testify about this, she should ask the White House.

But on the same day Yates’s lawyer wrote to the White House to ask for that sign-off, House Intelligence Committee Chair Devin Nunes (R-CA) abruptly canceled the planned hearing. Nunes himself was already facing accusations that he was hampering his own investigation to protect the White House, and the timing raises obvious questions about whether Nunes made the move to protect the president.

In a statement, White House press secretary Sean Spicer claimed “the White House has taken no action to prevent Sally Yates from testifying and the Department of Justice specifically told her that it would not stop her,” and called the Post story “not true.” But the documents make it clear that, at the very least, the administration didn’t give Yates a green light to go forward.

Who is Sally Yates, again?

Sally Yates was the holdover Obama Justice Department official who served as acting attorney general when Trump’s administration began (because Jeff Sessions hadn’t yet been confirmed by the Senate).

On January 26, Yates informed Trump’s White House counsel, Don McGahn, that US spies had evidence that then-National Security Adviser Michael Flynn had misrepresented his communications with Russian Ambassador Sergey Kislyak during the transition. (Flynn told Vice President Mike Pence and others that he and Kislyak didn’t discuss US sanctions on Russia, but surveillance of Kislyak made clear that the two men had talked about the issue.)

A few days later, on January 30, Yates refused to defend Trump’s travel ban aimed at people from seven predominantly Muslim nations in court, and Trump fired her.

Two weeks later, on February 13, the Washington Post published a report on Yates’s conversations with McGahn about Flynn. Later that night, Trump fired Flynn. The president later claimed Flynn was fired “because of what he said to Mike Pence,” but the timing sure makes it seem like he was fired in response to the Post story itself.

So did the Trump administration try to block Yates from testifying?

The Post report claims that Yates’s lawyer had been going back and forth with Trump’s Justice Department in recent days about what, exactly, she would be permitted to testify about at the planned House Intelligence Committee hearing. Here’s the timeline of events, according to documents obtained by the Post.

  • March 14: The top Republican and top Democrat on the House Intelligence Committee — Nunes (R-CA) and Rep. Adam Schiff (D-CA) — write to Yates and ask her to testify at a March 28 public hearing on Russia’s interfere with the 2016 election.
  • March 20: FBI Director Jim Comey tells the House Intelligence Committee that the bureau is investigating “whether there was any coordination” between the Trump campaign and Russia’s efforts to undermine the election.
  • March 23: Yates’s lawyer comes in for a meeting at the Justice Department. According to the lawyer’s later recounting, DOJ officials say they think Yates would need the government’s consent to testify about internal deliberations, and argue that she was bound by attorney-client privilege.
  • Later on March 23: Yates’s lawyer writes back to the officials disagreeing that their consent is necessary, and mentioning that Yates thinks she should be able to testify “about the Department’s notification to the White House of concerns about the conduct of a senior official” — which in context must refer to Michael Flynn.
  • March 24: The Justice Department responds by saying that Yates’s contacts with the White House were “likely covered by the presidential communications privilege,” so that if she wanted consent to testify about them, she’d have to ask the White House.
  • Also March 24: Yates’s lawyer writes to White House counsel Don McGahn making clear that Yates is set to testify about her communications about “a senior official.” Though the lawyer asserts that he doesn’t think executive privilege applies here, he asks the White House whether they intend to assert it anyway. (There is no response to this letter that we know of.)
  • Also March 24: Nunes abruptly cancels the hearing with Yates, Brennan, and Clapper. A Nunes spokesperson will later tell CNN that he and his staff “had no communication with the White House whatsoever about Sally Yates testifying.”
  • March 28: The Washington Post reports that the Trump administration tried to block Yates from testifying, relying on those letters between Yates’s lawyer and the government mentioned above. Spicer criticizes the Post story, insisting that the White House did nothing to block her testimony and that “we have no problem with her testifying.”

What does it all mean?

Despite Spicer’s denials, the documentation makes clear that the Trump administration was at the very least refusing to give Yates the green light to testify (while never explicitly telling her that she couldn’t).

Why might they have done this? Here’s a key paragraph from Barrett and Entous’s report:

Yates and another witness at the planned hearing, former CIA director John Brennan, had made clear to government officials by Thursday that their testimony to the committee probably would contradict some statements that White House officials had made, according to a person familiar with the matter who spoke on the condition of anonymity.

If the Post report is accurate, Trump’s team would have almost certainly realized that this hearing could be another PR disaster for an administration already reeling from Comey’s public confirmation of the FBI investigation. Obviously, this would give them a motivation to want the hearing canceled.

But if this was in fact an effort to muzzle Yates, it seems to have been badly botched, because it sure seems like we are going to hear her testify at some point. Nunes is claiming he still wants Yates to testify, and the Senate Intelligence Committee plans to hear from her too. All this has done is postpone the inevitable somewhat — and raise more questions about whether Nunes and his panel can be trusted to conduct a full and independent investigation into the Trump White House.

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