'Who appointed you to the United States Supreme Court?'

Former acting Attorney General Sally Yates

WASHINGTON – "Who appointed you to the United States Supreme Court?" pointedly asked
Sen. John Kennedy, R-La.

He was grilling former acting attorney general Sally Yates about her refusal to enforce President Trump's first executive order temporarily banning people from seven Muslim-majority countries from entering the United States until vetting procedures could be improved.

The senator pressed on, noting that it is the courts that determine what is constitutional, adding, "In fact, aren't most acts of Congress presumed to be constitutional?"

Yates hesitantly responded, "They are presumed but they're not always constitutional, and of course, I was not on the Supreme Court. And I can tell you, Senator, look, we really wrestled over this decision. I personally wrestled over this decision and it was not one that I took lightly at all. But it was because I took my responsibilities seriously."

Sen. John Kennedy, R-La

The exchange took place Monday during a Senate Judiciary subcommittee looking into any possible Russian interference in the 2016 election, but it was Yates' role in blunting the travel ban that caused the most fireworks, a decision that caused President Trump to fire the woman who had worked at the Justice Department for 27 years, on Jan. 30.

Sen. Ted Cruz, R-Texas, asked Yates why she had refused to enforce that executive order when her own Department of Justice’s Office of Legal Counsel had deemed it lawful, and a federal statute clearly gave the president the authority to implement the measure.

Yates replied she did not think the order was lawful because, citing a 1965 law prohibiting discrimination against immigrants based on race, religion or country of national origin, even though that law has never been used to overrule the statute giving the president broad authority to determine immigration policy.

Because she was not convinced that the order was lawful, Yates claimed, "It was appropriate for us to look at the intent behind the president’s actions."

In other words, Yates admitted she did not base her decision entirely on whether the order was lawful, but on her own reading of the president's intent.

On the subject of political surveillance, Yates refused to say under oath if she knew of any person in the Obama administration who had requested the unmasking of anyone on President Trump's campaign or transition team.

The former Obama administration official gave senators the same excuse previously offered under oath by FBI Director James Comey: To answer would involve discussing classified information that could not be revealed in a public setting.

Chairman Lindsey Graham, R-S.C., asked President Obama's former director of national intelligence, James R. Clapper, the same question about unmasking and got the same answer.

Yates and Clapper also both denied, under oath, that they were anonymous sources that had leaked information about investigations into President Trump or his associates. They both specifically denied leaking former national security adviser Michael Flynn's name to the Washington Post, as someone possibly under investigation.

However, when asked by Sen. Grassley, R-Iowa, "Have any of you been questioned by the FBI about any leaks?" both replied they had not.

Also, Clapper has previously not told the truth under oath. As WND reported at the time, when asked during a Senate Intelligence Committee hearing in 2013, "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" he replied, "No, Sir … not wittingly." Revelations made three months later by NSA whistleblower Edward Snowden proved that was not true.

Former National Security Adviser Susan Rice

Obama former national security adviser Susan Rice declined to appear before the subcommittee after tacitly admitting, as WND reported in April, she had unmasked the identities of the names of Trump associates collected in foreign surveillance.

Speaking to MSNBC, Rice defended unmasking (the revealing of names within the intelligence community of U.S. citizens gathered in foreign surveillance) by claiming: “It was not uncommon. It was necessary at times to make those requests.”

But speaking to PBS on March 22, Rice had denied any knowledge of such unmasking after it was revealed by House Intelligence Committee Chairman Devin Nunes, R-Calif.

Yates also testified about her conversation in January with White House counsel Donald McGahn about then-national security adviser Flynn.

Yates said she warned the White House that statements made by Vice President Pence about Flynn’s discussions with Russian Ambassador Sergey Kislyak, before the president took office, were incorrect.

She said she warned that Flynn could be blackmailed by the Russians because he had been compromised by them. Yates testified she was concerned that the Russians would have leverage over the national security adviser. Yates said she was also concerned because it appeared Flynn had lied to Pence, and the vice president had a right to know that.

Former Director of National Intelligence James Clapper

However, as for exactly what leverage the Russians might have had over Flynn, Yates described Flynn's behavior as "problematic" without saying how or why that was so.

But she said she felt Vice President Pence needed to know that what Flynn was telling him was not true, which is why she requested to meet with and speak to McGahn.

White House Press Secretary Sean Spicer had described the meeting between Yates and McGahn as not a warning but more of a “heads up’’ about an issue concerning Flynn.

Spicer told reporters in February that Yates had "informed the White House counsel that they wanted to give a heads up to us on some comments that may have seemed in conflict. ... The White House counsel informed the president immediately. The president asked him to conduct a review of whether there was a legal situation there. That was immediately determined that there wasn't."

White House Chief of Staff Reince Priebus gave a similar description to CBS' "Face the Nation’" in February, that “our legal counsel got a heads up from Sally Yates that something wasn’t adding up with his story. And then so our legal department went into a review of the situation. ... The legal department came back and said they didn’t see anything wrong with what was actually said."

President Trump fired Flynn in February, saying there was nothing wrong with the discussions he had with the Russian ambassador, but that the former national security adviser had not told the entire truth about those talks to Vice President Mike Pence.

Former National Security Adviser and retired U.S. Army Lt. General Michael T. Flynn (Photo: Twitter)

Clapper and former acting CIA Director Michael Morell said in March they had seen no evidence of collusion between the Trump team and the Russian government.

Under oath, Clapper testified on Monday that was still the case. He also testified that he believed the Russians were extremely successful in "sowing discord and dissension" during the 2016 presidential election, but he did not claim Russia hacked the voting process or affected the outcome of the election.

Clapper also told Graham that he was not aware of any of the president's business interests in Russia that would give him concern.

Yates said she could not comment on whether she had seen evidence of collusion between the Trump team and the Russian government because, again, it would involve discussing classified information.

On Monday, President Trump tweeted: "Ask Sally Yates, under oath, if she knows how classified information got into the newspapers soon after she explained it to W.H. Council (sic.)"

She testified that she did not know.

Meantime, the government watchdog group Judicial Watch announced on Monday it has filed a Freedom of Information Act, or FOIA, lawsuit against the Justice Department to obtain Yates's emails between January 21, 2017, and January 31, 2017.

"Between her involvements in the Russian surveillance scandal and her lawless effort to thwart President Trump’s immigration executive order, Sally Yates short tenure as the acting Attorney General was remarkably troubling," said Judicial Watch President Tom Fitton. "Her email traffic might provide a window into how the anti-Trump 'deep state' abused the Justice Department."