Ryan Lizza joins Dorothy Wickenden to discuss his conversation with the former acting attorney general, Sally Yates.
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Dorothy Wickenden
This is the Political Scene, a weekly conversation with New Yorker writers and editors about Politics. It's Friday, May 18th. I'm Dorothy Wickenden, executive editor of the New Yorker. Ten days ago, Sally Yates testified before the Senate Judiciary Subcommittee on Crime and Terrorism about her brief, tumultuous tenure as acting attorney general. President Trump fired Yates in January after she ordered the Justice Department not to enforce the administration's immigration ban. In last week's hearing, Ted Cruz of Texas asked her about that decision.
Ryan Lizza
Are you familiar with 8 USC Section 1182?
Sally Yates
Not off the top of my head, no.
Ryan Lizza
Well, it is the binding statutory authority for the executive order that you refused to implement, and that led to your termination. So it certainly is irrelevant and not a terribly obscure statute.
Dorothy Wickenden
He went on to rather pompously quote from the statute about the president's authority to suspend the entry of any aliens who would be detrimental to the interest of the United States dates. But that gave Sally Yates an irresistible opening.
Ryan Lizza
Would you agree that that is broad statutory authorization?
Sally Yates
I would, and I am familiar with that. And I'm also familiar with an Additional provision of the INA that says no person shall receive preference or be discriminated against in issuance of a visa because of race, nationality, or place of birth. That, I believe was promulgated after the statute that you just quoted, and that's been part of the discussion with the courts with respect to the ina, is whether this more specific statute trumps the first one that you just described. But my concern was not an INA concern here. It rather was a constitutional concern whether or not this, the executive order here, violated the Constitution, specifically with the Establishment Clause and equal protection and due process.
Dorothy Wickenden
Ryan Lizza joins me to discuss his recent conversation with Yates about her career and her days at the center of the two crises that came to define the chaos and constitutional hazards now confronting the Trump White House. Ryan.
Ryan Lizza
Hi.
Dorothy Wickenden
Hi.
Ryan Lizza
What a week.
Dorothy Wickenden
What a week. You sat down with Yates for four hours, and a lot's happened even since then, including the appointment of a special counsel, which we'll get to later. But what did you learn about her brief tenure as acting Attorney General that she hadn't really quite made clear in her testimony before the Senate?
Ryan Lizza
She dealt with two big things. Obviously, she was the first one to really deal with the Michael Flynn matter. Right. That landed on her lap even before she was the acting Attorney general, when she was just the deputy Attorney General in the Obama administration. She was dealing with that. And, of course, what got her fired was the. The executive order. So she dealt, in the first 10 days of the Trump administration with the sort of twin crises that frankly, have defined the administration ever since. The Russia matter and the travel ban executive order, which was sort of written by this clique of ideologues in the White House who have, you know, frankly, made things a lot more difficult for Trump. You know, she looked at the FBI matter as a former prosecutor, as someone who had to weigh two things. She knew that Flynn had had these conversations with the Russian ambassador, Sergei Kislyak. She saw the transcript of this call between the two of them, where back in late December, they had a conversation about these sanctions that President Obama had placed on Russia in retaliation for the meddling in the 2016 election. And we don't know the details of what Flynn and the Russian ambassador said, but it was enough to alarm the FBI and the Justice Department that he may have broken a law.
Dorothy Wickenden
She was reading an intelligence report. Was this produced by the FBI?
Ryan Lizza
It's a little unclear. The original origin of that intelligence report. It's never actually been reported, but if the FBI originated that report, that means that they had Flynn himself under surveillance. It has been reported with certainty that Kislyak, as the Russian ambassador, was under routine surveillance. And most reports suggest that it was. That it was another intelligence agency that was monitoring Kislyak, which would be, you know, which would be normal. A Russian ambassador would be monitored. Normally, the name of an American wouldn't be in the intelligence report. But as Yates told us, there are two exceptions, if you need to understand the report or if the other person is implicated in a crime. And that seems to be the reason why this report made its way to the FBI, that whoever picked it up believed that Flynn may be implicated in a crime.
Dorothy Wickenden
Flynn was named in the report?
Ryan Lizza
Absolutely. He was named in the report for that reason.
Dorothy Wickenden
So there was discussion directly between Yates and Comey?
Ryan Lizza
Absolutely, yeah.
Dorothy Wickenden
She was Comey's boss at that point.
Ryan Lizza
She was Comey's boss at that point. Once January 20th rolls around, she's the acting Attorney General and the FBI director works for her. And so they have this unique circumstance where this guy Flynn, who's picked up on this intercept, is. Is then named as Donald Trump's national security adviser, and he starts his service in the government with an FBI investigation open about him. And so what changed things? What famously made her go to the White House and talk to the White House about this FBI investigation, because, remember, the Justice Department isn't in the business of telling the White House information about their investigations was that it became public that he had lied to the vice President and to others at the White House about this conversation. So details of the conversation leak into the press. The press asks the White House, hey, you know, anonymous sources are reporting that Flynn and the Russian ambassador were talking about sanctions that may be illegal. And then the White House went out and said, look. And specifically, the vice President went out and said, well, I've talked to Flynn about this. He says, that's absolutely not true. That conversation didn't say anything about sanctions. Well, Comey and Yates and anyone else at the FBI and Justice Department who read that intelligence report says that's not true.
Dorothy Wickenden
Amy, you have a piece in the forthcoming issue of the New Yorker where you quite dramatically lay out what happened between January 24, when the FBI interviewed Flynn, and January 30, when Yates was fired. So just walk us through that from her perspective, because nobody else has heard this yet.
Ryan Lizza
It's an amazing seven days. She starts with the fact that this has become public now, that the White House is now lying about this, and with the assistance of some people at the National Security Division of The Justice Department, which is the division that investigates counterintelligence matters, they decide that while the Russians also know this, and this puts Michael Flynn, the closest national security adviser to the President, in a vulnerable position because the Russians could go to him and say, hey, we know you lied to your bosses. You know, you better do what we say or else. So she has the. She and the FBI have a decision to make. What's more important, telling the White House that their national security adviser is compromised or preserving the FBI's investigation of Flynn? And so they try and do both. And on the 24th, they send FBI agents into the White House to interview Flynn. Remarkably, Flynn does this interview without a lawyer. And apparently not very many people at the White House knew about this interview. The next day, she gets a readout from the FBI on the interview. I asked her if she believes if Flynn lied to the FBI, and she said she wouldn't comment on that.
Dorothy Wickenden
What's the significance of that?
Ryan Lizza
You know, that's a common way that people who are being investigated, you know, go to jail. You know, maybe not the underlying crime that they're being investigated for, but they lie to the FBI about it.
Dorothy Wickenden
So what happens next?
Ryan Lizza
The next day, she. After she gets a readout from the FBI, they determine that, okay, the FBI case is secure if they want to pursue this Logan Act. The Logan act is this 19th century law that prevents private citizens from interfering in disputes between the US and an adversary. That's the law that was implicated in his conversation with the Russian ambassador. So she has not gone to the White House yet, only the FBI has. They go back to the Justice Department. They explain to Yates what went down, and she calls the next day, the White house counsel, Don McGahn, and says conversation is too sensitive to have on the phone, and she needs to meet with him immediately. She brings over a career official from the National Security Division who is the expert on the evidence against Flynn. They go straight up to McGahn's office, sit down with him, take him through the evidence, and explain that they are concerned that Michael Flynn is a security risk to the United States.
Dorothy Wickenden
And what was McGahn's response, according to Yates?
Ryan Lizza
Well, she says he took it very seriously, but she wanted to know if Yates thought that he should be fired. And she told him that it wasn't her decision, that wasn't her decision. She's not in charge of the White House staff, but she repeatedly told him, we are telling you this so that you can act. So nothing is really resolved at that meeting. She and the Career official leave. And the next day, McGann says, asks her to come back over. And they have another meeting where he asks some more questions. He wants to know, first off, he's. In the beginning, he seems like he's a little bit dismissive because he wants to know why does it matter to the Justice Department if Flynn lied to the Vice President? And yet. And according to Yates, it's a strange.
Dorothy Wickenden
Question for a lawyer to ask, isn't it?
Ryan Lizza
Yes, absolutely. And Yates tried to say, look, it's not about the lying, it's about the potential compromise. And he sort of puts that aside and agrees with that. And he asks if he can see the evidence against Flynn. They agree that on Monday the FBI will have, over the weekend, produced all that evidence and McGahn can come and look at it. So it's about 3 o' clock on a Friday, and Sally Yates leaves the White House thinking that the White House is taking this somewhat seriously and that.
Dorothy Wickenden
Flynn will promptly be fired.
Ryan Lizza
I think that's what she thinks. She thinks that McGahn did take this seriously. One other thing he said in that meeting, he asked. He said he was worried about upsetting the FBI investigation. And she told him very specifically, you don't have to worry about that. We've already taken care of that. It's much more important that you deal with the personnel issue you have and the fact that this person is compromised by the Russians and has lied to the Vice President, who then lied to the American people. That's. On Friday afternoon, Yates leaves. She goes to the airport, and on her way to the airport, she gets a phone call. And her deputy at the Justice Department says, you're not going to believe this, but they just. The White House just released a travel ban. And so the infamous executive order banning visitors from seven Muslim majority countries comes out on the afternoon just after she has had this conversation with the White House counsel's office.
Dorothy Wickenden
And this is also under her purview, but she had not been told.
Ryan Lizza
Absolutely, Absolutely. So, yes, that's right. So she's literally sitting in the White House counsel's office an hour before the travel ban comes down, and he doesn't mention it. She subsequently learns that the reason he didn't mention it is because it was some of the lawyers who did review it at the Justice Department were told not to tell her. That travel ban immediately creates a new situation where the Flynn matter is put aside. And suddenly, from Friday to Monday, she is dealing with the travel ban and the enormous fallout from the travel ban. Suddenly, there are Protests in airports all over the country, and there are lawsuits that are filed by various jurisdictions all over the country challenging the travel ban. And, of course, it's the Justice Department's job to go into court and to defend the US Government.
Katie Drummond
I'm Katie Drummond. I'm Wired's Global Editorial director.
Ryan Lizza
I'm Michael Kollori, Wired's Director of Consumer, Tech and Culture.
Dorothy Wickenden
And I'm Lauren Good. I'm a senior correspondent at Wired. And our show, Uncanny Valley, is about the people, power, and influence of Silicon Valley.
Katie Drummond
And right now, Silicon Valley and Washington have never been more intertwined. So each week, we get together to talk about a big story, often at the intersection of tech and politics.
Ryan Lizza
Right. Whether we're talking about Trump, Coin, Doge, or Elon Musk, we will always explain how these Silicon Valley forces are affecting.
Dorothy Wickenden
Washington and how they affect you.
Katie Drummond
Make sure you're following Uncanny Valley in your podcast app of choice so you don't miss an episode.
Dorothy Wickenden
She's worried, for constitutional reasons, that this is very problematic. Could you explain that?
Ryan Lizza
Yeah. So she's back home in Atlanta at an event for her husband, and she starts, literally just goes online and starts reading some of the challenges to the travel ban, trying to get her arms around the legal arguments on each side. And the two principal challenges that she decides are troubling and would be difficult to defend in court are, one, a potential violation of the establishment clause of the First Amendment. And especially with the first travel ban. Remember, it had language in there that privileged Syrian Christians over any other religious group. And Trump himself had said in an interview that the travel ban was specifically intended to do that. Then, of course, you have many, many statements from Trump and his campaign officials talking, saying that they wanted to originally institute a ban not just on people from those countries, but a ban on all Muslims. So that's the first big issue that she's saying, how are we going to defend this in court? The second issue is more of a due process issue. There are people who are permanent residents from those countries or visa holders who have legal, valid visas, and they're being denied the right to come into the United States. And she thought that there was a due process issue with respect to those two categories. So she, over the weekend, starts to become very, very skeptical of the constitutionality of the travel ban and starts to, as she reviews it with her deputy at the Justice Department, Matt Axelrod, he's the only other Obama holdover who's with her. She gets back to town on Sunday, and on Monday, it's sort of D Day, she has to make a decision about what the Justice Department's going to do. Over the weekend, she sent out instructions to the, you know, dozens, maybe hundreds of lawyers who are having to deal with responding to the challenges to the travel ban, saying, don't take any position with respect to the constitutionality of the travel ban. Only deal with, you know, with normal procedural matters. But by Monday, she's got a. The Justice Department. You know, judges around the country are asking for the government's response to these challenges, and it's her job to send the lawyers in and defend it. Just to take a step back here, it does show you how astonishingly amateurish the Trump White House was to initiate such a controversial policy when they didn't have their own attorney general in place. She struggles all day Monday at the Justice Department in conversations with her deputy, Matt Axelrod, but she's leaning strongly against it. Finally, she calls a meeting of about a dozen officials, and this meeting is taking place in her conference room. And she basically, they. She basically asks, especially the Trump people, but also some of the career people, what are the best arguments we can make if we go into court and defend Trump's executive order from these challenges? The basic stumbling block to her is that she'd have to go into court and say that religion had nothing to do with the executive order.
Dorothy Wickenden
And what do they say? What do the Trump people say?
Ryan Lizza
Their argument is, look, read the executive order. It doesn't say anything about banning Muslims. And her response is, this is what she said after the fact. I don't know if she said this specifically in this meeting, but her general position is you can't just look at the executive order. You have to look at the intent of the executive order. Of course, this was about religion. Of course this was about banning Muslims. Trump said this a million times in the campaign, and this was the legal way he decided to do it. She has pretty much decided that. That the executive order is unconstitutional. So the next decision, as the meeting breaks up and as she huddles with Axelrod alone in their suite, is what does she do? Does she resign? Or does she actually tell the Civil division lawyers, who are the ones that would be in charge of this case, we can't go into court to defend this because it's unconstitutional. And. And that's the one that she really struggles with. And at the end of the day, as she told me, she decided that she didn't want to resign because it would just be throwing it in someone else's lap and that she was going to take a stand and write a memo to justice lawyers saying, we're not going to defend this. It's not constitutional. And I don't want you all going into court lying and saying that this isn't about religion. She makes the decision to instead of resign to tell the Justice Department not to defend it. And as she described it to me, she was protecting the independence of the Justice Department, that she did this as a lifelong or at least 27 year long justice Department employee, and she did not want those lawyers going in and lying to the court. Now, a lot of, you know, other people have said, no, you should have just your job at the Justice Department is to defend what the government does and you should have resigned. She had a different take on that.
Dorothy Wickenden
She realizes that she's put her career on the line. It's only a matter of time before she gets fired.
Ryan Lizza
And she finally, you know, once she makes the decision, she brings in this top Trump appointee who actually has a lot of respect for her, was a longtime career official in the office, and she tells him about it, and he is astonished. There's a little hiccup the White House can't get. They were literally going to email her the letter, firing her, and it's not going through. So instead they call up their senior appointee over there and they say, hey, we can't get this email to go through to Yates. Can you print it out and go deliver it to her? So he, after saying a prayer and printing it off, printing out the letter, he walks down the hall to her office, knocks, and he's sort of a polite Southern guy, calls her ma' am and says, ma', am, I have a letter from the president. And she looks at it and realizes that, you know, her 27 years in the Department of Justice are over. Interestingly, the note was not from Trump himself, but from the, the head of presidential personnel at the White House since she testified. You know, you just had this cascade of developments, both developments that have happened the last two weeks, and then reporting on things that happened previously that help, that help us piece together the timeline of the, you know, the FBI investigation and Trump's reaction to it. So you have Trump firing Comey with this ginned up crazy excuse originally that he was firing Comey because he didn't like the way that Comey dealt with the Hillary Clinton email case because he.
Dorothy Wickenden
Thought that that was, that the Democrats were going to like that and it was all going to be just fine.
Ryan Lizza
Yes, someone can. I'm still astonished that they ever thought that anyone would believe that. So Comey's gone. Then, of course, we have the leaks from Comey's allies. And Comey is, you know, a slightly more sophisticated Washington operator than Donald Trump. So he's, as has been reported, he's pretty famous for memorializing controversial conversations in writing. We saw this in the Bush administration when he stood up to Bush on illegal surveillance. He always had a memo written about conversations. And, of course, he did this with Trump. And it was leaked after he was fired that he had a conversation with the president where the president seemed to tell him to drop the Flynn investigation. That was probably the most explosive thing that has happened in the last two weeks, is the revelation about that conversation, according to Comey.
Dorothy Wickenden
The one other thing that strikes me, and it's beginning to get out there, is, you know, the question about whether Mike Pence, his vice president, is in trouble. You know, Mike Pence has made his own repeated false statements. This week, we learned that he told the White House long before the inauguration that he was being investigated for. For his lobbying on behalf of Turkey. And Pence says he didn't know about that, but he led the transition team.
Ryan Lizza
It seems shocking, considering how leaky the various factions in the White House are. It seems sort of shocking that anyone on the transition would know about an FBI investigation of Flynn, and yet it wouldn't actually make its way to the head of the transition team. So one of the interesting things that's happened in the press the last 48 hours is that some of Pence's people have quietly tried to separate him from all of the drama around Trump.
Dorothy Wickenden
One final question about Sally Yates and the Democratic Party, because as you report, she told you thatand, of course, Democrats are looking forward to the 2018 midterm elections. And there's a lot of enthusiasm in Georgia about the idea that she might run for governor. What does Yates have to say about that and also about her own future?
Ryan Lizza
You know, she was pretty clear in the first interview that, well, she was very clear that she will not be running for governor of Georgia next year, which is what some Georgia Democrats wanted her to do.
Dorothy Wickenden
Why do you think that is?
Ryan Lizza
I think two reasons. She knows what an uphill climb it is still for a Democrat statewide. On the other hand, if you're a Democrat who's thinking about running for office, 2018 is a good year to run. Right? The first midterm of any president is. Is always a good year for the opposition party. Considering Trump's approval ratings and where things are going, it could be an extremely good year for Democrats. So if you've ever thought about running for office as a Democrat, you want to run next year.
Dorothy Wickenden
Yeah. And she's in a particularly good position right now. Democrats, you just, you know, you look.
Ryan Lizza
At Twitter, she is, she's a hero. Yeah, totally. I mean, she's the face of the opposition now, the face of the hashtag resistance. She told me she was absolutely ruling it out. There was no chance she would do it. In the original interview, she left a tiny door open to future elective office. But when we went back to her and we were fact checking the piece, she closed that door. And she really wanted it to be known that her state of mind now is that she'll never run for office. Who knows, maybe someone could change her, maybe someone could change her mind down the road. But right now she's, she's Sherman esque in ruling it out. As she told me, she's got this new, very important platform and she intends to use it. She just doesn't know how yet.
Dorothy Wickenden
Thank you so much, Ryan.
Ryan Lizza
Thanks, Dorothy.
Dorothy Wickenden
Ryan Lizzer reports from Washington for the New Yorker and is a commentator for cnn. This has been the political scene from the New Yorker. You can subscribe to this and other New Yorker podcasts by searching for the New Yorker in your podcast app and find more political analysis and commentary on newyorker.com feel free to rate and review the political scenes on itunes. This podcast is produced by Alex Barron and Jill Dubeuf for newyorker.com with help from Hannah Wilentz. I'm Dorothy Wickenden.
Ryan Lizza
Right now, we are living through some of the most tumultuous political times our country has ever. I'm David Remnick and each week on the New Yorker Radio Hour, I'll try to make sense of what's happening alongside politicians and thinkers like Cory Booker, Nancy Pelosi, Liz Cheney, Tim Waltz, Ketanji Brown Jackson, Newt Gingrich, Robert F. Kennedy Jr. Charlamagne, tha God, and so many more. That's all in the New Yorker Radio Hour wherever you listen to podcasts from prx.
Episode Title: Sally Yates v. Donald Trump
Date: May 19, 2017
Participants: Dorothy Wickenden (Host), Ryan Lizza (Staff Writer, The New Yorker)
This episode explores former Acting Attorney General Sally Yates’s pivotal role at the height of two key crises early in the Trump administration: the Michael Flynn investigation and the so-called "travel ban." Through an extensive interview with Ryan Lizza, the podcast details Yates’s decisions, her reasoning, the constitutional stakes, and the fallout, providing a window into the legal and ethical turmoil at the Justice Department and the White House.
“My concern was not an INA concern here. It rather was a constitutional concern whether or not this, the executive order here, violated the Constitution, specifically with the Establishment Clause and equal protection and due process.”
— Sally Yates (Paraphrased by Ryan Lizza), [02:25]
Yates was the first to truly confront the Flynn matter, inheriting it from her time as Deputy AG in the Obama administration and escalating it after Trump’s inauguration.
Flynn’s intercepted call with Russian Ambassador Sergey Kislyak about sanctions alarmed the FBI and Justice Department, potentially implicating the Logan Act.
Upon discovering Flynn’s possible lies to the White House and Vice President Pence, Yates decided to inform the White House counsel about the counterintelligence risk Flynn posed, prioritizing the national security threat.
“She and the FBI have a decision to make. What's more important, telling the White House that their national security adviser is compromised or preserving the FBI's investigation of Flynn? And so they try and do both.”
— Ryan Lizza, [08:26]
White House Counsel Don McGahn took the issue seriously, but initially seemed dismissive about why the Justice Department would care if Flynn had lied to the Vice President.
“It's not about the lying, it's about the potential compromise.”
— Sally Yates (Paraphrased), reported by Ryan Lizza, [11:44]
“...they didn't have their own attorney general in place.”
— Ryan Lizza, [16:38]
“She decided that she didn't want to resign because it would just be throwing it in someone else's lap and that she was going to take a stand...”
— Ryan Lizza, [19:00]
Yates was fired hours after her decision, ending her 27-year DOJ career—receiving the official notice via hand-delivered letter after email difficulties.
“He walks down the hall to her office, knocks, and he's sort of a polite Southern guy, calls her ma'am and says, ma'am, I have a letter from the president. And she looks at it and realizes that...her 27 years in the Department of Justice are over.”
— Ryan Lizza, [21:18]
The episode situates her firing amidst the subsequent Comey firing, Trump’s dubious official explanations, and ongoing revelations about the administration’s legal woes.
“She told me she was absolutely ruling it out. There was no chance she would do it...she's Sherman-esque in ruling it out.”
— Ryan Lizza, [25:07]
Yates on Her Refusal:
“It’s not constitutional. And I don’t want you all going into court lying and saying that this isn’t about religion.”
— Sally Yates (as reported by Ryan Lizza), [19:00]
White House Secrecy:
“She’s literally sitting in the White House counsel’s office an hour before the travel ban comes down, and he doesn’t mention it.”
— Ryan Lizza, [13:25]
On DOJ Independence:
“She did this as a lifelong or at least 27 year long Justice Department employee, and she did not want those lawyers going in and lying to the court.”
— Ryan Lizza, [19:29]
About the ‘Resistance’ status:
“She’s the face of the opposition now, the face of the hashtag resistance.”
— Ryan Lizza, [25:07]
This episode offers a thorough, behind-the-scenes account of Sally Yates’s historic final days at the DOJ, exposing the legal, ethical, and practical upheaval inside the Trump White House. Through careful narration and direct reporting, it illuminates the stakes of constitutional governance and institutional independence in moments of national crisis—and highlights how one official’s stand became a symbol of legal resistance for a generation.