At a Senate Intelligence Committee hearing Tuesday, top U.S. intel officials repeatedly declined to explicitly answer questions as to whether President Donald Trump instructed them or their colleagues to drop the investigation into national security adviser Michael Flynn and his alleged ties to Russia.
The hearing was originally intended to address the need to renew the FISA Amendments Act, which allows federal authorities to conduct warrantless electronic surveillance of suspected terrorists and criminals through a provision commonly known as Section 702, which is set to expire on December 31.
But the discussion frequently veered off course as lawmakers sought corroboration of recent reports that Trump asked top intel officials to help end the Flynn investigation once headed by former FBI Director James Comey, whom the president later fired. In one such report, the Washington Post on Monday cited anonymous U.S. officials who claimed that Trump, following a March 22 White House briefing, privately asked Director of National Intelligence Daniel Coats and CIA Director Mike Pompeo if they could intervene in Comey's investigation. The Post has also previously reported that Trump asked Adm. Mike Rogers, director of the National Security Agency, to publicly deny the existence of evidence suggesting collusion between Trump's campaign and Russian operatives.
Neither Coats nor Rogers were willing to confirm or deny whether Trump specifically asked for them to intercede in the FBI's investigation. Rogers, however, did go on record with a carefully worded statement: "In the three-plus years that I have been the director of the National Security Agency, to the best of my recollection, I have never been directed to do anything I believe to be illegal, immoral, unethical or inappropriate. And to the best of my recollection, during that same period of service I do not recall ever feeling pressured to do so." Coats likewise testified that he had never felt pressure from the administration to help quash the Flynn investigation.
However, some lawmakers stressed that feeling pressured not to interfere is not the same as being asked to do so. "You may not have 'felt pressure' but if he [Trump] is even asking, to me that is a very relevant piece of information," said Sen. Mark Warner (D-Va.), who expressed disappointment that the intelligence officials were passing on an opportunity to "lay to rest" reports of Trump running interference on an active investigation.
"I don't care how you 'felt.' I'm not asking whether you felt pressured," bluntly stated Sen. Martin Heinrich (D-N.M.). I'm simply asking 'Did that conversation occur?'".
Coats, meanwhile, said that detailing his interactions with Trump at the Tuesday hearing would be "inappropriate," as many of their conversations have been confidential in nature. "I am willing to come before the committee and tell you what I know and what I don't know. What I'm not willing to do is to share what I think is confidential information that ought to be protected in an open hearing that and so I'm not prepared to answer your question today," said Coats.
Though largely reticent, Coats did say this about the Washington Post report: "Guess I've been around town long enough to say not to take everything at face value that's printed in the Post."
Both Coats and Rogers suggested that they could speak more freely in a private hearing. "I hope we can come to a position where we can have this dialogue. I welcome that dialogue," said Rogers.
But this offer comes with a significant caveat: Trump could potentially block future private testimony by invoking executive privilege. Consequently, Coats and Rogers both testified they would first need to consult with White House executive counsel before sharing any additional information about their past dealings with the president. Rogers said he asked White House it it planned to invoke executive privilege, but he did not receive a clear answer.
Sen. Angus King (I-Maine) wasn't having it, contending that Rogers and Coats had effectively "waived executive privilege" by volunteering in their testimony that were not pressured by the White House. "I believe that you have opened to door to these questions," said King, who also demanded a legal justification for the refusal to answer what he termed a "straightforward question."
"You realize how simple it would simply be be to say, 'No that never happened," said Heinrich to Coats. "I think your unwillingness to answer a very basic question speaks volumes."
The call for answers wasn't restricted to Democrats and Independents. Noting the constant stream of media reports citing leaks and anonymous sources, Sen. Marco Rubio (R-Fla.) stated, "If what is being said to the media [by anonymous sources] is untrue, then it is unfair to the president of the United States. And if it is true, then it is something that the American people deserve to know and something we as an oversight committee need to know in order to conduct our job."
McCabe and Rosenstein also demurred when asked about Trump. Both men deferred to special counsel Robert Mueller, whom they said would first have to authorize them to speak on matters currently under investigation. Mueller last month was appointed to oversee the probe into Russia's interference in the 2016 U.S. election, including any possible collusion between Trump and his surrogates.
Regarding FISA, many of the committee members agreed with a joint written statement from all four testifying intelligence officers that Section 702 has been imperative to aiding investigations that prevented terrorist acts from taking place on American and foreign soil.
With that in mind, Sen. Tom Cotton (R-Ark.) on Monday introduced legislation making Title VII of the FISA Act, which includes Section 702, permanent. "This program has provided our national-security agencies vital intelligence that has saved American lives and provided insights into some of the hardest intelligence targets," said Cotton in a statement. "Section 702 also includes extensive privacy protections for American citizens. We can't handcuff our national-security officials when they're fighting against such a vicious enemy. We've got to reauthorize this program in full and for good, so we can put our enemies back on their heels and keep American lives safe from harm."
To underscore the importance of Section 702, Coats declassified details of a recent operation against ISIS second-in-command and finance minister Haji Iman, who defense officials say was killed in a Air Force strike during an attempt to apprehend him. According to Coats, Section 702 allowed U.S. intelligence to collect foreign intelligence on Iman and his associates over a two-year period. Combined with information gleaned from other assets, this intel helped agents identify Iman and track his movements, resulting in the operation last March.
Still, some lawmakers expressed concern that warrantless surveillance threatens to invade the privacy of innocent Americans. Although the FISA legislation does not permit warrantless spying on U.S. citizens, surveillance operations can and do incidentally capture data from Americans, who can then be investigated further via court order if they are deemed a credible threat. For that reason, Sen. Ron Wyden (D-Ore.) sharply critiqued the intelligence community for failing to come up with a relevant metric for determining how many law-abiding Americans are caught up in FISA surveillance.
Sen. Dianne Feinstein (D-Calif.) also expressed reservations about making FISA provisions permanent, suggesting that due to privacy concerns, they should continue to be renewed periodically. She also asked about the process intelligence agencies use to unmask the identities of surveilled American citizens. Coats said he recently suggested to the intelligence community that it reach out to civil liberties and privacy groups for their perspective on unmasking protocols that are currently in place.
In a New York Times op-ed piece published Tuesday, the Trump administration said it is backing Cotton's FISA legislation. In response, Neema Singh Guliani, legislative counsel for the American Civil Liberties Union, issued the following statement: “After months of criticizing the government for allegedly spying on his presidential campaign, President Trump is now hypocritically endorsing a bill that would make permanent the NSA authority that is used to spy on Americans without a warrant."
“Further, only months after demanding information about his own unsubstantiated spying claims, his administration is failing to provide information about how many Americans are impacted by this surveillance authority," Guliani continued.