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Tierney Sneed

Tierney Sneed is a reporter for Talking Points Memo. She previously worked for U.S. News and World Report. She grew up in Florida and attended Georgetown University.

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Senate Republicans are considering overhauling a long-standing tradition for processing judicial nominees to thwart potential Democratic obstruction of President Trump’s picks to fill the federal bench. Ironically, it’s a custom GOP lawmakers themselves took advantage of to block numerous judicial nominees under President Obama, creating the glut of vacancies on the bench they now seek to help Trump fill.

The custom is known as the home-state “blue slip,” and it has allowed senators to block judicial nominees hailing from their own states. The “blue slip” refers to the physical blue slips the two senators representing the state from where a judge is being nominated must turn in for the nomination to advance to a committee hearing. In theory, the custom is supposed to encourage the White House to get input from the Senate in choosing federal judges. However, under Obama, GOP senators withheld blue slips to block nominees — even ones they previously backed — as a way of foiling his agenda and leaving the vacancies open for a future Republican president.

The “blue slip” tradition is now in the cross fire of conservative groups, and key GOP senators are expressing openness to changing the way the blue slips are considered, according to reports in the Washington Post, The Hill and Politico.

Republicans fear that Senate Democrats will now give them a taste of their own medicine, amidst reports that Democrats like Sen. Al Franken (D-MN) and Sen. Bob Casey (D-PA) were considering withholding blue slips from appeals court nominees from their respective states.

“If that happens, you might see a shift in the blue slip tradition,” Sen. Tom Cotton (R-AR) said earlier this month.

“We can’t allow Democratic senators to continue to obstruct this president’s agenda. If they’re just arbitrarily not returning blue slips, we have to consider changing that tradition,” Cotton went on to say.

GOP senators are being cheered on by conservative legal groups like the Federalist Society– whose former leader Leonard Leo is consulting with the Trump administration on judges — and by media figures on the right like radio host Hugh Hewitt, on whose show Cotton made his comments.

Republican senators are particularly focused on changing the blue slip rules around appeals court judges, while perhaps preserving the custom for district court nominees, according to the Washington Post.

“Everybody agrees that blue slips on federal district judges are appropriate where the districts are contained within a state, and that’s been the tradition,” said Sen. John Cornyn (R-Tex.), the Senate majority whip who also serves on the Judiciary Committee. “My sense is that we’re going to establish a pattern where a blue slip at the circuit-court level is an expression of advice but is not determinative as to whether that judge will be confirmed or not.”

Because blue slips are a courtesy and not a hard and fast rule, the lack of a blue slip for a nominee could simply be ignored by Republican leaders.

Democrats are, not surprisingly, pushing back against a potential change. In a memo this week, Sen. Dianne Feinstein (D-CA), the top Democrat on the Judiciary Committee, called the elimination of blue slips “a move to end cooperation between the executive and legislative branch on judicial nominees, allowing nominees to be hand-picked by right-wing groups,” according to the Post.

Senate Judiciary Chair Chuck Grassley (R-IA) has previously vowed not to change the rules, and his spokesperson told the Post that he “fully expects senators to continue to abide by that tradition.”

But in a recent C-SPAN interview he signaled openness to changes geared specifically to appeals court nominees.

“It’s much more a White House decision on Circuit judges than the District Court judges,” Grassley said, according to Politico. “I mean this is going to be an individual case-by-case decision, but it leads me to say that there’s going to have to be a less strict use or obligation to the blue slip policy for circuit, because that’s the way it’s been.”

Trump’s role in shaping the federal judiciary was a key rallying point for conservatives wary of his unorthodox candidacy during the 2016 presidential race. His appointment of Neil Gorsuch to the Supreme Court seat vacated by the late Justice Antonin Scalia — an appointment he was only able to make thanks to unprecedented Senate GOP obstruction of Obama’s own nominee, Merrick Garland — was considered a major win for the conservative legal movement. Now he has more than 120 lower court vacancies to fill, vacancies still open in part because of Republicans’ withholding of blue slips of Obama nominees.

 

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Alice Ollstein contributed reporting.

House Republicans promised that their hastily passed Obamacare repeal legislation wouldn’t weaken pre-existing conditions protections — even as it let states permit insurers to charge sick people more and whittle down benefits — but the Congressional Budget Office reported Wednesday that under the GOP plan sick people would face substantially higher premiums and in some cases be priced entirely out of the market.

Faced with the new independent analysis, some Republicans admitted that they’d like to see some tweaks to their ideas as the Obamacare repeal effort proceeds in the Senate. But many dug on in on waiver provision that passed the House and claimed the CBO was not getting the full picture.

“There’s about four different layers that exist to cover pre-existing conditions, beyond which one isn’t even spoken about, which is one of the most important, and that’s just the personal responsibility we have in our lives that’s not even mentioned in there,” Rep. Brian Mast (R-FL) told reporters.

Rep. Peter King (R-NY) took issue with the CBO’s estimate for how many people will live in states taking the waivers under the GOP plan.

“I don’t know how CBO would know that,” King said. “This is going to be a political decision made in the states, I don’t know how the CBO becomes a political expert.”

Not everyone was dismissive of the CBO’s findings, and pointed out that the Senate is working on its own repeal bill that, if passed, will have to be reconciled with the House version.

“Obviously, the Senate is going to work on whatever waiver might or might not be proposed and you’re going to come back to conference,” Rep. Mark Sanford (R-SC) said. “I think there’s gong to be a couple more bites at the apple in terms of further refining the bill based on that CBO report.”

Less than a month ago, top Republicans were promising that their bill, the American Health Care Act, was not a violation of of their vows to protect people with pre-existing conditions. Majority Whip Steve Scalise (R-LA) swore that “everyone” with a pre-existing conditions would keep their coverage. House Speaker Paul Ryan (R-WI) touted “VERIFIED” talking points claiming people with pre-existing conditions were “protected.”

The provision that set off alarm bells among patient advocates was an amendment spearheaded by New Jersey moderate Rep. Tom MacArthur (R) that offered waivers to states to opt out of some of the Affordable Care Act’s insurer mandates, including its rule barring insurers from charging people more for premiums based on their health status.

The CBO said in the report released Wednesday that about half of Americans live in states that would not take waivers and one-third live in states that would seek only “moderate” changes to Obamacare’s insurer mandates, specifically its provision requiring insurers to offer 10 broad coverage areas. But one-in-six Americans would live in states that took a more aggressive approach to the waivers and would seek to allow insurers to charge more based on one’s health status. There, the CBO predicted variations in premiums so wide that it did not provide an average estimate for them, while warning of increased instability in the individual market.

“Over time, it would become more difficult for less healthy people (including people with preexisting medical conditions) in those states to purchase insurance because their premiums would continue to increase rapidly,” the CBO said.

Furthermore, the CBO said that the $8 billion in funding for states that was added after the MacArthur amendment, to appease spooked moderates, “would not be sufficient to substantially reduce the large increases in premiums for high-cost enrollees.”

In reaction to the CBO score, MacArthur employed the well-honed technique of brushing off the expertise of the non-partisan research agency, telling TPM he “fundamentally” disagreed with the “biased” report.

“They won’t opine on how much premiums will come down if a state takes both waivers” MacArthur said, noting that CBO gave premium reduction estimates for states that took no waivers and for states that sought a partial waiver on Essential Health Benefits.

“Suddenly, they can’t come up with an estimate if a state takes two waivers? They just acknowledge that it will go down way more. That to me is disingenuous. There is a number,” he said.

House Freedom Caucus Chair Mark Meadows (R-NC), who worked on the amendment with MacArthur, was reportedly caught off guard Wednesday night when reporters pointed him to the CBO report’s section on pre-existing conditions.

By Thursday he was more defensive, telling reporters that he found it “disappointing” that it was “long on rhetoric but short on support for where that rhetoric came from.”

He said that he intended on having a follow-up meeting with the CBO.

“I’m not saying it’s incorrect, but I don’t have enough information to say whether it’s correct or not,” Meadows added.

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Senate Republicans will begin working on a draft of health care language over next week’s Memorial Day recess as the next step in their effort to dismantle the Affordable Care Act. It’s unclear what sort of proposals will be drafted, who exactly will be working on the text, and how the legislation will differ from the House GOP’s Obamacare repeal bill.

“Over the break, initial legislation will be drafted and…we’ll have actually have a basis to discuss some of these things,” Sen. Ron Johnson (R-WI) told reporters Thursday after a health care working group meeting. “We’ve had some very fulsome discussions, very genuine input, and that input is now going to be collated by committee staff and leadership staff and they will produce a product — we’ll have a draft bill — that we can have further input on.”

Sen. John Cornyn (R-TX), the majority whip, confirmed that some “base language” was going to be worked up for GOP senators to look at when they return from recess.

Cornyn and other Republicans coming out of Tuesday’s working group expressed optimism that GOP senators were getting closer to bridging gaps among the conference in order to get the 50 votes necessary to pass a repeal bill.

“There is no final agreement yet, this is a process,” Cornyn said.

The next step in the negotiations was to get some proposals in writing to be passed around internally, Republicans said.

“A number of individuals are putting various ideas to paper,” Sen Ted Cruz (R-TX) said.

But Sen. Mike Rounds (R-SD) cautioned that even with some text being drafted, Senate Republicans still had a lot of work to do.

“What we have been advised is that at some stage of the game, you’ve got to have people start to begin the boiler plate that makes up a bill, but it’s a long ways from having all the concepts incorporated,” Rounds said.

 

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In the weeks since the unwieldy and politically unpopular task of dismantling the Affordable Care Act fell to the GOP Senate, Republican senators have been able to punt on some of the tough decisions in writing their repeal legislation until after they saw what the CBO said about the House Obamacare repeal bill.

That CBO report has now landed, and it doesn’t make GOP senators’ lives any easier. Wednesday’s report reinforced the many problems and ugly trade-offs in the House bill that Senate Republicans have been struggling with for months. It also dropped in their laps a new problem that was a result of an amendment added to the House bill that was scored for the first time in Wednesday’s CBO report: What to do about people with pre-existing conditions, whose protections under the ACA are significantly rolled back in a provision that allow states to opt out of Obamacare’s insurer mandates?

Here are five points on how the CBO score puts the big squeeze on Senate Republicans:

The waivers make pre-existing conditions protections very messy, if not impossible.

The big question for the CBO was the impact of a major, last-minute addition of a waiver provision to the House bill, which stands to violate GOP promises to protect those with pre-existing conditions.

The CBO found that one-sixth of Americans would live in states that would seek waivers so aggressive that it would create a wide variation in premiums for which the CBO did not even provide an estimate average. In those places, the individual market would grow increasingly unstable over time, as healthy people flocked to less generous plans that were allowed to medically underwrite based on health status. People with pre-existing conditions would in turn see premiums rise until some were priced out of coverage entirely. The extra $8 billion funding added to the House bill to subsidize them would not be “sufficient to substantially reduce” their “large increases” in premiums, the CBO said.

Senate Republicans have been generally open to a waiver idea, but many have insisted they want people with pre-existing conditions protected. So cleaning up that mess will be a top priority.

There’s no escaping 23 million people losing coverage.

The CBO’s top line coverage number was bad the first time the AHCA was scored and it hasn’t budged much since. Twenty-three million fewer Americans will have insurance by 2026 under the House-approved bill, which is hardly better than the 24 million in coverage losses predicted under the initial version. That downward tick in coverage losses comes in part, the CBO said, because the individual marketplace will be less attractive and more employers will thus continue to offer coverage than was projected in the March version of the legislation.

The first time around some Republicans cast doubt on the CBO’s predictive abilities and that strategy is already in play now. Nevertheless, some GOP senators have recognized those coverages numbers are far from ideal and floated more robust tax credits or a softer cushion to the Medicaid cuts as a way to improve them. The problem there, however, is that those tweaks will likely require more funding, and the Senate’s bill will still have to reduce the deficit by $119 billion over 10 years.

Medicaid remains the elephant in the room.

One of the biggest challenges in the Senate is an aspect of the House bill that hasn’t changed since the March CBO score: its massive cuts to Medicaid, which is at the heart of the legislation.

Of the 23 million fewer covered Americans under the GOP House plan, 14 million lose coverage due to the House bill’s phaseout of the Medicaid expansion and its overhaul of the larger program from an unlimited match rate to a capped system that limits funding on a per enrollee basis.

This gutting of Medicaid saves the government $834 billion, which in turn finances the $664 billion in tax cuts to industry and high earners under the House bill. But the Medicaid cuts also pits expansion state senators against non-expansion state senators. And the formula used to cap the traditional program hits different states in different ways, also complicating the bill’s path to 51 votes for Senate passage.

Older people and poor people lose out under the GOP’s tax credits.

Wednesday’s CBO report reinforced a point made in its analysis of the original version. AHCA’s tax credit scheme severely shortchanges lower income consumers and older people, the latter a key GOP constituency. That constituency is hit a second time by a provision in the bill that allows insurers to charge older consumers more than young people, when compared to the ratio allowed under current law.

A 64-year-old at 175 percent of the poverty level who lives in a non-waiver state will pay eight times more in net premiums than under the current law.

Senate Republicans, led by the conference’s No. 3 Sen. John Thune (R-SD) have promised that they will rework the tax credits so the burden on older and lower-income people is less pronounced. But doing so may require shifting some of the tax benefit away from young and healthy people, who Republicans want to incentivize into buying insurance to make the risk pool less expensive.

Premiums in some places drop, but the costs are picked up elsewhere.

There was one number in the CBO report Republicans are likely to tout. The CBO predicted that about one-in-three Americans will live in states that seek waivers for “moderate” changes to the ACA’s insurer rules that would bring average premiums down by 20 percent by 2026 while maintaining relatively stable marketplace.

But those tweaks come with their downsides.

“Although premiums would decline, on average, in states that chose to narrow the scope of EHBs, some people enrolled in nongroup insurance would experience substantial increases in what they would spend on health care,” the CBO said, referring to the ACA’s 10 Essential Health Benefits, that states would be able to opt out of or rewrite under the GOP plan.

For years, Republicans have bashed Obamacare for how deductibles have increased under its implementation. Senators will now be contemplating a plan that will even further raise out-of-pocket costs.

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Just in time to serve as a prebuttal to a much-anticipated CBO House GOP Obamacare repeal bill score, the U.S. Health and Human Services Department released a study showing, in the words of its spokesperson, that under the Affordable Care Act, “the status quo is unsustainable”

The study, conducted by the Office of the Assistant Secretary for Planning and Evaluation, found that average premiums in the 2017 HealthCare.gov exchanges used by 39 states were about double the average premiums in the entire, pre-ACA 2013 individual market.

Not surprisingly, the study made its way onto the Twitter feeds and into the floors speeches of the GOP lawmakers currently seeking to dismantle the Affordable Care Act.

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Twenty-three million people will lose insurance coverage compared to current law under the Obamacare repeal bill that House Republicans passed earlier this month, the Congressional Budget Office said in a highly-anticipated analysis released Wednesday.

A majority of the those coverage losses come from the major reduction in funding  to Medicaid than the original version of the bill also had. Some 14 million fewer people will be enrolled in Medicaid in 2026 than projected under current law, according the report, amounting to a 17 percent reduction in the program.

The legislation, the American Health Care Act, would phase out Medicaid expansion starting in 2020 while imposing longer-term cuts to the traditional program. It gives states the option to waive out of some of the Affordable Care Act’s consumer protections and reworks the ACA tax credits. It eliminates many of Obamacare’s taxes, including the individual mandate.

The individual market would see 8 million fewer people without insurance in 2018 and 20 million fewer by 2020, according to the CBO. That difference would shrink to 6 million fewer people with insurance in the nongroup market by 2026, as states transitioned into waiver programs and the new tax credit schemes.

“Although the agencies expect that the legislation would increase the number of uninsured broadly, the increase would be disproportionately larger among older people with lower income—particularly people between 50 and 64 years old with income of less than 200 percent of the federal poverty level,” the CBO said.

The CBO score released Wednesday is an analysis of the version of the bill House Republicans passed in early May. Compared to its analysis of an earlier version of the bill the coverage numbers are slightly better than the 24 million predicted to lose insurance under the original version, and the premiums in some places will be notably lower. However, this trend, the CBO said, would come with insurance that “on average, would pay for a smaller proportion of health care costs.”

The CBO said that latest version of the legislation would save the government $119 billion, $32 billion less than its March analysis of a previous version of the bill that did not include some changes made to bring conservatives and moderate Republicans on board. The $834 billion cut in Medicaid funding and $276 billion in savings by making the tax credits for individual insurance less generous are offset by the $664 billion the legislation would add to the deficit in eliminating Obamacare’s taxes, a cut that would mainly benefit high-income earners and industry.

The CBO estimated that roughly half of Americans would live in states that would request the waivers to make “moderate” changes to the ACA insurer rules; they would see premiums 20 percent lower than current law in 2026. One-sixth of the population would live in states that would seek to make more drastic changes to the regulations, the CBO said, which would prompt large premium variations among consumers that the CBO did not have any average estimate for. Roughly half of people would live states that did not seek any waivers, and their premiums would be 4 percent lower than under current law in 2026, according to the CBO’s projections.

The waivers available to states under the bill include opting out of the ACA’s Essential Health Benefits, which mandate the 10 broad coverage areas insurers must offer, as well as aspects of its “community ratings” standards that prevent insurers from hiking premiums based on health states. At first, moderate Republicans balked at the last-minute addition of the waiver option to the legislation, as it threatened protections for people with pre-existing conditions.Many came back on when an additional $8 billion over 10 years was added to a $100 billion-plus fund for states to set up high risk pools and other programs for high-cost individuals.

The CBO concluded that the $8 billion would be woefully insufficient to cover the expected large premium increases.

“Although CBO and JCT expect that federal funding would have the intended effect of
lowering premiums and out-of-pocket payments to some extent, its effect on community-rated premiums would be small because the funding would not be sufficient to substantially reduce the large increases in premiums for high-cost enrollees,” the report said.

Furthermore, the CBO said that the one-in-six Americans living  in states that choose the most aggressive waiver options — either opting out of community ratings, the essential health benefits, or both — would see the nongroup marketplace grow increasingly unstable starting in 2020.

Healthy people would flock to lower-priced plans that covered less and/or engaged in medical underwriting for those with pre-existing conditions. The premiums for sicker people would increase until some were priced out entirely, “despite the additional funding that would be available under H.R. 1628 to help reduce premiums,” the CBO said.

The House passed the bill narrowly after making some last-minute changes on May 4.

The Senate GOP is now working on its own health care bill, but Republicans say they will be incorporating many of the House bill ideas, and Wednesday’s CBO score is of particular importance as it defines the savings target the Senate bill will have to meet to make their bill eligible for the complicated procedural process, known as reconciliation, Republicans are using to avoid a Democratic filibuster.

Regardless of what happens with the bill in the Senate, House Republicans are now on the hook for passing a bill that would toss 23 million people off of insurance, while making coverage more costly in particular for older and lower-income consumers. A slim majority of the House voted for the bill, despite not seeing its final CBO score. The White House put its full weight in behind the bill, and President Trump hosted House Republicans for a celebration in the Rose Garden after the House vote.

Read the report below:

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House Speaker Paul Ryan (R-WI) broke with President Trump’s reported assessment of former FBI Director James Comey as being a “nut job.”

“Yeah, I don’t agree with that, and he’s not,” Ryan said in an Axios Q&A Wednesday.

“I like Jim Comey,” Ryan went on to say, adding that the axed FBI director was put in an “impossible position.”

Trump, who fired Comey earlier this month, is said to have called Comey a “nut job” in a conversation with Russian officials the day after his removal, according to the New York Times.

Ryan was also asked about the New York Times report that Trump asked Comey to ease up on the investigation into former National Security Advisor Mike Flynn.

“I don’t know the veracity of these thing,” Ryan said. “That’s why we have an investigation. So, what I am not going to do is comment on things that are under ongoing review.”

 

 

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The Senate Intelligence Committee is continuing its efforts to obtain documents from former national security adviser Michael Flynn, after he refused to comply with a committee subpoena this week in its investigation of Russia interference in the 2016 election.

Intel committee Chair Richard Burr (R-NC) and Vice Chair Mark Warner (D-VA) announced Tuesday after a closed door committee meeting that they would be sending a written response to Flynn’s lawyers, questioning their rationale for invoking his 5th Amendment right against self incrimination as the basis for not complying with the committee’s subpoena of his documents.

They committee leaders also said they were in the process of sending subpoenas to two of Flynn’s businesses, seeking additional documents. The lawmakers said they did not believe the businesses could invoke the 5th Amendment.

“While we disagree with General Flynn’s lawyers interpretation of taking the 5th, it is even more clear that a business does not have the right to take the 5th if it’s a corporation,” Warner said.

The two Flynn businesses that will be issued subpoenas, according to Warner, were Flynn Intel, LLC and Flynn Intel, Inc.

The letter the committee sent to Flynn’s lawyers would also address claims by the lawyers that the committee’s document requests lacked specificity, Burr said.

“We have been very specific in the documents now that we have requested from General Flynn,” he said.

Burr did not rule out further steps, including holding Flynn in contempt, if he continued to refuse to comply.

“We have taken the actions that we feel are appropriate right now,” Burr said. “If in fact there is not a response, we will seek additional counsel and advice on how to proceed forward. At the end of that option is a contempt charge, and I’ve said that everything is on the table. That is not our preference today.”

Burr also explained why the committee is not considering offering Flynn immunity. “It’s a decision that the committee has made that we are not the appropriate avenue in a potential criminal investigation,” Burr said. “As valuable as General Flynn might be to our counter intelligence investigation, we do not believe that it is our place today to offer him immunity from this committee.”

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This story has been updated.

Director of National Intelligence Dan Coats would not comment during a Senate Armed Services hearing Tuesday on the Washington Post report that he was asked by President Trump to push back on the FBI probe into Russia-Trump campaign links.

Asked if by Armed Services Chair John McCain (R-AZ) if the Post report was accurate, Coats said he did not feel it was “appropriate to characterize discussions and conversations with the president.”

“I have always believed that given the nature of my position and the information which we share, it is not appropriate for me to comment publicly on any of that,” Coats said.

The top Democrat on the committee, Sen. Jack Reed (D-RI) followed up on the report and asked specifically about its revelation that other White House officials reached out to the intelligence community seeking that the investigation into former National Security Advisor Mike Flynn be dropped.

“I am not aware of that,” Coats said.

Sen. Kirsten Gillibrand (D-NY) asked if Coats would turn over to former FBI Director Robert Mueller, who has been appointed special counsel in the FBI’s probe,  any memos he had documenting conversations with Trump regarding the Russia investigation, to which Coats replied that he had no such documents.

She then asked if he would testify in front of the Senate Intel Committee for their Russia investigation.

“I do believe the information, the discussions that I have with the president are something that should not be disclosed,” Coats said. “On the other hand, if I am called before a investigative committee, I will certainly provide them with what I know and what I don’t know.”

Coats went on to say, when asked by Sen. Martin Heinrich (D-NM), that he would be forthcoming with Mueller on the details about his conversations with Trump about the Russia probe if Mueller sought those details.

Towards the end of the hearing, Sen. Richard Blumenthal (D-CT) asked Coats if he discussed with National Security Agency Director Mike Rogers — who was also reported by the Washington Post to have received a request from Trump to push back on the Russia probe — efforts by Trump to “stifle” the investigation.

After a long silence, Coats dodged the question.

“That is something that, I, um would like to withhold, that question at this particular time,” he said.

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Director of National Intelligence Dan Coats appears in front of the Senate Armed Services Committee Tuesday morning after a bombshell Washington Post report revealed that he was asked by President Trump to push back publicly against the FBI probe into allegations that the Trump campaign colluded with the Russians. He is testifying in an unrelated hearing on “worldwide threats,” but it is likely that the allegations in the Washington Post report will come up.

According to the Post, Trump reached out to Coats after then-FBI Director James Comey revealed in public testimony that the FBI was investigating links between Trump affiliates and Russia. Coats did not comply with Trump’s request to shoot down the claims about the investigation, as a former senior intelligence official told the Post, “The problem wasn’t so much asking them to issue statements, it was asking them to issue false statements about an ongoing investigation.” Trump went on to fire Comey earlier this month.

Watch the hearing live below:


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