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ANDERSON COOPER 360 DEGREES
Deputy's Congressional Testimony Contradicts Flynn's Russia Plea Account; Interview with Congressman Adam Schiff of California; Trump's Lawyer Claims President Cannot Obstruct Justice. Aired 8-9p ET
Aired December 4, 2017 - 20:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[20:00:10] ANDERSON COOPER, CNN HOST: Good evening.
We begin tonight with a question about the president of the United States and obstruction of justice. Namely, can the president of the United States obstruct justice if he attempts to shut down an FBI investigation into someone he knows has committed a crime? It's a question that's front and center tonight because of what the president seemed to admit in a tweet over the weekend, and what the president's attorney said about it today.
Former President Richard Nixon didn't seem to believe that a president could be accused of obstructing justice. Here's what he said to David Frost in the spring of 1977.
(BEGIN VIDEO CLIP)
RICHARD NIXON, FORMER PRESIDENT: When the president does it, that means it's not illegal.
(END VIDEO CLIP)
COOPER: So, the fact that Richard Nixon said this as an ex-president, forced out of office named by a grand jury as an indicted co- conspirator in the Watergate affair, and having been nearly impeached, maybe that should tell you how well that argument went over at the time.
Yet, it is being revived today over this presidential tweet from Saturday morning. Quote, I had to fire General Flynn because he lied to the vice president and the FBI. He has pled guilty to those lies. It is a shame because those actions during the transition were lawful. There was nothing to hide.
Now, that is a stunning tweet because until that tweet was sent, as far as the public knew, the president fired national security adviser Michael Flynn for lying to Vice President Pence about contact with the Russians. Yet, the tweet says -- and let's just show it again -- I had to fire General Flynn because he lied to the vice president and the FBI.
Now, lying to the vice president certainly ill-advised, but, look, vice presidents are probably used to that sort of thing and it's not illegal. The second, lying to the FBI, that is a felony. So, this tweet suggests that when the president fired General Flynn, he knew or had reason to believe that Flynn had lied to the FBI, thereby committing a crime.
That tweet suggests that when President Trump had dinner on the 27th of January with then FBI Director James Comey and according to Comey asked him for his loyalty, that means that the president knew or had reason to know -- reason to believe on that night that the national security adviser had committed a crime.
This tweet also suggests that on February 14th, when Comey says the president asked him to drop the FBI investigation into Flynn, the president knew or had reason to believe that Flynn had lied to Comey's agents, committing a crime. And now, we have new CNN reporting that says the president was in fact advised to that effect.
How did the White House come to know that Flynn had lied? Well, remember Sally Yates, the acting attorney general at the time. On the 26th of January, Yates made an urgent appointment to brief White House counsel Don McGahn about what she knew of Flynn's contact with Russian Ambassador Sergey Kislyak and how it contradicted what Vice President Pence had said it publicly.
She spoke about it exclusively with me though she declined to give specifics.
(BEGIN VIDEO CLIP)
COOPER: When were you first made aware that General Flynn was lying about his interactions with the Russian ambassador?
SALLY YATES, FORMER ACTING ATTORNEY GENERAL: Well, first, let me say and I know that this may seem kind of artificial to folks. I can't really talk about what General Flynn's underlying conduct was because that's based on classified information.
COOPER: Can you say when you were made aware about an issue with his underlying conduct?
YATES: It was in the early part of January where we first got some indication about what he had been involved in and then sort of the middle part of January when there were false statements that started coming out of the White House based on misrepresentations he had made to people there.
(END VIDEO CLIP)
COOPER: So, two weeks went by after Yates spoke to the White House before Flynn was forced out for lying to the vice president about his contacts with Russians. That's the reason the White House said they fired Flynn. And now, a source -- a source familiar with the matter -- tells us that Don McGahn after speaking with Yates briefed the president, telling him that based on his conversation with Yates, he believed Flynn had not told the truth in his interview with the FBI.
And we don't know the precise date, but we do know that it happened and it happened in January. Again, this means that when the president allegedly asked James Comey to go easy on Flynn, he may have known or at least had reason to believe that Flynn had committed a felony. And that means this tweet on Saturday could provide additional evidence he obstructed justice, which may explain why the White House, especially the president's personal attorney, John Dowd, has been doing damage control regarding that individual tweet.
Dowd first saying that the part in the tweet referring to lying to the FBI wasn't a new admission, but instead merely paraphrasing what was in White House attorney Ty Cobb's statement about General Flynn's guilty plea.
Then there was another explanation. Dowd said that actually he, not the president, was the one who wrote the tweet, acknowledging it was sloppily worded.
Well, today, the "he didn't write it" narrative seemed to have been put aside. The new narrative isn't only that President Trump didn't obstruct justice, it is to borrow from Richard Nixon four decades ago that a president cannot obstruct justice.
Mr. Dowd telling the news site "Axios", quote, the president cannot obstruct justice because he's the chief law enforcement officer, under the Constitution's Article 2, and has every right to express his view of any case.
In a moment, our legal panel is going to weigh in. We have other breaking Russia related stories in addition to this on Paul Manafort and some pretty striking behavior for someone out on bail.
[20:05:04] Also, an item that's already being used by the president as ammunition to attack the FBI and Robert Mueller.
There's yet more breaking news on all of this, late reporting that a significant portion of the account that accompanied General Flynn's guilty plea was contradicted by his former deputy, KT McFarland. It happened in a congressional testimony.
CNN's Manu Raju is on Capitol Hill with more.
So, what are you learning about what KT McFarland said during those proceedings?
MANU RAJU, CNN SENIOR CONGRESSIONAL REPORTER: Well, KT McFarland was nominated by President Trump to be the ambassador to Singapore. And during a confirmation hearings before the Senate Foreign Relations Committee, she was asked for exactly about conversations that she may have had with Michael Flynn related to Sergey Kislyak.
I'll read you exactly what was sent in a written question from Senator Cory Booker. He said: Did you ever discuss any of General Flynn's contacts with Russian Ambassador Sergey Kislyak directly with General Flynn?
Now, in response, McFarland wrote back: I am not aware of any of the issues or events as described above, according to her July response. Now, what we learned on Friday from the court documents that were
unsealed in the Flynn case in which he pleaded guilty, it says that there was a senior transition official who discussed with Flynn how to approach the idea of these new sanctions that have been imposed by the Obama administration in late December with Kislyak.
Now, we have learned separately that a senior transition official who is named in those court documents was in fact KT McFarland. So, her testimony before a committee in part of her confirmation hearings appears to contradict what Bob Mueller and the special counsel released on Friday as part of their court documents that was signed by Michael Flynn as part of this plea agreement.
This is all raising new questions, Anderson, on Capitol Hill about whether or not KT McFarland was truthful with the Senate Foreign Relations Committee as part of her testimony because clearly her version of events was that she did not recall but clearly, according to these documents and Bob Mueller, there were these communications that occurred with Michael Flynn about Sergey Kislyak.
COOPER: Members of the Senate Foreign Relations Committee, do they want to speak to McFarland again?
RAJU: Well, the Democrats on the committee are concerned. Booker himself putting out a statement telling us that he believes that she gave false testimony before the committee. And the top Democrat on the Senate Foreign Relations Committee, Ben Cardin, told me separately that he has serious concerns about her before she moves forward for a full Senate vote and wants her to clarify her testimony before the entire Senate actually debates and votes on her nomination.
Now, the decision will ultimately be made by Senate Majority Leader Mitch McConnell. It's uncertain what he will decide to do about her nomination, and the chairman of the Senate Foreign Relations Committee right now is, of course, Bob Corker who, of course, has sparred with the president. We have not heard from him yet about this matter, but clearly Democrats are raising some concerns tonight, Anderson.
COOPER: Right. Manu Raju, Manu, thanks very much.
Joining us is California Congressman Adam Schiff, ranking Democrat on the House Intelligence Committee.
Congressman Schiff, is KT McFarland's apparent inaccurate statement to Congress a lie? And if so, should there be repercussions?
REP. ADAM SCHIFF (D-CA), RANKING MEMBER, HOUSE INTELLIGENCE COMMITTEE: Well, it certainly appears that it was a false testimony. If she wrote in that written response as a follow up to her oral testimony that she wasn't aware of any of these discussions and in fact those reports are accurate that she was one of those senior transition officials, then yes, it's a false statement.
Now, I don't know who those senior transition officials are. That has been publicly reported, but that's not something I can tell you from our investigation. We want her to come before the House Intelligence Committee. I think that's going to be very important.
But yes, it seems hard to escape the conclusion that if she said to the Senate, I'm not aware of these conversations and she was one of those senior transition officials and those e-mails if they're accurate that have been publicly released, it certainly appears that was a directly false representation to the Senate.
COOPER: Now that President Trump has seemed to confirm that he knew Michael Flynn had lied to the FBI or had reason to believe he lied to the FBI when he asked former FBI Director Comey to drop the investigation into him, in your view, does that amount to obstruction of justice? And do you believe the president can be charged with obstruction of justice?
SCHIFF: It's certainly evidence that goes to obstruction of justice. And yes, I believe the president is no more above the law than any other American. It would be an absurd result to say that the president could interfere with investigations involving himself or others potentially, and that he is immune from any repercussion.
I don't think that the Congress which would ultimately make that decision, whether this would rise to the level of a crime or misdemeanor, I don't think the Congress would ever tolerate a president willfully obstructing justice and say, no, he's above the law, we can't do anything about it.
The fact that he has the power to fire the FBI director doesn't mean that he has the power to fire him for an illicit reason anymore than an employer can fire that employee, who's an at will employee, can fire that employee for the employee's refusal to do something wrong or based on other illicit motive.
[20:10:15] COOPER: Even if Robert Mueller were to determine the president did obstruct justice, what would happen then? I mean, censure or an impeachment as you said is up to Congress which is obviously controlled by Republicans. They haven't showed an appetite for anything like that yet.
SCHIFF: Well, that's true. I don't think there's any constitutional bar, for example, to the special counsel actually indicting a sitting president, but there are lots of reasons why that wouldn't happen. I think rather he would make a report to Congress that might say this is what I found and if he found evidence of obstruction, here's the evidence. You'll have to weigh whether you think that rises to the level of a high crime or misdemeanor.
I tried an impeachment in the Senate some years ago when I was on the House Judiciary Committee and we impeached a federal judge. And there's a legal standard in terms of what constitutes a high crime and misdemeanor. But there's a very practical standard as well.
And in this Congress, that practical standard is, would Republican members ever go back to their Republican districts and be able to make the case that what the president did was so wrong that he had to be removed from office. And this wasn't something about nullifying an election that other people didn't like. That's a pretty high bar, but this president is capable of clearing that bar if he was actively involved in trying to obstruct an investigation that he believed might lead back to him.
COOPER: Just lastly, there is new reporting today that Paul Manafort was ghost-writing an unpublished editorial on Ukraine with a Russian who has ties to Russian intelligence. Mueller's office is arguing that this violates the terms of Manafort's bail. Do you think it does? I mean, you're a former prosecutor yourself.
SCHIFF: Well, if the condition of bail was not making public statements that could influence the impartiality of a potential jury, then absolutely. And it's hard to imagine a more bone-headed move if he did this. And I have to think that unless he has really incompetent counsel, his counsel must not have been aware that he was doing this because he would have certainly advised Manafort not to go near Russians and certainly not to be creating op-eds and ghost- writing them. There's no better way to end up having your bail revoked and your liberty confined.
So, I can't imagine under what circumstances Manafort thought this was a good idea, but I would say that the special counsel has an awfully good case to make why this bail condition ought to be revoked.
COOPER: Yes, I mean, the bail agreement would have freed Manafort from House arrest and GPS monitoring. Do you think those conditions should be off the table right now?
SCHIFF: Well, you know, if he wrote this or ghost wrote an op-ed and he was trying to place this in clear violation of the court's instruction, then I think he's dead in the water in terms of getting any further relaxation of his conditions of effectively home confinement.
So, I have to imagine that a judge is not going to take this lightly at all having appeared before a great many federal judges when I was a prosecutor. The last thing they want to learn is that someone that they have given a generous bail condition to has violated the terms of that and effectively tried to conceal it from the court.
COOPER: Yes, Congressman Schiff, I appreciate your time. Thank you.
SCHIFF: Thanks, Anderson.
COOPER: Coming up next, our legal panel weighs in on whether any action by a president can be called obstruction of justice.
And later, my exclusive conversation with the woman who reportedly settled an $84,000 sexual harassment claim with a congressman she used to work for, about how she pursued justice even though she was warned it could ruin her career.
[20:17:11] COOPER: The president's personal attorney says his client cannot obstruct justice because he's the president. He cites Article Two of the Constitution which basically says the president is the executive branch which is necessary for the government to function, and an indictment would cripple the operations of government which would penalize the American people and not just the president.
There's a lot of debate about this including among our Jeff Toobin, former Virginia Attorney Ken Cuccinelli, and Carrie Cordero, formerly of the Justice Department, she now teaches law at Georgetown University.
So, Jeff, President Trump's attorney says the president, quote, cannot obstruct justice. Can he?
JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, the question of whether the president can be indicted for anything while he is president, obstruction of justice, bank recovery, anything is really unresolved. The Supreme Court has never addressed that. What is quite clear is that the Congress and the House of Representatives can find that the president obstructed justice in an impeachment proceeding. That's what the House of Representatives found against Bill Clinton. That's what the House Judiciary Committee found against Richard Nixon.
So, I think, you know, John Dowd's point that the president can't obstruct justice is clearly wrong, but the forum where that can be resolved, that is unclear.
COOPER: Ken, do you agree with Jeff?
KEN CUCCINELLI, FORMER VIRGINIA ATTORNEY GENERAL: I do agree with Jeff with one caveat. I assume that Dowd was referring to the ordinary criminal justice process, not impeachment. Impeachment has much wider latitude and not limited normally to what we would think of as felonies, criminal offenses, high crimes and misdemeanors, ultimately subject to political judgment to a great degree, as Congressman Schiff referenced earlier.
But I do think it would be very hard in the ordinary criminal justice system to find a president obstructing justice within the federal system. But again, I agree with Jeff, this is completely unresolved as a matter of existing case law in the United States. So, we're in a no man's land here from a legal perspective, but again, people, you know, significant on the left as Alan Dershowitz, have said similar things to what Dowd said in the president's right man in terms of these sort of things.
COOPER: Yes. Carrie, where do you stand?
CARRIE CORDERO, FORMER COUNSEL TO THE U.S. ASSISTANT ATTORNEY GENERAL FOR NATIONAL SECURITY: Well, so, it is an unsettled area of law. There hasn't been a circumstance where we've had to actually see how it would play out.
Here's sort of as a practical matter how this could go forward, though. So, this special counsel -- let's say that the special counsel's investigation uncovers facts that in their judgment, the special counsel's judgment, would make a reasonable charge of obstruction and a prosecutor can't bring a charge of any type of crime, a federal prosecutor, unless they believe they have a reasonable likelihood of success on the merits.
[20:20:09] So, if the special counsel's office thinks that they can do that, then they have several options. They can either bring the actual charge and this unsettled issue actually would be litigated or the special counsel could make some kind of report that would go to Congress that then would provide an impetus for them to do an impeachment inquiry. Or the special counsel, another option is they could sort of hold the indictment for when the president is not in office. But the most likely scenario I think where most legal experts agree is that if the special counsel were to bring a charging document, that that probably would then trigger reaction in Congress.
TOOBIN: But, Anderson, it's just -- you know, it's worth remembering that both Leon Jaworski, who was the Watergate special prosecutor, and Ken Starr in Whitewater, in the Monica Lewinsky case, both of them submitted reports to Congress, the famous Starr report with all the dirty parts, and all of that, basically they dumped the whole problem in the House of Representatives' lap.
The big difference in both of those was that the opposition party controlled the House of Representatives. You know, under Nixon, Democrats had the House. Under Clinton, Republicans had the House.
Now, with Republicans in charge of the House of Representatives, there's nothing as far as I can tell that Mueller would tell them, that Mueller could tell them that would lead them to lead any sort of impeachment inquiry here.
COOPER: Ken -- I mean, CNN's reporting that the White House counsel told the president that he believed Flynn had misled the FBI prior to the president asking Comey to drop the Flynn investigation. Does that change in your opinion the president's exposure here to this charge, whether it goes to Congress or whomever?
CUCCINELLI: Not, not substantially. I mean, obviously, it becomes one subject of inquiry. Nonetheless, what Flynn pled to was lying about something that wasn't illegal. What was illegal was just doing the lying.
COOPER: I guess the question is, if the president knew that he had lied to the FBI and then tells Mueller, you know, drop the investigation about somebody who -- I'm sorry, tells Comey drop the investigation, knowing that Flynn had lied, that doesn't raise the stakes in your mind?
CUCCINELLI: Well, I think the exact quote was go easy on Flynn, something to that effect. We can look back not too far to a case that I followed very closely with David Petraeus, for instance, very high profile, substantial history like Michael Flynn. I was surprised with how lightly treated David Petraeus was, and I don't think you're in the same category of ordering someone to drop a case versus go easy on him.
Does it -- does it sound great? I don't think it does, but I also don't think it sounds like obstruction of justice.
COOPER: Jeff, does it sound like obstruction of justice to you?
TOOBIN: Well, it sure does. Remember, he's the boss of Jim Comey. And he knows apparently --
CUCCINELLI: And yet he didn't give an order.
TOOBIN: Well --
CUCCINELLI: He could have.
TOOBIN: You know, when the president of the United States in a private dinner one-on-one says go easy on somebody, I think that's pretty close to an order. And when he doesn't go easy on him, what happens to Jim Comey? Jim Comey gets fired, which is an even more egregious example of obstruction of justice.
So, I don't think you can look at one isolated piece of evidence when you look at the fact that he asked Comey to go easy on him, Comey didn't go easy on him and then he fired Comey. I think that sets out a very compelling case of obstruction.
COOPER: Carrie, to you --
CORDERO: Anderson, yes. So, there's something that's odd about these events over the last couple of days, which is that it's still hard to sort of understand how it is that the president would be informed that Flynn lied in his FBI investigation. Sally Yates, the former deputy attorney general, testified before Congress that she did not actually inform the White House counsel that Flynn had lied.
So, either McGahn, the White House counsel, sort of inferred that from his conversation with her and then communicated that to the president, or the other -- any other channel that the president might have learned that really is very unclear. So, this whole sort of scenario over this tweet over the weekend is just very unusual and difficult to understand what actually transpired and who knew what when.
The other thing that it does is it draws sort of into question the role of the White House lawyers and whether or not they can continue to be effective if they are really become fact witnesses in any potential obstruction inquiry.
[20:25:03] COOPER: Ken, and then we got to go.
CUCCINELLI: Yes, I would certainly agree with the being dragged in at the factual level that carry just made the point of. But I would also note that we were talking about particular incidents. Flynn did not do anything -- I'm sorry, Comey did not do anything with respect to Flynn per se before Trump fired him. So, you know, the comment that Comey didn't go easy on Flynn and so he was fired, I don't think those two -- those don't add up at the time of the firing.
And I would agree with Alan Dershowitz with respect to the Comey firing in particular. That can be done by the president. That's an exercise of his constitutional authority. And if there's going to be any review of that, it shouldn't and I don't believe can be done in the criminal justice system. It can only be done via Congress.
COOPER: All right. Ken Cuccinelli, Jeff Toobin, Carrie Cordero, appreciate it. Thank you very much.
As we've mentioned tonight, there's one comparison that this administration just can't seem to shake. Watergate keeps coming up. It's just the latest example claims the president cannot obstruct justice. We'll get into that next with an expert on all things Watergate, journalist Carl Bernstein.
COOPER: We've been talking tonight about the idea that the president cannot be charged with obstruction of justice because he's president. That idea has been brought up before. Here again is former president Richard Nixon talking to David Frost in 1977.
(BEGIN VIDEO CLIP)
NIXON: Well, when the president does it, that means that it is not illegal.
(END VIDEO CLIP)
COOPER: Joining me to discuss, Carl Bernstein, who won the Pulitzer Prize for his coverage of Watergate from "The Washington Post".
So, we've also been careful, Carl, with the comparisons to Watergate. That said, when President Trump's attorney says the president can't commit obstruction of justice, does that sound Nixonian to you?
CARL BERNSTEIN, JOURNALIST AND AUTHOR: Well, Nixon said that after he had been forced to leave office for exactly the reasons that he did obstruct, among other things. Richard Nixon was a criminal president who abused his authority in secret throughout his presidency and had to leave office because of it.
Donald Trump by contrast is a president of the United States who has claimed authoritarian powers for himself and exercised them not in secret but openly, and now because of that it looks like he may well have obstructed justice, among other possibility illegal acts. What you're seeing is we had a coverup in Watergate in which the president of the United States preside it over that coverup to hide his own criminality and now we have a coverup in which the president of the United States seems to be presiding over it and we don't know yet for what reasons and exactly what he's covered up but his susceptibility to be held accountable for obstruction of justice is out there and evidence and it looks like there is a plausible case that this might happen.
ANDERSON COOPER, CNN ANCHOR: Although as Jeff Toobin pointed out in our last lock (ph) with Nixon he had a house which was under Democratic control. I mean assuming the house stays in the control or Republicans it's a very different scenario. BERNSTEIN: It is because the big difference in Watergate in now that the -- that the heroes of Watergate were by and large Republicans who had the courage to say this is not about ideology, this is about illegality. This is not about a Republican, this is about a criminal president who has abused his authority. The Republicans today on Capitol Hill seem to have no such willingness to say these things, though in private they are the ones who are saying that the president is both unfit very often and unstable and does not have the requisite abilities to exercise the powers of the presidency in a competent manner. And we're hearing that increasingly.
So we've never heard that about Nixon, that Nixon lacked competence, that he lacked intellectual ability, that he was ignorant of history. So we have all these strands coming together with Donald Trump in an unprecedented presidency being accused both of illegality and incompetence.
COOPER: Well I mean, if Watergate was the case, you know, the coverup being worse than the crime do you believe that's --
BERNSTEIN: Not true.
COOPER: Not true?
BERNSTEIN: It's not true. The coverup was secondary. The crime was a terrible abuse of authority and included trying to undermine free elections in the United States in which Richard Nixon and his deputies tried to engineer who the Democratic nominee would be for president of the United States through a series of sabotage and dirty tricks. And now we have a president of the United States in which it is claimed the Russians enabled him and he helped enable the Russians to make him president of the United States. We don't know yet if that is true. That's what part of this investigation is about. Also, we are nowhere near the part of Mueller's investigation to where Jaworski, the special prosecutor in Watergate was after two years. We're just seeing a tiny piece of what Mueller has done and that tiny piece is ugly, insidious. It shows a willingness of the president of the United States to preside over it and coverup, whether that cover up is illegal and an obstruction of justice, we'll find out.
BERNSTEIN: But the conduct of Donald Trump in office that we've seen publicly is much more egregious than we publicly saw Nixon's conduct certainly up to the time that he fired the special prosecutor in the Saturday night massacre.
COOPER: You know, we have John Dean a lot on the program, he was President Nixon's White House counsel who eventually cut a deal, cooperate with the investigators, plead guilty to obstruction of charge. Is there a John Dean potentially in the orbit of this White House?
BERNSTEIN: Well, the other night on the air John was on and I was on with John Dean and I said John Dean is General Flynn -- did John Dean of Donald Trump's presidency and the campaign. And Dean said, well, certainly Flynn knew more than I, john dean, knew about the conspiracy going into Watergate. Dean however presided -- helped Nixon preside over the coverup. We don't know yet did Flynn help Trump preside over the coverup. We only know -- I'm going to put my hands up here, a tiny bit so far about this conspiracy that Mueller has outlined. But we can see he is outlining a real conspiracy to obstruct justice, to enable a large number of players just like in Watergate under Nixon to be found guilty perhaps, certainly indicted for a conspiracy to undermine all kinds of Democratic processes through illegal acts and perjuries conduct. And now we're seeing potential perjury for K.T. McFarland among others.
BERNSTEIN: So this is a massive case.
[20:35:07] COOPER: Carl Bernstein, thank you very much.
Up next, the FBI agent removed from the Mueller investigation. Why what he did during the Clinton e-mail probe is giving the White House some unexpected ammunition to use against the special counsel right now.
COOPER: A lot of breaking news tonight. We're learning more about the FBI agent dismissed from Robert Mueller's investigation. The top counter intelligence expert was taken off the team after sending text messages critical of then candidate Trump. Now CNN has learned about a pivotal change he made to then FBI director James Comey's public statement on Hillary Clinton's e-mail investigation. Our justice correspondent Evan Perez joins us with details. What are you learning about the agent's role and the Clinton e-mail investigation?
EVAN PEREZ, CNN JUSTICE CORRESPONDENT: Well Anderson, we're talking about one of the FBI's top Russian counterintelligence experts who's now under scrutiny as the White House pushes claims of political bias in the ongoing Russia probe. Peter Strzok led the Hillary Clinton e- mail investigation and then for several weeks, the summer worked on the Special Counsel Robert Mueller's investigative team. Now he was removed this past summer from the Mueller team after an internal investigation found private messages that he had sent that appeared to mock President Donald Trump.
[20:40:03] Now, we've learned that during the Clinton probe last year he's the FBI official who changed the key phrase in how the FBI described Clinton's handling of classified information. Electronic records show that Strzok changed language describing Clinton's language as, "grossly negligent", to, "extremely careless". Now here's FBI director James Comey using that edited term to explain why Clinton was cleared of wrongdoing. Take a look.
JAMES COMEY, FMR FBI DIRECTOR: Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.
PEREZ: So the change there wasn't a small thing. The federal law on handling of classified material includes criminal penalties for gross negligence. Extremely careless doesn't have the same legal significance, Anderson. We're told by officials that the drafting process was actually a team effort, a handful of people were reviewing the language as editing changes were being made. The FBI by the way declined to comment for this story, Anderson.
COOPER: You're also learning more about this FBI agent's role in the investigation into Russian meddling during the election.
PEREZ: Right, exactly and then we've learned that Strzok was actually FBI official who signed the document, the memo that officially opened the investigation into the Russian meddling of the 2016 election. Former and current officials that we talked and tell us that, this isn't exactly surprising. He was the number two official in the counter intelligence division. Strzok was considered to be one of the bureau's top experts on Russia.
All of this is now likely to add to the political firestorm over the Russia investigation. You know, the White House and Congressional Republicans want the FBI to provide documents because they think that there could be some political bias, not only in the handling of the Clinton investigation, Anderson, but also in the Trump investigation.
COOPER: All right, Evan Perez, thanks for that reporting.
Back with Jeffrey Tobin. Also joining us, the former Trump campaign aid Michael Caputo and Democratic strategist Paul Begala.
Jeff, from a legal standpoint how big is the difference between gross negligence and extreme carelessness?
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, it can be significant but I think we're sort of missing the point. That's on James Comey. Comey was the one who said it. Comey understands the difference and he's the one who made the decision not to use the gross negligence term not -- instead -- and instead to say extremely careless. You know, whoever drafted it, you know, I think is pretty irrelevant. I think the text messages are definitely a problem, but, you know, as for what Comey said, that's on Comey, not on some subordinate.
COOPER: Paul, I mean it certainly seems like it would give the president the very least an argument that both the Clinton e-mail probe and the Russia investigation are, to use his parlance rate.
PAUL BEGALA, CNN POLITICAL COMMENTATOR: Well yes, but I mean just, you know, the everything gives an argument to attack Hillary Clinton as he could get to the day without him. That statement itself, apparently this agent helped to draft was itself an outrage. The FBI director is not allowed by Justice Department guidelines to take an innocent American, one he has decided not to charge and call a national press conference and trash her. It was a total violation of Justice Department guidelines and it was an outrage and it hurt Hillary Clinton politically.
The FBI's job is to investigate and then to refer. And they just do a great job. They have so many career professionals are really impressive. I hate that our president is attacking them. But that statement itself, whoever crafted it, it did enormous damage to Hillary Clinton politically which is not the FBI's job. They're not the Federal Bureau of Politics. 11 days before the election Jim Comey really help tilted the election to Donald Trump by attacking Hillary Clinton again --
BEGALA: -- about her e-mails.
COOPER: So Michael, what do you make of Jeff's argument that this is more about, you know, what Comey actually ended up saying rather than what this guy suggested he say?
MICHAEL CAPUTO, FMR AIDE, TRUMP CAMPAIGN: I don't think that's very credible. And when we heard this language they were carefully using in those statements before the end of the election, we knew that he meant gross negligence. We knew they were avoiding using those terms because they let directly to the statute and now to say just shrug and say it was just some person who drafted the message, I think that's not credible. This guy was the head of Counter Intelligence, he's the one who started the Russia investigation, an appropriate thing for him to be doing in his position. But now we're hearing from other news organizations that he may have actually participated in the interview of General Flynn as well as texting anti-Trump messages to his lover who was also a member of the Mueller investigation.
You know, this is not a good look for Mueller. It's giving the president what he's looking for. All the president's supporters are looking this with again what I know and I think Mueller's got a lot of explaining to do.
COOPER: Jeff, I mean, you know, according to FBI protocol, agents they're allowed to express opinions as an individual privately and publicly on political subjects and candidates. Was this breaking any rule though? I mean it certainly doesn't seem wise or appropriate that somebody engaged in an investigation would be sending messages even privately like that.
[20:44:57] TOOBIN: It's not wise given the political sensitivities. But let's be clear. I mean this is as apparently, you know, text messages between two people who know each other. This wasn't exactly a campaign speech on a street corner. But look, you know, it is the first shank in Mueller's armor. Mueller has been politically bulletproof so far. And now, you know, Fox News has something to run with to say that Mueller is a political operative and they're going to run with it. I don't think it's major. I don't think it's serious. I don't think it has anything to do with what James Comey said which is James Comey's responsibilities, not some subordinate's, but it does create and problem and it does give Mueller's critics something to talk about. COOPER: Paul, is it really fair for Mueller's supporters to be saying, oh, you know, this is just some guy on the staff when that's sort of the argument that this White House has been making about whether it's Papadopoulos or even Flynn or Manafort and, you know, the Democrats have been attacking the White House for that?
BEGALA: Well, Mr. Papadopoulos confessed to crimes. Mr. Manafort is charged with crimes. It's very, very different from sending an unwise text message in private. But this is what's striking about it. As soon apparently as Mr. Mueller learned about it, he suspect (ph) -- set this guy up to Siberia, aka, the Human Resources Department, got him off the investigation just for a private text message which does not violate Justice Department guidelines the way that Mr. Comey did when he attacked Hillary. That's how high Mr. Mueller's ethical standards seem to be. You know, the Republicans want to trash him, good luck with that because this guy runs a very tight ship. He doesn't leak the way other special counsels have. And he apparently has such a high standard that even if you sent a private text to someone saying I don't like Donald Trump, you're out. So this guy has had impeccable standard for integrity.
COOPER: Michael, what do you say to Paul's argument essential which is the fact we know about this is a sign at Mueller's integrity.
CAPUTO: Well we also know that the chairman of the House Intelligence Committee is accusing the former secretary of stone walling, their investigation into this matter. And for months now they've been trying to find out who this mysterious person was. And why they were release -- in the summer time, they were not able to find out anything. We're just finding out now. So maybe he did do something quickly but then it appears that the house couldn't figure out what he had done and why he had done it. So there's a lot of questions to be asked and answered here and I think we're going to be seeing those in front of the House Intelligence Committee at least.
COOPER: Michael Caputo, Paul Begala, Jeffrey Toobin, thank you very much.
Up next, a CNN exclusive interview. I'll speak to a former staffer for Congressman Blake Farenthold who says she sexually harassed at her work. Now she's breaking her silence, explain why she file suit ever though people told her it would be career suicide.
[20:50:51] COOPER: There's more breaking news tonight, Congressman John Conyers will make announcement tomorrow morning about his future in Congress as pressure is building for him to resign after sexual misconduct allegations came to light.
Meanwhile, we're also learning new details about harassment allegations against Texas Republican Congressman Blake Farenthold. According to Politico, he reportedly settled maybe $4,000 sexual harassment claim from the former staffer wasn't his money he used to pay the claim, it was yours taxpayer dollars paid that $84,000. According to a complaint, his former Communications Director Lauren Greene says Congressman Farenthold told her that he was estranged from his wife and not had sex with her in years. Then she says another staffer told her that the congressman said he had sexual fantasies and wet dreams about her. In the complaint, Greene also said Farenthold would make complaints her appearance or wardrobe but in joke that he hope that didn't constitutes sexual harassment. As part of the settlement, both the Congressman and Greene signed confidentiality agreements which bar each from speaking about any specifics of the case.
Here is what Congressman Farenthold told a local CNN affiliate in Corpus Christi, Texas.
REP. BLAKE FARENTHOLD, (R) TEXAS: I was completely exonerated by OCE and the settlement agreement has been paid. I'm doing my best and I'm going to hand a check over this week to probably Speaker Ryan or somebody and say, look, here is the amount of my settlement. Give it back to the taxpayers. I want to be clear that I didn't do anything wrong, but I also don't want the taxpayers to be on the hook for this. And I want to be able to talk about it and fix the system without people saying, Blake, you benefitted from the system, you don't have a right to talk about it or fix it.
COOPER: I spoke with Greene just before air for her first interview since this news broke. Here is that conversation.
COOPER: There's obviously a lot of stuff you cannot say because of the confidentiality agreement. I certainly understand that. Can you just talk about your decision to come forward? How difficult was that or was it difficult at all at the time?
LAUREN GREENE, REP. FARENTHOLD'S ACCUSER: It was certainly a difficult decision to make. I really just felt that I had to stand up for myself. I just thought that I would have regretted it for the rest of my life if I didn't, and I just felt that it was extremely important that I stand up for myself.
COOPER: Difficult decision because of concerns of how other people would react, concerns for your career?
GREENE: Concerns for my career, you know, I was told that, you know, if I pursued with this that my career on Capitol Hill would be over and that was all I knew. You know --
COOPER: You started out as an intern?
GREENE: I did, I did.
COOPER: And say you've worked your way up. GREENE: I did. To communications director and was there for five years. And so this is all I knew. And, you know, I was told, yes like, this would be career suicide.
COOPER: Was it? I mean, what's happened since then? Have you been able to get work in politics?
GREENE: As soon as I decided to do this, I kind of had to come to the conclusion that D.C. was no longer going to be in the cards.
COOPER: Really? It's that big a step that you feel like this is no longer going to be an option?
GREENE: Right, that I mean, that was some of the feedback that I got that also -- I just knew that this potentially could -- there would be, you know, media surrounding it, like all of that. Like I just staying in D.C. was not an option for me.
COOPER: What has been the long-term impact? Or has there been one?
GREENE: It stagnated in my career a bit. I would say it's been hard to kind of find that next step. I've had, you know, lot of short-term employment and, you know, to a lot of tempt work, you know, which has been great, but, yes, I just haven't been able to get back to where I was. And, you know, which is unfortunate. You know, I have reason to believe that there have been a couple of jobs I haven't gotten, you know, because they kind of, you know, they Googled my name or --
COOPER: And that comes up.
GREENE: Right. And I think it somehow is perceived as a negative. And so, you know, you have that against you. And -- but luckily or fortunately I would say, it's like the time -- the climate is changing so much in that I'm not as scared of that anymore, you know? Like I think before that was a big concern of mine, you know?
[20:55:03] COOPER: You feel that people's understanding of what can happen --
COOPER: -- has changed?
GREENE: Right. And I would say so. I think that what is going on right now, it's more than a moment. I think it's a reckoning and we're having these conversations that have been needed to be had. You know, and they're happening at the dinner table, you know? They're happening in the office place, and you know, I just think America is having this dialogue right now. And --
COOPER: And you really think it's not just a moment, that it is a reckoning that --
GREENE: Yes, I think it's more than a moment because a moment is fleeting and this doesn't feel fleeting.
COOPER: You think this will have long-lasting impacts?
GREENE: I think so. I mean I do-- I mean I think you already see change, you know, happening and people being held accountable, you know? People of power who, you know, have abused their power or, you know, the offenders.
COOPER: You are under a confidentiality clause, which is one of the reasons that you can't talk about details of what you allege, even stuff that's in the lawsuit, in the complaint. If -- and the congressman, Congressman Farenthold released a statement on Friday saying, "While I 100% support more transparency with respect to claims against members of Congress, I can neither confirm nor deny that settlement involved my office as the Congressional Accountability Act prohibits me from answering that question." He says, he supports transparency. If he was willing to waive confidentiality would you be willing to waive confidentiality as well?
COOPER: So you would -- if he was willing to waive confidentiality, you would waive your confidentiality agreement so that you could speak about what actually happened and what allegations you say actually happened?
GREENE: I would. I mean I have nothing to hide. I think, you know, I felt I've done the right thing, I stood up for myself. And, you know, I think transparency's important, and, you know, while it may, you know, open myself up or, you know, to more scrutiny, I think it's something that -- I mean transparency is extremely important, you know?
COOPER: Lauren, thank you very much.
GREENE: Thank you.
COOPER: When we come back, more on our top story tonight, claims from the president's attorney that the president is above the law and a lot of questions about what top Michael Flynn aide K.T. McFarland told congressional investigators
[21:00:05] COOPER: With the possible exception of the ridiculous, breaking news fills the hour. CNN has learned the president knew or have reason to know earlier than we've been like to believe, that then National Security Adviser Michael Flynn has misled the FBI they'll contact with Russia.