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Trump Endorses Accused Child Molester Roy Moore for Senate; Source: Trump Knew in January That Flynn Misled FBI; Will Trump Go to War With North Korea?; FBI Agent Dismissed in Mueller Probe Changed Comey's Description of Clinton's Actions. Aired 4-4:30p ET

Aired December 4, 2017 - 4:00   ET



JAKE TAPPER, CNN ANCHOR: That '70s show, the president's lawyer now echoing Richard Nixon.

THE LEAD starts right now.

John Dowd, President Trump's attorney, suggesting the president is above obstruction of justice laws, as the world learns that the president knew Michael Flynn had lied to the FBI before that alleged Comey meeting where he told the FBI director to lay off Flynn. It's a tangled web, as a key Democratic senator talks about the case against the president.

More backing, more problems. President Trump is now officially and publicly supporting the man accused of molesting a 14-year-old and assaulting a 16-year-old. McConnell and Paul Ryan may have said they believe the women, but the president wants a vote for tax cuts and the wall.

Plus: rumblings of war. Stealth fighter jets joining massive military drills on the Korean Peninsula, as Kim Jong-un threatens a nuclear attack. What options does President Trump have left?

Good afternoon, everyone. Welcome to THE LEAD. I'm Jake Tapper.

We have breaking news this afternoon.

White House counsel Don McGahn told President Trump back in January, CNN has learned, that he believed then National Security Adviser Michael Flynn had misled the FBI during their January 24 interview with Flynn and lied to Vice President Mike Pence, a source familiar with the matter told CNN today.

This means that the president knew Flynn had potentially committed a felony when, according to then FBI Director James Comey, on February 14, after the president had fired Flynn, he said to Comey -- quote -- "I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go."

Now, if the president was aware that Flynn had likely committed a federal crime when he made that alleged request, which the president disputes, that raises serious questions of potential obstruction of justice, though this morning the president's lawyer John Dowd claimed such a thing was by definition impossible.

In a new interview with Axios, Dowd said -- quote -- "The president cannot obstruct justice because he is the chief law enforcement officer under the constitution's Article II powers and has every right to express his view of any case" -- unquote.

In other words, the president is, according to Dowd, above this law. Kindly remember that one of then candidate Trump's pitches to voters last year was that the Clintons thought of themselves as above the law, but that he would be different.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: No one will be above the law. We will have one set of rules for everyone.



TAPPER: That argument perhaps not as compelling with an asterisk and fine print, but the news that the president knew Flynn had misled the FBI before that alleged conversation with Comey began over the weekend, after Flynn, of course, pleaded guilty to lying to the FBI.

Trump tweeted -- quote -- "I had to fire General Flynn because he lied to the vice president and the FBI. He has pled guilty to those lies" -- unquote.

Now, the president's tweet prompted no fewer than 43 question marks from former director of the U.S. government Ethics Office Walter Shaub.

He asked: "Are you admitting you knew Flynn had lied to the FBI when you asked Comey to back off Flynn?" -- and then multiple question marks.

Now, if the president did know when he allegedly asked former FBI Director James Comey to halt his investigation of Flynn, then, according to Senator Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee, well, then:


SEN. DIANNE FEINSTEIN (D), CALIFORNIA: I think what we're beginning to see is the putting together of a case of obstruction of justice.


TAPPER: But wait. The president's lawyer John Dowd now claims that he is the one who promote that potentially incriminating tweet, which might make understandable then his announcement today that no president can commit the act of obstruction of justice, though, to be fair, this whole defense seemed to be somewhat in the works back in June when I asked a different Trump attorney, Jay Sekulow, whether he and the rest of Trump's legal team believed the president was incapable of obstructing justice.


JAY SEKULOW, ATTORNEY FOR PRESIDENT DONALD TRUMP: You're talking about what's called the constitutional threshold question and that is can the president who has constitutional authority take a certain action then be prosecuted for taking the action?

If there is an investigation, and right now there is not, you would, of course, raise the constitutional issues. Any lawyer, especially those that do it at the Supreme Court of the United States like I do, you raise the constitutional issue. Threshold, that's number one.


TAPPER: The Trump legal team is now raising that constitutional issue, regardless of the fact that such an argument is a complete contradiction from what candidate Trump promised voters.


TRUMP: No one is above the law. Clinton and her cronies will say anything, do anything, lie about anything to keep their grip on power, to keep their control over our country.


TAPPER: Again, we will remind you, broken campaign promises are not a crime.

But speaking of Clinton, it is worth remembering that in December 1998 the House of Representatives impeached her husband, Bill Clinton, and one of those two articles of impeachment was obstruction of justice.


And, of course, in July 1974, the House Judiciary Committee voted on bringing forth three articles of impeachment against President Nixon, and one of them was obstruction of justice.

So, previous Congresses, Democrat and Republican, have disagreed with these arguments coming from all the president's men, though see if this argument sounds familiar to you.


DAVID FROST, TELEVISION HOST: What you're saying is that there are certain situations -- and the Houston planner, that part of it, was one of them -- where the president can decide that it's in the best interest of the nation or something and do something illegal?

RICHARD NIXON, PRESIDENT OF THE UNITED STATES: Well, when the president does it, that means that it is not illegal.


TAPPER: My panel's with me now.

Jeffrey Toobin, let me start with you.

How significant is it that Don McGahn, the White House counsel, said -- told President Trump that Flynn had lied to the FBI in January before the president allegedly tried to tell Comey to back off?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: It's very significant, because it's one thing to tell James Comey, you know, leave Mike Flynn alone. He's a good guy. He's done service to his country.

There is certainly nothing wrong with that sentiment if that's the real motivation for the comment. However, if Donald Trump knows that Mike Flynn has committed a crime, and then the president asks for mercy, asks for no prosecution of Mike Flynn to the FBI director, who is in charge of that investigation, that is very problematic and could be part of a case for obstruction of justice.

TAPPER: And there's one other thing that is interesting in all of this. On January 24, that's when Flynn was interviewed by the FBI and lied.

TOOBIN: Correct.

TAPPER: On the 26th, the acting attorney general, Sally Yates, told the White House, hey, Flynn's lying to you guys, he did talk about sanctions with the Russians. On the 27th, she went over to the White House, met with Don McGahn, told President Trump about what Yates had said.

That same day, the president calls Comey, invites him over for dinner and asks him to pledge his loyalty.

TOOBIN: Right.

I mean, the whole relationship of the president to Comey, as Comey recounted in that unforgettable testimony earlier this year, suggests that he was trying to stop the investigation. And it culminated, of course, on May 9, when he fired James Comey to end the investigation.

This is the core of the obstruction of justice case. Even more than the comments to about Flynn, the idea that the president fired the FBI director because the FBI director was investigating the president, that's always going to be the heart of the obstruction of justice investigation.

TAPPER: And he can't stop talking about Flynn.

Amanda, take a listen to President Trump talking to reporters this morning.


TRUMP: Well, I feel badly for General Flynn. I feel very badly. He's led a very strong life, and I feel very badly, John. I will say this. Hillary Clinton lied many times to the FBI. Nothing happened to her.


AMANDA CARPENTER, CNN POLITICAL COMMENTATOR: I think there's a little bit of panic setting in among Republicans realizing that this is becoming an obstruction of justice investigation.

There is a reason why many Trump supporters and Trump himself would say you're not going to prove collusion. You can turn to anywhere on conservative talk radio and say you will never be able to prove collusion, because collusion is sort of a fake crime. We don't really know what it means. It could mean, you know, treason, it could mean election fraud, it could be a catch-all term for a lot of things.

But now we're zeroing in on a target that could be obstruction of justice, which we know has hung up other presidents. So I don't know where this is going to go, but I think we have to remain focused on the fact that this investigation is not about obstruction of justice, per se, but it's about the campaign, sanctions and the cyber-warfare campaign that Russia conducted against the United States.

Those three things are somehow intermingled, and that's what Mueller is going to find out.

TAPPER: Although, Scott, as you know, a lot of times there are these investigations and it ends being it's -- so many times, it's actually a cliche in Washington -- it's not the crime, it's the cover-up.


And we have seen people time and again go down for obstruction and lying when there was no underlying crime was committed at all. I think it's important to remember that the president denies that he said in the Oval Office, you should go easy on Mike Flynn.

We talk about this moment a lot, but the president denies that that happened. And so until we get under oath testimony on that, we don't know if that actually occurred.

One thing that struck me over the weekend was, on Friday, Ty Cobb, the president's lawyer, I thought his statement about Flynn's pleading guilty was amateurish, frankly, to argue that Flynn's an Obama administration person, and then Dowd copping to have written the tweet on Saturday, I sure as heck hope the president is getting better legal advice from these guys than he's getting P.R. advice, because to me that was a horrific two days coming out of the president's legal team that did not help this situation at all.


TAPPER: And, Paul, as I mentioned, the president's lawyer John Dowd telling Axios -- quote -- "The president cannot obstruct justice because he's the chief law enforcement officer under the Constitution's Article II and have every right to express his view of any case."

President Clinton was impeached for obstruction of justice.

PAUL BEGALA, CNN POLITICAL ANALYST: And never claimed the Constitution immunized him and put him above the law.

We fought it and won in the trial in the Senate. He was not guilty. But we didn't say he's above the law. Nixon suggested after he was gone in that interview you had with David Frost that perhaps presidents can't commit certain crimes.

But this is a flat-out statement from the president of the United States through his attorney that he's above the law. And it's really remarkable since he has -- he's his own worst witness, our president, right?

He told -- after the White House concocted this ridiculous story that they fired Comey because Comey was just too mean to Hillary, right, he then confessed on national television to Lester Holt of NBC that, when I fired him, I was thinking about this Russia business. I fired Comey because of Russia.

Now we know that he also potentially obstructed justice at the front end of it.

CARPENTER: If there was ever a president who was going to play constitutional chicken, it is President Trump. He is saying, I am above the law, and he is daring other people to say no.

What if Mueller doesn't have a criminal indictment? That would be a really high standard. Probably -- I don't know if it's going to happen, but I can say confidently it would be unlikely.

Is he a president who would dare the House to impeach him and the Senate to convict him? Absolutely.

TOOBIN: Well, in fairness to Dowd, there is really very much an open constitutional question about...

BEGALA: Right. It's been never settled.

TOOBIN: ... about whether a president can be indicted for obstruction of justice or anything, of murder, or stealing cars.

I mean, the idea of whether a sitting president can be indicted -- the problem with what Dowd said it is suggests he can't even be impeached for obstruction of justice. And that's what we know is wrong, historically, as we know from Nixon and Clinton, and it's just wrong legally.

The House of Representatives decides what's an impeachable offense. It is much more a political process than a legal process.

TAPPER: Everybody, stick around. We got lots more to talk about, about President Trump and questions about obstruction of justice and some breaking news in our next block.

Don't go anywhere. (COMMERCIAL BREAK)

[16:16:23] JAKE TAPPER, CNN HOST: We have some breaking news now in the politics lead. New information about the FBI agent dismissed from Robert Mueller's special counsel investigation.

Over the weekend, we learned that this top counterintelligence expert was removed by Mueller after exchanging text messages that appeared to mock President Trump. And now, CNN reporting breaking right now on the agent's role in the Hillary Clinton e-mail probe.

I want to bring in CNN's Laura Jarrett.

And, Laura, records show messages by this agent raised questions about whether or not justice was truly blind in the investigation into Hillary Clinton.

LAURA JARETT, CNN JUSTICE REPORTER: Well, Jake, sources we have learned from tell us that the electronic records show that Peter Strzok changed former FBI Director James Comey earlier draft language describing Clinton's actions in handling classified materials from, quote, "grossly negligent" to "extremely careless".

Now, this entire drafting process was a team effort at the FBI, we're told. As we reported last month, after the news surfaced that the language had, in fact, been softened, that Comey and his colleagues had been playing with the language for some time. But that identity of the person who actually made the change had not been known until now.

Take a listen to what Comey said clearing the former secretary of state back in 2016.


JAMES COMEY, FORMER 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.


JARRETT: Now this key shift from grossly negligent to extremely careless may seem like mere semantics but it actually reflects a decision that the FBI could have had a potentially serious legal implication here as the federal law that actually governs the handling of classified materials establishes criminal penalties for gross negligence.

So, the change there actually is legally significant, but from an optics standpoint, certainly the news obstructs direct role in this statement that ultimately cleared Clinton, combined with the fact that he was dismissed from special counsel Robert Mueller's team after exchange private messages with an FBI lawyer could be seen as favoring Clinton politically. It may now give further ammunition to those seeking ways to discredit special counsel Robert Mueller's probe, Jake.

TAPPER: All right. Laura Jarrett, thank you so much for that breaking news.

Let's bring the panel back.

Potentially, you know, good news for President Trump, who wants to discredit this investigation any way he can, Scott.

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: Yes, no question. Look, Republicans deep down have always felt that the Clintons were always able to stay one step ahead of the law, whether that was during the Clinton administration or Hillary's campaign. You know, these issues have fuel Republican Party Lincoln Day dinner speeches for years. And so, when these things come out, the president's going to be on it every day for the rest of his term. You're going to have Republican senators on it and party chairs all over the country all over it.

It really does make it more difficult for an investigation to be conducted now that Republicans don't say, well, you know, they had all those Clinton people working on it. And so, you know, if you're somebody who is interested in fair investigations, now you're going to have one political party that was already skeptical saying, yes, but -- and that's where we're headed.

TAPPER: Although we should point out, as the FBI argues and the special counsel's team argues, they found out about this and they dismissed him from the probe. So, it wasn't like they weren't sensitive to the issues. But it -- go ahead.

AMANDA CARPENTER, CNN POLITICAL COMMENTATOR: This underscores President Trump's argument that the FBI is a politicized organization, right? If they change the language in a way that Hillary Clinton was let off easier. I mean, she still lost the election. I'm not sure it would have changed the outcome of the election.

But that change from gross negligence to extreme carelessness is very important, as Laura said. And the FBI has a broader explanation to the American people to make about why that change was made.

[16:20:05] Comey has said that he disagreed with it and may be he's going to come out and talk about it in his book in the spring, I don't know. But it would behoove the agency's credibility to come out with that story sooner rather than later.

TAPPER: Paul, I'm going to let you have the last word --

PAUL BEGALA, CNN POLITICAL COMMENTATOR: I'm going to have aneurysm, that's what I'm going to have, live on the air.

TAPPER: When we come back. We have to take a very quick break. I'm coming to you first.

More when we come back. Stay with us.

(COMMERCIAL BREAK) TAPPER: And we're back with the politics lead.

Just before the break, we reported a source telling CNN's Laura Jarrett that the FBI agent dismissed from the Russia investigation for alleged anti-Trump text messages was the same agent who softened former FBI Director James Comey's draft language describing Clinton's actions and handling classified materials from, quote, grossly negligent to extremely careless, a softening that had legal ramifications.

[16:25:13] Paul Begala, I promised you a response. Go.

BEGALA: Right. That statement, that phrase, extremely careless back when it was uttered, CNN said it was the single most damaging aspect of Mr. Comey's statement. By the way, Mr. Comey's statement itself was an outrage. The FBI is supposed to investigate and refer. They put up or shut up.

They're not supposed -- they're not allowed under Justice Department guidelines to call a press conference and attack a private citizen who's running for president, basically make a negative ad for Donald Trump. Oh, and then if that's not enough, 11 days before the election, reopen it again, which cost her the White House. You think Donald Trump doesn't like Jim Comey, he takes a back seat to me.

TAPPER: This does seem significant, though, potentially when it comes to President Trump pushing back and maybe even if Michael Flynn, is he allowed to withdraw his guilty plea?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: No -- well, I mean, you can't withdraw your guilty plea certainly because of something as minor as this. But, look, this will give supporters of the president a way to attack the Mueller investigation, which they really haven't had so far.

I mean, this investigation has been without leaks, it has been without controversy in terms of its internal organization. So, the opportunity to say there was an anti-Trump FBI agent will be one way of attacking. I don't think it's going to make any difference legally, but politically, it is a tool which will certainly be picked up over at FOX News and, you know, among the president's supporters.

TAPPER: Amanda, the president's already been attacking the credibility of the FBI, writing on Twitter, quote, after years of Comey with the phony and dishonest Clinton investigation and more, running the FBI, its reputation is in tatters, worst in U.S. history.

A lot of FBI officials, a lot of FBI former directors and such saying that's not true, but this will feed into the idea of, as you say, that this is a politicized organization.

CARPENTER: Yes, this is a long running narrative that President Trump has set to paint the FBI as a tarnished organization that cannot be trusted to lead a fair investigation against him. This is why he talks about the witch-hunt, the ruse, the hoax, the constant criticism, you know, that he has for the agency. And I do think he was effective in sort of making former FBI Director James Comey a poster boy of the deep state, when you tune into talk radio, this deep state campaign against President Trump.

Now, he has, you know, a vector to do that against special counsel Mueller. I don't know if they'll go with it, but people like Newt Gingrich have been talking about the campaign donations that people have made that are working on this campaign. And so, this just continues to feed into that.

TOOBIN: But where is Jeff Sessions? Where is, you know, where is Chris Wray, the new FBI director who say this isn't a bad FBI? I mean, the idea that the president of the United States can attack the FBI with no pushback from the people who run the FBI is just outrageous.

CARPENTER: Here is one thing, I do think --

TOOBIN: One text was unwise, there's no question about that. But the idea that this taints thousands of FBI agents and staff people who do phenomenal work every day is just repellant.

CARPENTER: Yes. And I said this before and I will say again, if I were a reporter on Capitol Hill right now, I'd by running to stick a microphone into every Republican senator's face to say, do you think obstruction of justice is a crime worthy of impeachment or not? They may not be willing to answer the question yet. But if he keeps going this route to damn his FBI, I think it's a question worth asking.

TAPPER: And it doesn't -- and this, Mr. Strzok, this FBI agent in charge, it doesn't change anything, the one that has been removed from the investigation. It doesn't change anything about what we know about the president's actions and the questions about his potential obstruction of justice or the fact that Flynn pleaded guilty and three others, two others were indicted, one other, Papadopoulos had a plea agreement. It doesn't really change it. It might change the subject for some people as we were derailed here for a little bit as well, but it doesn't change the facts of the Trump investigation as it were.

JENNINGS: That's right. But it does change the politics a little bit, right? It changes how the public perceives the investigation and as pointed out earlier, it could change the politics of an impeachment proceeding. Impeachment is a political action not a legal action.

And so -- and it also just, you know, when you're under siege like the Trump White House is and you're being suffocated, a little bit of oxygen like this is enough to reinvigorate your mounting a public defense. And I suspect that's what we're going to see over the next few days using this point.

TAPPER: Everyone, stick around. Our conversation about President Trump and the possibility of obstruction of justice charges continues.

Next, we're going to talk to Democratic Senator Joe Manchin on the Senate Intelligence Committee. Stay with us.