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Flynn's Early Cooperation Convicted Others to be Forthcoming; Mueller Team Recommends No Jail Time for Flynn. Aired 9-10p ET

Aired December 4, 2018 - 21:00   ET


CHRIS CUOMO, CNN ANCHOR, "COUMO PRIME TIME": Very important night. We are live from Washington, D.C. I'm Chris Cuomo. Welcome to Prime Time. We have very important breaking news. And here's the headline.

The Russia investigation is far from over. Bob Mueller says General Michael Flynn provided such significant cooperation, he should serve no prison time.

Now, know this that is unusual. The special counsel had other people who have given significant cooperation and he has not asked for no jail time in all cases. So that tells you something about the scale and the scope of the consideration. But there is something else that tells you a lot more. Reductions, there are two documents that just came out. One is the main memo. It's largely background. I will take you through all of it. What is said and what it means. But then there's an addendum and that supposed to provide the particulars. Wait until you see what's in that document. Let's get after it.

The special counsel again saying that General Michael Flynn gave such good cooperation, so substantial, he should serve no time in jail. Now, how did we get here? 2017, Michael Flynn pled guilty to lying to the FBI to the Department of Justice about his contacts with Russian ambassador, Sergey Kislyak. Flynn has been cooperating ever since.

The special counsel actually answers a very early informative question. Did Flynn cooperate right away? How much was he into cooperating? There has been so much speculating and reporting that he was dragging his feet. He didn't want to cooperate. The special counsel says none of that speculation was true that he was one of the first, with long range understanding of the campaign and the interactions with Russia and other entities to come forward and to cooperate. So that's a key point.

He also says something else in here and I think we have it made up for you. You may take this as frustrating, but you should not. And I will explain why. The special counsel says in the addendum, so there's the main memo, there's largely background will take you through it. Then there is the addendum, which has the specifics of what he cooperated on. Most of it I would suggest that matters is redacted. I don't know if we have any pages. You know what redacted looks like. It looks like this. OK, just black bars.

What is that tell you? It tells you that this is not over. And what does this mean? Now we can put meat on the bones that because in this memo, the special counsel says that not only has General Flynn helped with the special counsel investigation into Russian interference, that's the main one, he's also been helping with a separate criminal investigation. Against who? About what? We don't know. It's all redacted. So common sense tells you the truth. He's got something else working. There will be more to come.

Now, on that basis, you see a lot of suggestive language in the two documents that it's a little bit of a beware. We asked people for help, not everybody wanted to come up. We've learned a lot of things anyway. They should be held to a high standard and this could be the first of a number of iterations of moves by the special counsel.

So let's look at what's here, let's look at what they got from Flynn and let's look where it leads. We have two perfect guests for this. We have D.C. both based, former U.S. solicitor general Neal Katyal and Chief Investigative Correspondent for Yahoo News and co-author of Russian Roulette Michael Isikoff. Great to have you both, thank you for being here, gentlemen. Haven't gotten anything wrong yet, right? In terms of laying it out.


CUOMO: To me the most impressive thing, two things, one no time. He has been so helpful, no time. Not said out of deference to his position, but the measure of his cooperation. The second thing, all the bars.

ISIKOFF: All right.

CUOMO: All the bars. You always want to see bars if you are trying to figure out something whether or not it's over and where it might be headed. What's your take?

NEAL KATYAL, FORMER U.S. SOLICITOR GENERAL: Yes, so let's start with the bars. So, a lot of people have speculated including I think even Michael yesterday that Mueller might be wrapping up his investigation. Do you not file a document that looks like this if your investigation still, you know, is in the final stages. And indeed, there is a line in the actual filing just a half hour ago, which says that it can't reveal the details of all Flynn's assistance because "the investigations in which he provided assistance are ongoing." Ongoing and that is a, boy, a real clue that this is where he's strap in because we are in this for a while.

: But let me point a couple of things and it really takes a close reading of this to tease this out.

CUOMO: Please.

[21:04:58] ISIKOFF: If you look at that addendum, which does have this frustrating redactions, there are three referenced in which Flynn provided documentation. One, is completely redacted. We don't know what it is.

CUOMO: But it is a criminal investigation. ISIKOFF: A criminal investigation. The second is the special

counsel's investigation into collusion links between the Trump campaign and the Russians. That is not redacted. And then there's a third one again totally redacted. So the way I read this, the ongoing investigations which are not itemized here are what Flynn is providing continuing assistance to, but it's not the Russia coordination investigation because that is spelled out and not redacted. So there are other matters that Mueller has come across. He may be doing it himself, he may have referred it out to other U.S. Attorneys office as he did with Michael Cohen. We don't know. But, you know, the fact is that if you look at the language as it refers to the coordination between the Trump campaign and the Russians, I don't see a reference to ongoing.

KATYAL: So I love Mike. I have to disagree. So, you know, there is this second part of the memo which talks about Michael's word, collusion about the kind of contacts between the Trump campaign and Russia. And then right afterwards, there is a long blacked out paragraph. Now, I don't think that's necessarily about something else. It could very well be about the same thing, that for --

CUOMO: No, I'm not known as a politician, but the truth is, you can both be right.

KATYAL: Exactly.

CUOMO: One, when we are investigating what's happening around Cohen, sources close to that investigation suggest that there is a compartmentalized nature to the probe and that they may end for instant their aspect of looking at the President's role of what he knew and what he didn't. Maybe he can end that on the basis of his questions and let's be honest as you will know their hands are tied by the DOJ in terms of how they can act on him anyway. So that could end. But there could be other parts that continue. And in fact, when I ask people close to the President's legal team about that, they jumped on the suggestion, so that could be on the offing, Michael could be picking that up in his reporting clearly.

KATYAL: Right.

CUOMO: However, at the same time, when you isolate something within the Russia investigation that becomes relevant, you can spin it off into its own deal. So now, you get that -- well, it's not just that you spoke to somebody and you shouldn't have, you took a meeting that you were stupid enough to take, but this was actually criminal and you didn't help me it clear it up. So now I'm coming after you, you are now not part of the interference probe. You are your own animal in case.

ISIKOFF: But Chris, let's go back to the headline is probably here. No jail time.

CUOMO: No jail time, which is unusual --

ISIKOFF: To Michael Flynn, OK.

CUOMO: Mueller has not done that in every case of cooperation.

ISIKOFF: Now, usually if you are going to use Flynn to make a criminal case against somebody else. You want him not just to plead guilty, but to serve time because he is your witness against somebody else. He is your witness who saw criminal conduct, who participated --

CUOMO: Like what they're doing with Cohen.

ISIKOFF: Right. So the question in my mind is, if Flynn is not getting any prison time here, who is the target? Because, you know, it may be that it's just the President and Mueller is bound by DOJ guidelines, he can't indict the President.

CUOMO: Right. He could do a set aside indictment for later. But to your point --

ISIKOFF: But there is nothing here that hints at who the potential targets would be?

CUOMO: 100 percent true to my reckoning. And I haven't heard any different from you yet. However, to answer your own question on page two of the addendum, the government has thus far obtained from the defendant substantial assistance. Some of that may not be fully realized at the time because the investigation, which is provided assistant are ongoing, however the defendant and the government agree that sentencing at this time is nonetheless appropriate because sufficient information is available to allow the court to determine the import of the defendant assistant to a sentence meaning he has already given us enough help to justify or call for leniency and there are other things that he can still help us with.

KATYAL: I agree. But Michael, I think is right. The $5 million question is what is the common point? The target has to be something big in order for Flynn to the deal --

CUOMO: Targets.

KATYAL: Target.

CUOMO: There are at least two open matters.


KATYAL: So to think about who Flynn was. You know, I served twice in the government in high positions and, you know, the national security adviser is a step away from god. I mean that's how important that person is. The closest adviser to the President and the foreign policy, that person, Michael Flynn admitted to a crime here. And Mueller's team said, and because he was cooperating, because he -- if I could confess right away, zero time. You are only going to do that if it's something big.

CUOMO: And we know that because w he has not done. We'll see what he does with Cohen and we don't expect anything like that with Manafort. So we will see as a basis of comparison. But already we know that they have not done this asking for no time in other cases.

[21:10:05] Another thing is this matter, you drafted a lot of these types of pleadings to the government.

ISIKOFF: Usually in public.

CUOMO: A, criminal investigation, OK. So there's, A, as a subset. B, special counsel's office investigation, OK? And then there is a subset I, we don't know if there is a subset in A. There maybe based on the paragraph draft but we are not sure. And then there is this paragraph that is open on page four. It looks like this, again, a lot of it is bars. But I will tell you why I'm making the question. The defendant also provided useful information concerning -- it's not broken out as a subset with its own letter.


KATYAL: Big fact.

CUOMO: Now, what does that mean to layman?

KATYAL: All right, that was my point to Michael is, you know, it's worst act test at this point. Who knows what it means. It might tell us more about what we think than it does about --

CUOMO: But if it was a big matter, wouldn't it have a letter?

KATYAL: It might but I think actually the structure of this document perhaps the way in which special counsel regulation in Mueller's mandate is, is a chemical mandate, and he has a criminal mandate and A, could be seen as criminal, B, could be seen as intelligence.

CUOMO: What is the practical difference for people? Criminal intelligence, what's the difference?

KATYAL: Well, sometimes they are going to intersect, but oftentimes intelligence investigations are just about retrospect of what happened without necessarily anyone going through jail time and obviously we have a deep national security need to know what happened apart from whether the President should be in jail or anything like that.

CUOMO: Is there any reason to believe? Mike, just answer this and I'll you wherever you want to go. Mike Flynn got hooked on two things. One, he lied about talking to Kislyak. Although the FBI early one they was reporting that didn't think that he was lying, but whatever Mueller seems to feel very differently. There was also what he did with Turkey.

ISIKOFF: Absolutely.


ISIKOFF: And I think that's very significant. It makes clear that he was lobbying for the government of Turkey without doing a full disclosure to the justice department under the foreign agent registration act. I think he registered at one point on behalf of some Dutch business man with ties to the Turkish government. In fact, Mueller makes clear it was the Turkish government, he was lobbying for, he was writing an op-ed on Election Day. On Election Day sort of, you know, promoting Erdogan's mission which was to get the Gulen guy rendered back to Turkey.

And he never disclosed that he was being paid by the government of Turkey. I suspect that one of those ongoing criminal investigations that have been redacted relates to matters involving his Turkey representation. There were reports that he may have been involved in discussions about trying to privately render to kidnap the Gulen chief in Pennsylvania and send him back to Turkey. We don't know if that has been flushed out by Mueller or other prosecutors in DOJ, but that's certainly something that could suggest criminal conduct, it could be what we're talking about.

CUOMO: Is that something that Mueller would want to chase down, something that so tangential to the central premises of his introduction into this?

KATYAL: Well, it's not necessarily tangential because in any criminal investigation when you come across evidence one of your targets, someone is confessed felony --

CUOMO: Sure.

KATYAL: -- has committed something else. You want to chase that lead down because it often, you know, these things have tentacles and interrelationships.

CUOMO: Right, but is there an interrelationship, if you are dealing with Russian interference and whether or not anybody in the campaign helped their efforts, the fact that he was trying to double dip and make money twice essentially working for the government and working as a lobbyist?


CUOMO: Where does that get?

KATYAL: It could be totally separate but as an investigator I think, you have to try and chase those leads down first to make sure truly that they are separate instead of just saying that in person sense.

CUOMO: As you have more time to look at it, Michael, I see a lot underlining all of this, share my brother, share.

ISIKOFF: On the issue that you were trying to break down, the special counsel office's investigation, this is on page three in the addendum. And there is no one or, you know, interactions between the Trump team and Russia. There's no two, and then you get that sort of lengthy blacked out. You know, this may be, I hate to say this about Robert Mueller's operation, sloppy drafting on their part because you would have expected if you are going to put a one, you would put a two.

CUOMO: Very strong --

ISIKOFF: That's right. An English professor or instructor might have helped --


KATYAL: So look, I mean, Mueller's team is just about some of best lawyers and writers around. I actually think that three or two could be on page five. It's right here. Again, we're in verse --


CUOMO: -- style point.


CUOMO: We are talking about seeing categories of action.

KATYAL: Exactly. And I think there could be another category on page five. I would hesitate --

ISIKOFF: There could be. But --

CUOMO: All though, I will tell you what. You know, when you don't have the main thing, you try to find many things. And to Michael's earlier suggestion, it could be the case that when it comes to who was talking to the wrong people at the wrong time, and filling in the blanks with Russians and during this campaign before and after the election, maybe he's the only one. I know there is the Trump Tower meeting, I know there is Papadopoulos and other people, but I'm saying in terms of central figures, doing things that motivated a type of coordination, you could give a fair reading from this with all the unknown that Flynn is the guy who did the most outward thing and he helped us understand.

[21:15:20] KATYAL: Just remember, this is only a cooperation document about Flynn.

CUOMO: Right.

KATYAL: So it could be that all these other people had deep bad things happening. It's just Flynn was not cooperating with respect to them. So it could very well be that other people involved in Trump Tower --

CUOMO: It says, a non-exhaustive summary.

KATYAL: Exactly.

CUOMO: All the relevant information.

KATYAL: Exactly.

CUOMO: And then it doe say I. Let's give them the benefit of the doubt that these guys have drafted tons of this. They had tons of time to do this. There's no reason to be hasty. They have an I, ordinarily there would be a double I after it.

ISIKOFF: Yes. CUOMO: And we don't see it here but maybe that doesn't mean that it doesn't exist. Maybe it's exactly that one line that's redacted above the line on page four that says --

ISIKOFF: It could be, but they could have the double I and then left everything else --

CUOMO: Now we are quibbling, Michael. Now we are quibbling.

KATYAL: There's all the speculation. But look, the bottom line is Mueller delivered today.

CUOMO: How so?

KATYAL: Mueller got the President's national security adviser to agree that he had committed a felony and is cooperating and now we are going to see what the roots of that cooperation is. That's a big deal. It's a national security adviser.

CUOMO: It is but they're knew they had him lying. Although again, why did the FBI not think he was lying. But then you have different set of investigators in the same house thought he was.

ISIKOFF: Yes, I mean look, we do know that Mueller knew some pretty heavy handed prosecutorial tactics and let him know that his son could face criminal jeopardy if he did not agree to cooperate and plead guilty. So that could have been a factor. Until we see the transcripts of his conversations with Kislyak, it's going to be hard to reach the final judgment on this.

But I do hope at this point, Michael Flynn has now -- he going to be sentenced. His cooperation it looks like is completed. There is no reason why Congress can't step up to the plate now and finally do what it should have been doing from the beginning which is calling some of these crucial witnesses like Mike Flynn and let him lay out what he can say and what he knows about his interaction with the President. Same for Michael Cohen, we should seeing Michael Cohen testifying in public next month if Congress does its job.

CUOMO: One thing for sure, Michael Cohen is certainly is willing to do it if you look at the signals. He says he wants to talk to anybody to be helpful, he's looking for something very similar to this, quick point of order. How persuasive is this to the judge that when he sees that the special counsel says I don't think he should get any jail time? Of course the general is asking for no jail time. How persuasive is that?

KATYAL: The prosecutors always have to tell the cooperator, look, it's up to the judge. I'm going to make a recommendation. But in something like this, I think the recommendation is going to be followed. I mean, there's reasons why that sentence is zero to six. The judge may be privy to more than we even know. And I think, you know, it's a persuasive document.

CUOMO: The control would check me on this. I think the Judge Emmet Cumberland (ph). And he is somebody that Flynn's team was more comfortable with. He doesn't always just go with the prosecutor in terms of harshness. Here it's obviously different scenario, he's asking for leniency. So we'll see how that place out.

Michael, not to step on your own reporting and headline --


CUOMO: But there is a lot of talk about when does this end?


CUOMO: Now, a lot of it is political opportunity.


CUOMO: You know, as somebody, as a student of your reporting, for many years, federal investigations can go many years without near the productivity this one has had. But what is the best reporting you have at this point about where we are?

ISIKOFF: Look, I think we're obviously going to have to wait until Friday when we're going to learn a lot more from the sentencing memo on Michael Cohen, and what is filed relating to Paul Manafort's lies to the prosecutors. I think that will tell us a lot.

But at least according to my reporting, congressional investigators have asked questions of Mueller's office about whether they can call certain witnesses related to the obstruction phase and they're getting relative green light saying we've basically talked to everybody we want to talk to relating to obstruction.

You know, the fact that these sentencing memorandums are being filed at all is usually you don't see this. If somebody is cooperating as a government witness, usually they don't get the sentencing put off until all the ancillary cases are at least brought and in many cases finished. And you can have sentencing put off for years for key cooperators. The fact that Mueller is going forward with this suggests to me that there are not a lot of targets relating to the Russia coordination matter that he has yet to bring. We don't know that for sure. It's hard to tell from the document, but that seems to be the direction.

CUOMO: He certainly got more wood to chop otherwise they would redact thing.


CUOMO: Emmet Sullivan, not Cumberland (ph) is the judge. But the reckoning of him remains the same on what I said.

[21:20:05] Neal, go ahead.

KATYAL: Yes, so I mean look, I think you may be right that the investigation or at least parts of it maybe closing. But this is not an ordinary criminal investigation. Mueller is under intense pressure because this is the most high profile investigation in the country. We don't actually even know who is supervising it, whether it's this Attorney General Whitaker or someone else. And I think Mueller feels some pressure probably as all human would to actually demonstrate, look, there are fruits of this investigation and Flynn is obviously one, Cohen is obviously another.

ISIKOFF: Right, right. And there are unquestionable fruits of the investigation. We learned a lot last week in the Cohen plea. I thought that was enormously significant. But I also think Bob Mueller doesn't want to be a Ken Starr.

CUOMO: Right.

ISIKOFF: He doesn't want this to drag on well into next year. He knows the political limits of what he's doing.

CUOMO: Fair point and understood. I don't see dove tailing between Flynn and Cohen but any stress. It's completely different universes. However Cohen is an example of all the possibilities of redactions. Not that there is dove tailing, not that there's any coordination between what they are looking at with Flynn and Cohen, but that in terms of more wood to chop. Cohen can know many, many things that have nothing to do with straight line behavior of the campaign and Russian interference. It can go specifically to the timing of what the President knew and didn't know based on Michael Cohen's presence in the same room, the Trump foundation and fiduciary matters of money. That has nothing to do with Russian interference.

KATYAL: Absolutely, right.

CUOMO: But there are a lot of different places it can go. So why offer this context? If you are in Trump land tonight and these documents come down, how do you feel?

KATYAL: I'm wigging out. And I'm wigging out because last week we had Cohen who knows about a lot of different things. Here we have Flynn who knows about certain things that are of grave importance to our national security and Trump's relationship to them. This is a double whammy that is I think very, very scary for the President.

CUOMO: Let's test. If you are Trump -- you would say, hold on a second. We fired him because we found out that he lied. I think scare us on Flynn, Turkey, we didn't know about it. He was a bad guy. We misjudged him. I didn't think he would be doing that. What does it have to do with me? Criminal investigation can't have anything to do with me. I'm the President. So you're not bringing the criminal investigation against me. I don't know who he is talking about, but it's not me. At worst this is, I got a bunch of liars and bad guys around me but my base seems to forgive me, I'm not worried about this.

KATYAL: Yes, I don't -- I mean, look remember, one of the big allegation in this is whether Flynn was actually fired for these reasons or not and who knew what when? And I think Mueller has information about that now with Flynn's cooperation, they didn't have it before, so you might have been able to tell yourself that story for the last year and a half if you're Trump, now this document says there is a guy in the room who knew that stuff and he is cooperating with Mueller.

CUOMO: He smacks down my offer of push back. How do you see it?

ISIKOFF: No, I would say, first of all, there's nothing in here that tells us the answer to one of my big question that I was looking for and that was the nature of the communication between Flynn and the President after he got fired during the President of the President telling James Comey I hope you can see fit to let him go.

We had reporting last year that even after that, Flynn was getting messages from the President. I was hoping we might see some information about that and we don't have that here, which does leads me to think that if there is a target here, it is the President, but again, he can't be indicted and that's information that should go to the Congress, and also as far as how you should feel in Trump land. I think anybody who sees those redactions and think they might be in it, I agree with Neal, it's going to wigging out.

CUOMO: Now, some language that people want to picking up on, when they look at these documents. Again, even with the redactions. The special counsel says individuals, plural, with the campaign and on the transition team. What does that tell you? That it wasn't just about Michael Flynn dealing with Russia, the language they use is that he was helpful in providing information and assistance with individuals, plural, with the campaign and on the transition team.

So the suggestion that the reason that the Russia probe part is not redacted because maybe it's about to wind up, maybe there is nothing more to do with it. He says specifically that there were other people in those universes that are relevant. And then he listed a couple of things that were relevant. That I didn't know with the Kislyak. Maybe I just was not following it closely enough, which is of course ridiculous. It absorbed my life for the last several years.

Israeli settlements, the sanctions that we heard about and the idea of trying to get Kislyak to also slow down Russian behavior on other issues, so let's put those two together, you know, we are sanctioning you for things you don't like. We don't like how fast you're moving on certain things. OK, but the Israeli settlements. How does that fit into a discussion with the Russian ambassador?

[21:25:06] ISIKOFF: That was the closest to being a potential Logan Act Violation. Now, the Logan Act, which you know bars private citizens from being involved in foreign policy has never has been in force, it's never been successfully prosecuted, but the details from Flynn's plea from last year were that he and others in the Trump transition were calling the ambassadors to the security counsel to get them to overturn President Obama's position which would allow this U.N. security counsel condemning Israeli settlements to go through.

So they were actively trying to interfere with what the sitting President would do. Now, again, the Logan Act has never been successfully prosecuted.

CUOMO: Right. ISIKOFF: So it's unlikely that you would get the case, but that I think is what really alarmed people at the Justice Department. I think that's what Sally Yates was most concerned about when she talked about the potential Logan Act matter, even more than the context with Kislyak.

KATYAL: Well, I don't know the sanctions were, the Russian sanction piece is pretty important. I mean, the whole idea the Logan Act to prevent the private foreign policy. Here you got Obama sanctioning, as the sitting president Russia and dealing secret dealing by the Trump campaign to try and lift those sanctions with Russian ambassador. That got this about.

ISIKOFF: I agree, but we don't know exactly what was in the conversation. We know from the plea there were actual phone calls made by Trump transition members to U.N. ambassadors trying to get in.

CUOMO: That's why I highlight individuals within the campaign and the transition team. And we know who does know what happen in that phone call, Mueller and his team now know because that's what Mike Flynn has been doing.

And one other aspect of this that is certainly relevant to Mueller and I want to know why it would be impressive to you both, the idea of timeliness, they go out of their way to say there is actually a whole paragraph on it and the addendum about how -- and I thought that this was probably just an economy of justice type of thing, that use to see about but page five, roman numeral two, timeliness of the defendant assistance. The usefulness of defendant assistant is connected to its timeliness. The defendant began providing information to the government not long after the government first sought his cooperation.

And by the way, again that winds up diffusing a lot of speculation early on that Flynn was fighting them. The special counsel says, that wasn't true that goes to his character. His early cooperation was particularly valuable because he was one of the few people with long- term and firsthand insight regarding events and issues under investigation by the SCO. Additionally, the defendant's decision to plead guilty and cooperate fully affected the decisions of related firsthand witnesses to be forth coming with the SCO and cooperate.

KATYAL: So Mueller has three audiences when he writes that paragraph. It's a really important one. I'm glad you highlight it. One is to Flynn to say, look, you made a deal with me and I'm sticking up for the deal. Two, the court, court despite the fact that this guy is pleading guilty to a major offense, you should be zero deal time but third and most importantly is to all the other witnesses that Mueller has been dealing with and interviewing and the like. Because he knows what Trump did yesterday and what Trump has done time and again, which is to say to potential witnesses, hold firm and don't rat on me and you will get a pardon, but if you do rat, then I'm going to call you weak and say the book should be thrown at you and Mueller has saying, do you want to play that game, I can play that game two. If you cooperate early with me, you'll get zero jail time. So you don't need to go through this speculative pardon route. And look, who do you trust more? Who's worthy to trust more, Donald Trump or Robert Mueller?

CUOMO: Also, it is an interesting point of contrast if the President of the United States of course, he is hopelessly compromised here because he is going to be affected certainly the most mitigated term by the investigation. But him saying if you cooperate with the government even though he's the head of the government, you're a rat. And if you don't like Roger Stone even through he pleaded the fifth today on document product which I guess would make him a mob guy according to the President because he used to say only mob guys plead the fifth, but that you are strong if you resist.

And Mueller went out of his way to say the opposite here. In fact, even in his sentencing, he talks about the history and characteristics of the defendant and says Mike Flynn, you know, served 33 years in the military did so very honorably and then he said the defendants record of military and public service distinguish him from every other person who has been charged as part of the SCOs investigation. True. However, senior government leaders should be held to the highest standards.

ISIKOFF: Right. But going back to the language you were reading before about is early cooperation with the government. What a contrast with Paul Manafort who didn't cooperate at all. Who didn't serve in government either, this was making lining his pockets serving foreign interests.

[21:30:00] CUOMO: Serving foreign governments?

ISIKOFF: Right, serving foreign governments not the U.S. government. Then, had to be taken to trial and convicted then agrees to cooperate and doesn't and then lies to them, so that you couldn't find a starker contrast than between Michael Flynn and Paul Manafort.

CUOMO: Now listen, this is one of the beauties of doing my job is that I have someone who is a better lawyer than I am, certainly a better reporter than I am sitting right next to me. On Manafort, what I'm hearing is that don't be ready for Michael Cohen event when you get the memo on Manafort. That more likely than turns out Manafort was lying about all of the other things we were interested in, Russian, that Manafort has been so consistently lying to the investigators about his revenue streams and what he was doing to make money that that is much more likely and of course we are always qualifying it with the other world being surprise that Manafort was not lying about not helping on the stuff that Flynn is talking about. Or, you know, any type of collusion or cooperation but about himself. What are you hearing?

ISIKOFF: You know, that makes perfect sense to me. We won't know for sure until Friday when we see it, but look the Manafort investigation began as an investigation into his finances and his offshore accounts and his tax evasion and all the various monies he was getting from foreign governments. I suspect that that will be part of it. But look, what the people are most interested in is not that.

He was -- Paul Manafort was in the Trump Tower meeting. Will we get any hint of what Mueller knows if anything more than has already been made public about the Trump Tower meeting and was Manafort lying to Mueller's team about that? That's obviously a big question on the table.

KATYAL: And I think there's one other thing that's going to come up on Friday. You know, as we were talking about earlier, Mueller has been under a lot of pressure to close the investigation and wrap it up this and that and the other. Friday, I think we're going to hear a pretty robust defense of why this investigation takes so long.

You know, it takes longer to investigate when people lie to you. And Manafort has been lying and lying and lying. And so the President denigrates the stuff as a process crime or his defenders do. This is actually central to what law enforcement investigations are about, obstruction of justice, intimidation of witnesses and lying in perjury and false statements to federal officials. And that's what Manafort seems to have happened.

CUOMO: Any exposure for the President other than on style points and political problems with the tweets that he was sending out about Michael Cohen should get a harsh sentence.

KATYAL: Absolutely. I mean that is, you know --

CUOMO: But legal exposure?

KATYAL: Oh, absolutely. I mean, 15, 12, 18 or 15, 12 prevents people with corrupt intent from delaying or enticing someone not to testify. Those tweets yesterday I think were really, really looking very much like that. And look, even if you can't make a criminal case about this, the President takes an oath to uphold the constitution and take care of the laws we faithfully executed. No President behaves this way. The only people who behave this way are his -- you were saying earlier mob folks.

CUOMO: Although his supporters and defenders say, he is upholding the constitution and the first amendment. He has the right to say whatever he wants even though he's the President. He can say all he feels about the sentence. He can say how he feels about the cooperation.

KATYAL: People who conspire say that all the time. Hey, you know, I conspired to rob a bank. It was only speech, not a crime, doesn't even work.

ISIKOFF: And I don't think the first amendment is a defense from against witness tampering or obstructing justice if you are directing a witness not to cooperate in an investigation involving you. You might be expressing your first amendment rights to say whatever you can, but you are also breaking the law.

CUOMO: So if what we can clean to this point, right? I don't know if you sit with the stuck of paper in front of us about what this means, says the same thing that happened last week with Cohen, it does seem fair to say that it can't be over any time soon in its entirety. I mean, just as a matter of fact, these redactions speak to further process. There has to be something else that needs to end, at least on one level. And we don't even know what will be redacted like this when we get the Cohen memo.

ISIKOFF: Right, right.

KATYAL: Yes, I 100% agree. There's only one way this investigation can wrap up quickly and if it's for some reason Donald Trump is removed from office. But otherwise this thing is going to go for awhile.

CUOMO: I don't see any way that happens. Now, I'll tell you what you could see is there could be something that triggers the President to say or maybe not at all. Maybe it triggers the acting attorney general to say this is just crazy. This has gone on far too long, this is silly. This Turkey thing that they are going off on now, we're going to spend months and millions on Turkey, no thank you, I'm shutting this down. Then what happens?

KATYAL: Yes, boy, first of all, you know, we don't even know who is the attorney general right now when it comes to supervising the Mueller investigation. I mean, the President named this lucky four weeks ago.

CUOMO: Matthew Whitaker is the name you are looking for.

KATYAL: Yes, Matthew Whitaker but, you know, they haven't even said whether he is actually supervising this investigation because Matthew Whitaker was on this network and other all denigrating it and there is an ethics issue about that. So they haven't told us who is actually doing it. Now, even if --

[21:35:03] CUOMO: We're having an opinion on the case be a basis of recusal?

KATYAL: Oftentimes it can be. The ethics office will roll that if you had -- you know, if you've taken public positions on something, you can privately certainly I recused when I was at the Justice Department from Guantanamo, which I had taken public positions on in the past and so even though I didn't have any involvement with those particular cases that were pending. So I think that's a pretty standard thing. But the shocking thing is that the Justice Department went four weeks in. We don't even know who is the acting attorney general supervising it. Is it Whitaker or it is Rod Rosenstein.

CUOMO: Michael, one thing we can all agree on as a matter of fact that this can't be over. Let me ask you though in terms of what you are looking for, this, the Cohen memo that's coming out later this week, the Manafort one, which do you think is the most interesting thing? Is it this one or another?

ISIKOFF: Well, you know, I think the Cohen and Manafort ones could be more interesting than this. I'm hoping there won't be as many redactions in those. It would be --

CUOMO: I didn't expect any redactions in this. I thought this was going to be like three-page document --

ISIKOFF: Yes. CUOMO: -- that only deal with what he had said.

KATYAL: National security information so you're going to have --

ISIKOFF: And look, Cohen had the longest relationship about Donald Trump. He had the closest relationship with Donald Trump. He had the most interaction with Donald Trump. So if there were other matters that Michael Cohen provided information about relating to the President, I would expect to see more on that and Neal is absolutely right. Those are not necessarily national security matters. They may not be national securities matters at all. And so they may not be a reason for as many redactions.

CUOMO: Michael Flynn, 19 interviews, different metrics for Michael Cohen 70 hours of interviews with all the various investigators, southern district and New York State, Mueller, so there certainly a lot.

ISIKOFF: Let me say look --

CUOMO: Last word, go ahead.

ISIKOFF: -- that said, the Cohen filing last week, the idea that Michael Cohen, the representative of Donald Trump was in communication with Vladimir Putin's office during the 2016 campaign about getting financing and land for a Trump Tower. I think that Trumps, so to speak, everything we are seeing here. I think that was the most significant thing we've seen.

CUOMO: Especially because the President was denying the significant of name during the campaign even he was the presumptive nominee.

Michael Isikoff, Neal Katyal thank you so much.

KATYAL: Thank you.

CUOMO: I appreciate it. Perfect quest for this, really could not have done with you, matter of fact.

All right, so the memo in term of what we know and then you get into the whole speculative nature of it. Where does it take us from here? Where here is what we know for sure. It can't be over because they wouldn't have redacted these things. So we're going to come back and have more on the breaking developments and we're going to put two legal minds to the test of where we go next. What matters here and what doesn't next.


CUOMO: All right, we're back now with more on the breaking news. The Flynn sentencing memo has been filed by Robert Mueller and there is a good chance that Flynn most will serve no prison time if the special counsel has anything to say about it because he asked for exactly that.

Now, that speaks volumes. We've seen other recommendations by the special counsel's office with people who cooperate and they did not ask for no jail time. So why in this case? The special counsel explained it partially. He says, this man has given us a lot of information in a range of matters. At least three separate matters and uses a lot of plural language in this. He helped us with individuals connected to the campaign and to the transition team. So it wasn't just about what Flynn said and Flynn knew about himself. Now, that's all relevant. It's also really redacted, which tells you two things. One, you are not going to get the whole answer tonight and two, that there is more wood to chop.

[21:40:03] So let's get Cuomo's Court in session. We've got Berit Berger and Ken Cuccinelli.

Berit, how do you see this mattering going forward?

BERIT BERGER, FORMER FEDERAL PROSECUTOR: So I think this was incredibly significant for a few reasons. First, just as you mentioned, the redactions. There is a presumption in federal criminal court for transparency. So you cannot simply redact things lightly. You have to be able to justify those redactions.

So here, the special counsel's office says there are ongoing investigations, you know, depending on the judge that they have, they may have to actually back that up. So it means to me that there are significant ongoing investigations and that it was critical for them to redact those, otherwise, I don't think they would have gone to that extent.

CUOMO: So your point. And, you know, Ken, they have Emmet Sullivan on this case and he's no prosecutor (inaudible). You know, taking a look at his history, you know, he speaks his truth to power whenever he sees fit. So in terms of the redactions and what's in this, Ken, what do you make in terms of how much it means?

KEN CUCCINELLI, (R) FORMER VIRGINIA ATTORNEY GENERAL: Well, first of all, I think that the context of the relevance of this as discussed in the last panel will they better understood on Friday when we see the next round, but I don't necessarily agree with respect to the redactions. Judges do tend to refer to government requests. It is not something they have to fight for to get these redactions.

The presumption will be as a practical matter in favor of giving the government the redactions they asked for and prosecutors with anything ongoing no matter how large or small or notoriously -- and I was this way when I was AG, notoriously private. We want to keep as much --

CUOMO: Right.

CUCCINELLI: -- of our cards close to our vest as we possibly can. And with this being at the end for Mike Flynn, you know, as you wrap up these agreements that involved cooperation especially extensive cooperation --

CUOMO: Right.

CUCCINELLI: -- but prior to any trial testimony, it does suggest, I think, that the other aspects of this that may be criminal are wrapping up at least the Mueller would keep to himself. There may be others things he hands off like more Manafort items that may deal with finance for other people --

CUOMO: Right.

CUCCINELLI: -- but I think that this is also a sign that we're nearing the end.

CUOMO: Right. But it's a little bit surprising, right? First of all, just as a procedural matter, certain parts of the probe could wrap up and others could continue, Berit. And I have to tell you, I mean you guys are far more savvy than I, but I did not expect a lot of redactions in this. Because this is -- well, we know everything that he said and he's cooperated with us. So this is what we think our recommendation for sentencing should be. I thought it was going to be shorter.

I didn't think there'd be an addendum and I certainly didn't think that there'd be multiple avenues that Michael Flynn had taken them down that they were still pursuing. But the special counsel makes that clear two ways. One, the redactions of two different categories of investigation that he didn't feel comfortable disclosing and in plural language. He says that he helped us with individuals on the campaign and their communications and individuals on the transition team. That tells you there are more people at play, Berit.

BERGER: Right. And I think one reason that you don't often see redactions in a -- they call this a 5k, so that's the type of sentencing letter on behalf of cooperating witnesses. But one reason that you don't see a lot of redactions and letters such as this is that they usually come at the very end of a proceeding. So you wouldn't have a valuable cooperating witness sentenced unless you were for all intents and purposes, done using them because your leverage over that cooperating witness is significantly lessened once they already know what type of the sentence they're going to get.

CUOMO: Right. So why do it now? They have weird language in here about how even though we still have ongoing matters, there's been enough at this time to do it. Why?

BERGER: I mean to me it means that they don't need Michael Flynn to testify against anybody else. I mean, look, they could theoretically still call him as a witness. I mean maybe they have some, you know, agreements that would come forth that, you know, he has agreed to continue cooperating with them. But I think if that was the case that they needed him to testify against some of the important, they wouldn't be having him sentenced now.

CUOMO: Ken, if you were working as counsel in Trump land, how do you feel about these documents?

CUCCINELLI: Well, certainly, I'm wondering about what's blacked out for certain. I would also add one thing about Mike Flynn in particular. I think after he originally pled, serious and legitimate questions were raised. You noted yourself that the FBI had early on decided he wasn't lying to them and later the special counsel moved ahead with the prosecution and then a plea on this.

I think part of the reason you may have agreement to no jail time is that the prosecution may realize that the Department of Justice as a whole beyond just special counsel has taken inconsistent positions on something that they would have to prove beyond a reasonable doubt. So that's unique to Mike Flynn in this whole area, but I don't think we should forget about it in terms of each side calculating what lies ahead for them if there's a fight versus if there's cooperation.

[21:45:07] CUOMO: A separate criminal investigation is something that Mike Flynn was key on in giving them great help and then it's all redacted. What is your guess as to what could qualify as a separate criminal investigation that Mike Flynn could have been helpful?

Silence from both. Nobody wants to take it.


CUOMO: Beret, go ahead.

BERGER: I mean --

CUCCINELLI: I don't think that's easy to answer. I mean that's so open ended and speculative and it could be large, it could be trivial.

CUOMO: Well, I will tell you why I asked the question because, you know, we don't -- you know me well enough to know. I don't like to chase down empty corridors. But they did not redact the special counsel's investigation into Russian interference. That's there.

There's a criminal investigation, it's redacted. Then they say he also helped us with the Russian investigation, that's not redacted and then there's something else that he helped with, that is also redacted. So it does stand at least common sense --

CUCCINELLI: OK. So let me go ahead.

CUOMO: -- that maybe the criminal investigation doesn't extend to Russian interference.

BERGER: Right. Look, I read that and it made me think --


BERGER: -- that this was something that has been farmed out to perhaps another office. I mean one of the things that they say in the letter --

CUCCINELLI: Exactly. I agree.

BERGER: -- is that, you know, General Flynn had met with not only the special counsel's office, but with multiple other offices within the Department of Justice. So when I read that, it was a criminal investigation that may be being handled by the U.S. attorney's office somewhere else, but separate from the special counsel's office.

CUOMO: Beret, worth the wait on the sentencing memo?

CUCCINELLI: I agree with that and that also means it's not Russian -- hey, Chris, that also means it's not Russian collusion issues.

CUOMO: It could mean that. It could be. It's criminal so it's not something trivial.

CUCCINELLI: Well, no. The special counsel wouldn't handoff to another U.S. attorney's office, something actually at the heart of the referral to the special counsel.

CUOMO: That are makes sense. Beret, worth the wait? These documents?

BERGER: I think they were. I think they painted a really interesting picture of how Flynn, you know, began to become a cooperating witness. And, you know, one of the things that jumped out to me was just the start contrast between Flynn and Cohen and Manafort.

So here, you have the description of Flynn as somebody that started cooperating early. He's started cooperating seemingly without, you know, much trouble. There was nothing -- you know, no discussion in this letter about him having lied to the special counsel's office once he started cooperating.

So I think that the letter makes it very clear what the special counsel's office values in its cooperating witnesses and that is consistency and coming on board early.

CUOMO: What's the percentage chance, Ken Cuccinelli, that the President of the United States sees these documents and decides to start tweeting which is our main metric for his level of agitation?

CUCCINELLI: Well, tweeting is always a possibility with President Trump. And, you know, and predictability in that regard is not very high. I haven't been very good at predicting that. But I would also have one other comment about Flynn versus Cohen is when you see the language in these documents today and you look back to Cohen's history, simply the credibility of the information provided by Flynn is likely higher than the information, the credibility of the information provided by Cohen.

Just from what we have seen and what we do know, setting aside what we -- or being called on to speculate about by redactions and so forth. Cohen has been at times all over the map where Flynn has been much quieter publicly and then you see a close out document like this, it suggests a much cleaner process from Mike Flynn's perspective than from Michael Cohen's perspective.

BERGER: I totally agree.

CUOMO: The unknown has to be frightening to the Trump team that they don't know what they don't know cannot put them in a comfortable place. Beret, go ahead. Final word.

BERGER: No. I was just going to say and I think we will not see a recommendation like this for potentially no jail time. Obviously, we won't see it for Manafort and I don't think we would expect to see it from Michael Cohen either. Most of that being, I think they were taking into account all of General Flynn's military services and his incredible, you know, services to the public balanced obviously with this crimes. But I don't think we'll expect to see a similar type of sentencing recommendation.

CUOMO: Right. And also, look, Michael Cohen is a beast of a very different form than Michael Flynn on a number of levels. But remember this, we just saw from the special counsel, one of the reasons they believe Cohen is he can prove it. He proved his own lie when he said today I shouldn't have said that I wasn't talking about it anymore. I still was and here's the proof. That's why Mueller relied on it with the certainty that he did because he was able to show what Michael Cohen said that he knew.

So that's a difference also. We'll see how that plays into the 70 hours of cooperation and meetings that Michael Cohen gave the special counsel and we will know very soon.

Beret, Ken, thank you for making us better on the show tonight. I appreciate it.

OK. So we now have the paper from the special counsel. But how about the context? Our next guest is Mary McCord.

[21:50:00] She helped oversee the FBI's investigation of Russian meddling before Mueller's appointment. She was part of a crucial meeting with the White House early on. Great context, great perspective, next.


CUOMO: All right. Tonight's breaking news, Michael Flynn, the man who made Clinton lock her up chants famous at Trump rallies will likely not get locked up if the special counsel has anything to say about it because he made a recommendation that the general has been so helpful and did so, so early on, on a number of matters involving a number of individuals, that he thinks he should serve no time in jail.

I want to bring in somebody who knows a lot more about this than I ever will. Her name is Mary McCord. She helped oversee the FBI's investigation of Russian meddling before Mueller's appointment. She was in the meeting with Sally Yates when they warned White House counsel Don McGahn that Flynn had lied to investigators. A true pleasure.

I really do appreciate it, and I want you to know, stipulation here at the top. There are things that you should not and cannot discuss. I get it. Whenever I get there, brush me aside. There's plenty more for me to discuss. First, at the onset, impressive or not what the special counsel put out today?

MARY MCCORD, FORMER ACTING ASSISTANT ATTORNEY GENERAL: So I think it's what I expected in the sense that I've heard other guests talking about they weren't expecting there'd be redactions. I thought there might actually even be an addendum under seal. So that I was actually somewhat surprised that we have a document partially public that just has redactions.

CUOMO: Help me understand why because the common sense thought is, well, if this is for his sentencing, that means it's all done. Trial is over. He pleaded, so there was no trial. Now it's sentencing. You should tell us as much as possible or tell the court at least because you're trying to justify your recommendation. So if it's just about him, why redact anything?

MCCORD: So it says it's done with respect to General Flynn --

CUOMO: Right.

MCCORD: -- but not necessarily respect to other people who he might have provided information about. And so just if you take this out of this context and think about some other investigation -- I mean I was a prosecutor for 20 years before I was at the national security division. If you have an ongoing drug investigation, for example, and you have a cooperator, and the cooperator has provided all the information that you think you need from the cooperator, but you still don't want to refer openly in public to the target, you might have an under-seal addendum.

Now, oftentimes, you would continue to keep the case open because you might need to use the cooperator to actually testify in court. So this could mean that the special counsel isn't contemplating that, or it could just mean the special counsel and Mr. -- and General Flynn felt that the time was such, given that he has already substantially cooperated and perhaps in the course of that cooperation, they felt comfortable that if they need to call upon him again, he'll be there.

[21:55:08] CUOMO: Now, without getting into details, you knew a lot about why there was a need to investigate Russian interference into the election. And a big question has been, why is this taking so long? And even within the context that you guys take a long time on the federal level, no disrespect, this is not long and this has been very productive in terms of a lot of other things that you guys do in this similar amount of time.

Do you believe that the time and what your understanding is of the different paths that Mueller is taking, are they justified by what you understand of the context of the investigation?

MCCORD: Well, I'm not surprised about the amount of time. I mean there were 19 interviews as this document says. And, remember, the special counsel has a wide-ranging investigation. So it's not as though at any point in time they're looking only at let's talk to Michael Flynn, and let's see what he has to say.

And what an investigator is going to do in this case and in other cases is you're going to talk to a witness that's going to give you information that you then need to go do more work on to corroborate, to see where it might lead, and then that might give you information that makes you want to go back to that witness. So these things take time. And so particularly when you see 19 interviews and the amount of time, it's not surprising to me at all because they probably get some information. They go work on it. They see what it leads to. They take it back to General Flynn, ask him what he thinks about that, et cetera, et cetera.

CUOMO: Is there a suggestion that if they're letting him get sentenced now, even though they feel confident they could call him back, that whatever other targets they have can't be that high value because you wouldn't want to take any chances. If you're going after somebody who's very close to the President or somebody who is in the sanctum sanctorum really close, you don't finish anything before you finish that.

MCCORD: So not necessarily. I mean with 19 interviews, they have got a rapport built between the special counsel and General Flynn and probably a relationship of trust has been built up over the course of this many interviews and given the document and given the recommendation for no jail time, that says to me that the prosecutor is satisfied with the cooperation and feels like it's truthful and honest and helpful, or he wouldn't file a document like this.

So I don't think it necessarily signals anything about who the targets might be and how high-level or low-level they might be.

CUOMO: You think there's still a lot of wood chop to be done here in this investigation?

MCCORD: You know, that's hard to say. I think this could be one piece of it that they feel like they've, you know, gotten what they need, enough to go to sentencing. But there's a lot of other things still going on.

CUOMO: I mean we know there are redactions, so there's obviously at least one other criminal investigation going on. And is it possible -- what I've been hearing in my reporting is, well, maybe they'll end one part of the investigation. Like, all right, we got the President's answers on these things. We know what he says he knew and what he didn't. I can't charge him anyway with anything, so that's over. But I'm still looking at this. I'm still looking -- is that possible?

MCCORD: It's totally possible. And we've already seen that as you've seen different charging documents come out, and you've seen pieces of it wrap up. I mean we thought, you know, at some point after Manafort pled guilty and it looked like he was going to cooperate, that could have potentially opened up entirely new avenues. Now that of course seems to not be the case now that Mueller has filed --

CUOMO: Are you surprised at how productive this has been, the number of indictments, the number of people around the President who have lied about matters concerning to Russia?

MCCORD: Well, Mueller is very good at what he does. He has an excellent team. I've worked with a number of those people, so, no, I'm not surprised. CUOMO: You still have Cohen. You still have Manafort this week. How do these three rank for you in terms of what you're interested to see?

MCCORD: Well, you know, there -- it's hard to say until we see a little bit more. I think when we see the filings that are coming up, you might be able to put pieces together and really, I think, what might be interesting to know is what communications there might have been between these three or how much what they were involved with intersects at various points in time.

CUOMO: As a general notion, there are two schools of thought in this very divided country. One is I can't wait to read this Mueller report and see what this is all about and see how it all happen and see who has to be punished and who doesn't. The other is this is all B.S, that this is all made up, tax dollars at work, and prosecutors doing what they do best, tricking people into doing things so that they don't lose the rest of their lives.

What is your guidance on whether or not this is much ado about nothing or you know from your own experience there was plenty to look at?

MCCORD: Well, I don't want to talk about what I know from my experience while I was still in DOJ. But what I will say is that you don't see this quantity of indictments, this many people admitting guilt, this many people admitting, making false statements to the FBI if there's nothing there.

CUOMO: Process crimes. Is that something that you waive aside as, well, those don't matter?

MCCORD: Process crimes are important. It's important to be truthful to the FBI when they're engaging in an investigation.

CUOMO: Mrs. McCord, thank you so much. I don't want to violate your privacy about what you know and what you can't say but your perspective on this is important and I appreciate.

MCCORD: Thank you.

CUOMO: All right. Be well.

Thank you for watching.