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CUOMO PRIME TIME

Trump to Reuters: "I'm Not Concerned" About Impeachment; Michael Flynn's Attorney Files Response to Sentencing Memo; Michael Flynn Asks Judge to Spare Him from Prison. Aired 9-10p ET

Aired December 11, 2018 - 21:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


ANDERSON COOPER, CNN ANCHOR: News continues. I want to hand it over to Chris for "CUOMO PRIME TIME." Chris?

CHRIS CUOMO, CNN ANCHOR, "COUMO PRIME TIME": Thank you, Anderson. I am Chris Cuomo. Welcome to PRIME TIME.

General Michael Flynn just entered his response to his sentencing. It is some 178 pages long. We're getting it online. We're going through it and we're going to get you the latest in a minute.

All right. But there's more news on our watch. The President with a new take on impeachment, he just made a statement about his future that I doubt his lawyers will ever let him make again. I'll tell you why.

We're also going to go deep on the main question facing the Mueller probe. Is it true that a sitting President cannot be indicted? Fair statement? I would argue the answer is yes, you can. But a way better mind than mine says I have it wrong. Professor Larry Tribe has an op-ed racing around the internet and he's here to make the case.

And ladies and gentlemen, boys and girls, welcome to thunder dome. The President went toe-to-toe with his new foe and he got man chucked. Chuck Schumer and Nancy Pelosi took on the President in his favorite ring with cameras rolling and it was something to see. We'll show you the highlights.

Plus, Senator Bernie Sanders is here. He says he knows the future of Trump's wall and he's making a move to force the President's hand on Saudi Arabia. It's going to happen tomorrow. Wow, our plate is full! Time to eat. Let's get after it.

All right, we are processing this in real-time, 178 page, got to get it right, want to get the parts that matter the most. And we will stick with us. As soon as I get the information, I'm coming to you no matter where we are in the show. But to the President today, we have to cover this. This is new. This is not some idle minded tweet, OK.

It's hard to impeach somebody who hasn't done anything wrong and who has created the greatest economy in the history of our country. I'm not concerned, no. I think that the people would revolt if that happened. Nothing wrong was the word. He meant illegal.

Now, I know, you may say it's the same thing. It isn't. Certainly not to lawyers and they're going to be all over him about the difference because it's a bad one for him. Knowing about people around you lying to investigators and Congress may not be illegal but it's wrong. Directing fraudulent schemes to keep payments quiet during a campaign could be illegal, definitely wrong.

He says, number one, it wasn't a campaign contribution. If it were, it's only civil. And even if it's only civil, there was no violation based on what he did, OK? No, not OK. He doesn't understand what he's saying. He just saying a lot of things.

By the way, Michael Cohen, if you hear a bus coming, it's because the President also said this. "Michael Cohen is a lawyer. I assume he would no what he's doing." You know, the President didn't seem like some absent-minded client or some patsy in that take that we broke here on CUOMO PRIME TIME. Cohen was his lawyer, clearly advising him and the President was then giving him directions.

And when asked about the assertions by prosecutors about his business with Russia before and during the 2016 campaign, the President said the stuff you're talking about is peanut stuff. Harvard Constitutional Law Professor Larry Tribe is here. He literally co- wrote the book on impeachment. It's called "to end a presidency, the power of impeachment."

Welcome, Professor. It's always good to have you.

LAURENCE TRIBE, PROFESSOR OF CONSTITUTIONAL LAW, HARVARD UNIVERSITY: It's good to be here, Chris.

CUOMO: First, let's take a quick look at what the President said. "Can't impeach me if I did nothing wrong." I can't believe his lawyers looked what the he said. They've never let him said that lower bar because illegality maybe he's going to make a case. This shouldn't be considered a high crime by those in office. But wrong? That's a low bar. And if they pick that standard, I think he has trouble. What do you think?

TRIBE: I think he doesn't know what he's talking about and he's desperate. He's obviously flailing around because he feels the walls closing in. The fact is that the constitution makes very clear that the President of the United States shall be removed from office if he is impeached and convicted of high crimes and misdemeanors, including treason and bribery.

That's unambiguous. And when the President says, "I did nothing wrong," well, his opinion doesn't matter. What matters is whether he's committed a high crime or misdemeanor, whether it's something the House decides to charge him with. And whether 2/3 of the senates votes to remove him.

And what he is now doing, when he talks about, I think one of the thing he said is people will revolt if a guy as terrific as me who has done so much for you is removed from office. That's really trying to hold the country hostage by threatening riots, threatening violence in the event that the constitution is carried out. We can't accept that. We have to let him say what he wants but then proceed in an orderly fashion.

[21:05:16] CUOMO: So there are three sets to unpack here. The first one is this may welcome down to public sentiment, right? Because once the Mueller report comes out, we'll have to see as people process it with help from the media and others where their heads and hearts are in terms of what action they're demanding.

TRIBE: Sure.

CUOMO: And if it's strong, then we're going to get to the second part, which is high crime and misdemeanor and political resolve thereupon. The President says, you know, this campaign stuff, the payments, just civil. Even if it happened it's only civil it wouldn't matter. And the stuff about me having a business deal, that's small peanuts.

Now, he's making a case to the American people because he's banking that's going to be the ultimate judge and jury here, not Mueller. There will be no prosecution. We'll get to your argument on that on a second. But when he describes his behavior that way, is it helpful to his cause?

TRIBE: I don't think it's helpful. There are people who will believe whatever he says, but the more facts come out, the more people will begin pausing. When he says it's only civil, he doesn't know what he's talking about.

He's violated if the allegations are true, he's violated serious federal criminal laws by directing and coordinating, that's the language of the prosecutors for the southern district of New York, directing and coordinating payments that were hidden because they were funneled as contributions, they were dark money, and he was denying that he did it. And the evidence is going to be produced as far as we can tell, it's going to be ample evidence that he really directed the illegal payment of money, not in order to spare Melania's feelings or make his kids feel better but in order to reduce the chance that people will turn against him at the polls.

It's clear as day that this was happening right at the end of the campaign.

CUOMO: Right.

CUOMO: And the evidence is going to be clear that he basically fraudulently obtained the office by committing felonies and directing them.

CUOMO: The counter will be just campaign finance reform. And even if it were, a violation of campaign finance law, John Edwards did the same thing. He got away with it. Now, in fairness, he was charged, it went to trial, he won at trial. So it wasn't even (inaudible), but what about that?

TRIBE: The big difference is that with Edwards, it really was an ambiguous question. The jury wasn't convinced about whether he was doing it for political campaign purposes or to spare his wife, who was --

CUOMO: Fighting cancer.

TRIBE: Very, very ill. Yes, I mean this is not that case. Here we know that he was not doing it out of a warm-hearted view of Melania he was doing it -- and this will have to be proven, it's not just an assertion but he was doing it in order to fool the American people so he would win the presidency. That's serious stuff.

CUOMO: All right.

TRIBE: In fact, the framers of the constitution had that in mind, that very kind of thing when they said surely someone who corruptly gains the office of President cannot be allowed to retain that office. That was their prime example of somebody who should be removed from office.

CUOMO: OK, so that's --

TRIBE: So the President may think it's -- go ahead.

CUOMO: That takes us to the central question, following your own lead here, Professor, which is the DOJ after the Nixon situation and once again in 2000, both during Republican administrations put out guidance for prosecutors at the DOJ that a sitting President cannot be indicted. There were different policy reasons given and the overarching constitutionality of it would be simply said if he does something that bad, you're going to impeach him anyway and then can you have this type of criminal process.

We don't want to have something akin bills of attainder or political payback. You say it isn't that clear. What is your case?

TRIBE: Well, in fact, it is quite clear but the other way. There are a lot of opinions issued by the office of legal counsel, that's not binding it's just the opinion of a particular Justice Department. The fact is, the framers were very careful. They did not want bills of attainder. They said that somebody who is impeached and removed from office cannot be punished by the Senate, but they also said that any such person shall nevertheless liable to full prosecution and punishment.

The only way to guarantee that is to not have a policy that prevents the indictment and prosecution of a sitting President. For one thing, a sitting President on the way out could get pardoned by the guy who becomes President. We saw that with Gerald Ford and Richard Nixon. The framers didn't want a setup where somebody could get a get out of jail free card basically by arranging a pardon.

[21:10:09] Secondly, there's the problem of the statute of limitations.

CUOMO: Right.

TRIBE: A lot of the stuff that was done wrong might not be possible to prosecute later and the idea that you just stop the clock in the meantime sound good but there's no law to support that. So the whole design of the constitution that nobody's above the law, that a guy who actually enriches himself the way it looks like Trump has, by worming his way into the presidency with the help of a foreign power and who then retains all the benefits is not going to be allowed to go Scott free.

And the only way to make sure that he faces justice is to leave open the possibility of indicting him while he's in office. And if he says he's too busy, well, he's going to be pretty preoccupied with an impeachment trial if that's what he wants. Being busy is not an excuse.

CUOMO: Right. So --

TRIBE: And when he says the Russian stuff is peanuts, I mean, I just can't sit still for that. There were hundreds of millions of dollars he was going to gain from that Russian Moscow Tower and he would have gained them only if the sanctions could be removed on the banks he was counting on for money and he was hiding all of that from the American people.

CUOMO: There's no question about the last part. He certainly said there was nothing being done. We now know from Michael Cohen and believe by Mueller there was plenty going on.

TRIBE: Right.

CUOMO: All right, so Professor, when we get more meat on the bones of what they're going to do and why, that's when the moment will come where we're going to have to see if Mueller asks Rosenstein for new opinion about whether or not he can indict, I need you back on that night, or close to it so we can have the rest of this conversation, OK?

TRIBE: I'd be glad to return. Sure.

CUOMO: Great primer, thank you Professor Laurence Tribe.

All right, the legal argument matters, we're going to have to learn more but the fight ultimately has to begin on the facts. This all likely comes down to what you believe, not some judge, not some jury. The President knows that well and he's banking on it. And that's why today we saw him try to create a record of fact that must be tested. I'll do that for you next.

(COMMERCIAL BREAK)

CUOMO: All right, I'm actually looking right now at General Flynn submission. It's about 158 pages. A lot of it is letters of support, which is good news for our processing. You know, we'll look through those letters but in terms of legal argument, the main part of it so far is something that people lost sight of.

Remember when Andrew McCabe, the acting director of the FBI, first interviewed the general about these things and they had their first round of meetings, the FBI didn't think he was lying. His lawyers are making a very big point of that in here. We're going to keep processing as we get more. We'll come back during the show. But we have something set up for you right that you're going to have to meet to process.

Thunder dome is a new part of our political reality. Two sides enter but only one can leave with a win, anyway.

[21:15:03] Now, the President on one side, the President of the United States, the master of message and in-your-face fictions and on the other, his new foe, the Nan-Chuck, I like it because it sounds like, you know, the martial arts. Nancy Pelosi and Chuck Schumer, they were wearing smiles and a bunch of new power, they were ready to give the man some of his own medicine.

(BEGIN VIDEO CLIP)

CHUCK SCHUMER, SENATE MINORITY LEADER: The one thing I think we can agree on is we shouldn't shut down the government over a dispute. And you want to shut it down. You keep talking about it.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I -- no, no, no, no, no. The last time, Chuck, you shut it down --

SCHUMER: No, no, no.

TRUMP: -- and then you opened it up very quickly.

SCHUMER: Twenty times. Twenty times.

TRUMP: And I don't want to do what you did. But, Chuck --

SCHUMER: Twenty times you have called for, "I will shut down the government if I don't get my wall." None of us have said --

TRUMP: You want to know something?

SCHUMER: You've said it.

TRUMP: OK, you want to put that on my --

SCHUMER: You said it.

TRUMP: I'll take it.

SCHUMER: OK, good.

TRUMP: You know what I'll say, yes, if we don't get what we want, one way or the other -- whether it's through you, through a military, through anything you want to call -- I will shut down the government. Absolutely.

SCHUMER: OK. Fair enough.

(END VIDEO CLIP)

CUOMO: As a point of fairness, style points, you're going to give it to the President. He was eyeball in Chuck Schumer the whole time, Schumer say never have a difficult looking at him. He was looking at Pelosi but I think that's because they were coordinating a power move here and on their side they had facts.

All right, let's start with this. The wall. Mexico's going to pay for it. No, they're not. They said they're never going to pay for it. And now it's about how we're going to pay for it, right? The President says, well, we need the wall anyway because of all the terrorists.

(BEGIN VIDEO CLIP)

TRUMP: People are pouring into our country including terrorists. We have terrorists. We caught 10 terrorists over the last very short period of time. 10, these are very serious people. Our border agent, all of our law enforcement has been incredible what they've done, but we caught 10 terrorists. These were people that were looking to do harm.

(END VIDEO CLIP)

CUOMO: Isn't that right, Mike?

No. What he was saying is that we just caught these terrorists. His own State Department responded no credible information that any member of a terrorist group has traveled through Mexico to gain access to the United States. He's making that part up for effect. He just happened do it under cameras and in real time so we can test it. It brings us to the idea that drugs are pouring over the border. Did I say terrorists? I meant drug dealers. They're pouring through so we need this new wall.

(BEGIN VIDEO CLIP)

TRUMP: I am proud to shut down the government for border security, Chuck, because the people of this country don't want criminals and people that have lots of problems and drugs pouring into our country.

(END VIDEO CLIP)

CUOMO: Now, look this is a reality that I have lived firsthand, doing drug investigations for 20 years. We just did a documentary on El Chapo. Here's the truth -- illegal drugs mostly come through the ports of entry and under ports of entry in tunnels. Meaning, at least the majority come the legal way. Who says this, me? Yes. But more importantly a director of homeland security told exactly that to Congress in 2017.

Ports of entry are the major points of entry for illegal drugs where smugglers use a wide variety of tactics and techniques for concealing the same.

Then the President went to the heart of what I called his brown menace theory, these migrants, they're dirty people, they bring disease. Medical researchers looked at two years of data and found that immigrants actually help fight disease, all right. But here's the reality that the President doesn't want to own but he's going to have to. These little boys and girls, their parents, they are being treated like animals. Actually worse, if we saw this with circus animals or something, they were living in these kind of conditions, people would go crazy, and it would stop the next day. Not with them. Shame on all of us.

They may not bring new diseases but they're getting sick. They were all hacking. They live in the cold in their own filth. It's a disgrace. And we are not a wall away from being better. The reality is the system needs fixes on many levels. It's over capacity, the laws don't work. The materials operations and procedures don't work. The things we need we don't have. It's not just about a wall.

Protective barriers matter. Don't say that they don't. Everybody agrees we need them but they're not the one thing that the President wants you to believe they are. Focusing on one is false. And it turns our collective face away from the reality, all right? So those are the facts.

We're reading into now a new set of facts where we just got from General Mike Flynn. 178 pages, most of it is letters of support from political and former military people that he worked with.

Michael Flynn's encounter with FBI agents when he was national security adviser for Donald Trump, that's the meeting that got him in trouble after he didn't tell the truth to FBI agents asking him about conversations with the Russian ambassadors. Remember Peter Strzok, remember Andrew McCabe, he has revealed to be a key player. Some details you may not remember next.

(COMMERCIAL BREAK)

[21:23:47] CUOMO: I really wish you could get to see more of what the "Cuomo Prime Time" team does in commercials with all this breaking news. Everyone is reading through this 178 pages. It's so important. Why? Because Michael Flynn is going to wind up being a big deal here, because one of the things he gave Mueller in cooperation was, you know, I was talking to other people in the administration about what I was doing.

And remember those 18 days that went from the time that Sally Yates and the acting head of the A.G. there in the Department of Justice, when they said, hey, you got a problem with him, 18 days went before they did anything about it. When they did do something about it, the President said nothing about Flynn's potential criminality. Why? Why? Why?

Let's read this from Flynn, OK? "The nature and circumstances of the offense -- General Flynn doesn't take issue with the description of the nature and circumstances of the offense contained in the government sentencing memorandum and the pre-sentence investigation report. Then, this always legal cite.

As General Flynn has frankly acknowledged his own words, he recognizes his actions were wrong and he accepts full responsibility for him. There are at the same time, here is where it gets interesting, additional facts regarding the circumstances of the FBI interview of General Flynn on January 24, 2017 that are relevant to the court's consideration of a just punishment.

[21:25:05] At 12:35 p.m. on January 24th, 2017, the first Tuesday after the presidential inauguration, General Flynn received a phone call from then deputy director of the FBI Andrew McCabe. You know that name. It was on a secure phone in his West Wing office. General Flynn had for many years been accustomed to working in cooperation with the FBI in matters of national security.

He and Mr. McCabe briefly discussed a security training session, the FBI conducted at the White House before Mr. McCabe by his own account stated that he, "Felt that we needed to have two of their own agents sit down with General Flynn to talk about his communications with Russian representatives, contacts matters.

They call him up, they're not treating him like a mark. They're, you know, shooting -- you know, talking about this other thing that had nothing to do with any. That's going to become instructive and here's why. Mr. McCabe's account states I explained that I thought the quickest way to get this done was to have a conversation between Flynn and the agents only. I further stated that if Lieutenant General Flynn wished to include anyone else in the meeting, like the White House counsel for instance, I would need to involve the Department of Justice.

All right. They're putting it in there because Flynn was getting some pressure to do this their way and then he wasn't thinking about protecting himself. That's instructive. Flynn stated that this would not be necessary. He wouldn't need any help and agreed to meet with the agents without any additional participants.

Then less than two hours later at 2:15 p.m. -- look how fast this happened. You think that would have triggered something in Flynn's head, like why these guys just jumping over here if it doesn't matter. FBI Deputy Assistant Director Peter Strzok, remember that name. OK, he wind up becoming an infamous part in this, but he and McCabe are the names connected to Flynn with this.

So Strzok and a second FBI agent arrive at White House to interview General Flynn. By the agent's account, General Flynn was relaxed and jocular and offered to give the agents a little tour of the area around his West Wing office. The agents, listen to this, the agents did not provide General Flynn with a warning of the penalties for making a false statement under 18 USC 1001 before, during or after the interview.

Why does that matter? Let's just stop here first. Because it's about feel. It's about what they were making Flynn think. Now you can say, well, that's what a law enforcement does, not with one of their own, not with the White House.

So what it's suggesting is that there was an atmosphere here of amiability being given to Flynn. And why is this matter? It matters because the theory of the case is man this Flynn is sneaky. He's just a lying sneaky, manipulative guy. Not here. Not here he wasn't.

He let them into the office. He didn't have his own lawyer present. He said let's do it easy. He wants to show them around the office. They don't warn him of the penalties. Well, would he know them? Of course, he's a savvy guy. But they didn't for feel, keep him comfortable. It matters. And it's going to matter in the sentencing, I promise you that.

Prior to the FBI's interview of General Flynn, Mr. McCabe and other FBI agents -- officials decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the reporting. No kidding. That's what one of the agents reported.

Before the interview FBI officials had also decided that if Flynn said he did not remember something they knew he said, they would use the exact words Flynn used to try to refresh his recollection. That's not unusual. If Flynn still would not confirm what he said, they would not confront him or talk him through it. One of the agent reported that General Flynn was unguarded during the interview and clearly saw the FBI agents as allies.

Now, I think that this is important. Legally I think it's important. I think it takes away from the idea that Flynn was manipulative and looking to get away with something, OK? That's going to be relevant to the judges and certainly it was for special prosecutor. Doesn't mean he didn't lie. Doesn't mean what he did was wrong, which he now takes responsibility for.

But remember, this is about understanding the man in full because he's going to offer information that goes beyond his own crime. Who knew what he was saying to the Russian ambassador, why he was saying it, Jared Kushner was there for one of the meetings, Jared Kushner got another meeting with the Russian ambassador's help afterwards, what did they know and why? What would be the sanctions? And it's all going to be in there and that's why this matters, to understand Flynn in full.

That's what I say. What do the great debaters say? Angela Rye and Scott Jennings. Let's deal with this quickly and then we'll move on to some of the other huge headlines that we have today.

[21:30:03] Angela Rye, my reckoning of why this is in the sentencing report and this is Flynn putting the best face on his situation that he can, but to the extent that these are factual recollections of how he was with people when they asked him about this, what does it mean to you?

ANGELA RYE, CNN POLITICAL COMMENTATOR: Well, I think it is important to note that this is the defense's sentencing memo. This is their request. They cite his 33-plus years of military experience, right. And I would say because of his 33 plus years of military experiences, he knows the importance of the voracity of statements whether or not he's been for warn about say voracity of statement. I think it's also important to realize that when you have served your country in this way, perhaps in General Flynn's role, he somehow thought that he was privileged, thought that he may have been above the law. And it is so interesting to me, Chris that, this is the same man who stood on the stage during the Republican National Convention and led a chant of --

CUOMO: "Lock her up."

RYE: -- of "lock her up".

CUOMO: Yes, no question.

RYE: It is just fascinating.

CUOMO: Heisted -- hoisted on his own petard, as they say, a petard being a bomb. That was his line, wind up blowing him up.

Scott, the reason I pointed is, a man in fold, not playing with the literary connotation, but that, yes, he lied, yes, he got sneaky, he owns it, but he knows other things, things that we should believe and he's not a bad guy through and through. Nobody's who's been with him thinks that about him.

And I think that creates exposure for the President, even though that this is his defensive posture here Flynn. 18 days you knew what he did, 18 days they told you that they thought he could be compromised, maybe Pence, too, because they didn't know what Pence knew about what he was being told.

The connections with Kushner. I think there's going to something here we're going to hear about again. Tell me I'm wrong.

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: Yes, I think you're right actually. I've always thought the most interesting this evening Flynn will have to say is who told him to talk to the Russians during the transition and what was he instructing him to talk to the Russians after he got the job and what was he instructed to say? You don't pick up the phone and make those kinds of calls, you know, on a whim. I've always believed that when we find that out, we're going to know more about where Mueller is headed on that piece of the investigation.

Look, I think this guy served his country, I think he made a huge mistake and I think as they say, karma is a -- you know what. And the "lock her up" chants are going to haunt him and follow him around for the rest of his days. He should not have to be told not to lie, you should know not to lie. If you're a military officer, of that rank or any kind of --

CUOMO: It's 100 percent.

JENNINGS: -- military officer for that matter --

CUOMO: 100 percent.

JENNINGS: -- you know not to lie. So, I think he's going to get some kind of punishment whether he gets jail time or not, I'm ambivalent on, but I think his career has obviously been destroyed, his life has been changed forever and he should have to do something to acknowledge that he broke a code and that code is when you're an officer of that rank, you do not lie to anyone, let alone your own government.

CUOMO: And that code of integrity often transcends with military men and women even their responsibilities under the law. But let's see where he turns out at the end of all of this and how he is wind up reckon in terms of his overall part in the puzzle.

All right, let's talk about something else. Angela and Scott, do I get an amen on my new nickname of Nan-Chuck, for Nancy Pelosi and Chuck Schumer for the way that they went toe to toe with Trump. In fairness Don Lemon gave it to me I was going to go with Pelumer.

RYE: Don, that's terrible.

CUOMO: With Pelumer or Shumelosi.

RYE: How about none of the three, those are awful.

CUOMO: Come on, after what we saw in there today, that is --

RYE: Yes.

CUOMO: -- Trump's theaters. The lights are on, he's saying things, half of them already been close to true. But he puts people on their heels. Not today Angela, was that some type of battle cry by the new leadership that were coming, we're going to fight you on your own terms and we're going to find a way to win?

RYE: I really think that they were just doing what good leaders do, right? You -- hold people says that they call people to the carpet, you hold them accountable, you ensure that they are having conversations rooted in fact. They were having a conversation with someone who is supposed to act as the commander-in-chief and he demonstrated that he was ill prepared.

Donald Trump thought that this was a reality show, perhaps another season of "The Apprentice" and little did he know that these folks are professionals, they've been doing this work a really long time and they are coming in to not just advocate for what's in the best interest of their constituents, but also what's in the best interest of not even just they're parties, Nancy Pelosi is now going in as likely the speaker of the House. So she's -- because they're suppose to be representing what's in the best interest of the American people.

What Donald Trump should have been doing today with taking copious notes about what it looks like to have a meaningful conversation, to how to find common ground and figure out how at some point you get to compromise.

CUOMO: Well, I don't know that they checked those boxes. I mean, you know, I saw --

RYE: I think it was a good start. CUOMO: -- I saw this more pageantry than anything else. And I thought it was ironic, that Chuck Schumer kept saying let's go and negotiate, let's go negotiate. And Trump kept keeping him there and asking and answering these questions. They kept interrupting him and exposing him. I don't know why he let that keep going on.

[21:35:03] But the ultimate question become, Scott, is what kind of deal would he be willing to make? He seems to feel that he's got a knuckle up on the wall. I thought that we'd gotten past this, you know, that Mexico is not going to pay for it. They're building lots of walls and different structures down there just on the border, down by Tijuana, you know, as -- where everything is going on. And it's lots of different things. They need lots of different things. We are not a wall away from a better reality.

RYE: That's right.

CUOMO: But why make it so, you know, so singular as an effort?

JENNINGS: Yes, I think it has to do with the political campaign to come. I mean look, Donald Trump's kept a lot of promises on a number of fronts, where they're about to keep some more on criminal justice reform and the farm bill. He kept his promises on tax cuts and judges. But this is one promise and maybe the most famous promise that he made that has not truly been kept.

Now, whether it's the right answer to solve all of our immigration problems is another kind of a debate. But as a raw political matter, it's not a box that he's been able to check.

CUOMO: Right.

JENNINGS: And undo this that he'll check it with Democrats and control of the House. And if he couldn't check it with Republicans in full control of the Congress. I think with Pelosi today what you saw is it's easier to be aggressive when you're holding more cards. And all she really has to do here is play out through the month of December, if she can get to January, she's going to take over a speaker, I think she solidified her support today. And they can pass a funding bill, send it over to McConnell and drop it in his lap. So --

CUOMO: Right.

JENNINGS: -- she's get more cards to play. She started to play those today. And I think that's what her conference wants her to do. She didn't have those cards before. The President is going to have to learn to deal with somebody now who --

CUOMO: But what an ugly way to start with the New Year.

JENNINGS: -- has aces up their sleeve.

CUOMO: But what an ugly way to start the New Year. If the President feels that he has to make good and gets Congress aside, because he can't do it himself, but if he gets Congress on his side to shut down the government through the holidays? And I know everybody says Angela, we always make such a big deal, you know, everybody winds up getting paid. You know, cash flow matters.

You know, you don't have your paycheck coming in one, two, three weeks over the -- you know, Christmas and new years, you know, that matters, you know, that matters for people. Let alone a lot of the other nonessential benefits that make a difference. Is that something that you think would be acceptable for the Democrats?

RYE: No, it's not acceptable. I think a government shutdown as a starting point, which is what I believe we all saw today. Donald Trump's baseline is I'm shutting the government down unless, it sounded more like a child who's never had to play in the sandbox with another -- another kid. Doesn't understand again that there's compromise, your not get exactly what you wants.

To your point, you haven't been able to get exactly what you wanted with Republicans running every --

CUOMO: And Pelosi kept cutting him off today and saying, you're wrong, you don't have the votes, let's have the vote tomorrow. That's ballsy thing to say, it wasn't enemy that she know the Republican side of the equation that well?

RYE: Yes -- well even if not, it's a great calculated risk on her part, because to the point, she's not running the House yet, she's not the speaker yet. So this is a great opportunity for her to say this is still under Republican control, this is still on your watch, what are you really going to be accountable for? How are you really going to go about this? It's not just about building a wall. Immigration reform is a comprehensive complex --

CUOMO: That's for sure.

RYE: -- policy piece that he's not been able to --

CUOMO: But they won't get it done that way either. I'm not saying to start with the wall. I'm not even saying start with the wall for the dreamers. But I'll tell you what I've become a little bit of a student of this, in fairness, I've been covering this for about 20 years, I've been in lots of different manifestations of border security, it may haven't between ABC News and here.

But Scott, I got to tell you, if you talk to the men and women who were fighting the fight for us, you will hear them say barriers help, man, barriers help. I can't be everywhere, but I need sensors, I need fences, I need the law to be reviewed in terms of how we let people apply for asylum so that it's the same right now if you wait in line or if you jump the fence, you wind up being better off trying to get asylum if you enter illegally.

Look at that, loot at how we can keep kids, can you change the laws so we can keep families together? But keep them longer and get this process through. Can you get us more judges, can you get us the facilities, the process, the floating, you've made more accountable? None of these questions have been considered. Not one of them. So if you just do a wall --

JENNINGS: Yes, I'll do you one better on it, Chris. If you talk to anybody who builds things, cleanse things or grows things in this country, they are also screaming for immigration reform because of labor issues. The President found this out on that story regarding the people who work at Bedminster.

The President I think now needs to pivot to asking for the wall plus. To your point, it's about barriers, but it's also about a lot of other technology, maybe more human beings to guard the borders and enforce the laws down there.

But I think in order to get where he wants to go on some kind of a way to tell his people I checked this box, he's going to have to have a more nuanced position. He's going to have to always had to come back to be able to say I built something.

He's going to call it a wall be somebody else may call it something else. But now he's going to deal with people he didn't have to deal with before. And its -- this is the great tragedy for the Republicans not solving the immigration probe when they had full control, because now --

CUOMO: Yes.

JENNINGS: -- dealing with Democrats.

[21:40:04] CUOMO: Nor the Democrats --

(CROSSTALK)

CUOMO: -- nobody wants to deal with it because it's too hard. But now I got to tell you, Angela, come and look at those kids in the face, look at their parents in the face, you know. I mean I don't have anything to do with, I'm just a reporter. But I'll tell you what, it's an ugly reality we're allowing and we're enabling.

RYE: And a wall won't solve it. All that he's doing is putting up walls around people's hearts and the reality of it is Chris, you just talked about this so did you Scott, it's not just a wall. They have tried technology as well as a physical wall, through the secure border initiative, it failed. The question Donald Trump and his administration at least need to be asking is why.

CUOMO: True.

RYE: And why do they continue to try to change the missions of organizations like CBP inside of DHS or ICE. There are reasons why those are mission-specific entities, inside these agencies and they need to fulfill those specific missions. If you want to strengthen things, figure out what they are saying are the issues and then negotiate around that.

CUOMO: Fair point.

RYE: That I just I think, its way to complex for just --

CUOMO: And he's got a star, he's got a star and that McAllen and who running CBP, he's got the love and respect of his men and women, he understands the short comings and the inadequacies of the system. And they heard him. They heard him inside. He wants people to get fair treatment from this country. He does not want to be seen as some Storm trooper squad. That's not what his men and women are. And I believe him about that.

So we'll see where it goes. Angela Rye, thank you very much. Scott Jennings, appreciate it as always.

All right, more proof that despite me, we've got the best team in the business here, 178 pages, our guys are going through it, there are nuggets in there about General Flynn, they're nuggets in there that we didn't know about that we have to put in context. So we're going do that for you right after this.

(COMMERCIAL BREAK)

CUOMO: All right, we're doing this stuff in real-time. But look, the headline is that Michael Flynn in his defense submission is basically saying I'm the best thing you've got, that there's a lot of false narratives out there about me, I haven't talked, I haven't gone out and tried to win public favor, this idea I that I was being recalcitrant, I wasn't helping, it's not true, I'm no Papadopoulos. He said as soon as this happened and they came to me, I started to help. Point in his favor, Mueller says the same thing. He asked for probation, which of course would be the most lenient kind of form of actually getting a sentence. Mueller basically says the same thing.

[21:45:05] so, you're going to have to remember that this will be a function of what actually gave them. What I see as most important is not what he puts in here. What he puts in here is kind of mass. OK. Put up to full screen. Thousands of documents to the DOJ even before the voluntary pre-plea proffer sessions he had given them tons of stuff from his two companies, rather than fight over the breadth of subpoenas. You know, he went along with it is what he's saying.

He's also saying that when the stuff came out about Strzok and McCabe and all that drama, that, you know that, Jordan and all those guys and the right, Nunez were trying to push is just as important and more relevant than anything else, which of course wasn't true, he says I never changed course. I could have played with that momentum and tried to pull back and try to win favors that I never did any of that. Interesting.

Now, let's bring in somebody who understands this much better than I and he's had more time to look at it. Legal Analyst, Michael Zeldin, he worked with Mueller, former special assistant at the DOJ when Mueller was there.

Great. Thank you for doing this, pal. Is that a jets ball in the back? We'll talk about that another time. What do you see in these documents? MICHAEL ZELDIN, ROBERT MUELLER'S FORMER SPECIAL ASSISTANT AT DOJ: Well, I think they make a compelling case for the downward departure of no prison time. Remember Mueller didn't directly ask for no prison time. He said the downward departure, including the possibility of no prison time would be appropriate. So he sought a sentence in the low end of the sentencing guidelines range, which is zero to six months.

Now, Flynn through his counsel in their 178-page submission said no time is really what is the appropriate sentence. And they say it in terms of not only the fullness of the cooperation that Flynn makes and his service to the United States. But I think they take a bit issue with the manner in which the interview that gave rise to the lie arose, saying, you know, indirectly we really didn't expect this to be the type of interview where if I didn't remember anything correctly, it would result in a thousand and one --

CUOMO: Right. I read that to people in this. So we get that idea that, you know, he wasn't playing it like a liar. He was trying to be, you know, cooperative and he was open and easy and, if anything, they took advantage of that. OK. That's their case to make. Anything else in these documents that you think might wind up being instructive down the road?

ZELDIN: Well, I think that really what is instructive is how much cooperation Flynn was able to give Mueller on myriad topics, so that to the extent that Mueller's investigation needed to be fleshed out by an insider, Flynn really seems to have been that person. Surely Manafort didn't turn out to be that way, nor did Papadopoulos. We don't know what Gates has given them.

So Flynn seems to be the linchpin of the Mueller investigation as we watch it now unfold its other areas of inquiry. You know, I think this is an important case for Mueller and I think Flynn is going to prevail in not getting jail time.

CUOMO: Interesting. You don't think Flynn will get time. We'll see soon enough. Cohen, Flynn, Manafort, different situations and scenarios, but a common factor that Mueller has cared about, or at least, he would closely tune in, they told us who else they were talking to at the administration and in the campaign when they were doing the things that they have now pled guilty to. That to me is haunting. Because that is going to go to what the president knew and when he knew it. And it may not go to illegality, but it will certainly go to things that could be found wrong in a political trial.

ZELDIN: That's right. And you and I have had a dialogue about Cohen memorandum by Mueller where Cohen indicated that he socialized his testimony with the White House before he gave it. That was the false testimony before the Congress. And if he socialized it with the White House and the White House in any way suborned it, in the same way perhaps that President Trump participated in the creation of the false narrative --

CUOMO: Yes.

ZELDIN: -- after that June 9th meeting with Don Jr., that is a very, very serious and easily provable crime. So we'll see in the case of Flynn as we saw in the case of Cohen whether or not these guys were in communication with the White House after their initial --

CUOMO: All right.

ZELDIN: -- in with Mueller, whether or not anything occurred.

CUOMO: Michael Zeldin, thank you so much for putting your eyes and your head to this very helpful, another big development. Thank you. All right. So another big story today. Some Democrats are open to compromising with the president on the wall. We'll see what that turns out to.

One of them is not Bernie Sanders. OK? The senator from Vermont came here to tell us what he thinks about the wall, where that's going to go but just as importantly, he's got a huge vote tomorrow to force the administration's hand on Saudi Arabia. Wait until you hear this.

(COMMERCIAL BREAK)

[21:52:30] CUOMO: There's a new power dynamic in Washington, and we got a taste of what the next two years could look like with Schumer and Pelosi's visit to the Oval Office. The President wanted cameras to catch the clash over his proposed wall, but I don't think he was bargaining on this.

(BEGIN VIDEO CLIP)

TRUMP: I am proud to shut down the government for border security, Chuck, because the people of this country don't want criminals and people that have lots of problems and drugs pouring into our country. So I will take the mantle. I will be the one to shut it down. I'm not going to blame you for it. The last time you shut it down, it didn't work. I will take the mantle of shutting down, and I'm going to shut it down for border security.

(END VIDEO CLIP)

CUOMO: Now, we did a fact check on everything the President said there and you'll see it online. Go to our Twitter site and you'll see it. He knows, though, the President, that a shutdown over the border wall will fire up his base. He's actually betting that shutting it down is a win. Raises a question. How did the Democrats counter that? Do they even have a plan to fix our broken immigration system? I know they say they do, but when are we going to hear it? How are they going to try to put it into action?

So we had Senator Bernie Sanders from Vermont, the independent. Obviously, he caucuses with the Democrats. What did he think?

(BEGIN VIDEOTAPE)

CUOMO: Senator, did you like what you saw in the Oval Office today with Schumer, Pelosi, and the President?

SEN. BERNIE SANDERS (I), VERMONT: No, I did not. I find it incomprehensible that we have a President of the United States, the leader of our government, who wants to shut down the government, impact the livelihood of some 750,000 federal workers and seven government agencies, which impact millions of Americans. I think it's totally absurd and disgraceful.

CUOMO: What's wrong with the move of saying what the Democrats say quietly, which is we're in favor of border security. We're funding the stuff that they're doing on the border right now. Give him the wall and get back what you want for the Dreamers. You shake your head no immediately, why?

SANDERS: We have veterans in this country who are sleeping out on the street. We have elderly people on social security trying to survive on $12,000 a year. They can't afford prescription drugs. We should not be wasting $5 billion or in fact a lot more than that, which is what Trump eventually wants on a wall. We need strong border security. No one argues with that. But the most cost effective way to do that is not building a wall.

CUOMO: But those who operate on the border do say that additional barriers and types of sensors and different ways of stopping people from coming in is one of their priorities.

[21:55:08] SANDERS: Well, to my mind, we should utilize technology, utilize manpower. There are ways that we can strengthen the border, protect the border without building a wall and wasting billions of dollars that should be spent in more important areas.

CUOMO: Are you confident that you win this fight? The President said today, I can get the votes in my side of the party with one phone call. I've got the votes. Nancy Pelosi said, no, you don't. Do you think you win, the Democrats and those you caucus with, if it becomes a wall and whether a wall is right or wrong?

SANDERS: Of course I can't give you a definitive answer, but my understanding is he does not have the votes in the House. And I think there are a lot of folks here in the Senate, Republicans, who are also not supportive of building the wall.

CUOMO: All right. So wall for Dreamers not on the table for Bernie Sanders. Let me ask you about another big vote tomorrow. You see the situation in Yemen and the United States' military therein as not just unconstitutional but unethical given what just happened with Jamal Khashoggi. How so?

SANDERS: No. It's deeper than that, Chris. I don't know how many people know that right now in this very poor country of Yemen, we are witnessing the worst humanitarian crisis on the planet earth today. We're talking about as a result of the Saudi-led intervention in the Yemen civil war three years ago, we're talking about 85,000 children who have already starved to death. 85,000 children.

And the United Nations tells us that Yemen is on the verge of a mass famine where millions of people might starve to death. The United States should not be led around by the despotic regime in Saudi Arabia and destroy a country and create a humanitarian disaster. So tomorrow I hope we are going to win the vote to end the United States' participation in that Saudi-led war.

I hope that that leads us to rethinking our relationship to the Saudi regime, which as most people now know, where you have the leadership, Mohammed bin Salman, ordering the murder of a dissident in an incredibly cold blooded way. I think we have to rethink our relationship to that regime. And last but not least, what this vote tomorrow is about is re-establishing Congress' constitutional authority to make war.

It is not the President of the United States who has the constitutional right to determine where our troops go. It is the United States Congress, and the constitution is clear about that, and it is long overdue for the Congress to re-establish that authority.

CUOMO: Two points to follow on. One, you and I have had this conversation before in the context of the AUMF, the Authorization of Use of Military Force. It does not ever get to the level of political outrage from your brothers and sisters down there in the Senate to come to a real debate and really rethink it. President after president has taken power from you guys.

SANDERS: That's right.

CUOMO: Clinton, Obama, Bush.

SANDERS: That's right.

CUOMO: You let them have it all the way back to Nixon. Why do you think it would change now?

SANDERS: I think there is a growing concern that we have troops in dozens and dozens of countries around the world that we have a war in Afghanistan that has gone on for 17 years, that wars in the Middle East have cost us trillions of dollars and thousands of brave men and women. And I think we're also now spending some $700 billion a year on the military.

And you are quite right. This is an issue that the United States Congress, under Democratic presidents and Republican presidents, has not faced. And I think -- I talked to a number of Republicans who are saying, you know what? We were wrong. It's time for us to reclaim our constitutional responsibility.

And I think the war in Yemen and the devastation and the humanitarian crisis, you're having people from progressive wing, conservatives asking, why are we involved in a process which is resulting in mass starvation for the children of Yemen? We should not be there. Why are we allied with a despotic regime which not only does not tolerate dissent, treats women as fourth-class citizens and kills their opponents in cold blood?

CUOMO: Senator Bernie Sanders, thank you very much for the interview. You're always welcome here on Prime Time to talk about what matters. Good luck with the vote tomorrow.

SANDERS: Thank you, Chris. (END VIDEOTAPE)

CUOMO: It's a big vote, right, because it will be playing on Jamal Khashoggi, made the time man of the year along with other journalists that they see as kind of being the warriors for truth. But it will also make the administration have to do something about the posture towards Saudi Arabia if Bernie Sanders can get the votes, let alone a veto-proof majority. That would take both Houses. We'll see.

That's all of us tonight. Thank you for watching. "CNN TONIGHT" with Don Lemon starts right now. Big night --

DON LEMON, CNN ANCHOR: It is.