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Legal Trouble Closing in on Trump?; Special Counsel Slams Michael Flynn's Criticism of FBI Interview. Aired 3-3:30p ET

Aired December 14, 2018 - 15:00   ET



MICHAEL SMERCONISH, CNN CONTRIBUTOR: And that is that the president was very concerned at the time that they were resolving the two litigation items that were outstanding, the so-called hush payments, because of the election.

The fundamental issue here is, were those two payments made in an attempt to keep silent those women's comments in the face of the election? And, of course, prosecutors and Michael Cohen, AMI, David Pecker, they all say yes.

It requires getting into the president's brain in order to bring a successful prosecution. And one key to doing that is whatever Michael Cohen can relate that he was told by Donald Trump at the time that they resolved those matters, because you know what the president will say.

If asked, the president will say, it had nothing to do with the campaign, I was acting to protect my marriage, I was acting to protect my young son, I was acting to protect my brand, in the event this campaign didn't end well.

ANA CABRERA, CNN ANCHOR: Right. But, of course, Michael Cohen in that issue was part of the Southern District of New York's filings, and one of the years he got three years in prison as a sentence was because they say he hadn't fully cooperated with them.

And that's something the president continues to go after, his credibility, in saying he's not truthful. Why do you think Cohen, who is now claiming to be a changed man, has been holding back, according to Southern District of New York? What has he been waiting for?

SMERCONISH: Well, Ana, there a couple of different reasons.

One is if he had a full cooperation agreement, it would have put the onus on him, a burden on him to explain in detail any and every time that he violated the law and his full knowledge of others with whom he was dealing who had done likewise.

And maybe he just didn't want to open himself up to that extent. A more favorable outcome or answer for Michael Cohen would be one that said, this has wreaked havoc on him professionally and personally, and, frankly, he wants to get it over. And the quickest way to get it over is to take his lumps and frankly get to jail on March 6, rather than see this thing continue on with his outcome hanging in the balance.

CABRERA: As we just laid up at the top of the show, six Trump business entities are now under investigation, the walls clearly closing in on the president.

Michael, what do you think is going on right now in the White House?

SMERCONISH: I think probably most concerned, because it's immediate and we know a great deal about it, is that what you're describing coming out of the Southern District of New York. This may end up posing more crises for the White House then does whatever Mueller might conclude.

We just don't know what Mueller has. But we do know a great deal because of the Cohen plea about this claim that could be made against the president for his role in violating federal election law. Now, of course, you know, Ana, that the precedent is that you don't indict a sitting president. So maybe he's protected in that regard.

And one of the questions that I have is, what ultimately happens at the end of the road with the Southern District investigation? Does it get folded into the Mueller probe? Is it presented in some way that Congress if they wanted to could act on it? That's unclear.

CABRERA: We don't really know what's happening behind the scenes in the White House, but we do get a sense of what may be happening, the conversation on Capitol Hill, particularly among Republicans, many of whom shrugged off the campaign finance violation allegations that you say are perhaps the most threatening right now against this president.

Among those Republicans initially brushing this off was Orrin Hatch, who said this to CNN's Manu Raju.


SEN. ORRIN HATCH (R), UTAH: I don't care. All I can say is, he's doing a good job as president.

I don't think he was involved in crimes. But even then, you can make anything a crime under the current laws. If you want to, you can blow way out of proportion. You can do a lot of things.


CABRERA: Well, now that senator says he has regrets for making those comments, calling them -- quote -- "irresponsible" and adding that while he doesn't feel President Trump broke the law, no one is above the law.

What do you think inspired this about-face?

SMERCONISH: So let's assume that in the end Mueller doesn't have collusion, Mueller doesn't have obstruction of justice, Mueller issues a report that is condemning of the president for some of his behavior, but does not color out a case for a criminal indictment, and we're left only with that which we know from the Southern District of New York.

Is this enough to begin an impeachment process? I could see Democratically controlled House of Representatives voting for impeachment. But now, to answer your question, ultimately, then, it gets to the Republican-controlled United States Senate. And I'm sure there's a mentality amongst some in the Senate that, in the end, the underlying conduct here was sex.

And we learned our lesson 20 years ago, perhaps, that if that's the underlying conduct, it's not enough to meet the standard for a conviction in the United States Senate. I'm not buying into that necessarily. I'm just trying to explain that mind-set.


CABRERA: All right, Michael Smerconish, we will see. Thank you very much for your time.

SMERCONISH: Thank you, Ana.

CABRERA: And don't forget Michael's show, "SMERCONISH," is tomorrow morning at 9:00 Eastern here on CNN.

We have more breaking news now on a high-stakes meeting that was just announced involving President Trump, a possible government shutdown. It is set to happen sometime this afternoon.

Let's get right to Phil Mattingly live on Capitol Hill.

What can you tell us about this upcoming meeting?

PHIL MATTINGLY, CNN CORRESPONDENT: Well, Ana, this is all about government funding, and whether or not a week from today the government will be set to shut down.

Now, you remember President Trump in that now infamous Oval Office meeting with the Democratic leaders earlier this week said he would be willing to take the blame for any government shutdown. Republicans both in the Senate and the House not so keen on that.

However, things have been almost frozen, I'm told, over the course of the last week or so, as Republicans on Capitol Hill have waited for some signal from the president in terms of what he wants to do next. He may be at least presented with options to make that decision shortly.

He's supposed to meet with his head of legislative affairs, also supposed to meet with OMB Director Mick Mulvaney on these issues. And one of the items is going to be presented to him, I'm told, is something that Republicans on Capitol Hill have started to coalesce behind, and that is punting the funding fight for at least another two weeks.

This would mean he would not get $5 billion in his wall money, he would not get any wall money specifically. He would get a continuation of the $1.3 billion in border security that is already set. Essentially, what this would do is freeze the current spending levels for another two weeks and punt the fight into January.

What happens in January? Well, Ana, you know, well, that's when Nancy Pelosi, the speaker-designate, will likely take the gavel and House Democrats will take the majority over there. The calculation from Republicans on Capitol Hill is, since they don't expect Democrats to move at all right now, better to have the holidays and set that fight up for when Democrats take the majority in the House, maybe set Democrats in the majority in the House up for some blame or at least a battle with one on one with the president.

That's where they are. I will note extreme caution, in the sense that the president has not made any decisions yet, I'm told. This meeting will be really the first time these types of options are put in front of him for any type of decision.

So we don't know where he's going to go. He's certainly been steadfast that he wants to have the fight now, and that the $5 billion for the wall is crucial for him moving forward. Will he stick to that? Well, people have been waiting for an answer. We may get one soon, Ana.

CABRERA: And, Phil, do we know who's going to be in this meeting?

MATTINGLY: So we do know that the head of legislative affairs, Shahira Knight, will be there. We also know that OMB Director Mick Mulvaney is supposed to meet with the president as well.

And these are really kind of the crucial players, not just in laying out the options, but also conveying what they're hearing from Capitol Hill. And, again, in talking to Republican lawmakers, both publicly and privately over the course of the last couple days, the enthusiasm to have a bare-knuckle brawl that we have seen so often in these spending fights has really just dissipated in the course of the last couple days, not just because the president kind of took the P.R. message away in saying the shutdown would be his fault, but also because of the holidays and because the recognition that, as it currently stands, Chuck Schumer, the Senate Democratic leader, and Nancy Pelosi, the House Democratic leader, have made clear they're not moving on this issue of the wall.

They don't want a drawn-out shutdown. Might as well punt it to the next year, then try again. We will see if the president is willing to agree to that, Ana.

CABRERA: All right, Phil Mattingly, we know the president also has holiday plans, so nobody wants to be stuck in Washington. We appreciate you. Thank you.

I want to get to our breaking news that just dropped. Robert Mueller just filed another memo, this one involving Michael Flynn, and this submission may have a big impact on Flynn's punishment when he is sentenced next week, the special counsel issuing a response to the sentencing memo of Flynn's attorneys.

Now, remember, we already know both sides agree on one major point. The man who was President Trump's national security adviser for 23 days should not get any jail time for lying to federal investigators. And that's because of Flynn's early and his ongoing -- quote -- "substantial assistance" -- that from Mueller's own filing, which foreshadows -- quote -- "some of that benefit may not be fully realized at this time because the investigations in which he has provided assistance are ongoing."

I want to bring in our panel now, Evan Perez, Shimon Prokupecz, and Jennifer Rodgers, to discuss this.

I mean, this came out as we were just talking on air to Phil Mattingly.

Evan, what are you learning?

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: Well, one of the things, Ana, we were talking last hour is the Flynn legal team.

One of the things they mentioned in their memo was that the circumstances under which he was interviewed, the FBI came to interview Michael Flynn, and they never told him that lying to the FBI is a crime. They didn't sort of give him the warnings that you often hear in these interviews. And so they mentioned that in their filing.

So the special counsel responds to this now, and it says: "The circumstances of the defendant's interview, which are further described below, are not mitigating." In other words, it makes no difference. They're saying that they're sticking obviously to the idea that Michael Flynn does not deserve any prison time for that he has given substantial help to this investigation.


But they're saying that the things that the legal team has raised, the questions over whether or not he was warned, whether or not the FBI sort of put him at ease and didn't tell him exactly what this was about before they came over, none of that matters.

They say that Michael Flynn obviously is a national security adviser for the president. He is a former head of the Defense Intelligence Agency. He's a longtime military -- decorated military veteran. He should know that lying to the FBI is a crime. So none of that should matter.

And, look, I think what the special counsel is trying to do is get ahead of any issues that the judge might raise as a result of this. They're making sure that the judge gets the clear picture here that what Michael Flynn did is -- was lying, is plain and straight lying.


PEREZ: It doesn't matter what the circumstances under which those lies occurred.

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: So, in these -- in what was just filed, his actual interview, what's called a 302 that the now fired FBI agent Peter Strzok filled out after he interviewed Michael Flynn.

But we also now learn that Peter Strzok was interviewed by FBI agents separately about his interaction with Michael Flynn, and what -- how he describes Michael Flynn's demeanor at the time of the interview is quite interesting. What he says is, throughout the interview, Flynn had a very sure demeanor and did not give any indicators of deception. He did not parses words or hesitate in any of his answers.

He only hedged once, which they documented, the FBI agents, Peter Strzok documented in his 302. And then Strzok said that he and this other FBI agent who interviewed Flynn had the impression at the time that Flynn was not lying or did not think he was lying.

Flynn struck Strzok, the FBI agent, as bright, but not profoundly sophisticated.

So that's interesting. It's giving you some color of what it was like in that interview. What's interesting about this is that Flynn's attorneys are arguing that it was the FBI agents who went in there under false pretenses. They were acting like they were friends with him, we are allies, we're just trying to get information, and, in essence, tricked him into lying.

And that has been their argument, which is why they have wanted this information released. Keep in mind also, it is very rare that we get to see these kind of...


PEREZ: Never see these.


PROKUPECZ: You almost never see these.

We're getting an inside view now of the interview of what it was like at the White House when the FBI agents went there to talk to Michael Flynn. There's more here obviously that we're going through. Talks about when they received a phone call from Michael Flynn, how all that went down.

This is fascinating stuff because we just never get a chance to look inside the room of an interview. And that's what we're getting here. And just the perception of the FBI agents at the time, we heard all this. No one thought at the time that Flynn was lying, perhaps after the fact.

PEREZ: Right.

CABRERA: But they had other information to know he was lying.

Jennifer, when you look at these doctors, and to Evan's point that -- Evan and Shimon's point that we are getting these details about the interview itself. Are you surprised that they included those specific documents in this sentencing memo?

JENNIFER RODGERS, CNN LEGAL ANALYST: I would have been had this all not come up in Michael Flynn's sentencing memo.

And I think Mueller's team is right to push back on this, this narrative that Flynn's team is trying to put out there for public consumption and for the judge's consumption that he somehow was treated unfairly, that it wasn't OK for them to not tell him, by the way, it's a crime, pursuant to 18-USC-1001, to lie to us.

I think it's very, very smart of them to do this, because I think people need to know that you don't have to tell the head of -- the national security adviser that it's a crime. There's no question that he knew that. He also knew what the interview was about. It's very clear that they told him, not once, but more than once, what exactly they needed to talk to him about.

It had been in the press. He knew exactly what he was going to be talking to the agents about and what they were concerned about, which were his contacts with the Russians.

So there's no trickery here. There's -- there's nothing like that. And so I think the fact that they have released these documents is good to set the record straight.


PEREZ: I think they had to do it at this point, Ana, because this was becoming a thing, especially in the right-wing media.

But, look, I mean, we reported this back in early 2017 after Flynn had been interviewed. We reported at the time on CNN that the agents who interviewed him didn't think that he was lying. They certainly did not -- he did not come across as intentionally lying. It didn't look like something that they could prosecute.

It wasn't until later on that they took a second look and decided that this was something that he could be prosecuted for. We still don't know the full circumstances of that, by the way. I mean, I think that is still yet to be to be revealed by the special counsel.

But something happened in between this first interview in early 2017, and then the time that Robert Mueller is appointed, that they decided that there is enough here to prosecute Mike Flynn. It's what he pleaded guilty to.



CABRERA: Well, that's what I think is really important to...


CABRERA: I got to squeeze in a quick break, Shimon, so hold your thought.


CABRERA: I want to get that. We're going to continue our special coverage.

But, on that last point, let me just kind of put a little button on this segment for a second.

And that is the fact of the matter is, Flynn pleaded guilty to lying. So the question about whether he was lying at that interview or not isn't a question. He has admitted to it and said that that was a fair indictment, essentially, in which he pleaded guilty to.

So, we're going to come back. We're going to continue to go through these memos and we will bring you new information that we're learning about it when we come back.


ANNOUNCER: This is CNN breaking news.

CABRERA: Back to our breaking news.


The special counsel has just slammed Michael Flynn for his criticism of his FBI interview. This is part of a new sentencing memo Robert Mueller just filed. And it could have an impact on Flynn's punishment when he is sentenced next week.

My panel is back with us.

And also joining us is senior White House reporter Pamela Brown.

Pamela, as we have been all looking through these documents, I know you have as well. What's your big takeaway?

PAMELA BROWN, CNN SENIOR WHITE HOUSE CORRESPONDENT: Well, it's just a fascinating look inside this interview between the president's former National Security Adviser Michael Flynn and FBI agents, Ana.

Of course, you see Mueller's team taking a dig right back at Michael Flynn after his team took a dig at the FBI for saying that the FBI failed to warn Michael Flynn that lying to the FBI is a crime.

And in these documents here, Mueller's team is saying, look, this is someone who is a national security adviser, who had more than 30 years in the military, who ran an intelligence agency. This is someone who knows it's a crime to lie to the FBI. He shouldn't have to be warned.

It says: "He does not need to be warned if it is a crime to lie to federal agents to know the importance of telling them the truth."

Of course, all of this surrounding his conversation with Russian Ambassador Sergey Kislyak about sanctions. But it's really remarkable. Mueller's team includes notes from the interview with Peter Strzok, the FBI agent who was under fire for those text messages about Trump, who interviewed Flynn.

And when they interviewed Strzok, he said, they arrived at the White House to interview Flynn. Flynn was in such a good mood, he wanted to give them a tour. They ran into President Trump during all of this. He was talking with others about where to place art, and that the president didn't seem to take notice that there were FBI agents there with Flynn, which is pretty interesting there.

Peter Strzok said that Flynn was so talkative and had so much time on his hands, they wonder, doesn't this -- the national security adviser have anything better to do?

And then it talks about the fact that Flynn seemed so sure and confident in the interview. They didn't think that he was being deceptive or knowingly lying to them.

But in these court records, it sort of lays out what happened during that interview. As we reported and as Evan was talking about, Flynn was viewed as wobbly in the interview. And they say, during the interview, the FBI agents gave him multiple opportunities to correct his false statements by revisiting key questions.

When he said he didn't remember something he knew that he said, they knew -- the FBI agents knew he said, they used the exact words that the defendant had used in order to prompt a truthful response.

And so after a further probing laying out to him, this is what you said to the ambassador in these court filings, then Flynn came around to say, oh, I remember that. That is how Mueller's team is laying it out, but really a remarkable inside look that you don't often get to see, Ana.

CABRERA: I'm curious, Pamela, having covered the White House yourself there, what do you anticipate the president's team is going to do now?

BROWN: Well, that's a good question.

I mean, you already have Michael making their case, his team making their case about this. The president, we will have to see. I mean, you saw him tweet recently about Flynn, saying he believes he is stronger than some of the others, that he's not weak.

Clearly, the president has been supportive of his former national security adviser through this. So, we will have to wait and see how the White House responds.

CABRERA: All right, Pamela Brown, we know you're going to continue to read through it, as are our guests here on the set with me.

Let me bring back our panel.

Thank you, Pamela.

And what else are you guys seeing?

PROKUPECZ: No, I mean, I think one of the other interesting notes is that in a phone call from January 24 of 2017, when the FBI initially reaches out to Michael -- to Lieutenant Flynn, they say to him they want to talk to him. Then they asked him questions about his conversations with Russians.

And he said that he -- they say that he explained that he had been trying to build relationships with the Russians, that he had calls in which he exchanged condolences.

And then what Michael Flynn tells the FBI is that, "You probably know what was said."

So, clearly, there he knew that they already were very much aware of his conversations. The big question has always been, still to this day, is, why did Michael Flynn lie?


PROKUPECZ: We still don't have a full explanation.

In all the documents that have been filed, from the special counsel to his attorneys, no one has ever really explained why he lied. We know why -- we know why Michael Cohen has lied, because he wanted to protect the president. Others have lied to protect the president.

We still to this day do not know why Michael Flynn lied.

CABRERA: Can I take a step back here for a second? Because what's so interesting to me is the need for this additional filing by Mueller's team, when they both agreed that Flynn shouldn't get any jail time.

Jennifer, I mean, why do you even think Flynn's team took this shot at the special counsel, when they were really building Flynn up as a very cooperative person.

PEREZ: He's a model cooperator, right.

RODGERS: So, I think, to be honest, he is setting himself up for life afterwards, because he was this darling of the conspiracy theorist right-wingers. He's probably going to go back out on the speaking tour to make money.


And I think he wants to still capture a little bit of that, despite having cooperated. I mean, that's maybe a bit cynical, but my best guess.

But I also think it was important for Mueller to have responded, because I think the judge wants to know, listen, now that Flynn seems to be questioning things, backing out, pointing the finger at the FBI, what do you, Mueller, say? Do you now want to back off of your suggestion that no jail time is appropriate?

So I think he wanted a response from Mueller 's team, and so they gave it to them. Look, no, he still gets no time, but all of this nonsense about him not being warned and about him not knowing what it was and being sort of tricked is nonsense. And they wanted to put that in front of the judge too. PEREZ: Ana, in the filing itself, they make a very interesting point, to go to what Shimon was talking about, the question of, why did he lie?

They say -- in the filing, it says: "The defendant chose to make false statements about his communications with the Russian ambassador weeks before the FBI interview, when he lied about the topic to the media."

So, essentially, they're saying he'd been practicing his lies to the press before the FBI shows up to interview him. And so that sort of gets into his -- into his mind-set. Again, one of the issues here is always, did you intend to make a false statement, right? That's when they can prosecute you, if you intentionally lied.

If you just forgot something, and you gave a wrong answer, that's a different thing. But, here, what they're saying is that you were practicing -- Michael Flynn, you were practicing these lies for some time before the FBI showed up at the -- at the White House to do this interview.

And, again, this is again to push back on this idea that he may have been tricked into making these false statements. It's absolutely, as you pointed out, he has now admitted that he made those false statements, and there's no mitigation to that.

CABRERA: Is there any reason to believe that the judge is actually going to now, because of the back and forth, smack Flynn down a little bit now?

RODGERS: No, he won't. I mean, it's kind of an unwritten rule. You don't -- you don't harm the defendant for things that his lawyers do, really. I mean, you have to assume that these are strategic documents filed by the legal team.

I would say it's a little bit possible if -- at the sentencing, the defendant is always given an opportunity to address the court -- if Michael Flynn stood up and started going off on some rant about an FBI conspiracy theory and how he was tricked, maybe the judge would reconsider, but zero to six months is the guidelines range. Even in a non-cooperation case, the defendant usually gets the bottom of the range.

So it would be -- it would be really unusual, I think, for the judge to go above the bottom, which is no time.

CABRERA: Quickly, if you will, Shimon, as you're looking at those documents, a lot of redactions also in this, which was true to the form of the original sentencing memo as well.


CABRERA: But this obviously dealing with different documents. What is redacted? I know we don't know exactly, but what does it suggest?

PROKUPECZ: Well, names are redacted. It suggests that other people were involved in being briefed. There's some mentioned about an argument over how to approach Michael Flynn on this.

There's names that it seems to be.

PEREZ: There's also a reference to other investigations. They say that there are other investigations in addition to Michael Flynn that they are doing. So that stuff is still blacked out.

We don't know whether that's still ongoing or not. But there's a reference to the fact...


PEREZ: ... under investigation.

PROKUPECZ: What also is interesting is that I think Peter Strzok was interviewed in all of this by the FBI for the special counsel.

And it says that in the interviews that Peter Strzok came over and took over several of -- as the special counsel, took over several parts of the investigation. So there's a lot in this that we can read into essentially saying that there's several different investigations that the Mueller team has been looking, that Peter Strzok, who obviously was fired under a lot of controversy, was overseeing and was in charge of.

And that could potentially be a problem down the line, should any of these cases go to trial. Certainly, that could be a problem.

CABRERA: I know, Pam, you have something else as well.

BROWN: Well, as we're just reading through the notes here in these filings, what's interesting here is then Deputy Director of the FBI Andrew McCabe took notes on his conversation with Flynn before the FBI interview and did sort of a play-by-play of what their conversation was like.

And in these notes released, he talks about how Flynn conveyed to him that he was trying to build relationships with Russians and exchange condolences, and that really was sort of the gist of the conversation.

But then he goes on to say that Flynn stated to him that he probably knew what was said. So, essentially, Flynn said to then the deputy director of the FBI, you probably know what I said to Kislyak.

And so it certainly sort of makes you scratch your head as to why he wasn't fully forthcoming then in the interview with the FBI about his conversations and what was exactly said, considering he said to Andy McCabe, you probably know about the conversation.


BROWN: It just sort of, like, raises more questions about, why did he lie and what are the circumstances around it?

CABRERA: All right, everybody, stand by.

Got to squeeze in another quick break.

We're also getting new reporting about just how much the special counsel investigation has cost.

And we will have that when we come back.