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Special Coverage of Sentencing of Michael Flynn; Michael Flynn: "I Was Aware Lying To FBI Is A Crime;" Judge Formally Accepts Flynn's Guilty Plea. Aired 11:30-12p ET

Aired December 18, 2018 - 11:30   ET


[11:30:00] ASHA RANGAPPA, CNN LEGAL AND NATIONAL SECURITY ANALYST: I just want to also make clear that as a legal matter, when someone is not in custody, when they are free to leave, when it is a voluntary interview, the FBI is under no obligation to mirandize them, to say you have a right to a lawyer. That is for a very specific setting. And I think that here the FBI would have reasonably believed that a career government three-star general would understand, especially somebody who led intelligence agencies before, that lying to the FBI was a crime.

PAMELA BROWN, CNN ANCHOR: And Robert Mueller in the filing just last Friday gave a strong rebuke to Michael Flynn's lawyer, saying look, he knows it's a crime to lie to the FBI, as a, you know, three-star retired general in the army, as a former head of the defense intelligence agency. But what do you make of this, Michael Zeldin, if Michael Zeldin is available, I'd like to bring him in to get his perspective? What do you make of what is playing out inside of the courtroom?

MICHAEL ZELDIN, CNN LEGAL ANALYST: Well, so the way it works is Mueller says in the sentencing memo, I think Flynn should get little or no time. Flynn replies saying, you know, essentially, thank you very much, but court, you should understand that the circumstances of our lie can be mitigated by the interview process. Mueller replies to that saying absolutely untrue.

So now the judge has this situation, as Asha indicated, which is Michael Flynn, what do you want to do? Are you pleading guilty or contesting the terms under which your statements were made and thereby seeking to remove yourself from the plea bargain? And I think Flynn is quite categorically saying no, I want this plea bargain. And I accept responsibility. And I am contrite. I want to be sentenced to no prison time.

Why his lawyers, as Jack said in the first part, why his lawyers chose to contest the terms under which he was interviewed is just a complete mystery to me. And they should have let it be in the first instance, accepting Mueller's representation that he was substantially helpful, and let this go.

So now they're in this, you know, mess, in a sense. It will work out fine in the end, but the one good thing, in some sense, Pamela, is that it will debunk the notion that this was a conspiracy to trap Flynn into a lie. When they go through this whole hearing now, where Flynn says I knowingly and purposefully lied, I was not entrapped. I was not set up. I was not denied counsel, then those who have been promoting this notion of a perjury trap will be, you know, silenced. That's good.

BROWN: And among those promoting that is the president of the United States, who just tweeted earlier today that Michael Flynn was pressured into lying. I want to bring in Shimon Prokupecz because we're getting more details inside the courtroom.

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE REPORTER: Yes, so just it tell our viewers, you know, we have producers and reporters inside, so you're reporting back to us what's on going. And essentially, this issue is now over with, is off the table. The judge is going to accept Flynn's guilty plea, so we're now finally moving on from this issue that the defense attorneys had raised.

The judge gave Flynn several opportunities to withdraw his guilty plea. Several opportunities. And Flynn finally said I would like to proceed, your honor. And the judge asked him, because you're guilty of this offense? And then Michael Flynn says, yes, your honor.

And at that point, the judge accepted his guilty plea. And now we're probably going to move on to the sentencing phase where we're going to start hearing arguments on behalf of Michael Flynn and obviously on the Special Counsel's Office, arguing for the jail sentence or no jail sentence that Michael Flynn is likely to face here.

BROWN: I want to bring in Jim Sciutto. Jim, as the chief national security correspondent who has been following this case from the very beginning, what is your take on what we're learning?

JIM SCIUTTO, CNN CHIEF NATIONAL SECURITY CORRESPONDENT: Listen, it's a remarkable moment, Pamela, that this line that Michael Flynn was trapped into lying here is a consistent one. It's come, as you noted, from the president. It's come from Fox News, the "Wall Street Journal" editorial page, to GOP senators. They have talked about process crimes.

They have intimated he didn't know what he was getting into here on this, but you heard directly from the defendant's mouth there, saying no, that's not true. You heard it from the defendant's attorney there, saying no, we do not think we were treated unfairly. That is quite a counterpoint to something that forms an essential pillar of the president's argument here about a witch hunt, an investigation that's gotten out of hand, an investigation that treats people unfairly. You have seen him say that not just about Flynn but about Paul Manafort.

[11:35:00] When the courts are finding differently. And even the defendants involved are stating under oath differently, as you saw Michael Flynn there. And I think that's an important moment in this case because it doesn't just undermine, it contradicts a line repeated by the president as recently as this morning.

BROWN: And it raises the question of why Michael Flynn's attorneys tried to argue to the court that he wasn't warned by the FBI that lying to them was a crime and therefore he was given some sort of false sense of security when now you have Michael Flynn telling the court, look, I was aware that lying to the FBI was a crime during that interview.

SCIUTTO: Yes, it's interesting. And listen, we were talking about this earlier in the morning with legal experts, a former attorney general for the state of New Jersey, a point that Michael Zeldin made as well. By raising that balloon, as Flynn's attorneys did, about the possibility that he was mistreated, how that forced the hand of the release to some degree of those 302s, the records of those interviews yesterday to show in fact, no, he lied willfully and was given opportunities by the FBI agents to correct that lie and did not take those opportunities, that that tactic by his defense attorneys may have backfired.

And the tongue lashing he appears to be getting here from the judge here and the holding him to account on those intimations seems to be a result of that. Did that attempt to parrot the president on his mistreatment, his alleged mistreatment there, did it put them in a worse position rather than a better one.

BROWN: All right, Jim Sciutto, thank you so much.

Much more on this after a quick break. We'll be right back.


[11:41:18] BROWN: Welcome back. We are live in front of a D.C. courthouse, waiting to learn the fate of the president's former national security adviser Michael Flynn. With me, Shimon Prokupecz, who has been following the case from the very beginning. This is really a keystone moment, a culmination of sorts, and one of the learning about what's played now inside the courthouse with the judge, Emmet Sullivan expressing concern.

PROKUPECZ: Well, he was expressing internal, the briefing that Flynn's lawyers filed claiming obviously that there was some trickery here by the FBI, that they were trying to get him to lie, that in fact the judge simply was concerned Michael Flynn may be innocent in all of this. And so he was giving him this opportunity to withdraw his plea.

At one point, the judge said that Mr. Flynn's briefing concerned the court, and called into question the circumstances of his guilty plea. And then the judge says, I cannot recall any incident where the court has ever accepted the plea of someone who maintained he was not guilty.

So really, the judge was just trying to make sure that in fact Michael Flynn is guilty, that in fact he did lie to the FBI and he was willing to proceed with the sentencing. That seemed to be the concern for the judge here. I think the judge clearly was surprised by the allegations that Michael Flynn's attorneys made just a few weeks ago about the FBI tricking him.

And so we saw a process. You don't normally see. It's not unusual, but certainly, it's not a process you normally see in a court before a sentencing. Usually, by now, we would already be into the sentencing hearing. We would hear from the defendant, Michael Flynn in this case, or others.

But certainly, because this is a unique case, which the judge said, this presents a whole different set of circumstances. And I think what we saw from the judge is that he just wanted to make sure that in fact Michael Flynn was ready to do this today.

BROWN: Judge Emmet Sullivan known to be a government hawk. Expressing concern about what Michael Flynn's attorney said in that court filing. Jack Quinn, you served as White House Counsel in the Clinton Administration. Just for context, how unusual is this? What does this mean that this judge essentially gave Michael Flynn several outs to withdraw his guilty plea?

JACK QUINN, CNN LEGAL ANALYST: Yes, well, I think he wants to really solidify the fact that Flynn accepts responsibility, that he believes he was guilty. I'm sure he's also been probing whether or not Flynn is satisfied with his legal team. And he's been getting effective assistance of counsel.

I mean, frankly, if I were the judge sitting there scratching my head wondering if after lunch he's going to come in and plead ineffective assistance of counsel. But, you know, he -- so I'm sure that he has asked this question 14 different ways, whether, A, Michael Flynn believes he is guilty and is willing to acknowledge that in open court. And secondly, that he's been well advised and had effective assistance of counsel and is comfortable with where this is going.

Now, you know, Michael Flynn is a high-value asset for the special counsel. And I frankly think that the special counsel's response to the pleading that his lawyers filed last week was relatively mild. And that, to me, underscores the fact that the special counsel puts enormous value in Michael Flynn. It makes -- today's activities make me wonder whether there's one more secret that Michael Flynn has. Does he have an ace up his sleeve that he might be holding on to in hopes he'll get a pardon.

BROWN: I want to bring in Michael Zeldin.

[11:45:00] Now what's interesting here, as Jack points out, Michael, he has been a very important cooperating witness to the Special Counsel's Office. Nineteen proffer sessions. But if you notice in the filing on Friday, Robert Mueller did not repeat the same language that he did a few days before in not recommending any jail time for Michael Flynn.

ZELDIN: Exactly right. What you saw was in the first memorandum by Mueller, he writes that he provided substantial assistance, a sentence in the low end of the guideline range, including the possibility of no incarceration, would be appropriate.

Then, Flynn files this motion contesting the terms under which he was interviewed. Mueller comes back with a rebuke of that. And then in his final sentence, he says we still think that a sentence in the low end of the range would be appropriate, but does not repeat the language including the possibility of no incarceration.

So, you don't think that Mueller does anything accidentally. And so maybe there is a signaling to Flynn, if you don't accept responsibility, if you're not contrite, if you're not really on our team, then you know, this is the possible consequence for you. That said, I'm not sure that Sullivan will give him time. But it's startling to me that there was this difference in recommendation between the two pleadings that Mueller filed.

BROWN: All right. Michael Zeldin, thank you for bringing your analysis. Much more after this quick break as we wait to learn the fate of former national security adviser Michael Flynn. We'll be right back.


[11:51:07] BROWN: Welcome back. We are getting brand-new details of what is happening inside the courtroom and Michael Flynn's sentencing. Shimon Prokupecz is here with me. Now the judge making it clear. What do you think about this offense?

PROKUPECZ: Look, a lot happened since we last went to commercial break. So the judge spoke he's done speaking for now. He said that this was a very serious offense. He said that a high ranking official of the government making false statements in the White House is a very serious offense.

But the judge did say that he will consider the significance and usefulness of Flynn's assistance to the justice department and then prosecutors spoke and explained that Michael Flynn provided substantial assistance both to the obviously the special counsel's investigation, but also the Eastern District of Virginia where the two associates of Michael Flynn were charged yesterday for Turkish lobbying.

So, they didn't get into specific details about his cooperation, but certainly they're saying that it has been substantial and they're saying that is a lot really they couldn't have done without him. So they went through that and now Michael Flynn's attorney is speaking.

The other thing I think that's important to note here is prosecutors said it could be possible that Michael Flynn is still cooperating in some of these investigations and the judge wanted to know if that's ongoing and prosecutors said that's possible.

BROWN: Because that is the big question. Does his cooperation, and today, it appear it doesn't? He has already had 19 proffer sessions with the special counsel and the judge making it clear that he is taking his cooperation into account as he decides the sentencing of Michael Flynn.

I want to bring in CNN Contributor, Garrett Graff. What do you make of what we are hearing from the Judge Emmet Sullivan from inside that courtroom, say look, this was a serious offense. You have a high ranking White House official lying to the FBI and also essentially lying to the American public about the conversations with Russian ambassador, Sergey Kislyak. But he also made clear that he is taking into account what the special counsel has said about Michael Flynn in terms of his cooperation, Garrett.

GARRETT GRAFF, CNN CONTRIBUTOR: Yes. And I think that's one of the reasons this was such a strange turn of events when Michael Flynn sort of tried to come out and say that he had been entrapped by this super casual meeting with the FBI agents that he didn't realize was a formal conversation because one of the things the special counsel pointed out in his own court filing last week was this had been a consistent lie by Michael Flynn across many different forums, many different conversations over a matter of weeks in the early part of 2017 as the Trump Administration started at the White House.

And so this wasn't sort of just this one off, you know, forgetfulness in this conversation with the FBI at the White House. This was the same lie that Michael Flynn had been telling others. And that's one of the things we still haven't gotten to the bottom of in this story, is why Michael Flynn was covering up for presumably President Trump in the course of these conversation if what he thought he was doing was fully approve and above board.

But one of the things that is really clear from just even the developments of the last 48 hours is just how substantial Michael Flynn's cooperation has probably been. This alone is a pretty serious offense as the Judge Sullivan is saying, but then as Shimon just mentioned, there were these indictments that came down in the Eastern District of Virginia yesterday with two of Michael Flynn's business associates again also charged with very serious crimes involving lobbying and working on behalf of the Turkish government as unregistered foreign agents. Michael Flynn was all over those court documents as person A.

[11:55:03] And Michael Flynn is effectively escaping prosecution in that arena entirely, which makes clear just how much the special counsel values his cooperation and thinks his cooperation has been important to his investigation. And we haven't seen all of the fruits of that cooperation.

And so one of the things and you know this from covering the speed (ph), you know, as a cooperator, you don't get a lot of points with prosecutors for cooperating down, that sort of helping to incriminate lower level ranking or members of a conspiracy.

And so, you know, when Michael Flynn, the national security adviser for the Trump campaign and national security adviser inside the White House is providing cooperation, there aren't that many people above him in that food chain. And most of them are Donald Trump or named Trump or married to a Trump. And that's one of the reasons that the special counsel presumably is granting such strong consideration to this substantial cooperation.

BROWN: And what's interesting here is that we are learning inside the courtroom that there is still a possibility, Garrett, that Michael Flynn will continue to cooperate with the special counsel because that was sort of an open question. Is this the end of that? But no. Mueller's team is saying look, we still may be using him in our various investigations. What's the significance of that?

GRAFF: Well, one of the things is it seems like this has been the deal that has been in the works for a while with Michael Flynn. If you remember, there was a very odd at the time incident in sort of the middle of summer where Michael Flynn accidentally was announced as the new partner in a consulting firm in D.C., which sort of only makes sense now in the context of Michael Flynn sort of has thought for a while that he was not going to face jail time and he was going to be able to move on with his life and start a new career with this consulting firm that he just totally accidentally was randomly named a member of this summer.

And so, I think one of the things we are seeing is that the special counsel and Michael Flynn have had a cooperative relationship for sometime now.

BROWN: And Michael Flynn saying in court today that he was aware of lying to the FBI was a crime and what's unclear is why he lied to the FBI. New details coming in by the minute. Our special coverage on the sentencing of the president's former national security adviser, Michael Flynn, continues after a quick break.