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Judge Delays Flynn Sentencing; Judge Gave Flynn Second Chance; White House Response to Flynn Sentencing. Aired 1-1:30p ET

Aired December 18, 2018 - 13:00   ET


[13:00:00] JOHN KING, CNN ANCHOR: More insights as people come out of the courtroom we'll learn more information. Stay with us as that will come to you as Brianna Keilar starts right now.

Have a great afternoon.

BRIANNA KEILAR, CNN ANCHOR: I'm Brianna Keilar, live from CNN's Washington headquarters.

And we begin with breaking news.

A surprise twist in the sentencing of fired national security adviser Michael Flynn. Just moments ago the judge in this case, Judge Sullivan, agreeing to delay Flynn's sentencing. Special Prosecutor Robert Mueller's team is asking the court to go easy on Flynn. They've recommended a sentence of little or no jail time. And now Flynn's lawyer has taken the judge up on his offer of a delay in sentencing so that Flynn can continue to cooperate.

I want to bring in CNN's senior White House correspondent Pamela Brown, we have our crime and justice reporter Shimon Prokupecz with us as well. They're both outside of the federal courthouse there in Washington.

Shimon, explain to this to us. What happened?

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE REPORTER: It's hard to explain, right? It's kind of been a wild morning here. Certainly nothing any of us expected here this morning, that the judge would go ahead and delay this.

Clearly the judge kept sending signals to Michael Flynn, to his attorney that it might be a good idea to delay this. He was not happy about a lot of things perhaps. Not entirely clear. He was using words like treason, then accusing Michael Flynn of being -- of working as a foreign agent while at the White House. Not true. He had to walk that back. The judge, he had to walk back other statements he made.

And then, in the end, he kept insisting, look, the judge did to Michael Flynn's attorney, if you think you want to delay this, just let me know. And, eventually, that's what happened.

One of the things to keep in mind here is because Michael Flynn is still cooperating in the -- in a case involving his associates who were just charged yesterday, the judge thought maybe it might be a good idea to wait until that cooperation is over so that his attorneys -- so that Michael Flynn's attorneys could come in and explain more about that cooperation because it could be favorable to Michael Flynn.

And it's clear -- and it's very clear here that this was not going the way Michael Flynn expected. And perhaps the judge here said, you know what, let me give you a break. Take some more time. Because I think what ultimately would have happened is the judge was ready to sentence him to jail.

PAMELA BROWN, CNN SENIOR WHITE HOUSE CORRESPONDENT: Yes. And I think what you saw there was Michael Flynn's lawyers essentially taking the hint, hearing the judge's strong word that -- the judge's strong words, I should say, that this was a disgrace, pointing to the flag and saying that you arguably sold your country. Again, the judge sort of walked back some of those comments.

But what he made clear in that courtroom is that this case is different from the other defendants who pleaded guilty and were sentenced. He made it clear that, look, you were the former national security adviser. You made these lies to the FBI inside your office in the West Wing.

Evan Perez, you were inside that courtroom. Bring us in there and the stunning turn of events.

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Well, you know, I think, in the end, the judge, I think, made an impression with the lawyers and they decided that they'd rather take a chance and wait 90 days. Again, the judge just decided that he would set sentencing for a date in March, giving, as Shimon says, Michael Flynn time to again continue his cooperation.

One of the things that Flynn's lawyers raised in the court there today was that he might be called to testify in the case of his associate who were just charged in Alexandria, Virginia, yesterday. So, again, this is something that the judge is willing to take into account. And as Shimon points out, it was clear that despite the fact that the prosecutors were recommending no jail time. The defendants -- the defense was saying, no jail time. The judge was not going along with that and so he was giving them every chance he had to be able to say, you want to delay this? Do you want to delay this, because I can take into account your further cooperation?

It was a stunning turn, Pamela, because it was not what we expected. You know, I've been -- we've been in sentencing over the years and these things are usually, you know, 30 minutes, you know, you go through --

BROWN: Especially when both sides agree. They're on the same page.


PROKUPECZ: I also think, and you know this judge because you've covered this judge before --


PROKUPECZ: Look, I've talked to lawyers who have been before this judge and they all said, this guy's a -- he's a wildcard. He likes to speak, he likes to say a lot. And clearly he was sending a message in some ways about this investigation, about what's been going on here. And this was the wildcard kind of going in.

PEREZ: Right.

It was a -- it was an interesting way for the wildcard to go, though, because a lot of us were expecting, because this judge takes a dim view of any misconduct by the government, we thought that --

BROWN: Right.

PEREZ: Because the defense had raised the possibility on misconduct on the part of the FBI, that he would take a hard line against the government. Instead, what he did is --

BROWN: That seemed to backfire, right?

PEREZ: Oh, it completely backfired. And right after the recess, one of the first things that Rob Kelner, one of Michael Flynn's lawyers, stood up in court and said, judge, essentially, do not punish Michael Flynn for a filing that his lawyers made. And, again, the judge, as you pointed out, was sort of walking back some of his more harsh critiques of Michael Flynn. But it was clear --

[13:05:19] BROWN: There was back peddling sort of on both sides there.

PEREZ: Yes. But it was also, by the way, the judge raised one other thing. Michael Flynn's lawyers sort of offered as a comparison the fact that David Petraeus got a misdemeanor for pleading guilty to sharing classified information with somebody that wasn't authorized to have it. That was a big deal. And the judge sort of raised that and said, I don't agree with that sentence. I think that that -- he should have gotten more than that, essentially taking a shot at the Justice Department for the way they handled that case.

And he also said that essentially Michael Flynn and David Petraeus are not in the same league. So that's -- that was -- that was an unsolicited thing for him to say.

BROWN: That's -- that's not good news for Michael Flynn's side.

PROKUPECZ: I also think for the special counsel's office, which is priding itself in some ways of getting these cooperators and getting people to cooperate -- you know, help them out in their cases, this could have potentially been bad for them too --


PROKUPECZ: Had he been sentenced to jail time because they are asking -- and there you see Michael Flynn walking out now with protesters outside.

BROWN: Right.

And what's so interesting, as we see him walk outside of this courthouse after a very different outcome. Let's listen in.


CROWD: Lock him up. Lock him up. Lock him up. Lock him up.


PEREZ: Yes, you have -- you have -- you have both sides there. You have some -- a sizable group of people who showed up to show support for General Flynn. They have signs saying General Flynn is a hero and so on. And then, of course, there's some counter protesters who are out there saying "lock him up," which, of course, recalls the chat that Michael Flynn shouted on the stage at the Republican National Convention.

Look, a lot of us were so surprised by today and certainly did not expect that he was going to end up where he was at the end here today.

BROWN: He thought he would walk outside of that courthouse today --


BROWN: With no jail time and perhaps probation. He is walking out now, after being scolded by the judge, and a delayed sentencing --

PEREZ: And the judge essentially raising the prospect that he could have locked him up.

BROWN: Exactly.

PEREZ: So, again, the chant that made Michael Flynn famous at the time of the Republican National Convention turned against him here today by what the judge said in court.

And one of the last things, by the way, at the end of the hearing, the -- Michael Flynn's lawyers asked to speak privately to the judge before they left. So, clearly, there was some things that they wanted to make sure they reassured the judge, again, that Michael Flynn shouldn't be punished for things that his lawyers did essentially.

BROWN: And what was so interesting, we were talking about this, that it seemed like Robert Mueller's prosecutor in the room was trying to sort of come to Michael Flynn's defense too --

PROKUPECZ: Defend him.

BROWN: Saying, look, he's been very helpful. He's been cooperating in this case. And when he was asked by the judge whether he should have been charged with treason, he didn't go there.

PEREZ: No, he didn't.

BROWN: I mean it is clear that was not under consideration. PEREZ: And, right. And after the recess he clarified even further and said, look, he met with us 19 times and never once did we contemplate that he as guilty of anything treasonous. So, again, they were very, very careful and, as you said, supportive of General Flynn because I think they realized what a -- what a bad position he had suddenly found himself in and essentially tried to give him a little bit of a rescue in front of this judge.

BROWN: And --

PROKUPECZ: This judge was trying to rescue him, right?


PROKUPECZ: I mean how many times was he like, do you want to delay this?


PROKUPECZ: Should we do this another time? Do you want to postpone this?

BROWN: Do you want to withdraw your guilty plea?

PROKUPECZ: To his attorneys, do you want to --


PROKUPECZ: So I found that so surprising and just continuously how the judge kept coming at the defense team and Michael Flynn, are you sure you want to do this today? And after the break, it's clear the attorneys finally said, you know what, you know, we're about to --

BROWN: If we don't delay it --


BROWN: We could get jail time. So here you have a situation, Brianna Keilar, where Michael Flynn, the national security adviser, the former adviser to President Trump, walked into that courthouse today likely thinking he was going to get no jail time from the judge, then walking out after a very different sentencing proceeding than he expected, than likely Robert Mueller's team expected. Now the sentencing is delayed and we'll have to wait and see what happens, Brianna.

KEILAR: Yes. I imagine he walked in there today thinking soon this will all be over and here it is still hanging over his head.


KEILAR: And we'll be seeing what he'll be doing in terms of cooperating.

Evan Perez, Shimon Prokupecz, Pamela Brown, thank you so much.

I want to bring in some of our legal and political minds here to help us break all of this down. And we're going to need some help here.

Kara Scannell, CNN reporter, we have CNN political director David Chalian, Kim Wehle is a former associate independent counsel in the Whitewater investigation, Michael Zeldin with us, he's a CNN legal analyst, he was Robert Mueller's special assistant at the Department of Justice, and joining us from New Haven, Connecticut, CNN legal and national security analyst Asha Rangappa.

[13:10:16] So, Asha, when you look at this, the judge admonishing Michael Flynn, saying that he had sold out his country, taking a recess, coming back, back peddling a little bit on that, but making it clear that he was not perhaps going to be as friendly to Michael Flynn as the Mueller team had asked for or suggested. What was your reaction to that?

ASHA RANGAPPA, CNN LEGAL AND NATIONAL SECURITY ANALYST: This judge don't play. I mean, look, you don't make those kind of claims in a court document that's alleging serious malfeasance, misconduct by the FBI, that calls into question your plea deal, your plea agreement, and then not expect the judge to, a, question you about it, and then when you back track to get I think understandably upset.

I mean, you know, this was his chance, if he wanted to change his plea, to do it. He did it, which means he wasn't making those assertions in good faith. And I think what you saw here was the judge then accepting the plea -- you know, the guilty plea and saying, you sold out your country and that this is a very serious crime. And I think that that, beyond Michael Flynn, should worry everyone else who was in the crosshairs of this investigation.

KEILAR: And I wonder, Michael Zeldin, we heard Evan reporting there, we heard Shimon reporting, this is a judge who has, as Shimon put it, a -- I think a dim view of misconduct by the government, which might explain why Michael Flynn's lawyers had put in that pleading, essentially, oh, well, Michael Flynn was caught off guard by the FBI, something that ended up backfiring on him.

MICHAEL ZELDIN, CNN LEGAL ANALYST: Absolutely. It was a mistake as it turned out. They said, we accept what Mueller has to say, that is no jail time, but we want to bring some additional facts to your attention, which spoke to this government misconduct in the interview. So part one of the sentencing hearing was the judge saying to Flynn, are you wanting to remove this guilty plea and contest the hearing? They said, no, no, no, no, no.

Then they said, fine, now that that's over, let me turn to the seriousness of the offense. And I, Judge Sullivan, believe this was a very, very serious offense. That's when he went off on his treason and stuff. That's when Flynn's lawyers determined, this judge may put him -- my client in jail.

KEILAR: Can I -- can I ask -- can I ask you, though, Kim, I wonder what you think about this, the fact that actually the judge said some things that were not factually accurate and how concerning that is that he said, you were an unregistered agent of a foreign country while serving as the national security adviser to the president of the United States. Factually, that doesn't -- that's not exactly right. He was an unregistered foreign agent under -- under the -- the designation of the law at a certain point. But he ended up having to backpedal. How odd is that for a judge?

KIM WEHLE, FORMER ASSISTANT U.S. ATTORNEY: Well, I mean, he judge has law clerks that prepare bench memos. There's a lot of paper they need to read. My guess is this judge realized this was his moment or the moment of the federal judiciary to weigh in, in a meaningful way, on this entire situation, what's going on politically around the Mueller investigation. That is, federal judges have life tenure. They're not political. And so I think --

KEILAR: But is it -- is it -- which -- and maybe it's understandable in the case of this judge, but when he does it this way, what does that say about the legal proceedings in this circumstance and the faith that people may have in the system?

WEHLE: Well, we're seeing a number of mistakes. We saw mistakes on behalf of the -- Mr. Flynn's lawyers. That was a mistake. What I don't know -- I'd have to think it through -- whether the -- whether -- while he was national security adviser versus before when he was lobbying on behalf of Turkey is a meaningful legal distinction.


WEHLE: I think with respect to treason, the Supreme Court has held treason is not a crime unless it's -- we're in wartime. We are not in wartime. But there are treason-like criminal statutes that I don't think is completely beyond the pale that the judge would be drawing that connection.

KEILAR: And perhaps the judge sees, hey, you were unregister at this point and then you go on to be the national security adviser. It's not appropriate.

WEHLE: Yes, and --

KEILAR: I need -- I need to get in a quick break.

In what is really a -- it's almost reality television in a way from all of this drama happening at the courthouse to Michael Flynn's car peeling away from the courthouse. We are standing by to hear from the White House. Sarah Sanders is set up to brief reporters any minute. We're going to take you there live.


[13:18:55] KEILAR: Prosecutors reiterated just moments ago that Michael Flynn provided substantial assistance in the Russia investigation. They also suggested that Flynn may not be done cooperating.

So what does all of this mean for President Trump?

Let's bring in CNN White House correspondent Kaitlan Collins. Kaitlan, before the sentencing hearing, the president tweeted a good

luck message to Michael Flynn. And we also saw an interview from Press Secretary Sarah Sanders. I wonder with these unforeseen developments how they are responding.

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: And that's what we're going to see here soon when Sarah Sanders holds her first press briefing of this month with reporters. And I don't think what happened in that courtroom was expected by a lot of people, but it certainly, Brianna, was not expected by the White House today.

We heard from Sarah Sanders just about an hour before Mike Flynn entered the courtroom this morning and she made clear that she thought that the judge was going to focus on how the FBI treated Michael Flynn when they interviewed him here at the White House back during that month when he was still the national security adviser, when he lied to those agent about his contacts with the Russian ambassador. She made very clear this morning that she believed -- and the word I'm using is a quote from her, that Michael Flynn was ambushed by the FBI during that interview and she repeatedly kept going back to that during that interview, even when she was asked if she and the president believe that Michael Flynn broke the law. She said she couldn't make that determination and would leave it up to the courts, but that she did believe he had been ambushed by the FBI.

[13:20:22] That is not the argument that heard from Michael Flynn's legal team when they were there in the courtroom, when Michael Flynn and his lawyer said that he was not entrapped by the FBI and that he was well aware that lying to those agents was against the law when he was doing the interview back during the end of January here at the White House. So it will be interesting to see when Sarah Sanders does come out here, what her message about this is now that even Michael Flynn himself says he doesn't believe he was ambushed by FBI agents.

And also it's going to raise questions about the president wishing good luck to Michael Flynn this morning after you heard from that judge in that courtroom expressing what he said was his disgust at what Mike Flynn did and saying that he, quote, sold his country out.

So it's going to raise a lot of questions about what the White House has to say since we've essentially seen President Trump stand by Mike Flynn in the last several months, Brianna.

KEILAR: All right, Kaitlan Collins, thank you so much. We are awaiting that briefing, as you are there at the White House.

Here with me now, CNN reporter Kara Scannell. We have David Chalian, Kim Wehle and Michael Zeldin with us as well on our legal side of the panel.

Kara, Michael Flynn still has this hanging over him now for months. I wonder going in there, after all of this time, he must have thought, OK, this is -- this is finally coming to an end. I've got Robert Mueller in my corner saying no jail time. He is leaving with a -- I mean a very different sense of things. KARA SCANNELL, CNN REPORTER: Very different. I mean he had the best

backing by Special Counsel Robert Mueller's team. I mean they went out and they said he's cooperated substantially. He's helped them on at least three cases. We saw the fruits of one -- of that cooperation yesterday with the unsealing of the indictment against Flynn's business partners for acting as foreign agents for Turkey.

And at this point Flynn thinks his work is done. He's done everything he can. You know, the special counsel's team is saying he's even different than George Papadopoulos and the lawyer who had also pled guilty and received, you know, some jail time, saying, you've really got to give Michael Flynn a break.

And even taking into consideration his 30 plus years of public service. But the judge is actually saying, that's against you. You know, judges don't like it when people who should know better and people in authority violate the law anyway. And we saw that same kind of message or tone being sent last week with Michael Cohen. Michael Cohen's a lawyer. The judge there didn't like that he was committing crimes because he should know better. And the judge in this case was sending the message to Michael Flynn that you were the national security adviser. What are you doing? What are you thinking in committing these crimes?

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Committing crimes that the judge was equating to treason. You know, just being against your own country, which, by the way, that's how the judge sees it. Now, if you believe Jim Comey's version of events, it is that scenario that the judge believes is treasonous that the president was asking to let the whole Flynn thing go, if you believe Jim -- now the president has denied that that is the wording that he used. But if you believe Jim Comey's events, that means the president of the United States was asking for something that this judge sees as -- akin to treason, to let that go. That that wasn't important enough to pursue. I think that raises one big question.

Two, how much more helpful now does the Mueller team think -- you know, can -- is there more to squeeze out of Flynn in some way. As you said, they were so pleased with his cooperation to date that they were saying, hey, no jail time here. Do they have anything more they think they can get out of him that then three months from now the Flynn team can go back and say, we were even more cooperative than the Mueller team told you we were back in December, so, please, as you're reconsidering this, now keep that into the equation.

And what does that mean for President Trump, Brianna? This is the example he has held up as strength. Not like that weak rat, Michael Cohen. Flynn is somebody who may have been presenting real strength throughout this process the way he has upheld Manafort as well. And so I think watching how the president responds to this elongated period of time now where Flynn is still hanging out there I think is going to be very interesting.

KEILAR: Who do you think, Kim, the various audiences of this judge are? WEHLE: I think the judge is speaking on behalf of the judicial branch,

to the American people. I mean they're -- these judges are extremely independent. They make these decisions on their own. I clerked on this particular court. I appeared, and I agree with Kara, that as an assistant United States attorney, they hold government actors to a higher standard.

So I think he is aware of the bigger picture here, the polarization of this entire process, including the courts that we saw with the Kavanaugh confirmation. And in addition, I think he doesn't know, but he realizes, how pivotal Mr. Flynn is in this larger picture. Not just because of the obstruction of justice question with respect to Comey being asked allegedly, according to Comey, to call off the dogs on Mr. Flynn by the president, but also he lied about sanctions, right, that the Obama administration had put on the Russians and the question really is, are all of these people ensnared in this entire story, or many of them? Are they lying over and over to hide something bigger, to hide a quid pro quo with an entity that -- and our last Republican president, George Bush, called one of the axis of evil, right?


[13:25:34] WEHLE: And also -- we also know he's continuing to cooperate. And the memo mentioned that he has some communications or information relating to the transition team's communications with the White House. So there's a lot there and the judge wants to see more.

KEILAR: I'm going to have you guys stand by for just a moment. We have much more ahead in our breaking news.

And any moment the White House press briefing is set to begin. This is going to be an incredibly interesting one as we're awaiting reaction to a judge delaying Michael Flynn's sentencing. We're going to bring this to you live when it happens.