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Judge Rebukes Flynn for Claims of Entrapment, Postpones Sentencing; Senate Overwhelmingly Passes Bipartisan Criminal Justice Bill. Aired 7-7:30ET

Aired December 19, 2018 - 07:00   ET

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

UNIDENTIFIED MALE: Judge Sullivan was pulling back and looking at the pattern of wrongdoing in Donald Trump's administration and saying, "I'm disgusted by this."

[07:00:09] UNIDENTIFIED MALE: You have Michael Flynn and the president of the United States saying it's OK to lie to the FBI.

UNIDENTIFIED MALE: The tongue lashing administered by the judge will be seared into Mike's memory forever.

UNIDENTIFIED MALE: Now there's going to be time for further cooperation.

UNIDENTIFIED MALE: Both political parties came together to do something to try to reduce the number of people behind bars. A Christmas miracle just happened.

UNIDENTIFIED MALE: This is something the president is behind.

JARED KUSHNER, SON-IN-LAW OF DONALD TRUMP: The president has a lot of compassion that not a lot of people get to see as much as I do.

(END VIDEOTAPE)

ANNOUNCER: This is NEW DAY with Alisyn Camerota and John Berman.

JOHN BERMAN, CNN ANCHOR: Good morning. Welcome to your NEW DAY. Alisyn is off. Erica Hill joins me for a really good morning, at least so far.

ERICA HILL, CNN ANCHOR: At least so far it's been a great morning. I mean, I don't know if everybody in the world feels that way.

BERMAN: They do. They do. I checked.

All right. This morning, Michael Flynn, he may not think it's a great morning.

HILL: Perhaps not.

BERMAN: Not at all. He's being forced to stay within 50 miles of Washington, D.C., and surrender his passport. His sentencing has been postponed. And this is not what he expected when he walked into a federal court.

Most thought Flynn would get no jail time as part of his plea deal. But what he got instead was a blistering rebuke from the judge. And what the White House got was a rebuke of their false claims that Flynn was somehow entrapped.

Still, the White House press secretary stood by the made-up claim, and we're hearing to hear from the president himself on this matter this morning.

While that's going on, CNN has obtained a document revealing Donald Trump signed a letter of intent to move forward with negotiations to build a Trump Tower in Moscow during his presidential campaign. The letter is dated October 28, 2015.

Now, Rudy Giuliani was asked about the letter on Sunday. Of course, Giuliani is the president's TV lawyer. And he incorrectly told CNN's Dana Bash it had not been signed.

HILL: So there's that, while on Capitol Hill, lawmakers racing today to prevent a partial government shutdown at midnight on Friday.

Senate Republicans are drafting a short-term spending bill that would keep the government funded through February 8, which of course means then that the fight over funding for the president's border wall could fall on the new Congress next year. It's not clear whether President Trump is OK with that.

Also happening overnight, a rare moment of bipartisanship in Washington. A criminal justice reform bill designed to reduce the population of the nation's federal prisons passing overwhelmingly in the Senate. The house is expected to pass it, as well. The president has said he would sign it, and it could be on his desk by the end of the week.

BERMAN: All right. Let's bring in CNN political analyst David Gregory; former federal prosecutor Shan Wu; and CNN contributor Garrett Graff.

Shan, I want to start with you, because you've been in a courtroom like this yesterday. And I get the sense that people are still stinging from what happened, that no one was expecting this. Certainly not Michael Flynn, certainly not his lawyers. I don't believe the special prosecutor's lawyers thought this was going to be the case. And the White House didn't think this was going to be the case.

What was the message that Judge Emmett Sullivan wanted to send yesterday?

SHAN WU, CNN LEGAL ANALYST: The message that Judge Sullivan wanted to send is that he is the one who makes the decision on the sentencing.

And I think kudos to him. He was really expressing the outrage that citizens feel at the behavior of Michael Flynn. His point was, look, you can have whatever deal you want. There can be whatever hubbub there is in the press about what's going to happen to you, but I'm the one that makes the decision. I'm telling you how I feel.

And obviously, this was quite stunning to the defense team. It's like the worst nightmare where you walk in thinking your client is getting no jail time and suddenly, the judge is talking about treason.

But he was also quite fair to them. He gave them a chance to be governed. He took that recess and gave the option, really, to regroup and postpone the sentencing. But his message was loud and clear, which is "I'm not swayed by publicity. I'm not swayed by your deal. I'm the one that makes the decisions.

HILL: There's also talk, David, as to whether there was a larger message in there. In fact, James Clapper was just telling John in the last, you know, half hour or so, he called this a ringing endorsement of the rule of law and the importance of facts, David.

DAVID GREGORY, CNN POLITICAL ANALYST: Yes, I was talking to Jim about that before I came on. There's a wider audience, the general public who's being told by the White House, by the president, falsehoods, you know, that somehow Michael Flynn was entrapped, that he didn't know he was talking to the FBI.

Ridiculous. You don't lie to the FBI. I mean, you know, if you look at the totality of all of this, Flynn. decorated member of the armed services, a stellar career, very smart, particularly well-known in counterterrorism, and engaged in shameful political behavior because of his animus toward the Obama administration, and then acts as a foreign agent as national security adviser. It is outrageous.

The president was mad enough at him to fire him when he lied to the vice president, but now he's standing up for him, asking Jim Comey to go light on him in the investigation, now wishing him good luck; doesn't call him a rat like he called Michael Cohen, despite all of his cooperation.

[07:05:06] So yes, I think there was a larger message to say to the White House, stop. Stop with the conspiracy theories. Facts will rule the day here. And he was disappointed, clearly, that he didn't know more about the level of cooperation, which has been significant by Flynn, to render judgment yesterday, which is something of a setback to Mueller's team that wanted to get on with it here.

BERMAN: If the message was stop, the message was not received at the White House. It skipped 1600 Pennsylvania Avenue. Because this is what Sarah Sanders said in the press briefing not long after the judge said what he said.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Flynn said that he knew that it was illegal to lie to the FBI. And he was ready to accept responsibility, this well before agreeing to a delay in sentencing. Given that, are you in a position now, or would you like to revisit your comments earlier today that the FBI ambushed Kelly?

SARAH SANDERS, WHITE HOUSE PRESS SECRETARY: No, I -- we still firmly believe. We don't have any reason to want to walk that back.

(END VIDEO CLIP)

BERMAN: All right. So I believe that does call for a dramatic reading from the federal courtroom yesterday.

HILL: Yes. Absolutely.

BERMAN: First, P-102 first. Then P-106.

Judge Emmett Sullivan: "Were you not aware that lying to FBI investigators was a crime?"

Michael Flynn: "I was aware."

P-106. To Michael Flynn's attorney, Judge Sullivan says: "Was Flynn entrapped by the FBI?"

Flynn attorney: "No, your honor."

Judge Emmett Sullivan: "Are you continuing to accept responsibility for his false statements?"

"I am, your honor."

That's pretty clear, Garrett. And when I look at this, what happened yesterday, and really what's happened all week -- and you can look at the Trump Foundation. You can look at what happened last week with Michael Cohen and AMI.

Every day that passes, the facts are catching up here. The facts are beginning to dictate where this story goes. I don't know where the facts will lead. None of us does as we sit here this morning, but the facts are winning here day by day.

GARRETT GRAFF, CNN CONTRIBUTOR: Yes, and I think that yesterday was an especially important day in this story for -- for a couple of different reasons.

The first being that this was a specific focus on the spotlight of Michael Flynn, which having a national security adviser who was working as an unregistered foreign agent for another country would be one of the worst political scandals in American history, barring nothing else. That this is behavior from a high-ranking official unlike anything that we saw during Iran-Contra, during Watergate. I mean, you have to go back decades to find something like this.

And yet, this is just one part of a multifaceted massive growing scandal where it's not even probably one of the ten weirdest things unfolding in the midst of all of these interlocking investigations. Similarly for the Trump Foundation.

And this just shows, I think, the broadness of the legal exposure and the legal jeopardy that the president faces today. And as David and Shan were saying, that, you know, part of this is just that this is a firm foundation of the rule of law that you have these checks and balances, that what the prosecutors do is being measured against what the independent judiciary thinks is the appropriate response, and that we are seeing a country whose institutions are actually functioning right now. And that's actually really an important message, due to how little the White House is.

HILL: Shan, as you look at all this, just from your perspective, you know, as a former federal prosecutor you're looking at all of these things as Garrett laid out, every little nugget.

And as John was saying, the facts are leading us somewhere. We don't know where at this point. But they are certainly all adding up to something.

What sticks out to you the most in the last 24 hours? Because so much has happened, and yet we've heard little from the president, except for wishing Michael Flynn good luck.

WU: I think what stands out to me the most, putting on my prosecutor's hat, is the way that the president and the White House are behaving, to me if I was getting ready to cross-examine them on the stand, I would be in a pretty good mood. They're really showing tremendous strain.

I mean, the conflicting messages. The defensiveness, the anger at times, actually calling Cohen a rat. Then trying to congratulate or rather wish good luck to Flynn. These all show like a total disconnect between the gravity of his office and an understanding of the system. That really shows me that the strain, the facts are really catching up to the president and his team.

Even Rudy Giuliani, his own spin is beginning to fall apart. He just can't even keep up with what's happening right now. So it's really the strain that shows me that there really is an enormous amount of pressure beginning to close in on them.

BERMAN: It seems clear that Giuliani has got a specific job, which is P.R. I don't know how much lawyering he's doing, and this signed document, David, is just the latest example of that.

[07:10:03] I mean, he was with Dana Bash on Sunday, said the president never signed this acquisition document. You know, Chris Cuomo, last night at 9 p.m.: "I have in my hands this document with the president's signature." It's clear right there. It was from 2015, October 2015. But clearly, the president was involved in this while he was running the campaign. And Giuliani just didn't know. He just didn't know.

GREGORY: He didn't know, but it didn't stop him from giving a representation that he did know. Which just says something about the whole enterprise. Whether he knew or not, I don't actually know.

BERMAN: Fair point.

GREGORY: The fair point is that, you know, there's just a sign that the White House, the president and those around him just don't care about some of these things. You know, there are legitimate reasons for the president to be angry

about elements of the FBI investigation into Russian interference, for example. There are individual figures. We've talked about FBI agents who have expressed their animus. I'd be upset about that, too.

But the fact that they willfully disregard normal modes of investigation and process in the case of Flynn and put things out there publicly that he was ambushed, that he was entrapped with no basis to do that. And then even when -- when Flynn doesn't back that up, they refuse to move off of it. It shows you the mindset, the kind of scorched earth mindset. And honestly, the president's own judgment, bringing Flynn on in the first place.

As Garrett said, this would be a huge scandal if it weren't part of a larger scandal and a larger kind of assault on his judgment, on who comes around him. so if you look at the foundation, you look at all the -- the questions that don't have answers about his finances and his business dealings around the globe. And whether there were -- he's compromised somehow as president because of those dealings, is outrageous.

And again, I think this is where, in the new year, we're going to see a lot more focus just on this issue with a Democratic Congress.

HILL: It's also fascinating, as you bring up the Trump Organization and finances. And Garrett, I'll throw this one to you. Just what we've learned, in terms of the Trump Foundation being dissolved at this point, that they don't want Donald Trump or any of his three children, his three adult children -- Don, Eric, Ivanka -- to sit on a board of any nonprofit in New York. That, as John pointed out, is remarkable on a number of levels.

But also just the details here, that money from the foundation was used to pay a $7 fee to the Boy Scouts at one point. Those details, as well, Garrett, they just -- they do stop you in your tracks. Even though it may feel like it's just another day.

GRAFF: Absolutely. And I think that this is where we're beginning to see an incredibly consistent pattern about all of these investigations across all of these different areas of interests to prosecutors, where Donald Trump just sees no difference between, you know, his business, his campaign, his foundation, and is willing to skip past all of the rules and regulations and laws that govern how all of these different entities should be used, and that effectively all of them are turned to his own personal benefit at the expense of the legal system that we have, and that that, as John said, is beginning to catch up to him. That's a decade-long pattern that we're beginning to see emerge consistently across every aspect of these investigations.

BERMAN: All right. Garrett, Shan, David, thank you very much. Appreciate it.

So this is something we cannot say very often. There was a moment of true bipartisanship in Washington. So how did the criminal justice reform bill finally make it to the Senate floor? And I think something that is actually getting lost in all this discussion about bipartisanship, is how will this bill help people in this country? What does it do? One of the bill's biggest boosters, someone who was a key player in this, our very own Van Jones, joins us next.

(COMMERCIAL BREAK)

[07:18:01] BERMAN: So the Senate, in a rare show of bipartisanship, voted Tuesday to pass the most significant overhaul to the criminal justice system in decades.

President Trump is expected to sign the bill, which is senior advisor and son-in-law, Jared Kushner, has pushed for, for months. Someone else who pushed for it for months and longer, CNN's Van Jones, worked with Jared Kushner, a man who spent a lot of time at the White House to make this happen. And you join me now.

I saw you last night. You were actually in New York when this thing passed. And you were literally jumping up and down.

Before we get to the bipartisanship, which I think a lot of people are focusing on here.

VAN JONES, CNN POLITICAL COMMENTATOR: Yes.

BERMAN: Let's just talk about what this does. Let's just talk about what this bill does. And let me throw a few things up on the screen here. It shortens mandatory minimum sentence for firearm offenses. That's not really what it does in terms of firearm offenses. Firearms are used in other offenses, it shortens the -- shortens the sentences. It eliminates stacking leading to consecutive sentence and reduces the number of nonviolent drug offenders receiving mandatory minimums.

How do you see this bill helping, Van?

JONES: Look, this is a Christmas miracle. You had, for the first time in more than a generation, both parties coming together to do something for the people at the bottom. There's no big super PAC. You're not getting campaign donations. This was the right thing to do.

And what it means is that people can earn their way home sooner by getting themselves job ready, transforming themselves. There's going to be programs for the people who are locked up, have an incentive and a reason to work hard and come home better and not bitter. It's going to make everybody safer. We're going to stop wasting genius. We're going to close the revolving door with our federal prisons.

And the CBO says that we will have 50,000 fewer people behind bars in the federal system, from 180 to 130,000 over the next seven to ten years, because we're going to be using these proven programs to help people get a second chance in this country. It is a breakthrough. It's a Christmas miracle, and I cannot tell you how excited I am about it.

BERMAN: Well, how did the miracle happen then, Van? Why is it that this was able to pass 87-12 in the Senate, and nothing else ever seems to get bipartisan support? [07:20:04] JONES: You can't get 87-12 to change the name of a post

office these days. So it was just an unbelievable thing.

But what happened was Jared Kushner, whose father went to prison, came there on a mission, and he said, "We've got to do something better."

Donald Trump was afraid of this issue at first. He was very concerned, but we kept working on him. We have 4 million incarcerated women, in particular, people like Topeka Sam, formerly incarcerated men like Louis Reed, impacted families like Jessica Jackson from #cut50 go to the White House week after week and just work with people to understand the importance of this.

And to his credit -- and I don't do this often. Nobody is tougher on Donald Trump when he's wrong. But to his credit, Donald Trump moved from talking about, you know, law and order to "Lock 'em up," to saying, "Listen, everybody deserves a second chance. People make mistakes. Let's take some proven programs from Georgia where they cut the prison population and the crime rate. Texas, cut the prison population and the crime rate. And do it at the federal level."

And he became, to the shock of everybody, the biggest, loudest champion on criminal justice and used his power to get something done.

Look, I've got 99 conflicts with the Trump administration. Prisons are not one. At a certain point, everybody came together on this. From Dr. King's family, Bernice King, to Sean Hannity, we had the National Association of Manufacturers on the same page with #cut50 and the ACLU. It was -- listen, and nobody -- people were bewildered, looking at each other going, "Is this happening? Are we coming together?" And we came together for the people at the bottom. A holiday miracle.

BERMAN: If you gathered everyone who worked on this together at the end there, it would be like the weirdest victory party ever.

JONES: We may have it.

BERMAN: I think you can go even further with the president, because he was two weeks ago, I remember being in Washington for the funeral of George H.W. Bush. And McConnell's people telling me this was never going to happen, that this wasn't going to happen.

Tom Cotton's people were telling me, "This isn't going to happen. We figured out a way to keep this from happening."

I think without the president last week leaning on Mitch McConnell, it may have been Jared Kushner who leaned on the president to lean on Mitch McConnell. But without the president taking action, this just would not have happened?

JONES: You are 100 percent correct. At the end of the day, Mitch McConnell dug in his heels. Tom Cotton. This old, outdated, they may as well be wearing velour suits and bell-bottoms, you know, in terms of their thinking, were holding on, even with a tiny minority. And in the Senate, a tiny minority can stop you with getting anything done. And we had done everything that we could, and McConnell was still saying no. And finally, Trump, who had -- he had done some gentle tweeting -- he signaled he was ready to go to the mat for this, and then McConnell caved and we got a vote.

But I'm going to tell you. You've got people like Hakeem Jeffries, people like Collins in the House. There he rose in this. And Mike Lee, who you know, is not somebody people knows, he cares about this. And he was the Energizer bunny, going around saying, "I think we're going to get 80 votes." People were laughing at Mike Lee behind his back, "80 votes. If we get 70, we'll be happy." It turned out Mike Lee, the most optimistic person, was too pessimistic. We got 87 votes. It would have been 88 if Lindsey Graham had been in the country. Eighty-eight votes to help people behind bars? Eighty-eight votes to get people a second chance?

And 100 percent of the people -- there are some lives out there, it's only going to help 2,000 people, 4,000 people. No, 100 percent of our 180,000 people behind bars, if they stay out of trouble, they come home early. A hundred percent of the women will no longer be shackled and abused when they're pregnant. A hundred percent of juveniles will no longer be in solitary confinement in our federal system. Fifty percent of those people who are locked up can earn their way home even sooner if they are job-ready.

This is a massive -- "The New York Times" said this is the biggest breakthrough in criminal justice in a generation.

BERMAN: And it is. I don't think you have to go knocking velour suits to make your point. But it is.

Look, there are some who note, though, this was called the first step back for a reason.

JONES: Yes.

BERMAN: Because it isn't everything that a lot of people have been working on this for a long time, including you and others, have wanted.

JONES: Yes.

BERMAN: Explain to me what you wish could have been part of this, if you had your dream vision version, what's missing? And the critics who say they wish there was more, what are they talking about?

JONES: Well, first of all, the critics who say that there should be more are correct. Much more needs to be done.

You know, cash bail reform needs to be dealt with. There are still abuses at the state levels that we haven't gotten to. There's some -- asset forfeiture, where the police can just take your property even if you haven't been convicted of a crime. I mean, there are so many things wrong with our system that need to be dealt with.

But don't forget: in 1959 they passed a very small, now-forgotten civil rights act, but it broke open the doors that gave you the 1964 and '65 Civil Rights Act that we all celebrate, that went much further.

But you had to do something to break the law, John. And Dr. King said in '59, "Let's take the smaller bill. Let's take the first step." And that then made it possible to get more done just a few years later.

[07:25:08] And that was the genius of Hakeem Jeffries. That was the genius of Jared Kushner, to say, "Let's not make the perfect the enemy of the good." We -- Obama did such a great job of setting the table, and we almost got a bigger bill done, but people got greedy. They wanted to get a camel through a keyhole, and they couldn't do it.

And so Hakeem Jeffries, Jared Kushner come back and said, "Let's do something more modest."

And by the way, in the House, we had 360 to 59 was a more modest bill. It went to the Senate. It got even bigger.

I think you're going to have a second step, a third step, a fourth step act. And at some point, we are going to be able to look back on this moment and say, against all odds, under Donald Trump, the first breakthrough forward away from mass incarceration took place. Thank all those people, frontline people, grassroots people, who made this happen, and impacted people, including Jared Kushner, whose father went to prison, who refused to die on this. And it made a difference.

I mean, I'm punch drunk. I'm probably rambling too much. I'm sorry. But I'm just happy that something good happened in America. And sometimes, it's not about you've got to see it to believe it. Sometimes you have to believe it to see it. You have to believe that good things can happen, even in this whole horrible situation. Something good happened in America. And I hope people will celebrate that, because people fought hard for it. For a long time.

BERMAN: And I know there are a lot of people who feel this will change thousands of lives.

Van Jones, thank you for being with us. Thank you for all the work you've done on this. Appreciate it.

JONES: Thank you.

BERMAN: Erica.

HILL: It could be the worst December on Wall Street since the Great Depression. Just let that sink in for a moment, since the Great Depression? So is this a sign of a looming economic downturn or simply a temporary bump in the road? Our experts weigh in.

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