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Don Lemon Tonight

Michael Flynn Admits He Knowingly Committed A Crime When He Lied To The FBI; Stocks On Track For Worst December Since the Great Depression; White House Claims FBI Ambushed Flynn Despite Flynn's Legal Team Saying He Was Not Entrapped; Senate Passes Criminal Justice Reform Bill; Michael Flynn Sentencing Postponed After Judge Issues Blistering Rebuke for Lying to FBI; White House Looking To Avoid Government Shutdown On Friday Over Border Wall Funding. Aired 11-12a ET

Aired December 18, 2018 - 23:00   ET

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

[23:00:00] (COMMERCIAL BREAK)

DON LEMON, CNN HOST: This is CNN TONIGHT. I'm Don Lemon. A legal trouble just keeps piling up for this president. A federal judge made clear today that former National Security Adviser, Michael Flynn could do time in spite of Robert Mueller's no prison time recommendation. That as Flynn admitted in court, he knowingly broke the law when he lied to the FBI knocking down the White House talking point claiming that Flynn was a victim of entrapment.

And we learned today that President Trump's family foundation will dissolve amid a lawsuit that alleges he and his children, Don Jr., Ivanka and Eric, violated campaign finance laws and abused its tax exempt status and all that happened just today.

But there is another problem President Trump faces that could pose an even bigger threat than the Mueller investigation. Fifty seven percent of Americans in the latest Gallup poll disapprove of the job he is doing, but he has been bullied by an economy that's been going gangbusters, an economy President Trump inherited from President Barack Obama and then juiced with a big mostly corporate tax cut passed a year ago this week.

The economy is suddenly looking less rosy and bad news on that front is getting harder to ignore. Concerns over economic growth in Trump's trade war with China have dragged the markets down and stocks are on track for the worst December since the great depression. Sources tell CNN the President keeps a close eye on the markets and that's no surprise. He is made stock market performance a big part of his case for the Trump agenda.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Doing record business, record stock market, record everything.

We're all doing well. 401(k)s doing well, the stocks are doing well.

And since I took office, the value of Americans mutual funds and pension funds has increased by $2.7 trillion. That's your money. That's your money.

(END VIDEO CLIP)

LEMON: Live by the sword. Well, if you use stocks as a barometer of success as the President has done over and over again, there is not much to brag about right now. The markets under Trump are now doing much worse than they did in the same time period under Obama. The boost the tax cuts gave the economy, fading. It led to more than $1 trillion in stock buybacks, helping shareholders, but American workers didn't see a noticeable boost in wages compared to the years before and the federal deficit is ballooning.

The President has hinged his entire presidency on the economy. It's been a shield of sorts for him. Just last week, he told Reuters, it's hard to impeach somebody who hasn't done anything wrong and has created the greatest economy in the history of our country. It's a claim that's debatable at best, but what happens if the economy weakens?

Lot's to discuss now. Frank Bruni is here, Ryan Lizza and Phil Mud. Thank all you for joining us. So, let's talk about the economy and talk about where we are right now.

Frank, the Republicans lost 40 House seats even in the strong economy. If there is a slowdown, what does that mean for the Republicans and for the President in 2020?

FRANK BRUNI, OP-ED COLUMNIST, "THE NEW YORK TIMES": Oh, I mean, it looks like it will be a disaster, because as you said just a moment ago, the President has hinged his entire presidency on the economy. He hasn't just said the economy is doing well on my watch. He said, as you played on that great clip, this is the best history -- best economy in the history of the country.

He has taken full credit for things that he doesn't deserve full credit for, because a lot of this stuff gets set in motion before him and a lot of this is about the end of the Obama presidency. He is going to then have to take full blame for it.

When in the second two years of his presidency, if that happens, after his policies have had more time to kick in, the economy is actually doing worse. He'll try to deflect that. He will come up with Trump being in conspiracy theories. He will blame it on Barack Obama. He'll probably find a way to blame it on Hillary Clinton, but it won't fly.

TRUMP: The Obama economy for the first part of the presidency, he is still riding it.

[23:04:54] BRUNI: Right. So, it won't fly. And the other problem is, you know, a lot of Republicans, a lot of his supporters, a lot of Republican lawmakers have given him a pass or looked the other way at the sort of stuff Robert Mueller is talking about because of the economy, because they felt like, well, being hitched to Donald Trump is better than not, because so many people are excited about the economy. When that seizes to be the case, they are going to stop forgiving him for a lot of the other stuff.

LEMON: Yes. What do -- what do you think? Do you think the economy is an even bigger threat if there is a downturn to the Mueller investigation?

RYAN LIZZA, CNN POLITICAL COMMENTATOR: Absolutely.

LEMON: At least to its reflection (ph), right?

LIZZA: The economy affects everyone, right. The Mueller investigation, there are plenty of Americans who see it as a confusing sort of side show, right? It doesn't affect their lives, but Trump has been buoyed by this economy. His approval rating is artificially high because of the good economy.

People just will give a President, no matter what they might think of him personally, higher marks if they're doing OK, if the economy is doing OK, right? He has a very low approval rating considering how low unemployment is and how good the economy has been, but it's definitely given him a few points, right? So, you know, we don't know what his floor is if the economy starts to go south.

LEMON: I wonder, Phil, if we'll see him and I hate to say this, because I know it never happens, but I'm going to ask the question, if he'll sort of regulate because if you look at the economy is bad, they have the Mueller investigation that's going sideways for him, but then he had -- and then you see things like today, you see bump stocks, you see what's happening with criminal justice, which is what a President should be doing, right? For -- he should be working for all Americans. Do you think we'll see more of that or no? Is that just point dominance cue?

PHILIP MUDD, CNN COUNTERTERRORISM ANALYST: I don't -- I don't think so and I don't think it makes a difference anyway. I mean, in my lifetime, the most remarkable turnaround I remember was George H.W. Bush, the President we just lost. After the Gulf War, if you look at an American and said George H.W. Bush is going to be a one-term President, people would have said you're nuts. What happened? The economy tanked and people -- this country is weird.

People in the capital society blamed the President of the United States for the economy and they say when the economy is good, somehow in the capital society, the President did it. That's non-sense. They do that anyway.

My point is it won't matter. In a year and a half, I don't know how much leverage the President can have on influencing the economy. But if it tanks, people are going to look at them and say you're the big businessman, President, and we're in a bad way. We blame you, just as we blame George H.W. Bush.

LEMON: What did Allen Greenspan say in the former Fed chair today said, I'll start running for the Hill, he told them (inaudible)?

LIZZA: Yes, you have a President who -- look, there is a reason most Presidents don't hype the fact that the stock market is doing well, right? Because the stock market does not --

LEMON: It is so vulnerable. Right.

LIZZA: Exactly. You live by that, you die by that, right? Previous Presidents always were advised to stay away from hyping, you know, the highs -- the highs of the stock market right because you can't control it. And so, he obviously didn't take advice. He is impulsive, right? And he wanted to brag about that in his first year and a half and now he is suffering the consequences with the dip.

BRUNI: He also got a problem because this President isn't like any other President. He didn't come from a political background.

LEMON: Really? How so?

(CROSSTALK)

BRUNI: But he came from a business background. The whole point of Trump -

LEMON: Right.

BRUNIl: -- is supposed to be that he knows how to enrich people. You know, Americans voted for him in small part the way Italians voted for Silvio Berlusconi. This person is rich. This person knows the path to wealth. This person is going to take us on the path to wealth. If where Trump takes us is to a sputtering economy, the whole point of him collapses.

(CROSSTALK)

LEMON: Well, I mean, isn't that the story of his business life? I mean, come on. OK. Phil, listen, I want to get back to the Russia investigation and so let's talk about -- this is a document that was obtained by my colleague, Chris Cuomo. It's a letter of intent about a Trump Tower Moscow project signed by Donald Trump. He insisted that he had no dealings with Russia. And now he, you know, we have this document that proves otherwise, right?

MUDD: We do and I think this is the key to understanding something that I think has confused a lot of people and that is the difference between how the President has talked about Michael Flynn, who flipped early on. The president is obviously had some negative things to say about flippers, namely Michael Cohen. There is a difference between Flynn and Cohen and it is captured in that document that you have to pay attention to, one word, money.

Flynn knows about relationships with Russia on the diplomatic side. He doesn't know about family money. I don't think the President is worried about what Michael Cohen said about stuff like Stormy Daniels. That is chump change.

What he is worried about I suspect is that the FBI acquired a lot of documents during raids on the Cohen office, home, et cetera, and that Cohen is talking about old family money and maybe money relationships with the Russians that the President knows are dirty, just like his foundation is dirty.

I think this is just the tip of the iceberg in terms of dirty stuff that the Feds might have discovered partly via Michael Cohen and that is why the President trashes him.

LEMON: Yes. Who knows for the 70 some hours that he spoke or more than 70 hours that he spoke with the Special Counsel, what he told him about Trump's business dealings and the money.

[23:10:02] Ryan, listen, regarding this letter of intent. So, Giuliani told my colleague, Dana Bash, on Sunday, and this is a quote, it says, this was a real estate project, there was a letter of intent to go forward, but no one signed it. So, there is another Trump defense that falls apart, every single one seems to fall apart.

LIZZA: Are you sure that is Donald Trump's signature? It just looks generic.

LEMON: Oh, it will be like, no, he didn't sign it, it was invisible ink. It will be some crazy excuse.

LIZZA: They lie. They lie about basic things. They lie about things where there is documentary evidence. They lie about things were they have to know there is documentary evidence that is going to be leaked.

LEMON: Well, maybe it didn't matter because it wasn't signed in blood or something.

LIZZA: Or he had his fingers crossed when he signed it.

LEMON: His hand is behind his back when he signed it.

LIZZA: Did Giuliani lie to us or to Dana or did Trump lie to Giuliani who is just passing on, you know, on what he heard from the President? We don't know.

LEMON: We have a lot more to talk about. So stick around everyone. Michael Flynn admitted in court today that he knew it was illegal to lie to the FBI. So why is the White House still trying to claim the bureau ambushed him?

[23:15:00] (COMMERCIAL BREAK)

LEMON: So a federal judge has postponed sentencing for a former National Security Adviser Michael Flynn after issuing a harsh condemnation of his crimes and suggesting that he could face jail time despite Mueller's no prison time recommendation.

Back with me now, Frank Bruni, Ryan Lizza, and Phil Mudd. I got to be honest when I read it is like Michael Flynn -- wait, wait which Michael? Like, you know, in my mind, I'm going -- am I saying the right Michael or the right Paul or the right Papadopoulos or whatever, because there are so many players -- seriously.

Phil, to you though, the judge accused Flynn of selling his country out, even suggesting treason at one point. He walked that back, that accusation, but, I mean, these are some very harsh words. Is this a stunning turn of events to you?

MUDD: I was surprised. I thought that language was too harsh. I mean, we're talking about somebody who made some profound mistakes, but also serve honorably for this country for decades. I think there is two pieces here. You just mentioned one piece obviously, the nature of the charges, but anybody who looked at that 302 yesterday, that is the document about the FBI interview with Flynn.

Realized, that the FBI asked him pretty politely, more times that might be count, did you really do this? Did you do that? Did you do the -- they kept giving him chances to come clean and he kept saying no.

I thought what the judge was saying was partly to Flynn and partly to his words. Don't ever again suggest that you got burned by the Feds when every document that you could read showed that Flynn had a way out that he chose not to take. He chose to lie.

LEMON: Speaking of, Frank, defenses falling away, right? Because the White House says, oh he was ambushed. He was entrapped. He was on and on and on, and they continued to say even after Flynn and his representatives in court today said, no, not ambushed, not trapped, I knew I was wrong, I knew I was lying to the FBI and I knew I should not have done it.

BRUNI: Well, I mean, it's sticking with the story because it is the story they prefer and it's an important story for them because it fits their whole persecution narrative, like all of us are being persecuted, you know, not just a witch hunt, but these are people acting unethically to try to get us into trouble. And so they love that ambushed theory or that ambushed claim and they don't want to move off of it.

I think, you know, I wanted to just say something that Phil said that Judge Sullivan's remarks went too far, using the word treason. And that may be so, but I think Judge Sullivan was channeling and reflecting the frustration to discuss to a lot of Americans.

LEMON: Right.

BRUNI: You know, we get so lost in the weeds on this stuff. You know, when where we talk about specifics, who is going to get a sentence, who is not? Who is cooperating? I think the judge was sort of pulling back and looking at the pattern of wrongdoing here, in Donald Trump's administration, the people around him and just kind of looking at the absence of ethics and the absence of any commitment to the truth and just saying I'm disgusted by this. And I think, 65 percent of the country, 60 percent, heard those words and understood that and wanted to applaud.

(CROSSTALK)

LEMON: I think you're a very smart man and let me tell you why, because I was thinking the same thing as you, but I am going to raise you one, because I thought that maybe the judge, because Flynn and his representative had raised the specter of, oh, well, maybe he was trapped, they didn't tell him which rights he gets, and the judge started to buy into that.

And once the judge realized that he was being hoodwinked and duped like a lot of people around the country are being duped by the conservative media, by the mouthpiece, by the podium at the White House and then all of a sudden, he had a harsh reality of, no, I'm not being duped. He actually lied and I'm being lied to. And I think that the judge had a certain realization at that point and he is reacting to that --

LIZZA: I think in the moment.

LEMON: -- In that moment.

LIZZA: I've made that -

LEMON: As a lot of people will have eventually when they run out of excuses and people end up in jail. Go on.

LIZZA: I dispute it as similar to the way that Justice Roberts made a public statement about Trump's attacks --

BRUNI: Yes.

LIZZA: -- on the Judiciary. That is a judge, as you say, taking a step back and saying it is the judiciaries role in the current environment to sort of -- to be a check and to maybe be a little bit louder of a voice in the current political environment when you have, you know, what I think a lot of people see as a rogue President and that there are judges in these institutions stepping up and trying to remind people the rule of law matters, lying matters, and you know, when he pointed to the flag and he scolded Flynn and reminded people this isn't a game, this isn't just a political game that plays out on Twitter, that the rule of law really matters. I think he was too sort of a slap in the face to all of us about this isn't just a social media, you know, food fight.

LEMON: Yes, but people are still believing that ambushed and duped thing. I still see it on social media. He was duped. Is this how you treat a general? It is like, well, the general said I lied.

[23:20:00] MUDD: Oh, come on. Can I do a little bit of time-out here? In third grade, I wasn't that bright. I told Sister Teresa I did my homework, but it was in homeroom. She sent me back to homeroom, of course, I have no homework. I guess he should have needed a lawyer to tell me you're not supposed to lie when someone asked you a question.

The suggestion that he needed a lawyer in the room, and that when the FBI asked him what he did that he needed to be advised, that it was not appropriate to lie, forget about the law. Sorry, you're not supposed to lie and I thought the judge was right to say, don't ever try that again. You can't do it in third grade and you can't do it here.

LEMON: Yes. LIZZA: It felt like he was watching and paying attention to those

arguments and he wanted to dismantle the argument from the White House and that is popular in the conservative media bubble and make sure by the end of the day that that argument was just dead.

LEMON: I just want to turn now to the other news, the mysterious legal fight that emerged as part of a Mueller investigation. A federal judge is ordering an unnamed company owned by a foreign country to comply with the subpoena from the Special Counsel. Do you have any idea what that could be about first, Phil?

MUDD: I'm looking at this making my wagers. My wager is on Russia. If you look at the private entities in Russia that were involved in election meddling, one of the questions you would have would be, where the documents from those entities particularly, for example, how they might have purchased stuff on Facebook, ads, for example? So, I'm looking at this thinking, there has got to be some connection here with Russia. That is the solution I came up with, Don.

LEMON: Yes. Any ideas, Frank?

LIZZA: There are so many.

LEMON: No.

LIZZA: It could be with Turkey. It could be with Ukraine. It could have something to do with Erik Prince. I mean, the number of foreign countries that have had at least a mention in this investigation is, you know, you've got at least half a dozen.

BRUNI: I think those guess is a good one. If you are going to place a wager, you would look towards Russia.

LEMON: And it just shows you that there is so much that Robert Mueller knows, that we don't know and that people are speculating about and that politicians don't know, the White House, the people at the podium.

LIZZA: Absolutely.

BRUNI: This is a great -- this is one of the great reminders that for all we have to talk about, the majority of things we may not even know yet.

LIZZA: This is -- the Mueller investigation is like a submarine under the surface, right? Just every once in awhile he shoots something up, but -- we don't know half of it.

LEMON: Bloop, bloop. You don't do the submarine noise. Thank you all. I appreciate it.

The Senate is passing a major prison and sentencing reform bill late tonight, but will it pass the House? Congressman Hakeem Jeffries will tell me what he thinks next.

[23:25:00] (COMMERCIAL BREAK) LEMON: So here is our breaking news tonight, the Senate

overwhelmingly passing a major prison and sentencing reform bill. The vote was 87 to 12. The House is expected to take it up on Thursday.

Joining me now is Democratic Congressman Hakeem Jeffries of New York. Thank you, Congressman, for joining us. I was speaking to Van earlier and told him that you would be here tonight. So, let's talk about this bill. He called the President and said the President was I think - and I'm paraphrasing here -- heroic in some ways for doing this. What do you say to folks who are skeptical, because Trump is behind this bill? You know what I'm saying.

REP. HAKEEM JEFFRIES, (D), NEW YORK: Well, it was an important leadership moment for Democrats and Republican, Progressives and Conservatives, the left and the right in Congress and at the White House. And certainly, the President's support was important at the very end of this process. Jared Kushner's involvement at the very beginning of this process was critical.

Once several of us, House Democrats, concluded that Kushner was authentically serious about trying to get something done to reform our broken criminal justice system then we knew there would be a pathway to try to negotiate the most meaningful Criminal Justice Reform Bill that will have passed out of this Congress, if it is signed into law in decades.

LEMON: And I want to quote my colleague, right? He said that you were heroic, that Trump was instrumental and also that Jared were -- Trump and Jared were instrumental in this bill. Who deserves a credit, do you think?

JEFFRIES: Well, everyone deserves a credit. At the end of the day, we incarcerate more people in the United States of America than any other country in the world. And when the failed war on drugs first started 1971, it was less than 350,000 people incarcerated in America.

Today as you know, Don, 2.2 million, it's outrageous. It's a scandal. It is not a Democratic problem or a Republican problem, this is an American problem. And Democrats and Republicans have decided to come together to strike a devastating blow against the mass incarceration epidemic in this country.

LEMON: So, is it fair to call it a Criminal Justice Reform Bill as a Prison Sentencing Reform or do you think it is fair enough to call it?

JEFFRIES: Absolutely, totally fair to call it now both Prison Reform. That was the initial effort and now we managed with leadership from Chairman Grassley and Senator Durbin and the Senate, along with my good friend, Doug Collins, in the House, myself and others who had been involved. Van Jones has been instrumental. We've all been able to negotiate with the Civil Rights Groups, for instance, their involvement as well, a serious bill that both will help currently incarcerated individuals successfully transition into society.

LEMON: That is the really important part, it is retroactive, it is a part of it, will happen now and for folks who committed crimes. But go on, sorry.

JEFFRIES: Yes. That is incredibly important. That is incredibly important piece of it. You know, we have currently incarcerated individuals who are victims of mass incarceration epidemic and prison reform is designed to help them become productive citizens, save tax payers dollars, reduce recidivism.

[23:30:00] But we're also are rolling back some of the harsh sentencing laws that were put in placeduring the crack cocaine epidemic that went too far, and in at least one instance where the disparity between crack cocaine and powder cocaine was reduced in 2010 with leadership from Barack Obama from 100 to 1 to 18 to 1 that wasn't made retroactive.

So you have thousands of people who are currently in the system as a result of a law that Congress itself declared was unjust. The First Step Act will make that change retroactive.

LEMON: I want to move on and ask you something else because you mentioned the Obama administration. This is -- how long have you been working on this?

JEFFRIES: Almost from the moment that I came into Congress in 2013.

LEMON: OK, so you've been working on this. So this has been tried before. Van (ph) said that it started in the Obama administration. Why now? What was different about this?

JEFFRIES: Well, I think several of us including the current chairman of the Congressional Black Caucus, Cedric Richmond, whose leadership was tremendous as well in this regard, and the new chairperson who is incoming, Karen Bass, concluded that the notion of an all or nothing approach was wrong and there was some who said, well, you can't negotiate with the Trump administration if at the initial stages of the discussion, you're not convinced that you can get everything, both prison reform and sentencing reform.

I said, well, the all or nothing approach failed because in 2015 and '16, when we were negotiating a bill, there were folks who said, let's move beyond the Barack Obama bill because we expect Hillary Clinton to be president. And Don, how did that work out?

LEMON: That was a mistake?

JEFFRIES: So we decided never again.

LEMON: So listen, I want to get you to weigh in on the Trump administration plans to roll back the Obama-era policy that was intended to protect minorities, students from being unfairly punished.

We know what the studies show. Minority students are suspended more often, expelled more often, disciplined more often for the similar things that their white counterparts do and they're not expelled or disciplined.

So my question is, they say that the policy has led to schools avoiding punishment for potentially violent students. Do you think that's a mistake?

JEFFRIES: It's definitely a mistake. Betsy Devos, the so-called secretary of education, is totally out of control.

And when Democrats take control of the House of Representatives on January 3rd, we're going to not only work to lower health care cost, increase pay, and clean up corruption, we're going to deal with some of these out of control policies that have been put into place by secretaries who are totally unqualified for the job. This is an example of one of them.

LEMON: Congressman, this is -- this is coming from School Safety Commission, right? That was established by Trump in the wake of the Parkland shooting. The group reports at least a handful of major school shootings.

But I want you to check out the ones that have occurred since 2014, when this policy was into place. All but one of the shooters is white, OK? So why is this supposed to help prevent, how is this supposed to help prevent school shootings?

JEFFRIES: It's clueless and it illustrates the fact that while we've come a long way and Jeff Sessions is gone and he was a big obstacle to dealing with sort of criminal justice issues --

LEMON: He was an obstacle with criminal justice as well and was an obstacle with this --

JEFFRIES: I think he was an obstacle but obviously there are still some elements of the Trump administration that are problematic in terms of dealing with these things. This relates to targeting of individuals without basis that could lead to the school to prison pipeline, which is one of the things we're trying to end with this criminal justice reform bill.

But we said often, this is a first step, that's why it's called the First Step Act. You can't wave a single legislative magic wand and wipe away the consequences of mass incarceration in America that have been with us for more than 40 years.

But we will take this first step and then we are going build upon it, operating from a position of strength as a new Democratic majority in the House.

LEMON: You confident about the House tomorrow or Thursday?

JEFFRIES: Cautiously optimistic.

(LAUGHTER)

JEFFRIES: That's the way I can put it.

LEMON: Thank you, congressman.

JEFFRIES: Thank you, Don. LEMON: I appreciate your time. With all the investigations swirling around President Trump and his closest advisers, how much trouble could they all be in?

[23:35:00] (COMMERCIAL BREAK)

LEMON: Tonight a federal judge ordering Michael Flynn to stay within 50 miles of Washington and surrender his passport. His sentencing for lying to the FBI postponed for a few months, but not before the judge issued a sting rebuke of President Trump's former national security advisor.

I want to discuss now with Harry Litman and Jennifer Rodgers. Good evening. Thank you so much. What an interesting day for the investigation and for the courtroom. We see all these norms being violated and people, you know, shooting down institutions and talking about our law enforcement agencies and the legal system. This is a good day for the rule of law, you think?

JENNIFER RODGERS, CNN LEGAL ANALYST: I think it was. You know, you had a judge who has this incredibly important case in front of him, the sentencing of Michael Flynn, and he has a sentencing memo from the defense that is misrepresenting facts and blaming the FBI and has to say, well, listen, if you're going to back off of the situation here and say that you were somehow tricked, then you haven't accepted responsibility.

So, the first thing he needs to do is to ensure that the defendant is actually guilty, that he is accepting responsibility, so that's what he does, and he does it in very strong language and also goes after the seriousness of the offense, too.

You know, he wants people to know, including Michael Flynn standing there in front of him that lying to the FBI when you're a senior member of the administration, sitting in the White House is a big deal.

And so I think it was a good day for the rule of law because, you know, he's not only talking to the defendant as we know, he's really talking to everybody in the country including Trump and followers who are continuing, trying to undermine the judiciary and all of our institutions.

[23:40:02] So I think it was a good day in that way.

LEMON: What do you think?

HARRY LITMAN, FORMER U.S. ATTORNEY: Yes, I agree. Look, it's the crucible of the law that where facts actually control. It's not just any old thing you can say in the political sphere. So they had said these things, they echoed Trump's talking points, and Judge Sullivan was like, you are under oath, let's take it one at a time, that's not true, is it? That's not true, is it? That's not true, is it?

It wasn't simply a counterpoint but a counterpoint backed by facts and law, the kind of thing that is lacking so much in the political hullabaloo that we have every day.

LEMON: Don't you think that even at the White House and also the trumpets all over the country, their heads were blown up? There were so mad. They love this judge when they thought that he would believe the conspiracy theories, right? And the excuses. And then all of a sudden, they were mad at the judge because the judge said, well, this is -- what you're telling me is bull and then he scolded them.

Let's go through some of it, Harry. First for you. The judge's name is Emmet Sullivan, by the way. Scolded Flynn by saying, I am not hiding my disgust, my disdain for your criminal offense.

LITMAN: Any by the way, shortly after that, he unpacks the T-word, you know, that he possibly commit treason, which he didn't, but nevertheless, we were all of a sudden underscoring, but was in fact a very grave offence because that is the other part of this, not simply that the talking point is on the right or inaccurate but they are trivializing a serious offense. The guy is carrying on a rogue foreign policy --

LEMON: But this judge has a no-nonsense reputation.

LITMAN: He actually has a reputation for slapping the government around at times, and I think that's why the lawyers for Flynn were led into a blunder of serving up to him the sort of red meat couple pages in the memo talking about the bad things that the government supposedly had done, and he was having none of it.

LEMON: OK. So let's talk about the T-word that he mentioned, because he even raised the idea of treason. He said arguably, you sold your country out. He walked that back later and acknowledged that Flynn's unregistered lobbying for Turkey, right, ended before he worked at the White House, but I mean, he went all in.

RODGERS: Well, so this is -- this is interesting. It sounds like he did have the facts wrong a little bit, but the point is, he is not just looking at the offense conduct for what Flynn pleaded guilty to, which is the false statement, which Judge Sullivan said is serious enough as it is.

He is also looking at the other conduct that he was charged with and didn't have to plead guilty to which is acting as an unregistered agent of a foreign government. And, you know, a judge can take into account offense conduct that the person didn't plead guilty to if he finds it by a preponderance of the evidence.

So, it actually is the case that Judge Sullivan can consider that conduct when he sentences Flynn. And to me, the fact that he was talking about that a fair amount today means that he's considering that when he is thinking about whether he should actually go to prison.

LEMON: Did Flynn's own lawyers trip him up by putting in that whole thing about the, you know, they didn't tell me what rights and all that? Did they trip him up? LITMAN: I think so. After the recess, which Flynn grabbed for to take a breath and probably hit the bathroom, they came back, and the lawyers who are, you know, white shoe, very well established lawyers, fell on their swords immediately, said don't blame the defendant, this was our idea. They knew by then it had been a debacle, that they had tried to trot this out and they then walked it back as best they could. That's why they needed a continuance.

LEMON: Why would they do that? Saying that OK, well, maybe he was entrapped in some way?

RODGERS: Well, you know, listen, I mean, for some reason, they are still towing the party line when it comes to the president and his supporters. I don't know exactly why it is, but I think that Harry is right, you know, in part it's because of Judge Sullivan's reputation, he's tough on the government, so they think oh, maybe the judge will like it if we poke at them a little bit.

And Mueller already said he deserves time, maybe he doesn't think Mueller is going to respond strongly. I'm not exactly sure, but it really was a mistake.

LEMON: Do you think that maybe the judge took into account the president's tweet? Do you he knew about it this morning saying I wish you well in court? Do you think that played into it?

LITMAN: That's a really interesting question. It does seem to me now we have this political and legal cross currents and as part of what he was doing, reacting to the suggestion out there that normally can't be rebutted, but he's in robes (ph) and he can and he wanted to push back not simply on the political side but to the American public and let them know in fact that justice system was just this guy who is being sentenced for serious crimes. My best guess, yes.

LEMON: This is important. We saw redactions in the things that were released last night, in the notes that were released last night. A lot of them. The judge would know what is behind in those redactions, right? Wouldn't he know?

RODGERS: Yes.

LEMON: And he's still very angry?

(LAUGHTER)

RODGERS: He is. He is. I mean, I think though, you know, he's not angry at what is in the 302, he's angry at the misrepresentations about the 302, right?

[23:45:03] So, you know. What is interesting to me also is that instead of just kind of giving them a tongue lashing, which I think a lot of people expected, he then goes on to say, you should do more cooperation.

Basically, I'm really considering serious prison time for you. You ought to go out and do more to cooperate with the special counsel's office. Come back to me in March and tell me what you've done. And then I'll see what I want to do. So that is also highly unusual.

LEMON: Everybody was like, wait, what?

(LAUGHTER)

LEMON: What's happening here?

LITMAN: We'll come back another day. That's a great idea, your honor.

LEMON: Thank you, Harry. Thank you, Jennifer. I appreciate it. The White House no longer demanding that Congress come up with the $5 billion for the president's border wall, but then who is going to pay for it?

[23:50:00] (COMMERCIAL BREAK)

LEMON: The White House now saying it wants to avoid a government shutdown on Friday night over funding for President Trump's border wall. Press Secretary Sarah Sanders indicating the administration could support a compromise bill to avert a shutdown. Let's discuss now with Maria Cardona and Steve Cortes. Good evening to both of you.

MARIA CARDONA, CNN POLITICAL COMMENTATOR: Hey, Don.

LEMON: Maria, i'm going to start with you. Let's go back to those fireworks last week at the White House. The president telling Representative Nancy Pelosi -- representatives Nancy Pelosi and Chuck Schumer this. Watch this.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES OF AMERICA: And I'll tell you what --

SEN. CHUCK SCHUMER (D), NEW YORK: We disagree.

TRUMP: I am proud to shut down the government for border security. So I will take the mantle. I will be the one to shut it down. I'm not going to blame you for it. The last time you shut it down it didn't work. I will take the mantle of shutting down.

(END VIDEO CLIP)

LEMON: OK, so, but now they said, maybe we'll come up with a compromise. What's behind the flip-flop?

CARDONA: Well, I think this past week when Republicans have been getting completely beat up because of that completely irresponsible phrase that came out of the president's mouth, saying that he'll be proud to shut down the government, essentially saying that he doesn't care about the American people and what they would go through with a partial shutdown of the government and the people who the workers who would not be paid, he just wants to get his way.

He was essentially throwing a temper tantrum like he loves to do in front of the American public. And I think that Republicans on the Hill have been very upset about what he said. They have been upset publicly. They have been upset privately. They know that politically this is not going to help them.

LEMON: OK.

CARDONA: And it's certainly not going to help the White House.

LEMON: So Steve, is the president disappointing his base by backing away from that promise?

STEVE CORTES, CNN POLITICAL COMMENTATOR: Well, he hasn't backed away from anything yet, and I don't think he will. I think he knows that he was given an oath -- he really swore, I should say, to the American people and given a mandate to follow through on that oath to build the wall, and I expect he'll do it.

Even if the Congress really won't make good on its responsibility to build that wall, it's incumbent upon the president to figure out a way to do it. I think what we saw last week --

LEMON: Remember you're forgetting one piece of it, Steve.

CARDONA: Mexico.

LEMON: Mexico is going to pay for the wall.

(LAUGHTER)

CORTES: Yeah. Don, listen, you brought this up many times to me. That has never mattered to me. I know it mattered to the president. Doesn't matter to me. You know why? Because the wall will pay for itself --

LEMON: Steve, I'm not talking about you. I'm talking about --

CORTES: We spend so much --

LEMON: Ah, ah, ah. You're not the president. You're not the president. You're not the president.

CORTES: Then ask him about that.

LEMON: The president said -- Steve, come on, don't do that. Anyway, don't do that. The president said that Mexico would pay for the wall. So why doesn't that matter? Why isn't Mexico paying for the wall? Why is he asking now for taxpayer money to pay for the wall, something that you said he took an oath for and had a mandate to do?

CORTES: Yes, and he did and he does to build the wall. Look, it is well worth an American investment in the wall because for instance, Maria mentioned that --

LEMON: You're not answering my question, Steve.

CORTES: -- folks in America --

LEMON: You're not answering my questions. CORTES: I'm answering your questions, Don.

LEMON: No, it's not. Your answer --

CORTES: I don't care --

LEMON: Steve, we're not going to get off track here. I asked you, what happened to Mexico paying for the wall and you go off track. Was the president wrong? Mexico's not paying for the wall? Does that part of the promise not matter?

CORTES: I do not know. I do not know. It doesn't matter to me. That's what I'm saying.

LEMON: OK.

CORTES: I'm very consistent on your show for a very long time.

LEMON: All right. Here's what the president tweeted earlier tonight. The president said if Democrats are -- the Democrats are saying loud and clear that they do not want to build a concrete wall, but we are not building a concrete wall, we are building an artistically designed steel slats so that you can easily see through it. It will be beautiful and at the same time give our country the security that our citizens deserve.

So, he's really into the design of this wall, but that isn't a wall. That's a fence. But go on, Steve.

CORTES: No, he's a builder. Listen, that is Trump the builder. Trump the entrepreneur. I love that. It's funny. I'll be the first to say it.

CARDONA: It is funny.

CORTES: But I love it. That's the way he talks. He builds amazing structures. He's done it his entire life.

LEMON: I'm saying that's a fence.

CORTES: He has built the most amazing -- well, look, we can get hung up on whether you call it a wall or a fence. If it has slats in it, I still would call it a wall.

LEMON: And it's not being built.

CORTES: It's 30 feet high.

CARDONA: He can go build it on his own time.

CORTES: You're right, it's not.

CARDONA: Don't waste our time with it. Don't waste taxpayer money for it.

LEMON: Let him finish. Go on. CORTES: Here's why it is not a waste of time. Because a government shutdown -- and you're right, Maria. Government shutdown would hurt some people and would hurt them temporarily. But there are people being hurt permanently in the United States.

LEMON: OK.

CORTES: Angel moms, angel dads who have lost American citizens --

LEMON: I got to let her respond because we have a short time left.

CARDONA: So --

CORTES: -- illegal immigrants, criminals who have come into this country illegally and because of sanctuary cities and --

[23:54:58] CARDONA: Thanks, Don. Because -- because Steve -- Steve was getting -- Steve was pivoting to the absolute ridiculously flawed and false fearmongering that the president uses to try to get people to believe that there is a huge crisis, national security crisis on the border and there is not. And that is why we need the wall when we do not need a concrete wall --

CORTES: Our border patrol disagrees with you, Maria.

CARDONA: Hang on, Steve. I did not interrupt you.

LEMON: I got 10 seconds. Come on, Maria.

CARDONA: I did not interrupt you.

LEMON: OK.

CARDONA: Democrats and President Obama got the border under control. The border has never been safer. Border cities are safer than cities anywhere --

CORTES: Tell that to the Customs and Border Protection.

CARDONA: - and so let's figure out a solution. How about that? Let's figure out a solution. A wall is not it.

LEMON: Thank you both. We're not building a concrete wall. We're building an artistically designed steel slats.

(LAUGHTER)

LEMON: And this wall thing every day, it becomes something else. Thanks for watching. Our coverage continues.

(LAUGHTER)

LEMON: Slats.

(COMMERCIAL BREAK)