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Judge Rebukes Flynn; "I'm Not Hiding My Disgust"; Flynn's Attorney Asks Judge to Delay Sentencing; Judge Delays Michael Flynn Sentencing. Aired 12:30-1p ET

Aired December 18, 2018 - 12:30   ET

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

(COMMERCIAL BREAK)

[12:32:20] JOHN KING, CNN ANCHOR: Welcome back to our breaking news coverage.

Michael Flynn, the president's former National Security Advisor back in a federal courtroom waiting for the judge to resume the proceedings. That due to begin any second now. The judge there presumably to sentence Michael Flynn today, but he called a recess in the proceedings. He wanted to give Michael Flynn more time to think about whether he wanted to be sentenced today or whether he wanted to wait until his cooperation with the Office of the Special Counsel is completed.

Let's continue our conversation, Julie Hirschfeld Davis from the New York Times joins us. I want to read -- and Solomon Wisenberg still with us. And really Sol, to you first, the more -- this is from the judge before he called this recess. "The more you assist the government, the more you arguably help yourself at the time of sentencing."

Do you read that as I read that what the judge is saying, based on everything I know right now, I might put you in prison despite what the special counsel recommends. Do you want to wait and come back here in a later date and convince me I shouldn't do that?

SOLOMON WISENBERG, FORMER PROSECTUTOR: Well, I'm only hearing that one line, I don't know the full context, but it might very well be what the judge is trying to say. Though Mueller made it clear in the filing that he's done enough cooperating for the judge to assess it. And he also made it clear that he is continuing to cooperate.

I will say this, I do think it should be said a couple of things. Number one, the judge's comments about treason, they're obviously done for a fact. But it's ludicrous to suggest that Flynn is guilty of treason or that he could be charged with treason, number one.

Number two, the lawyers have taken a lot of hits for the filing that they did. And I think that obviously in retrospect, it was a mistake. And it was partly a mistake because of the furor it caused in the conservative press which again the judge is responding to the editorial in the Wall Street Journal that said it was entrapment which it clearly was not. However, sentencing lawyers do this all the time. They file sentencing memos and even with clients who are cooperating they say, by the way there are some mitigating circumstances. And they can also say even in the case with full cooperation, hey, there are things the government did that we think you should know about, Judge. And I think that's what his lawyers did here.

I really don't think they were saying that he was set up. What they were saying, not without reason is there's some sleazy things that were done by Andrew McCabe and by the FBI in setting up the interview. Now, was Flynn entrapped? Absolutely not.

Was he set up in the sense that he didn't know there were going to be questions about Russia? Absolutely not. But he was certainly trapped because he was in a situation where effectively he couldn't refuse to be interview. And he'd already lied to the vice president.

[12:35:02] So, his choice was either to continue his lie by lying to the FBI which is a crime or to admit that he'd been lying to Flynn which would have been leaked and he would have been out the door.

So, you know, is (INAUDIBLE) committed a crime? Absolutely. As he committed the crimes related to the FARA filings in Turkey? Absolutely. But, I think that's what's going on here. The lawyers were trying to say, look, Judge, look at what the government did here, it's kind of sleazy, and it backfired.

KING: It's going to be remarkable to see how the judge proceeds once he gets back in the room whether he asks General Flynn again, sir, do you want to delay this? But to that point, Carrie that Sol is making about this. So the judge starts off by saying, you know, look if you think you were mistreated, why don't you withdraw your plea? Michael Flynn said, no, no, no. I want to go forward sir.

And then the judge starts on this all along, "You're an unregistered agent of a foreign country while serving as the National Security adviser to the president of the United States. That undermines everything this flag over here stands for. Arguably, you sold your country out. I'm not hiding my disgust, my disdain for your criminal offense."

It is hard to read that and to listen to a judge say that, and then (INAUDIBLE) is that judge going to accept the recommendation from the special counsel to let him walk?

CARRIE CORDERO, FORMER COUNSEL TO U.S. ASSISTANT ATTORNEY GENERAL FOR NATIONAL SECURITY: It's definitely strong language, but the judge has gone a little bit farther than really he should have particularly with the language about treason. Because I agree with the prior observer, there's no other information in this case that indicates there was treason was ever any kind of crime. You have to be levying war and providing aid and comfort to the enemy.

So, treason was just not a factor in this case. And so for him to raised that is really rather inflammatory. It does seem like the judge is honing in on the gravity of Michael Flynn as National Security adviser and lying to federal agents.

But I really think that his lawyers did make a mistake and their filing. Which is that they inferred that he was somehow didn't understand the circumstance of his interview with the FBI. And he has disputed that in court. He pled guilty. This should have been a really straightforward hearing.

All they had to do was say, we accept the prosecutor's recommendation of zero jail time. Here is all the things that Michael Flynn's have done that mitigate in terms of his history of public service to the country. And that was it and they should have been done by now.

I think they raised issues that didn't need to be raise. And by doing that, they made the judge look behind the actual interview by releasing the FBI (INAUDIBLE) those summaries of the investigative interview. And that was exculpatory to the FBI. It shows that there was no bad behavior and it shows that Michael Flynn knows -- knew what he was doing when he (INAUDIBLE).

KING: And it shows to bring it from the legal to the political that much of what the president has been saying and what the president's allies have been saying is simply not supported by the facts about the FBI did -- was Michael Flynn duped, was he duped to the interview. And so you get to the point, we're waiting to whether the sentencing actually plays out today.

But, with right now, Michael Cohen sentenced, the president's long time personal Attorney. Paul Manafort, the campaign chairman, sentenced. Michael Flynn, guilty, about to be sentenced we think unless there's a delay. Rick Gates, the deputy campaign chairman.

So, the president says witch hunt but now you have this array of people who worked closely with this president facing sentencing.

JULIE HIRSCHFELD DAVIS, CONGRESSIONAL CORRESPONDENT, THE NEW YORK TIMES: Right. I mean, it is very interesting as Carrie points out that Michael Flynn's lawyers kind of took up this argument that the president hasn't making on Twitter and, you know, in public statement that Michael Flynn was somehow treated unfairly and sort of duped into accepting, you know, this cooperation agreement.

And so, what you have now is sort of more irrefutable evidence. And regardless of what the sentencing is that the judge's very strong statements about what Michael Flynn has done, that sort of put the lie to what the president has been saying. And it all sort of conspires to really show that President Trump is nervous for a reason because this has gotten very close to him.

I mean, this is a person who was the National Security adviser. Not just a top aide, but a top aide who was in-charge of some of the most sensitive information and sensi -- most sensitive operations of the administration when he was coming in as president. And he has now been shown to have been, you know, doing exactly what prosecutors said he was doing.

KING: And yet, these prosecutors in court today said Michael Flynn has given most of his cooperation. It's possibly he might cooperate more. Carrie noted in the earlier segment this is redacted portion about the substance of the cooperation that we don't know about. Something to do with the Mueller Russia investigation. And yet the president of the United States treats Michael Flynn the polar opposite of how he treats Michael Cohen.

He does speak (INAUDIBLE) like a mob boss, saying Michael Cohen is a rat, he's weak. He gave testimony. Just this morning, the president tweeting about Michael Flynn. "Good luck today in court to General Michael Flynn. It will be interesting to see what he has to say despite tremendous pressure being put on him about Russian collusion in our great and obviously highly successful local campaign. There was no collusion."

Why? Flynn has been cooperating for more than a year. Why does the president hug Flynn and shove Cohen?

ABBY PHILLIP, CNN WHITE HOUSE CORRESPONDENT: This is a great mystery and I think it's one that we should be paying close attention to as we learn more about what's in that redacted section. What more Michael Flynn has had to say but the president has treated him with kid gloves.

[12:40:02] And I would say not just since he was charged with this, but from the moment that the president fired Michael Flynn from his job as National Security adviser, he gave a press conference at the White House and spend the entire time defending Michael Flynn from the charges that he had lied to the vice president.

The question remains, why. What is it about the circumstances surrounding the situation of the president continuously wants to protect Flynn from what he might be facing and in fact has put Flynn in kind of a top spot. The president has been alleging that he's been tricked, that he's been entrapped by prosecutors. And Flynn had to answer for that in court today and refute what the president has been claiming about him all morning.

So, the president isn't helping Michael Flynn right now. And in fact could be hurting him, could be making this more difficult for him. And President Trump has -- is seemingly opening the door to a possibility that perhaps he is sending signals to yet another person involved in this case. What are those signals and what do they really mean?

KING: And as you note significantly, Michael Flynn directly contradicting what the president has said saying, no, he knew it was wrong to lie to the FBI. He was not entrapped. He was triggered.

We're going to take a very quick break. The hearing has not resumed. Michael Flynn is back in the federal courtroom. The judge said he was coming back at 12:30, he's running 11 minutes late now if you look at the clock. We expect it to begin any moment now.

We'll be right back.

(COMMERCIAL BREAK) [12:45:47] KING: Welcome back.

The breaking news this hour, Michael Flynn's sentencing hearing or at least what was supposed to be a sentencing hearing has resumed at the federal courthouse. You see right there, Washington, D. C. about a 40-minute break. The judge saying, he wanted time to consider his thoughts, wanted Michael Flynn to think about whether he wanted to proceed.

Let's get back to Pam Brown and Shimon Prokupecz outside the courthouse. Pam, I understand the judge came back in. Not ready to sentence yet with more questions?

PAMELA BROWN, CNN SENIOR WHITE HOUSE CORRESPONDENT: Yes, that's right. And the judge also was clarifying some of the remarks he made earlier as you'll recall. He raised the question of treason, asking Mueller's prosecutor whether they had ever weighed charging him with treason. But now the judge appears to be adding some context around that. I want to bring in Shimon Prokupecz to fill us in on what the judge has been saying.

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE REPORTER: You kind of wonder if the judge went back into his chambers and realized some of what he said and the response certainly by those in the media now. But, the judge is essentially walking back a lot of what he has said as you said the treason thing.

The other thing the judge brought up or said that the he had made a statement about Mr. Flynn acting as a foreign agent in the White House. The judge then said that's incorrect. And then the prosecutors --

BROWN: Because he was acting as a foreign agent during the campaign --

PROKUPECZ: During the campaign. It's clearly -- look, we knew that the wild card in all of this sort of was the judge. And we're seeing that here. This judge is known for being outspoken, for saying things off the bench.

So clearly now he's having to walk back what he said. And then certainly the treason thing, he is trying to say -- now the judge is saying, I'm not suggesting Flynn committed treason. I'm just trying to determine, the judge says, the benefit and the generosity of the government.

And then he says, don't read too much into the questions I asked. I mean, but yes, he's --

BROWN: You wonder what --

PROKUPECZ: Yes.

BROWN: You wonder what sort of went through his mind during that recess to come back out and say, don't read too much into that. Of course, if he's going raise treason in that courtroom and point to the American flag, I mean, that was high drama.

PROKUPECZ: Look, we all expect this to go one way. It's now going a different way, but maybe now it's going back to the way it was supposed to go, right? Lots of wild cards here, high drama.

The other thing I think it's important to know is really the prosecutors here and that you're seeing an effort by them to try and protect Michael Flynn, defend Michael Flynn. They told the judge that they had no concern or no reason to think Flynn committed treason. So I think they're trying to calm the judge down a little bit obviously by our folks in the courtroom.

They saw Michael Flynn's attitude has completely changed. He came in happy. They're seems to be more concern now especially given what the judge has said, the judge now walking some of these back. You know, certainly back-pedaling, and let's see what happens as this goes.

BROWN: Right.

PROKUPECZ : His attorneys are now speaking. Michael Flynn's attorneys are now talking to the judge.

BROWN: And as you said, it's safe to say that neither side expected today to go the way that it is going. It was anticipated that this would sort of wrap up relatively quickly, Mueller's team has asked for no jail time. Mueller and his -- not Mueller, Flynn and his defense attorneys of course agreed with that. But this judge is certainly keeping us in suspense in terms of what he's going to do. And what are we learning about Flynn's cooperation because as we know, Shimon, Flynn has had 19 proper sessions with Robert Mueller's team, which is a lot for a cooperating witness.

Does that end today? Does it continue? What do we know?

PROKUPECZ: Right. So the prosecutors would say that it's possible that his cooperation would continue. And so the judge said, well, maybe we should delay the sentencing because usually -- here's the thing, usually in cases where you are sentencing someone who's cooperating with the government, you wait until the government is completely done with that person's cooperation. And then you go ahead and sentence him and you can tell the judge, this is how this person helped me. So in Flynn's case, they could have waited.

BROWN: So why didn't they? Why --

PROKUPECZ: We don't know.

BROWN: Yes.

PROKUPECZ: There was never really an explanation of why they decided to say, OK, he's ready to be sentenced. It could be that the court was putting pressure on them. It could be that special counsel was trying to wrap things up and they know the cases are going to continue in court.

But, we really don't know in the end. But I think, the judge was gaming Flynn in out here.

[12:50:00] I think things have calmed down a little bit maybe now. And it seems that his attorneys, Michael Flynn's attorneys are trying to bring some more to back in and calm things down. They are now talking to the judge about why they chose to talk about why they chose to talk about what they did in their filing. About whether or not he was tricked.

They're arguing that, you know, Michael Flynn accepts his responsibility in this. He accepts what he did. And so that's where we're going through at this point.

BROWN: They likely want this to wrap up today. They want this to be done. But it's still an open question, John King of it's --

PROKUPECZ: The judge just asked the attorney, do you want to delay sentencing right now. And so we don't have an answer yet. But if there is something that is really I find so fascinating here that this judge keeps wanting to delay this. And how many times now have we heard this judge say, are you really ready to go with this today?

BROWN: (INAUDIBLE) him out to withdraw his guilty plea. I mean, this judge, Emmet Sullivan, a judge appointed by Bush, Reagan, and Clinton, really as you pointed out the wild card in the proceedings today, John King.

KING: Shimon and Pam, stay with us and come back as we get more information. And perhaps we shouldn't be surprised, disruption and detours are the order of the day in the age of Trump. Nothing is a straight line anymore.

To this point, Carrie, the judge keeps asking Michael Flynn, are you sure? Are you sure? The judge called and scheduled the hearing. And Michael Flynn's attorney said yes, he wanted to be there. What's going on?

CORDERO: I think part of what really is these issues that they raised in their pleadings just within the last several days. And then just last night, the judge ordered the release of the interviewed transcripts. And so I just think, they introduced all of this uncertainty that then the hearing was previously scheduled for today and so he's making sure he's giving Michael Flynn the opportunity time and time again to take back the opportunity to plea.

That is not in Michael Flynn's interest. He already has a deal with the government. They did not charge him with as much as they could have. They could have charged him with a foreign agent registration act charges probably. They probably could have charged him with more acts of 1001 false statements. They ended up charging him with one count and they recommended no jail time.

All they had to -- all the defense had to go in today to do, and say yes, we agree with the government. And instead they raised all these issues and so the judge can't ignore them. He has to deal with the pleadings that are in front of him.

KING: And so we're waiting to see what the answers are and how this continues right here up.

We have some new information from the judge, we go right back to Pam Brown.

(INAUDIBLE)

BROWN: All right, John. We're learning about Flynn's team's response to the judge's suggestion of delaying the sentencing. Shimon?

PROKUPECZ: Yes. So here we go. So the attorney, Kelner for Michael Flynn is saying, look, they see what's going on here. They can read it, they can feel it, they're in that courtroom. So no doubt, they're sensing that perhaps Michael Flynn is about to get some jail time here.

So, they're now basically saying, well, Judge, we are prepared to take your honor up on his suggestion of delaying the sentence. It doesn't mean that they're formally asking for the delay. What they're saying is, look, Judge, if this is something you want to do, let's talk about it. Let's have a discussion about it.

They have not officially asked him, but they are saying, I'm now being told, they are asking the judge -- has asked, they're asking the judge to delay sentencing.

BROWN: This is significant. Again, for context, both sides, I think it's safe to say they thought they would go in today and that Michael Flynn would likely be given no jail time because that was the recommendation from Robert Mueller's team and that would be a done deal. But now we are learning that Michael Flynn's attorney, Robert Kelner, is saying look, we are prepared to delay this because they are hearing what the judge has been saying, questioning the circumstances surrounding their allegations about the FBI interview. Giving Michael Flynn multiple outs to withdraw his guilty plea and pointing to the American flag and saying you, arguably sold your country out.

PROKUPECZ: Right.

BROWN: They're feeling all of this.

PROKUPECZ: And the delay would be because he is still cooperating in the case that was announced yesterday in the eastern district of Virginia here about lobbying work that associates of Michael Flynn were involved in. He is cooperating in that case. I think what the judge is trying to say, that if you come to me and explain to me more about your cooperation in this other case, I may be even more lenient to you. But I think there is some sense that Michael Flynn is in trouble here.

BROWN: There is a sense and the prosecutors we are just learning have agreed to this. Have agreed to the delay in this sentencing. Again, this all has to do with Michael Flynn's cooperation, continuing cooperation which of course raises the question, Shimon, of why the sentencing was even scheduled for today before that cooperation ended.

PROKUPECZ: Right. And I think the filings from the attorneys -- certainly concern from Michael Flynn's attorneys have concerned this judge. He's made that very clear and the fact that the judge is saying that your cooperation is still ongoing, something has irked this judge, clearly.

[12:55:03] He is concerned probably with the leniency that the government maybe showing Michael Flynn. And maybe he's not seeing enough in front of him to say, I'm not prepared to say, you know what, you don't deserve any jail time in this case.

BROWN: The judge saying he was disgusted by the lies. Michael Flynn pleaded guilty to lying to the FBI of course his conversations with Sergey Kislyak. But the judge also bringing up the fact that he lied in conversations, lied to the FBI about the resolution votes.

PROKUPECZ: We may have some news here shortly --

BROWN: OK, we're just waiting for more.

PROKUPECZ: We're just waiting for more.

BROWN: We're waiting for some more updates here, John King. Of course, we're doing minute to minute updates as we get them. This is a very active fluid situation inside that court room again not as we expected this to go today, John King.

KING: Not as we expected but perhaps we should expect the unexpected and stunning developments. And essentially, Michael's Flynn's attorney is finally -- forgive me if you think I'm -- correct me (INAUDIBLE) taking the hint from the judge that you want to delay this.

And in part of the conversations, we're told that Judge Emmet Sullivan has brought up the comparison to the Papadopoulos and the Van Der Zwan cases, two other cases. The sentencing has now been delayed. We're told the judge has decided to put it off. Michael Flynn was supposed to be sentenced today and his lawyers finally accepted the hint from the judge that it be delayed. The judge says he wants to see the full extent of Michael Cohen's cooperation with federal prosecutors. And before he sentences him, make clear indication the judge is prepared to send Michael Flynn to prison today if Michael Flynn wanted to go ahead with it.

The judge in the end talking about the Papadopoulos and the Van Der Zwan cases in which both of those defendants in the special counsel investigation convicted of lying, served prison time, short prison time but they served prison time. The judge is actually saying you were the National Security adviser to the president of the United States. How do they go to jail and you don't go to jail?

That's what I'm taking away from this and he wants to see and correct me, yes, there's the Virginia case. His two former lobbying partners who is now been charged with not filing the right paperwork before acting as foreign agents. But there's the redacted part of the Mueller investigation which is about Russia, I'd -- by clear hint here is the judge wants to know what is that about? Is there -- what's the fruit that's redacted before I decide you don't go to prison? CORDERO: Well, the judge saw what's redact. And I mean, the judge would have received the information of what was the full scope of his cooperation. The special counsel's office had filed that.

So the judge already has in front of him even though we don't know, more of the information regarding what Michael Flynn was cooperating about in all aspects of the special counsel's investigation.

On the point of the comparisons to the other two individuals that were -- they did actually serve jail time, there could be an aspect to the judge's consideration of why does the more senior experienced person get off free and the two low-level guys supposedly, you know, that would be the argument. One was a lawyer in private practice and one was a low-level transi -- campaign assistant -- campaign aide on the National Security Advisory team I guess which was a small team.

And so there might be some perspective from the judge that Michael Flynn, maybe he was going to be sentence said d to a week or just sort of symbolic level of jail time. But, I really do think that the lawyers raised a whole lot of issues in this and made a bit of a mess of it where they could have just accepted the prosecutor's recommendation. And all of the information that they provided to the judge regarding Michael Flynn's lifetime of service should have been enough to in addition his cooperation, go ahead with the prosecutor's recommendation.

KING: And so the hearing is now over. Michael Flynn will not be sentence today. He wanted to close this chapter and begin to move on with his life. Clearly, took the hint from the judge that that was going to include prison time unless he agreed to delay it.

And now this stays open. Again, we're looking at the context of Michael Flynn, the highest ranking official charged by Robert Mueller at a time when we also know this investigation is expanding not contracting.

DAVIS: Right. I mean, this is an end. The president is still dealing with the question of whether he is going to be interviewed by Mueller. And there are questions that haven't been resolved in terms of his own cooperation. But to have this continuing to hang over him at a time when there's already a lot of anxiety about what the next shoe is to drop in the investigation is not something that's going to make the president very happy . He has a few other things on his mind and I think part of what he was tweeting about this morning was a real sense of wanting to have some closure at least on this people.

KING: And to that point, in court today, the pres -- the argument the president has been making directly contradicted by Michael Flynn, his former National Security adviser.

KAROUN DEMIRJIAN, CONGRESSIONAL REPORTER, THE WASHINGTON POST: Right. And it doesn't put Trump in a very good space and also just kind of suggest that had Trump not really said anything, it might have been gone better for Trump in the end because this all have been, you know, open and shut by that point. And then president kind of -- and his allies inserting themselves in the conversation complicated matters more. So stay tuned to the next week.

KING: It's a remarkable twist in an investigation that has constant twist.

Thanks for joining us in the INSIDE POLITICS today throughout this breaking news. More insights as people come out of the court room. 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: Yes. I'm Brianna Keilar live from CNN's Washington headquarters and we begin with breaking news.