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Trump Endorses Accused Child Molester Roy Moore for Senate; Source: Trump Knew in January That Flynn Misled FBI; Will Trump Go to War With North Korea? Aired 3-3:30p ET

Aired December 4, 2017 - 3:00   ET

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


[15:00:10]

BRIANNA KEILAR, CNN ANCHOR: I'm Brianna Keilar.

And we have a critical new development in the Russia investigation that has intensified questions about whether the president tried to obstruct justice in the FBI case against his former National Security Adviser Michael Flynn.

A source has just revealed that President Trump knew in January that Flynn misled the FBI, as well as Vice President Pence. That is even earlier than a recent tweet seemed to indicate, which appeared to time it around Flynn's firing on February 13.

The tweet says -- quote -- "I had to fire General Flynn because he lied to the vice president and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide."

The president's personal attorney, John Dowd, now says he was the one who actually wrote that tweet. But with the new detail that the president knew in January about Flynn, this raises new concerns about the president's conversation with then-FBI Director Jim Comey the day after Flynn was terminated, because, according to Comey's testimony to Congress, the president said to him that he hoped Comey would let the Flynn investigation go.

Joining me now is CNN's Kara Scannell. She broke the story on what the president knew.

Give us the details about what President Trump knew, when he knew it, because this is key.

KARA SCANNELL, CNN CORRESPONDENT: Right. It is very critical in this timeline here.

What we understand is that Don McGahn, the White House counsel, had informed the president after meeting with acting Attorney General Sally Yates in January that in sum and substance what Michael Flynn had told the FBI was essentially what he told Mike Pence, the vice president, and the FBI investigation of which Sally Yates was not providing any greater details.

But what they did learn was that Flynn had -- in Don McGahn's mind, he believed that Flynn had misled the FBI and had lied to Vice President Pence.

KEILAR: Why is there it seems to be lack of clarity when it comes to whether McGahn would have advised the president on whether this was breaking the law?

I would expect, but perhaps this is ill-conceived, that Don McGahn would say to the president this may be a violation of law, he could be in big trouble. But we don't know that that happened.

SCANNELL: We don't.

What we do know is at the time of that first conversation, they did not have any information other than what they had learned from Sally Yates and what he had perceived or interpreted of what she had said.

They later learned a week later they had seen a transcript of the conversation that Flynn had with the Russian ambassador that led them to believe that his -- that Pence's statements, reflecting what Flynn had told him, were inconsistent. But McGahn never told the president, as far as our sourcing tell us, that Flynn had broken the law.

KEILAR: McGahn then relaying what he was learning from Yates, right, that Flynn misled the FBI, but they really could only compare the transcript to what Flynn had told Pence, because they knew exactly what Flynn had told Pence, right?

SCANNELL: Right. They did not know the questions or the answers between the FBI and Flynn, so it was hard for them to make any determination, our sourcing tells us, of whether a crime had been committed.

KEILAR: That makes a lot more sense.

All right, Kara Scannell, great reporting all day long today. Thank you so much for that.

And now for the White House response to this, I want to turn to CNN crime and justice reporter Shimon Prokupecz.

So, Shimon, the president's personal attorney -- and we have to make clear this is not White House counsel, this is the president's attorney, part of his separate legal team -- is reacting to these concerns about the president obstructing justice.

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: Yes, certainly.

And we are talking about John Dowd here, who is the president's personal attorney. In one tweet over the weekend where he said that he had helped draft a tweet where the president -- where he said that the president knew that Flynn lied and then today telling Axios basically that the president can't be investigated for obstruction of justice.

Let me read to you exactly what he said, because this has kind of caused a lot of noise today, certainly raising a lot of eyebrows on this strategy, and he said -- quote -- "The president cannot obstruct justice because he's the chief law enforcement officer under the Constitution, Article 2, and has every right to express his view of any case."

Now, this comes from John Dowd, the president. Now, this has certainly raised eyebrows within the legal community and a lots of people are asking questions if this even makes sense. And let's just say that we have not heard from John Dowd again today. There are a lot of questions now about whether he can proceed, even, as the president's attorney, a sort of ill-advised perhaps statement from him, an ill-advised tweet over the weekend causing a lot of unnecessary noise and raising all sorts of eyebrows, while the special counsel is still continuing to look at this investigation.

[15:05:05]

KEILAR: Are your sources, Shimon, buying that John Dowd is the one behind this tweet?

PROKUPECZ: For law enforcement, certainly, this is -- I don't think that that is a big concern, because if there is any obstruction -- and part of the case that they're making out has really to do with the conversation that the president had with James Comey about Michael Flynn.

That's really the center of the obstruction investigation, and what was the president's state of mind at that time? What exactly did the president know? And in his statements, in his conversation, according to James Comey, it appears that the president had some idea that the FBI was investigating Michael Flynn and that's why he asked him to sort of let it go, perhaps to go light on Michael Flynn.

So that is an important aspect of this investigation. A tweet over the weekend certainly could probably add some weight to that investigation, to that charge, if the special counsel decides to bring it.

Look, this just, I think, creates a lot of noise, unnecessary noise and probably just keeps this going and keeps this conversation going concerning obstruction.

KEILAR: All right, Shimon, thank you so much for that report.

I want to take a deep dive now.

And joining me, we have CNN legal analyst Mark Geragos. He's a criminal defense attorney. And we have Mark Rasch, who used to prosecute cyber-crimes at the Justice Department.

Mark Rasch to you. And this is a panel who I will be using both of your last names, obviously.

How significant is it that the president knew in January that Flynn misled the FBI?

MARK RASCH, FORMER FEDERAL PROSECUTOR: Well, in order to obstruct justice, there has to be some valid investigation that you're obstructing.

So, the fact that the president knew that Flynn had committed some kind of a crime, that tells him what investigation that he would be obstructing, an investigation of false statements to the FBI.

KEILAR: Mark Geragos, what do you think?

MARK GERAGOS, CNN LEGAL ANALYST: Well, look, an obstruction of justice, unlike some other of the crimes that could be investigated here, requires a mental state.

And the mental state of the president, obviously, is going to be important, what he knew, when he knew it and what actions he took. That's the gravamen of an obstruction of justice.

Part of the problem here is, is that, you know, there is Sally Yates in the timeline telling him at some point in late January, telling the president that, in fact, they had presumably intercepted a conversation and that he was not being, that General Flynn was not being straight up.

And so, based on that, he would have known that something was up. He knows that -- in real time, that General Flynn had apparently misled the vice president. Firing Comey or asking Comey to let it go and those kinds of things, I don't know that at the end of the day that's going to be the -- exactly where the focus of this investigation is going to end up.

KEILAR: Mark Rasch, when you see the argument from the president's legal team, which was before that he did not obstruct justice, and now their defense seems to be that the president cannot obstruct justice, when we hear from so many legal experts that actually the president can obstruct justice, what do you think about that change in argument that we're hearing?

RASCH: Well, sure.

First of all, I think the change in argument means that the president's personal lawyer is now focusing on the facts and saying, OK, even if the facts can be used to demonstrate an obstruction of justice case for an ordinary person, the president can't obstruct justice.

Well, that's simply not true. While the president has the right to hire and fire people, and the president has the right even to fire Jim Comey for particular reasons, if the president does so with corrupt intent to impede or obstruct the due administration of justice, that's a crime.

Ultimately, for the president, the question of whether or not there was an obstruction of justice may end up being a political question, rather than a legal one, though.

KEILAR: Mark Rasch, the state of mind that you mention and that Geragos mentions, that's clearly so important here, but it seems like it must be so difficult to prove. RASCH: It's funny because in the law there are all these different

states of mind.

There's knowingly or recklessly or intentionally. And the obstruction of justice carries a unique state of mind, which requires you to act corruptly, which means not just that you did something bad, but you did it sort of with an evil intent, with the intent to obstruct the due administration of justice. And so it's a fairly high standard.

KEILAR: Mark Geragos, check out the tweet from John Dowd, the president's lawyer.

He said that he and not President Trump actually wrote this tweet. It said: "I had to fire General Flynn because he lied to the vice president and the FBI."

[15:10:00]

That was key, because at the time, as we understood it, and now we're learning from our sources that the president did actually know that Flynn misled the FBI or had been informed that by White House counsel, but we did not know that until today.

We have had that news broken here on CNN today. Do you believe that John Dowd really wrote that, or is he just covering for the president on what could be a tweet that gets him in trouble?

GERAGOS: I think the whole thing has been kind of almost silly from an evidentiary standpoint. Whether Dowd authored it, whether the president authored it, they have taken the position repeatedly that the tweets are official statements of the White House.

There's even been in some of the litigation having to do with the travel ban, that's been admissible evidence. Even if John Dowd wrote it and the president put it out there, it's still, under the law, called an adoptive admission.

You can impute that to Trump whether he wrote it or not. So at a certain point, it becomes much ado about nothing because it is going come in on an evidentiary basis, if that, in fact, is what they're trying to do or what they're focused on.

And I think my counterpart Mark is right. Ultimately, this is a political question. I don't think you are going to see a situation where the special counsel will be the one who will indict the president. I think if there's ever anything in the argument about whether the president can be obstruct comes down to whether or not that fits into a high crime or misdemeanor, and then it would be thrown over to Congress to deal with that, a la what happened with President Clinton, what happened previously with President Nixon, both of which had in their bills of impeachment reference to be on obstruction of justice.

KEILAR: All right, Mark Geragos, Mark Rasch, thank you so much to both of you. We really appreciate your insights. And coming up, President Trump makes it clear he supports Roy Moore.

He tweeted a full-on endorsement of the Alabama Senate candidate. he called him from Air Force One to express his support. So will this turn things around for Moore, who has been slipping in recent polls?

And special counsel Robert Mueller moves a member of his team after discovering messages that could be interpreted as anti-Trump. Does this pose a problem for his investigation?

(COMMERCIAL BREAK)

[15:16:40]

KEILAR: President Trump is going all in with his endorsement of Alabama Senate candidate Roy Moore.

The president wrapped up an Air Force One phone call to the accused child molester with a message to him saying, "Go get 'em, Roy."

And Moore released a statement which reads, in part: "I am honored to receive the support and endorsement of President Donald Trump. President Trump knows that the future of his conservative agenda in Congress hinges on this election."

Well, that certainly aligns with the president's Twitter endorsement today -- quote -- "Democrats' refusal to give even one vote for massive tax cuts is why we need Republican Roy Moore's to win in Alabama. We need his vote on stopping crime, illegal immigration, border wall, military, pro-life, VA, judges, Second Amendment and more. No to Jones, a Pelosi-Schumer puppet."

Let's bring in Kaylee Hartung. She is live for us in Birmingham, Alabama.

Kaylee, the president gave this endorsement sort of low-key last month, but this is full-throated support for Roy Moore. You have been talking to voters. Does this change anything, do you think?

KAYLEE HARTUNG, CNN CORRESPONDENT: Yes, Brianna, now President Trump throwing all of the weight of his influence behind Roy Moore.

It's honestly hard for me to say what impact I think that this will have among voters in Alabama, because so many of the voters I have talked to, they have already made up their mind as to who they're voting for or if they plan to vote in this special election.

Now, with President Trump's firm endorsement coming just eight days out, I don't think that there are that many votes left for him to sway. President Trump won the state of Alabama by 28 points and the same people who voted for him are the people who have been standing by Roy Moore against or amidst all of these explosive allegations.

So now, when you hear that President Trump is endorsing him explicitly in this way, you don't know if it has that much more effect than we heard already said in support of Roy Moore, as he had defended him, saying he believed Moore's denial of the allegations and also railed against opponent Doug Jones.

Those words of the president have been used in Moore's ads across this state. And if he was going to get any pop from him, you would think that that pop would have already come.

Now with Trump, though, visiting nearby Pensacola, Florida, about 20 miles from the state line, and we just learned that the president will be on the other side of the state in Jackson, Mississippi, on Saturday, maybe the turnout that is always a challenge in special elections could be affected by President Trump energizing some of those who otherwise didn't plan to vote in the special election.

KEILAR: And this is -- I mean, this is coming up soon, right? This is a week from tomorrow, this special election. How is the race shaping up right now, Kaylee?

HARTUNG: Right now, the polls, Brianna, no matter which one you look to, the margin is just so slim between these two candidates.

The latest poll from "The Washington Post" has Democrat Doug Jones with a three-point lead over Roy Moore and that's within the margin of error of that poll. These two candidates neck and neck. So what's also interesting, though, to learn from that "Washington Post" poll, the fact that 28 percent of those polled still say they don't believe the allegations of Roy Moore.

When you think about a Senate race in a state that hasn't elected a Democrat in a half -- I'm sorry -- a quarter of a century, to see those numbers that tight, you know those allegations have had an effect on his sagging numbers here.

[15:20:05]

KEILAR: Certainly have. But will it play out? We will see here in about a week.

Kaylee Hartung in Alabama, thank you.

Worth noting, the endorsement came despite the president's daughter Ivanka Trump saying that there is a special place in hell for someone like Roy Moore when she responded to these accusations that he was engaged in sexual misconduct and sexual assault with girls as young as 14 years old.

And I want to get more now on this with Chris Cillizza. He is CNN politics reporter and editor at large.

We should mentioned, Chris, it's really important, what we're hearing from Republican leadership in Congress, specifically Mitch McConnell, top Republican senator.

At first, we were hearing from Republican senators that they could basically kick Roy Moore out.

CHRIS CILLIZZA, CNN POLITICAL REPORTER: Yes, and would.

(CROSSTALK)

KEILAR: That's right, that they would.

And then he completely changed his tune over the weekend and it's more like the voters of Alabama are going to decide and then we will sort of see where we are after that.

CILLIZZA: Yes.

So I think what you're seeing here with Trump and McConnell is something very similar, which is political pragmatism on McConnell's part and sort of political pragmatism on Trump's part.

So, political pragmatism on McConnell's part because I think he thinks Roy Moore is probably coming to the Senate. I know Kaylee mentioned the Moore my former employer "The Washington Post" had Doug Jones up three.

It feels to me and there's a lot of other data out there that would suggest that Roy Moore is trending back from a clear dip he took after all these allegations.

I think McConnell, they tried to get him out of the race. They tried to figure out a write-in.

KEILAR: Didn't work.

CILLIZZA: The race, as you point out, is in a week, basically.

So there's not a whole heck of a lot else you can do. For Trump, I think Trump sort of wanted to be with Roy Moore from the start. He took McConnell's advice. He wound up endorsing Luther Strange, the appointed senator, who Moore beat.

And when, obviously, when he was in Asia, all of these allegations came out with Moore. He held off, he held off, but then I think he said, well, I think Roy Moore might win. And he views Roy Moore as sort of a similar figure to Donald Trump, which is, you know, he believes he's denied all these allegations, which is what Donald Trump did.

KEILAR: Donald Trump has denied the allegations.

CILLIZZA: He's run against the political establishment, which is what Donald Trump did.

He's brash and people say -- there's so much. He wants to be for him. And now because he thinks he's going to win, it's easier for him to be--

(CROSSTALK)

KEILAR: But what does this do, if anything, to the Republican brand? You have the party that is supposed to be family values, and you have a guy who is accused, and in pretty convincing terms, by several young people -- people who were young women. CILLIZZA: Yes, 14 to 19.

KEILAR: Back when Roy Moore was in his 30s, to be clear. Does this hurt Republicans?

CILLIZZA: Yes, well, the Republican brand is not in great shape.

KEILAR: No, that's a good point.

CILLIZZA: It's not -- it's freedom is just another word for nothing left to lose. They're in pretty bad shape.

But, look, Mitch McConnell has said, I believe the women, this person is not fit to serve, and now he's saying, well, we will let the people of Alabama decide.

I have a feeling the people of Alabama are going to choose Roy Moore. And, candidly, all of this talk that we heard in a week or two ago that, well, if they seat him, Republicans will move to expel him, the last senator expelled from the Senate was in 1862 for support of the Confederacy.

So it's been a while. And this idea that, well, Alabama elected Roy Moore, now we're going to overturn it, the people of Alabama know what they're getting now with Roy Moore.

It's not as though Roy Moore has painted himself as anything other than what he currently is. So, he denies these allegations. I think it would be hard to overturn that. And I think the most likely outcome eight days out is Senator Roy Moore for the foreseeable future, which, yes, to answer your question in a roundabout way, is problematic, even for a Republican Party that is not in a great place right now brand-wise.

KEILAR: All right, Chris Cillizza, thank you so much for that.

CILLIZZA: Thank you.

KEILAR: An FBI agent reassigned from the Russia investigation, he was booted from Robert Mueller's team by the special counsel, Robert Mueller.

This happened after an internal review found messages that could be perceived as anti-Trump. We are going to talk about what we know about that agent next.

Plus, is the U.S. moving closer to military action against North Korea? We have a new warning from a senior senator who is suggesting that American families should leave South Korea.

(COMMERCIAL BREAK)

[15:28:45]

KEILAR: President Trump is slamming the FBI in the Russia investigation after reports that special counsel Robert Mueller removed a top FBI investigator from the Russia team last summer.

Now, Mueller removed the agent because he had sent texts that could be interpreted as pro-Hillary Clinton and anti-Trump. Trump hit back with a tweet over the weekend saying: "Report anti-Trump FBI agent led Clinton e-mail probe. Now it all starts to make sense."

I want to talk more about this now with CNN justice reporter Laura Jarrett.

So, I want you to tell us about this FBI agent. But we do know that this is someone who helped lead the Clinton e-mail investigation, which, keeping in mind, the Clinton folks hated that, and you saw how the FBI dealt with that right up before the election. But this was a top person on the Russia investigation. This is a big deal.

LAURA JARRETT, CNN JUSTICE CORRESPONDENT: Yes. He's considered a top expert, a top expert in counterintelligence specifically, the number two guy in the bureau, and did lead the investigation into the Hillary Clinton e-mail situation.

But he also was considered such an expert, he eventually went to Robert Mueller's team, the special counsel's team. And then later this summer, we learned that he was dismissed or reassigned to the H.R. department, so, clearly, a big shift from top counterintel to H.R.

KEILAR: You are really sidelined when they're pushing you from such an -- to investigating down to the H.R. department.

So -- and this is becoming a political issue, as you would expect.