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No Pause for Russia Investigation; Special Counsel Invoked. Aired 10-11p ET

Aired May 17, 2017 - 22:00   ET



[22:00:00] UNIDENTIFIED MALE: CNN breaking news.

DON LEMON, CNN HOST: All right, Anderson, thank you very much. Much more on our blockbuster breaking news right now. The Justice Department naming a special counsel in the Russia investigation.

This is CNN Tonight. I'm Don Lemon.

The former FBI Director, Robert Mueller, change Comey, predecessor taking over the federal investigation into possible collusion between Russia and President Trump's campaign.

And remember, it was just eight days ago when President Trump abruptly fired Comey sending shock waves around Washington and across the country. And tonight those shock waves have triggered a political tsunami, a tsunami of the president's own making, one that he can't blame anyone else but himself.

So we have all of the CNN top reporters and analyst covering all the angles for you tonight. I want to begin though with our justice correspondent Pamela Brown. Pamela joins us now from Washington.

So Pamela, Justice Department naming the former FBI director as a special counsel to investigate Russia's meddling. What else can you tell us?

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Well, this is certainly a significant move. Rod Rosenstein the deputy attorney general making this decision and announcing today that he's chosen Bob Mueller, the former FBI director, to take the reins of the Russia probe.

So now this outside special has been brought in and essentially the Department of Justice is now out of the equation and Bob Mueller will now run this investigation, which means he will have the authority, the same authority as the attorney general.

He can convene grand jury. He can issue subpoenas, he can even interview the president. Anything he deems necessary in this investigation. And what's so interesting here, Don, is that Rod Rosenstein and his team did not give much warning advance warning to the White House or the Attorney General Jeff Sessions who as you know has recused himself from the Russia probe.

In fact, the White House found out just half an hour before Rod Rosenstein really wanted to do this by the book clearly. Don?

LEMON: So, Pamela, here's part of the statement from the deputy Attorney General Rod Rosenstein. And he says, "My decision is not to find that crimes have been committed or any prosecution is warranted. I have made no such determination.

What I've determined is based upon the unique circumstances, the public interests requires me to place in this investigation under the authority of the person who exercises a degree of independence from the normal chain of command."

So, when the deputy attorney general started thinking about putting in a special counsel, when did that happen?

BROWN: So our sources tell us that shortly after the firing of James Comey, that the former head of the FBI last Tuesday, he started considering outside special counsel. Of course, that coincided with the growing calls on Capitol Hill, in particular for outside counsel.

In fact, Bob Mueller was at the Department of Justice the day after, according to our sources, meeting with Rosenstein. But what's interesting is, as of late Friday, he was still telling people close to him, Don, that he didn't think it was necessary to bring in outside special counsel unless the FBI investigation was imperiled.

Of course, there have been development since then of the revelation yesterday that the president allegedly asked James Comey to stop the Flynn probe and the memos that he, where he documented that conversation. It's unclear how much that factored in but it certainly raises the question if that was the tipping point, Don.

LEMON: All right. Pamela, stand by. I want to bring in now CNN's Dana Bash, Jeffrey Toobin, David Axelrod, David Gergen, Nia-Malika Henderson, and Eric Lichtblau. Thank you all for joining us. Dana, you're getting new details about Rosenstein, he's thinking leading up to this. What do you know?

DANA BASH, CNN'S CHIEF POLITICAL CORRESPONDENT: He was upset. Extremely upset. Extremely upset. Upset starting with a week ago, I guess Tuesday the bombshell of firing James Comey and then putting all of the blame, so to speak, on Rod Rosenstein, saying that it was his memo that listed all of the reasons why Comey should be fired and then, of course, the president the next day or two days later saying, no, it was all me.

That was an initial -- was sort of what obviously got him worked up to begin with. And then it only got worse as the days went on with all of the other things that happened that were on Rod Rosenstein's plate.

I talk to a republican source who was in contact with him and he was saying up until a few days ago that he was so fed up that he just wanted to maybe pack his bags and get out of there. Fed up with the White House, with the Trump White House and the president himself and the actions that he was taking that were making it very, very difficult for Rosenstein to do his job. Obviously the thing that changed from what Pamela is reporting, which

is as of Friday, Rosenstein was telling people he didn't think there was a need for a special counsel and today, what was the intervening action or the intervening event? Of course, it was yesterday and the reporting of the memo that James Comey wrote contemporaneously about the fact that he said that the president tried to pressure him not to investigate Flynn.

LEMON: So everyone is wondering whether we'll see Comey testifying before Congress or publicly. What are your sources telling you?

BASH: There's a concern among republicans I'm talking to who have wanted James Comey to come and testify.

[22:05:01] Even before the memo was revealed, that they thought that they were going to get him to come and testify publicly. There's concern that that's not going to happen now.

First of all, because of the fact that if Robert Mueller, who, as you have been talking about and you know personally, is actually happens to be very good friends with James Comey.

If Robert Mueller doesn't want James Comey to go up and he wants to get his ducks in a row and make sure that the investigation that he's doing doesn't necessarily include the Comey memo or he just wants a little bit of time, there's no reason why to believe that Comey is not going to say, yes, of course.


BASH: So the republicans, again, who I'm talking to wanted to see if public testimony for Americans to hear for themselves what James Comey's recollection was from those meetings and those conversations with the president probably won't happen at least in the near term.

LEMON: So this will -- and he's known not as a leaker because I know you know him.

BASH: Robert Mueller.

LEMON: so basically -- Robert Mueller. So we won't hear, probably won't hear anything about the investigation until it is concluded.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: And that's one of the things that I think people need to keep in mind. Is that, you know, he has a mission of determining whether any crimes were committed and then prosecuting them if he does.

But in the meantime, he's going to be sealed up tight as a drum and a lot of what might otherwise have come out will remain secret. Comey -- I mean, it is true that Comey and Mueller are very good friends but Comey being the responsible former law enforcement official that he was, would certainly say that whoever the prosecutor was, do you want me to go public or do you want to proceed with your investigation without my -- without my testimony being out in the world.

LEMON: So what is the scope of this? Can the president be deposed? Because remember we saw there was a Bill Clinton deposition, correct?

TOOBIN: Of course. Yes.

LEMON: So will we see him deposed. Can he subpoena and get the tax returns?

TOOBIN: Absolutely. He can do all those things. Now he has to decide that it's relevant and that's -- but so much is in Mueller's sole discretion. If he decides he wants to subpoena the tax returns, he can do that.

He can certainly interview the president, and it's inconceivable to me given the scope of this that he will not interview the president.

LEMON: Right.

TOOBIN: Either in a grand jury setting or an office setting. He will certainly interview Trump.

BASH: And Don, if I just may really quickly, which is why just kind of the politics of this right now is that there is concern for and among Trump allies about what this means for the White House because this could go in so many different directions.

The notion of collusion between the Trump campaign and Russia could be minuscule by the time Robert Mueller -- or maybe nothing.

LEMON: Right.

BASH: But politically the republicans on the Hill are breathing a huge sigh of relief because they feel in the short term this is off their plate and they can say, well, this is a special prosecutor.

LEMON: But who knows? I mean, we saw it with Bill Clinton in the...


BASH: But that's longer term.

LEMON: But who knows what they might dig up. They may go beyond that.

TOOBIN: It can start with Arkansas land deal to Monica Lewinsky.

BASH: Right.

LEMON: To Monica Lewinsky. And look where that, and look what happened there.

OK, I want to bring in David Gergen. Now David, here's a response from President Trump tonight. He says, "As I have it many times a thorough investigation will confirm what we already know, there was no collusion between my campaign and any foreign entity. I look forward to this matter concluding quickly. In the meantime, I will never stop fighting for the people and the issues that matter most to the future of our country." What's your reaction to that statement because we haven't really, this

hasn't happened in more than a decade and it seems like ultimately President Trump set everything in motion with his decision to fire James Comey just last week. This is of his own making.

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: It is. I don't think the statement really -- you know, it's not totally responsive, let's put it that way. Obviously not fully responsive to the situation. I think he would have been better off saying, listen, I respect the decision by the Justice Department.

I don't know Mr. Mueller but I, personally but I welcome his engagement here and I promise my administration will work fully and cooperate with him on everything he needs so that, he, in effect, gets on with the program.

I do think that the White House -- the cloud over the White House is not going away. During the Watergate investigation, which went on and on, there were leaks out of various proceedings and I wouldn't be surprised if there were some leaks before this is over.

There were congressional hearings. The urban committee, Howard Baker, you know, they were famous. They got huge audiences. So I don't think this -- I don't think the republicans have a right to breathe a sigh of relief if finally this investigation is being put in the right hands. It was the smartest, best decision that the Trump Justice Department has made on this issue since it started.

It gives the country the reassurance it needs that this will be a fair and impartial investigation. But the White House is not off the hook, by any means, on this. If anything, this means it's going to be a very serious investigation undertaken by a very serious person who is greatly empowered.

[22:10:07] And as Jeff Toobin keep on pointing out, it could go on for a long time, not quickly, as the president's memo or statement.

LEMON: Right.

GERGEN: He says, he wants it quit. It is not going to be quick.

LEMON: He said I look forward to this matter concluding quickly. David Axelrod, I want to play something that Sean Spicer said at the White House briefing on Monday about a special prosecutor. Watch this.


SEAN SPICER, UNITED STATES WHITE HOUSE PRESS SECRETARY: There's frankly no need for such a special prosecutor. We've discussed this before. You have two Senate committees that are looking into this. The FBI is conducting their own review and I think if you even look at what acting Director McCabe said last week, he made it very clear that they have the resources that they need and then the work continues.

(END VIDEO CLIP) LEMON: Despite this, you know, statement we're getting from the White House, how do you think the White House is reacting tonight? Because they didn't know this was coming, they had less than an hour's notice.

DAVID AXELROD, CNN SENIOR POLITICAL COMMENTATOR: Yes. Well, Rod Rosenstein did his job, which was to act independently as we were told that he would. But I quite agree with your assertion. This is largely of the president's making. You know, the Wall Street Journal wrote an editorial this morning saying loose lips sink presidencies.

And this cause quite disturbing because the journal has generally been very supportive of the president but their point was -- and they were focused more on the leap to Russia of the intelligence but also on some of these other matters.

Their point was that he is creating these problems for himself. And if you think back, you know, the firing of Comey, the throwing of Rosenstein under the bus for Comey, the taunting of Comey in his tweets, you know, there's just a series of events that led to this moment and now they have a special counsel which is something that no president wants that will, as David points out, dog him for some time.

And I take Dana's point. I'm sure that in the short term there are republicans on the Hill who are relieved that this hot potato has passed from them.

If you talk to republican operatives out in the field, they are not quite as sanguine because this is a story that is now going to be hanging over those 2018 elections in a big way and there's a lot of nervousness out there.

LEMON: And part of, remember on the campaign trail, they said do you want to elect someone, this is a trump folks, do you want to elect someone who is going to be under investigation from day one, saying that the Hillary Clinton campaign, do you guys remember that? Would be under investigation from the FBI, a federal investigation from day one.

It is day 100 and what, you know, 16 or 17, whatever it is, and this White House is under investigation.

BASH: That's right.


BASH: And by the way...


AXELROD: Can I just -- can I jump, Don?

BASH: ... they were under investigation in the summertime...


BASH: ... while he was saying that without. LEMON: Go ahead, David.

AXELROD: Can I -- can I make one point, this -- you know, it's hard to keep up with all of these stories. The time story that appeared tonight...


LEMON: I want to -- don't steal Nia-Malika's -- Nia-Malika Henderson's thunder. That's what I was going to ask her about. You're actually -- you're right.


LEMON: Because aside from the strange that there was a commencement speech, you know, he hasn't really said much. But you've got this, you got the Comey firing, you got him undercutting his folks and on and on. It's really hard to keep up.

But I want to get the other guys in here, David, if you allow. Because, Eric, talk to me about Robert Mueller's relationship with Comey because that's going to be at play. Correct? I know...


ERIC LICHTBLAU, CNN WASHINGTON BUREAU ASSISTANT MANAGING EDITOR: Sure. Sure. They are long-time colleagues, long-time friends going back to the George W. Bush administration. They were soldiers together in the post-9/11 period with Comey as the deputy attorney general and Mueller at the FBI. So I think it is significant.

I mean, Rod Rosenstein is obviously aware that you're picking a guy who is -- who is very close to Jim Comey, the fired FBI director. And I don't think that was unintentional. I mean, that sends a signal that he's going to essentially continue the aggressive path that Comey seems to be on lately and you know, if you're wondering whether Mueller is going to find Comey a credible witness or not, for instance, the conversation on February 14th at the White House, I think it's pretty certain that Bob Mueller is going to think his own friend Jim Comey is credible.

LEMON: And he announce the story, one of the stories that David Axelrod was just mentioned there for a second. There are two other stories that are breaking tonight. One is about Michael Flynn from the New York Times saying that -- both are about Michael Flynn by the way.

But it's from the New york Times saying that the Trump transition team knew Michael Flynn was under investigation when they named him the national security adviser and then there's another story from McClatchy that says before the inauguration, Flynn made the decision on behalf of the Trump team that benefited Turkey and Turkey had paid him upwards of $500,000 as a lobbyist.

[22:15:00] HENDERSON: That's right. Two stories the New York Times saying that January 4th, Michael Flynn went to the transition team to tell them that he was under investigation for working as a paid lobbyist. There were several conversations about this.

Still unclear as to what Donald Trump knew about this, if it rose to that level and then later on before Trump is inaugurated, Susan Rice goes to, she of course is the national security adviser for President Obama at that time goes to Michael Flynn and asks him about whether or not the Obama administration should launch an offensive, that the Pentagon should go ahead with this plan in Syria to take Raqqa and work with the Syrian Kurds.

And Flynn at this point according to the story in McClatchy says, no, they shouldn't go ahead with this plan. And he, of course, in this -- in this way in saying no, comes down on the side of the Turkish government and at that point he's being paid $500,000, as you said, from the Turkish government.

After Flynn leaves, the plan unfolds and the Pentagon goes ahead with this plan in Syria. But again, this gets back to what the Trump administration knew, what Donald Trump knew about Michael Flynn, why he didn't act earlier to get him out of the administration.

All of these warning signs that go even further back than the transition team's warning go further back to President Obama, saying that he didn't think that Michael Flynn was a good choice for national security adviser and, of course, we know that Donald Trump goes ahead and names him.

And this is why he's in so much trouble now in terms of the special prosecutor, special counsel and why he leaned on Jim Comey, according to the New York Times and some of our own reporting to let this Flynn thing go.

And so, you know, it's still sort of a mystery as to why Donald Trump, so attached to General Flynn, getting to many warnings and then ignoring them.

LEMON: Is that a mystery?


LEMON: Who's that? Is that Eric, who's that, Eric or David?

AXELROD: I did. I did.

LEMON: David.

AXELROD: This is the point I wanted to make about that time story. Who was the head of the transition team? It was the Vice President, Mike Pence.


AXELROD: This is the first story that kind of ties him closely to something that, why didn't Mike Pence, or did he, recommend to the president that they not move forward on the Flynn appointment. It seems like that would be his responsibility.

LEMON: So -- and then Don McGahn, he is the one -- he is the one that...


GERGEN: It's inconceivable that Donald Trump did not know that Michael Flynn was under some kind of investigation before he named him. When that kind of information comes in and then they have Sally Yates come in as well, you know, and then they sat on it, there is something very odd, very suspicious about how solicitous the president was about Michael Flynn. And I don't -- I think one of the questions eventually will be resolve within these investigations.


LICHTBLAU: Yes, I agree just to chime in, that the relationship really between Trump and Michael Flynn is really at the root of this. It's kind of fascinating in that it's at the center of so many of Trump's current problems. And it was not unknown even publicly during the campaign that Flynn was a bit of a wildcard. I mean, he said a number of very insendiary anti-Islamic things. He was seen as a military general who had really sort of geared way off course from the mainstream...


LEMON: Eric, he is the one that was, you know, the lock her up chant thing.


LEMON: Put a very controversial tweets about Hillary Clinton about the former president, about Muslims and on and on, his son as well.

But what's interesting to me is that the White House counsel Don McGahn was notified about this from Sally Yates and from, according to this New York Times story Flynn himself, Eric. You know, to David Gergen's point, how could the president not know that Flynn was working for the government or that he might be compromised? They were warned about it, how could he then go on to make him national security adviser?

LICHTBLAU: I'm sure that's one of the early questions that Bob Mueller will be trying to answer, is what was the nature of relationship between Flynn and Turkey and between Flynn and trump himself and how did the money change hands? I would not be surprised if there's more money than just the half million that we don't know about yet.

LEMON: And then you have Michael Flynn now -- at least the president, according to Comey, saying back off. You know, he's a good guy.


LEMON: You know, he didn't do anything wrong.

TOOBIN: And that's at the root of this conversation that Comey was so horrified by that he wrote the memo to the file about that Trump was so much protective of Flynn that he wanted Comey to shut down the whole investigation.

[22:20:01] LEMON: Is this -- does this all add up to something that is, I don't know if it's collusion, I don't know if it's obstruction of justice or is it just really bad optics or a White House who just doesn't...

TOOBIN: Well, I think that is perhaps the most important question Bob Mueller has to answer. Because, you know, if you say to someone who was in charge of the investigation of you, as Trump was saying to Comey, shut it down, you could definitely see how that might be obstruction of justice.

But you know, you need to hear Trump's side of the story, you need to read the memos, you need to see what other evidence there is out there. But it is central, perhaps the most important question about whether Donald Trump is guilty of an impeachable offense.

LEMON: And Dana, subpoenas went out the day he was fired, right, when Comey was fired regarding Michael Flynn and some of his associates.

BASH: That's right.


BASH: that's right. The first subpoenas from -- on this investigation. So look, that -- there's so many different tentacles to this and I'm sure people watching at home, you know, probably need a spreadsheet. But...


LEMON: We need a spreadsheet.

BASH: It's true. We do need a spreadsheet. But one thing that I want to add to what you were saying about sort of the relationship between Comey and Flynn and all -- how all of this kind of is the big pot in which the new special counsel, Robert Mueller, is going to be looking into and sifting through.

Evan Perez brought this up earlier and I think it's an important point to make. As I told you what my sources, republican sources said, that the notion that Comey is going to go testify right now and spill the beans in public as so many people may not -- probably won't happen.

But one of the questions is whether or not if that definitely doesn't happen, is that going to raise alarm bells in the White House because does that mean that those memos and the question of whether the president did obstruct justice or interfered in a way that he shouldn't have will be a key part of Robert Mueller's investigation.

LEMON: Can I ask David Axelrod, can I ask you something?


LEMON: When everyone human cries and some on the right see this as a human cry, others just see this as normal business, normal operating procedure if you're running for president. If the president or president-elect Donald Trump had been more forthcoming about his business dealings, about releasing his tax returns, about the people who he was maybe going to appoint, would he necessarily be in this position now if he had taken the advice of people who had been there, done that before?

AXELROD: Look, I think there are lots of pieces of advice that he shouldn't have ignored but the one thing I would say to you is, until we see what's in those tax returns, I can't answer that question because there may be things in there that are devastating to him.

There's a reason that -- there's obviously a reason why he's been resistant to releasing them. So -- now, one thing we ought to mention also, Don, in this whole Flynn discussion, though, and it may be related to this, is he extended his lawyers approached the committees and the Congress asking for immunity in exchange for his testimony and that, you know, that hints at the prospect that he had information relative to others, that they would be interested in.

Now with Mueller on the scene, it will be interesting to see what discussions are ongoing between his lawyers and the special counsel.

TOOBIN: Can I just follow up on David's point?



GERGEN: Don, if I could add a footnote to that.

LEMON: Hang on. Hang on. Hang on.

TOOBIN: It's the potential conflict between the congressional investigation and the Mueller investigation, I worked on the Iran- contra criminal investigation for Lawrence Walsh who was the special prosecutor then called in independent counsel.

There was a separate congressional investigation. The congressional investigation gave Oliver North immunity. We prosecuted Oliver North and convicted him but ultimately the case was thrown out by the appeals court because of the immunity he had received from Congress.

Congress wants to give immunity because they want to get the full story from people. Prosecutors want to prosecute. The conflict there is real and you might see Flynn be a central figure in that.

BASH: Although, at this point, Congress rejected his request for immunity.

TOOBIN: At least initially, yes. That's right.

BASH: Yes.

LEMON: Go ahead, David Gergen.

GERGEN: I just -- just one footnote, I spoke to a senior, a former senior military officer recently who knows Michael Flynn very well. And said, look, the guy would not lie. He's a straight shooter. It is just possible that instead of seeing Flynn as a villain in all of this, you know, he may have -- he may have been used by others and I just -- that's why I think these investigations are so important. Because you...


LEMON: Used by others how?

GERGEN: You can't make conclusions about anybody until we know more.

[22:25:01] LEMON: Used by others how, David?

GERGEN: What's that?

LEMON: Used by others how. You said he may have been used by others?

GERGEN: Well, I just think, you know, he may have been carrying out orders from the Donald Trump, he may have been carrying out orders from someone very close to Trump. They may have been using him as a go-between on various things.

You know, what he knows, you know, may be very much about what the president instructed him to do or somebody else instructed him to do. You know, these are in close situations like this, you're not quite sure sometimes who is the innocent and who is the not so innocent until there's an investigation, and that's why it's so important for the country that we now finally have the investigation, the head of the investigation someone the country can trust.

LEMON: Go ahead, David Axelrod.

AXELROD: That is an important admonition, David. But one thing we know is he was used by the Turks for the sum of $5,000 and didn't register himself as representing their interests. So that -- that is not, to me, straight shooting.

LEMON: Nia-Malika Henderson, so let's bring you, you're there in Washington right now. The feel, I know they say the feel at the White House is one of dismay and maybe -- I guess I don't know if despondency is too tough of a word but that's what we're hearing. As you're listening to folks on Washington and you're talking, how are democrats and republicans -- what's the feel in Washington tonight?

HENDERSON: Well, you know, you really saw a shift I think throughout the day. Republicans were very frustrated and nervous throughout the day, frustrated that they were getting questions in meeting about Donald Trump while they wanted to focus on the agenda.

And Dana is exactly right. This idea that now there's a special prosecutor, special counsel that's going to deal with this, they can essentially say when constituents at town halls ask them about Donald Trump and Russia, they can now say that this is going to be handled separately and they can focus on the agenda. That's essentially what they'll try to say at least. Democrats began the day really wanting a special counsel, really

wanting an independent commission as well. They at least got one of those things. Now they are going to continue the push to get an independent commission.

They think that's something that could not only look at what's happened but look forward as well. So how do you prevent something like this from happening in the future in terms of the Russia, you know, sort of hacking of this past election. So that's where we are.

But listen, I mean, we just had these two stories broke from the New York Times and McClatchy who knows what's going to happen tomorrow. I mean, that's the kind of week we've had in Washington, that's the kind of week that the Trump administration has had.

You flashback maybe two weeks ago when they got that vote out of the house on the health care bill. That probably was the best week of Trump's presidency. And now this is probably the worst week of his presidency with the naming of this special counsel that's going to essentially have a drag net and can poke into all sorts of things in terms of this administration, in terms of this president and that is worrisome for White House staff that has already been so beleaguered over this last many months.

LEMON: Yes, and it's interesting the White -- the president spent the day in a commencement speech, part of that at least complaining about how badly he's treated by the media and others and then here you go, by people who are going to put their lives on the line -- on the front lines of war at some point.

Thank you all. I appreciate it.

BASH: Thanks, Don.

LEMON: Now I want to bring in CNN contributor John Dean, a Nixon White House counsel and author of "Conservatives without Conscience," and Philip Lacovara who is the counsel for Watergate special prosecutor Archibald Cox and Leon Jaworkski.

Thank you, gentlemen. I appreciate you joining us this evening. Lots of moving parts here. We have lots of new details to talk about. Philip, I want to start with you. Are you surprised to see a special counsel named and what does that mean for this investigation?

PHILIP LACOVARA, COUNSEL TO WATERGATE: I'm not surprised. I was recommending that a special prosecutor or special counsel is necessary in order to demonstrate that the criminal side of the investigation can go forward objectively.

And I think Rod Rosenstein partly redeemed himself today by appointing the special counsel after the president had misused him last week. In terms of what it means for the future going forward, I think you're going to see an aggressive criminal investigation and I think President Trump and people in the White House are probably quite anxious now worrying about where this is all going to go. LEMON: Do you think this is a smart pick? How smart of a pick do you

think it is picking the former FBI Director Robert Mueller and do you think he's going to get this investigation back on track?

LACOVARA: yes, I think he's an excellent choice. When I was thinking about candidates who might fill the role of a special counsel, somebody like Bob Mueller really fits in all of the slots. He's a distinguished lawyer, he'd been a prosecutor, a U.S. attorney, and assistant U.S. attorney, he was a trial lawyer and 12 years as director of the FBI in both the republican and democratic administration.

[22:29:59] I think it's important, also, to think that some of the comments that I've heard that it's going to delay the investigation because he's going to have to build a team and recruit people and start from scratch. I think that was a term I heard. I think that's probably not true.

If you go back to our experience in Watergate, we were able to use the very same FBI agents who had begun doing the investigation under the A.G.'s of the U.S. attorney's office. And so, even with somebody who was not himself a career prosecutor, Archibald Cox, we didn't really lose much momentum in getting the cases organized.

And in fact from the time of the appointment of the special prosecutor in the early -- late spring, early summer of 1973 until the return of the indictments of the Watergate conspirators and the naming of President Nixon as unindicted co-conspirator in, I think it was January or February of 1974, you only had about seven or eight months elapsing.

DON LEMON, CNN HOST: I think it's interesting that you bring that up. Because we forget President Nixon was an unindicted co-conspirator because as a president there is question about whether he can be indicted for events like that, correct?

LACOVARA: Yes. We reached the conclusion, as we explained to the Supreme Court in our briefs in the Nixon tapes case that we thought that the Constitution allows a sitting president to be indicted. The Justice Department in 1973 and then, more recently in about 2000, concluded that a president is uniquely immune from indictment while he is in office.

I think that's constitutional question is open for the country's sake I hope we don't have to confront it in this situation but I think Mr. Trump, President Trump and his lawyers will certainly be worrying about whether that kind of immunity claim can be asserted.

LEMON: All right. I want you to stand by. Because, John dean, I have a bit of breaking news that I want you to respond to. We're just getting this and this is from CNN's Pamela Brown.

It says, "The former FBI Director James Comey did not share his memos documenting recent conversations with President Trump with top Justice Department officials including Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein. The memos were not shared despite concerns from Comey that President Trump could be crossing the line and potentially obstructing justice."

"It was not immediately clear if he shared the memos with any staffers at a lower level. The sources, Rosenstein had not reviewed the memos as of last night. It is unclear how much the revelation of the memo factored into Rosenstein's decision to appoint Bob Mueller a special counsel of the Russia probe today. The Justice Department decline to comment on this tonight."

What do you make of this bit of breaking news that we have now, John?

JOHN DEAN, FORMER NIXON WHITE HOUSE COUNSEL: Well, it's certainly interesting. It sounds like Mr. Comey was being very much like he was in the past, where he did send memos to the files and he left them in the files until they were discovered by others or he was actually called on and needed the memo.

So this is pretty much par for the course and I don't think he was being deceptive in any way. He just then he'll need to bring it forward and report anything. So it was just there to be found and it's been found now and it's in need.

LEMON: So what does that mean? Anything for the investigation, does that change anything for the investigation or anything, in your mind, as it concerns this investigation?

DEAN: Well, it's hard to believe that it didn't affect the thinking of the deputy attorney general when he decided to appoint a special prosecutor or a special counsel. That memo and the revelation of it was pretty powerful information. I would suspect Phil might agree on that. I'm not sure.

LEMON: Do you think...


LACOVARA: No, I fully agree.

LEMON: Go ahead, Philip.

LACOVARA: Yes, I agree. I think that the fact that the FBI director found it necessary to make this kind of memorandum from the file when he came back from the White House meeting is an indication that he was feeling a bit exposed and chagrinned and I think it also must have been a factor in the sudden change of mind that the deputy attorney general had between Friday and today in deciding that he was no longer comfortable being the point man to oversee this investigation.

LEMON: I want to ask you, do you think that, first to Philip and then to John, do you think officials in this White House need to lawyer up even though nothing has been proven, no one has been convicted or no crime has been found? Do they need to lawyer up now? Philip first.

LACOVARA: I think maybe wise to do so. I don't know how many of them need to be lawyering up, as you put it. But now that there is an investigation into the Trump campaign's possible collusion with the Russian hacking, there is obviously some exposure. [22:35:06] And I think it's also important to point out what hasn't

yet been discussed, perhaps because people have been kind of busy, could not have read the actual appointment letter from the deputy attorney general.

But he not only says that the special counsel has authority to investigate the possible collusion between the Russian government and the Trump campaign but also any matters that may arise out of that investigation and then in something that's -- I thought a rather self- conscious additional provision in the appointment order.

He said specifically that a particular regulation of the Justice Department would apply in the special prosecutor or special counsel's authority and that's a section that says the authority of a special counsel extends to any interference with the investigation by bribery, perjury or other obstruction of justice.

So it seems to me that the deputy attorney general had very much on his mind the possibility that people in and around the Trump campaign and conceivably those currently in the White House, whether or not they were in the Trump campaign during the run-up to the inauguration, would have some reason to be concerned that the special counsel may be coming to look at their conduct.

LEMON: OK. So, same question to you, John. But with a preface here that the White House Counsel Don McGahn, what about Don McGahn since he was notified twice, once by Sally Yates and then also according to the New York Times and then also by General Flynn?

DEAN: Well, post-Watergate it's been made very clear under the rules of ethical and professional responsibility, that the White House counsel does not represent Donald Trump. He represents the office of the president. Whether he is going to end up as a target himself of some investigation is not clear at this point for his failure or how he handled the clearance of Flynn along the way.

So we don't know that. We'd just be speculating. And your question is to whether these people should lawyer up? I don't think anybody who is not a likely target needs to. But I think there's going to be a rush for some of the better criminal defense lawyers in Washington in the coming weeks.

LEMON: Interesting way to put that.

LACOVARA: During Watergate -- during Watergate it was pretty much a full employment period for white collar defense lawyers.

LEMON: Yes. Philip, you wrote a very interesting piece in the Washington Post where it says it's impossible not to compare this to Watergate. And you write, "Leaks may be manipulative or mischievous but as in Watergate, they may be as central to the transparency and accountability that the American public has the right to expect." Explain that.

LACOVARA: Yes, what I was suggesting was that one of the -- the last safeguards, It's probably the one that we would least like to encourage but one that I think is necessary, is the unauthorized leaking of information and what I was suggesting was that in the Watergate affair itself, the momentum for the Watergate investigation came largely as a result of the stories in the Washington Post that Carl Bernstein and his colleague Bob Woodward pursued but most of the -- or a good part of the information about where to look and what leads to pursue had come from a leak from no less a person than the assistant director of the FBI Mark Felt.

And I think it's fair to at least argue that the Watergate investigation would not have proceeded or would not have unfolded as it did had it not been for the leaks that Mark Felt provided to Woodward and Bernstein.

And the concern that I had when I was writing that column in the Post last week was that in the absence of some demonstration by the deputy attorney general, that he was going to oversee a vigorous investigation, there was reason to be concerned that there might be a repressed investigation and the last resort to assure the public's awareness of what was going on. It might have to be leaks.


LEMON: So can I ask, then, because of the leaks that now it seems that the White House and republicans are really concerned about leaks right now. They want this story to be about leaks, they are saying the leakers should be prosecuted, journalist should be prosecuted. How do you respond to that having, you know, lived through Watergate?

[22:39:55] LACOVARA: I think you kind of get your priorities straight. It's not so much about whether leaks are bad. They often are bad, depending on what the circumstances are.

But what's more important is what's the underlying abuse or criminality about which the leaks are taking place.

And I would say, despite my role in Watergate, this situation on the face of it is far more serious than the Watergate break-in and cover- up was. Here we're talking about alleged or suspected collusion between presidential campaign, a successful campaign and the demonstrable hacking by our principal foreign adversary and the, as the intelligence agencies have said, the actual strategic effort by the Russian government to influence our investigation.

That's far more serious than Watergate and I think it's far more serious that we find out what happened rather than be concerned about leaks about the investigation into the truth.

LEMON: Philip, John, thank you.


DEAN: Don?


DEAN: Could I just... (CROSSTALK)

LEMON: Quickly. I've got to get to the next guest. But go ahead, John.

DEAN: None of the leaks that came out in Watergate were in advance of the story. They were always about six weeks behind. In this instance, the leaks seem to be almost contemporary, which is an interesting difference.

LEMON: Thank you, gentlemen.

DEAN: Thank you.

LEMON: I always appreciate it.

Here to discuss now Congressman Charlie Dent. He's a Pennsylvania republican. Congressman, I really appreciate you coming on. A big move in the investigation in the Trump/Russia investigation and the administration. What's your reaction and what are you hearing from your colleagues tonight?

CHARLIE DENT, (R) UNITED STATES REPRESENTATIVE: Well, first, Don, thank you for having me on the program.

I thought that after the firing of the former FBI Director James Comey that there was a certain inevitably to moving toward some type of an independent investigation whether it was going to be a select committee, an independent commission or in this case a special prosecutor.

So I think that's where it was going to go, particularly since the firing and then, of course, the release of classified material, the Russians, alleged class -- alleged material. And then, of course, the Comey memos from yesterday.

So bottom line is, we are where we are. I have confidence in Director Mueller and let's just try to find out what the truth and the facts are. That's what most of my colleagues are saying to me.

Let's try to get some answers to this. Because obviously this whole -- this whole situation is very exhausting and it's all-consuming and it's, frankly, keeping us from attending to some of the other issues we'd like to be discussing, issues like tax reform and infrastructure are best examples.

LEMON: Well, the deputy A.G. Rosenstein was on record saying that he didn't think it was necessary to appoint a special prosecutor. Do you think that news of the, you know, bombshells of Comey's memo, do you think that changed his mind?

DENT: I don't know what affected the deputy Attorney General Rosenstein. Although, you know, last week when the firing occurred, I said an independent investigation, probably an independent commission.

But now, you know, I suspect that probably did have something to do with it. The memos probably did have an impact. I was also somewhat hesitant to move towards the special prosecutor route as well given our history with Ken Starr and then Pat Fitzgerald. These things kind of take on a life of their won.


LEMON: But you're happy about this decision tonight?

DENT: Yes. I respect the decision and accept the decision. I think Robert Mueller is a very good choice. And so, yes. So, I understand why we are where we are. And it's just time to move on and get to the bottom of this. Let's find out what the truth and the facts are and let the chips fall where they may.

LEMON: OK. As you know, with this White House the breaking news seems to be coming not every day but every couple of hours, and there are couple of things that I want to talk to you now that have developed.

There's a New York Times story saying that Michael Flynn notified the transition team that he was under investigation and then was still named national security adviser. That's from the New York Times. And then McClatchy says that before the inauguration Flynn made a decision on behalf of the Trump team that benefited him.

He told them that he made a decision on behalf of the Trump team that benefited Turkey and Turkey paid him upwards of $500,000 as a lobbyist. Two new stories tonight. What's your reaction?

DENT: Well, I guess it speaks to the vetting. Certainly I would think whoever is doing the vetting, you know, failed in that case, particularly if the person being considered for the position has openly acknowledged that he was under some type of an investigation. In that case...


LEMON: But that's not necessarily vetting, right? You don't have to dig that up.

DENT: Yes.

LEMON: He's telling you.

DENT: No. He volunteered it. So, no, I think it's -- well, let's put it this way. I think that's certainly a pretty serious failure. Whoever is responsible?


LEMON: What does it say it was the president's judgment to be this close to someone who has so many red flags?

DENT: You know, look, I like many others, you know, questioned that appointment. I heard from a number of folks who felt this was not a great appointment in General Flynn. Clearly those concerns were born out. You know, people make errors in judgment. [22:45:00] By the same token I give the president credit. He also, you

know, appointed a lot of very good people on the national security team. McMaster, Mattis, Tillerson, Pompeo, Dan Coats, all very good. So yes, in the case of Flynn, clearly they made an error in judgment and they are paying a heavy price for it.

LEMON: Yes. So tell us about -- what does this do to the Republican Party and folks the republicans in Washington, and then the avalanche of news that appears every single day. This is now the standard bearer for your party who is now under an investigation now or there's a special prosecutor. What does this do to your party?

DENT: Well, I think the main concern for my colleagues right now is that there is a lot of business to be attended to. We have a budget among the appropriations committee. We had a lot of things to deal with tax reform, infrastructure. And to the extent that we are consumed by these continuing eruptions or distractions, call them what you will, it makes it difficult for us I think to focus.


LEMON: Does it make it harder for to you go back home and face the constituents who are wondering what the hell is going on in Washington?

DENT: Well, yes, believe me, I get a lot of comments from constituents at home who are asking me questions to varying degrees and making comments about what they -- what they're witnessing.

To a certain extent I think there's a greater focus on all this inside the beltway stuff here, but at home, yes, people are -- people are concerned. You know, I'd say people are supportive of the president or less concerned, people who, you know, very much oppose the president or apoplectic and so we have all sorts of people in between.

So this has been all consuming as I said and it can be rather exhausting and destructing us from some of the really important matters that need to be attended to.

LEMON: Congressman Dent, always a pleasure. Thank you for your time.

DENT: Thank you, Don.

LEMON: We're going to take a quick break here. I have someone coming up on the other side of the break you will want to hear from. You heard the former -- well, a congress -- or a senator now saying we've seen this movie before and you were part of that movie. And that's Dan Rather. We'll be right back.


LEMON: Our breaking news, the naming of a special counsel in the Russia investigation surprised just about everybody in Washington. But my next guest says, you -- he saw this coming, by the way.

Joining me now is Dan Rather, the host of AXS TV's the Big Interview. So what's your response on Robert Mueller? What do you think?

DAN RATHER, AXS TV HOST: A very good appointment. It means for the first time in his presidency that Donald Trump is now clearly on the defensive. For one thing up until this moment he's been able to control almost every new cycle. Going forward he loses that control.

And once you get special council on your trail then a lot of things that we haven't even heard of are going to be exposed. The three special counsels that I can recall was Richard Nixon in Watergate which resulted in his resignation.

Iran-Contra with Ronald Reagan, which is a constitutional crisis. And then with Bill Clinton.

But remember with Bill Clinton the special prosecutor started on something it had nothing whatever to do with what finally got Bill Clinton. My point is here this is a long process. This is not good news for Donald Trump. He's now on the offensive.

And by the way, the Republican Party is as well. Because the Republican Party they knew going in that Donald Trump had bad judgment, was unprepared, had a really steamy temper and ethically challenged but they made a cynical deal, if you will.

OK, we know all this about the guys, but you know what, we can get some things done to help us get re-elected.


RATHER: They have an increasingly lot to answer for now. And by the way, today did you know, as I'm sure you did, at the graduation for the Coast Guard Academy President Trump said that no politician in the history of the country has ever been treated so unfairly. Untrue.

But what is true few, if any politicians in the history of this country have been treated the country and the Constitution and the institutional integrity of our checks and balances as unfairly as he has.

LEMON: I was surprised by that because as he was saying it all I could think as if, you know, anyone who would speak to graduates, you know, to those graduates would be thanking them for their service and saying hopefully one day you won't have to put your life on the line, you know, and people like you make the ultimate sacrifice.

You should be held to the highest standard, and said again, he made it about himself. And about news media coverage which isn't true by the way. Let's listen and then we'll discuss.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Look at the way I've been treated lately, especially by the media. No politician in history, and I say this with great purity, has been treated worse or more unfairly. You can't let them get you down. You can't let the critics and the naysayers get in the way of your dreams. (APPLAUSE)

I guess that's why I won. Thank you.


RATHER: What can you say?

LEMON: Unbelievable. I was insulted and I'm not even, I wasn't even there.

RATHER: I will say this, Don, it needs to be noted that Donald Trump's strength among the people who voted for him, among roughly 40 percent in the polls, 38 to 40 percent is still standing with him. It will be interesting to see as a result of the events today, and what a news day, wow, and by the way, God bless the American press.

Because the New York Times, the Washington Post and a lot of other, Associated Press really brought a lot of this stuff out.


RATHER: We wouldn't be having a special council if these reporters hadn't done their job.

LEMON: Remember that -- it's fake. The news media is fake, by the way. Yes.

RATHER: Well, by the way the chant of some hard core Trump supporters and Trump himself, used to be with Hillary Clinton lock her up and now there's movement within the Trump circle to lock up the press, saying it's all about these leaks.

[22:55:00] But I think most people can separate bolts and brass tacks.

LEMON: Well, here's the thing. They keep wanting to investigate the leaks and on that I say, and we all know the calls are coming from inside the house. Right?

RATHER: That's right.

LEMON: The very people who are in this administration are the ones leaking. You talked about you said they made a deal, right, that was, you know, because I guess they wanted to get their agenda through and knew his shortcomings.

You said in your Facebook post, you said, "And then the damn broke, a flood is coming that will shape the future of the republic in ways no one can predict, except that the speed with which this is all happened just over 100 days into President Donald Trump's dumpster fire of an administration means it was all very predictable and no one who played a role in normalizing this president should be allowed to forget it."

RATHER: Well, I wrote that and believe it. In the best interest of the country. Say it was a cynical arrangement made. They were all kinds of republicans who didn't like Donald Trump and knew his shortcomings were but they made the deal and now paying the price, but unfortunately, this country is also having to pay the price.

But, Don, one overview of this, in some ways this is a good for the country because we talked about the checks and balances of our institutions and we saw it play out today with this appointment of the special counsel. It doesn't solve other things but it does now means that facts will determine our destiny and our history and not some baloney coming out of the White House, propaganda machine.

LEMON: Yes. I just want to read something. This is our Jim Acosta, he's over at the White House, as learning how things unfolded tonight. And according to a senior white official, Rosenstein called the White House Counsel Don McGahn at 5.30 p.m.

McGahn immediately informed the president who called in the senior staff for a meeting including Reince Priebus, Jared Kushner, Kellyanne Conway, Sean Spicer and the others and the president dictated his response and then the team went back and forth on the wording, the president and Priebus then talked to the staff and the feeling about the special counsel was, let them do their thing and we will do ours.

There was also a sense of unity in the room, the official said, we're all in this together, they said. The silver lining for the White House according to this official it takes away a lot of the politics.

What's your reaction to that?

RATHER: It won't take away from the politics because the politics, the democrats have virtually no power, no real power in this kind of things in the House or in the Senate. And what you would hope is you have bipartisan support for completely independent investigation by the new special council.

But you are more likely to see what more appear. I know you see that happen any time soon.

LEMON: You think they are that naive to believe what I just said that account that it takes the politics away. Does anything take the politics away in Washington?


LEMON: No. Yes.

RATHER: Washington is politics.

LEMON: You note the day, today is May 17, 2017, right. On May 17, 1973, the Senate Watergate hearings began. You covered them very closely. And the similarities growing between what we're seeing now and how things began in the investigation into President Nixon talk about that.

RATHER: Well, first of all, I hope that somewhat older people who talk to children and young people about exactly what Watergate was, because I find a lot of young people don't know exactly what it was.

But to your point, in size and scope, as John McCain said today and as somebody else says, this has the potential to be worse of the than Watergate. And remember Watergate was about what happened domestically, a break in, it was the cover up, the lies about the cover up that finally forced the president to resign.

This has to do with alleged collusion of a foreign power with a presidential election campaign. Now we don't know the facts but it has that potential. So this is why the day is so important. This is the day that we came to realize that in the breadth and depth of this investigation is at least as important in Watergate if not more so.

LEMON: Well, we always -- this is the definition, because you hear the cliche, it's cover is always worse than a crime, right? And you wonder where did that come from. This is the definition of that.

Because as we have said this is the president's own doing, had he not according to the Times and reporting we matched that reporting, had he not tried to co-op the head of the FBI he would not be in this position possibly.

RATHER: No, exactly. And that had to do with his continuing effort to hide. He's got something to hide it may or may not be criminal. He's got something to hide with the Russians. He's got something to hide with his monetary dealings, that's the reason he hasn't released his tax returns.

But again, it comes -- this is a perfect example of if he hadn't made an effort to impede the investigation of the FBI he wouldn't be in the shape he is in today.

LEMON: And that's what happened in Watergate.

RATHER: That's the same thing happened with Watergate.

LEMON: Thank you, Dan Rather. Always a pleasure.

RATHER: Always a pleasure to be with you.

LEMON: Thank you, sir.

RATHER: Thanks.

UNIDENTIFIED MALE: This is CNN breaking news.

[23:00:02] LEMON: Our breaking news tonight. The trump White House in turmoil as the Justice Department names a special counsel in the Russia investigation.

This is CNN Tonight. I'm Don Lemon.