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Sources: Flynn Worried About Son's Legal Fate; First Trial For Biker In Deadly Bar Brawl Goes To The Jury; Collusion Versus Conspiracy. Aired 7:30-8a ET

Aired November 9, 2017 - 07:30   ET



CHRIS CUOMO, CNN ANCHOR: That would then --

MOORE: I mean, why don't we do that?

CUOMO: That would then wind up helping raise your revenue so that you would then remove the burden then on the middle-class --

MOORE: All right.

CUOMO: -- and it would be more geared towards them. You didn't do that.

But I'll tell you what you did do.

MOORE: You know why they didn't?

CUOMO: You're slipping punches like Floyd Mayweather. I've never seen anything like it. Your head movement is amazing

MOORE: (Laughing).

CUOMO: Your shoulder movement -- I mean, my arms hurt.


CUOMO: Thank you very much. They'll be slipping all over me. Finish with a smile.

Rana, Stephen, thank you very much -- Alisyn.

MOORE: See you.


CNN has learned that fired national security adviser Michael Flynn is concerned that his son may face legal exposure in the Russia investigation. Should he be worried? We ask a member of the House Intel Committee, next.


CAMEROTA: Multiple sources tell CNN that fired national security adviser Michael Flynn is worried about his son's legal exposure as the Russia investigation intensifies.

Joining us now is Democratic Congressman Eric Swalwell of California. He's a member of the House Intel Committee which is conducting its own investigation into Russia's role in the election. Good morning, Congressman.

[07:35:01] REP. ERIC SWALWELL (D-CA), MEMBER, PERMANENT SELECT COMMITTEE ON INTELLIGENCE: Good morning, Alisyn. Thanks for having me back.

CAMEROTA: Great to have you.

So you say that Michael Flynn should be worried about his son and about himself. Why? I mean, what's your evidence that the investigation's closing in on them?

SWALWELL: Well, for one, you know, his prior conduct of going to Moscow in 2015, sitting next to Vladimir Putin, having it paid for by RT who is connected to Russia's intelligence services, and then not telling anybody who he is was supposed to tell at the Pentagon. That's a problem.

Talking to Sergey Kislyak, as he's alleged to have done right after the sanctions were put on Russia for their election interference and telling them not to worry about, you know, the sanctions. That also looks like it was a problem.

But also, the work that he did for Turkey and at the Flynn Intel Group, and his son was a part of that.

And -- but if you take a step back, Alisyn, and you read the George Papadopoulos plea, what you see are FBI agents who were determined to go to Mr. Papadopoulos in January of 2017. They were told a B.S. story. They went back in February and were told the same story about Mr. Papadopoulos and his involvement with the Russians.

Five months later they gathered enough evidence to confront him with evidence that contradicted his story and he finally came around. I think that showed determination to get to the bottom of just what happened.

And I think Mr. Flynn and his son are probably going to have the screws put to them, as well.

CAMEROTA: Oh, but I mean you're not -- you haven't exactly connected the dots between Michael Flynn and his son and any of those things. And even the things that you spelled out -- I mean, we don't know if there was something untoward particularly happening.

SWALWELL: Well, if we have uncontradicted evidence of the testimony of Sally Yates and James Comey and others about what Michael Flynn did, you know, with Russia and the Russian ambassador. You know, that conduct, itself, was improper.

And put into the context of eight other officials on the Trump team or the Trump campaign who also failed to disclose campaign contacts with Russia. You know, I think the picture is coming into focus here.

CAMEROTA: So you had an idea for legislation that you thought would help in the future -- at least alert lawmakers to Russian meddling if it were to happen in the future. You considered this a no-brainer. Then what happened?

SWALWELL: You know, one takeaway from our investigation so far has been that because Donald Trump claimed during the election that the election was going to be rigged, the Obama administration was hesitant to acknowledge to Congress and to the American people that the Russians were interfering.

And so, yesterday on the Judiciary Committee, as we were legislating on the section 702, which is foreign surveillance, I put in there legislation that would require Congress to be told if we learned that foreign interference was occurring in our election.

It didn't talk about the Trump administration at all. It just said, you know, we should tell Congress and take away the political decision-making and make it a requirement.

Every one of my Republican colleagues voted against it. I think that's very sad. I think that is missing one of the big lessons that we learned was that the government response was not adequate when Russia was attacking us.

CAMEROTA: And so, what does that tell you? That they don't want to know if there is Russian meddling or that when a Democrat proposes legislation the Republicans won't get on board?

SWALWELL: I'm afraid that right now they are still -- they still see any discussion of what Russia did as a delegitimizing of Donald Trump, and they're not looking at it in the context that I think we should be focused on which is the next election.

Russia has not left. We're not going to stop Russia from doing this but we can, you know, batten down the hatches and strengthen our shields to make sure that we at home are more aware and more protected.

CAMEROTA: Right, but, I mean, what about -- I mean, I know that they didn't go for your legislation but --

SWALWELL: They haven't gone for any legislation. I've also, with Republicans -- two Republicans and every Democrat have wrote legislation to have an independent commission, just as we did after September 11th, and unfortunately, we can't get them on board with that.

I think, you know, that is doing -- that is strengthening the Russian's ability to go at us again and that's really unfortunate. I don't -- you know, I can't speculate to the motive but I know that it makes us less able to protect in the next election.

CAMEROTA: But are you sensing that same reluctance from your fellow members on the House Intel Committee -- Republicans?

SWALWELL: Yes, yes, of course.

And you see that play out with a recused chairman who continues, I think in a misguided way, to try and, you know, look at the Fusion GPS funders rather than what was alleged in the Steele dossier. And, you know, other efforts that have, I thought, gone to obstruct the committee.

Now, fortunately, Mike Conaway, as chairman, has worked quite well with ranking member Schiff and we've made tremendous progress on the witnesses that we've interviewed. But that isn't to say that, you know, Chairman Nunes, who's been recused, hasn't been putting up roadblocks.

CAMEROTA: Yes. Chairman Nunes doesn't seem so recused.

SWALWELL: No, just in name only. But his subpoena pen has a lot of ink.

CAMEROTA: All right. Congressman Eric Swalwell, thank you very much for giving us your take --

SWALWELL: My pleasure.

CAMEROTA: -- on all of this -- Chris.

CUOMO: All right.

[07:40:00] The first case against a biker involved in a deadly bar brawl heads to the jury today. You remember this story? You remember this wild video of this scene out of "SONS OF ANARCHY?"

We have a live report on the case from Texas, next.


CUOMO: The TSA is promising to improve airport screening procedures and with good reason. The most recent round of the inspector general's covert test shows that back in 2015 the agency failed on 95 percent of its undercover tests for explosives and weapons.

Officials are not releasing the exact results of the latest round of testing but the TSA says it's going to implement recommendations from the inspector general and improve security at airport checkpoints.

CAMEROTA: The first trial for a biker involved in the Waco, Texas bar brawl is set to go to the jury today.

You'll remember this video from 2015. Nine people were killed in this gun battle between the Bandidos and Cossacks biker gangs. Now, the Dallas Bandidos president faces a life sentence.

CNN's Ed Lavandera was there then and he's live in Waco, Texas with more. What's the latest, Ed?


Well, this is a fascinating trial. It's been going on for almost five weeks. And the first biker on trial, if you've been following this story closely, is a man that CNN viewers know well.


POLICE OFFICER: Keep your hands up.

UNIDENTIFIED MALE: It sounded like a gunfight at the OK Corral. Bang, bang, bang, bang, bang, one right after another.

[07:45:00] LAVANDERA (voice-over): Two and a half years after the deadly gun battle at the Twin Peaks Restaurant in Waco, Texas, the case against the first biker put on trial, Jake Carrizal, is just now headed to a jury. He faces up to life in prison.

Nearly 180 bikers were arrested in May of 2015 after the violent shootout that killed nine people. This mugshot soup was an unprecedented roundup. One hundred and fifty-four bikers were indicted on a charge of engaging in organized criminal activity.

The shootout stemmed from a simmering battle between rival motorcycle clubs. The Bandidos, a notorious club and self-described outlaws, and the Cossacks, one of the other large clubs in Texas.

Jake Carrizal is the president of the Bandidos Dallas chapter. Carrizal spoke exclusively with CNN last year for the documentary "BIKER BRAWL: INSIDE THE TEXAS SHOOTOUT."

He was one of the first Bandidos to roll into the Twin Peaks parking lot. Waiting on the patio were dozens of Cossacks, which is seen on the surveillance camera footage first obtained by CNN.

As Carrizal parked his motorcycle, the Cossacks moved in. Seconds later, the confrontation erupted. Punches turned to gunfire and all- out mayhem.

JAKE CARRIZAL, PRESIDENT, BANDIDOS DALLAS CHAPTER: We were ambushed in a war zone and I've never been that scared in my life.

LAVANDERA: The Cossacks say they were there to make peace. The Bandidos say the Cossacks showed up at a biker meeting that day to surprise them and start a violent fight.

CARRIZAL: It seemed like just seconds later I started hearing gunshots go off. I had guns all over me. I had Cossacks all over me.

LAVANDERA: Carrizal is in an all-out brawl on the ground with the Cossacks. The Bandidos leader says he acted in self-defense that day. Surveillance video shows another biker walk up to him and take aim. LAVANDERA (on camera): You actually see four plumes of smoke come out from him and he's pointed right at you?

CARRIZAL: Oh, yes, yes, yes.

LAVANDERA: Boom, boom, boom and then you fall to the ground. You didn't get hit.

CARRIZAL: No. It looks like a cop, you know, may have taken him out and --

LAVANDERA: He dropped after he fired four times.

CARRIZAL: Yes, wow.

LAVANDERA (voice-over): Prosecutors say Carrizal instructed his crew to bring their quote "tools," slang for firearms, and that the Bandidos came to exact revenge for assault on some of their fellow Bandidos brothers that had occurred in the months before the Twin Peaks shootout.

ABELINO REYNA, DISTRICT ATTORNEY, WACO, TEXAS: The evidence will take you to a subculture that exists in our society known as the one percenter. The one person in a biker group -- the one percenter biker club where the evidence will show has no regard for the laws of society.

LAVANDERA: Jake Carrizal testified over two days at the end of this first biker trial. The exchanges with prosecutors were often tense.

UNIDENTIFIED MALE: No good that you do will ever correct what happened here in Waco, Texas.

CARRIZAL: Well, I know you're blaming us for this event but --

UNIDENTIFIED MALE: Who's to blame?

CARRIZAL: -- I don't blame us. I don't blame the cops for it.

Who's responsible?

CARRIZAL: The club that surrounded us that day is and that had no business being there.


LAVANDERA: Now, this is a case with far-reaching implications. There are still more than 150 other bikers awaiting trial here in Waco. There is a federal indictment against several of the top leaders of the Bandidos Motorcycle Club.

So how this jury rules could have far-reaching implications for the rest of those cases -- Chris.

CUOMO: Wow, what a story. And, Ed, you have kept us ahead of it from jump. Thank you very much for this latest chapter. We'll be following the trial.

Ed Lavandera from Texas.

So, here's a big question that so many of you are wrestling with, collusion versus conspiracy.

What is the legal standard? Which one matters? Why do we keep using one and not the other?

We're going to bring in two great legal experts, and what do you say? Let's get after it, next.


[07:52:42] CUOMO: All right.

The latest development in the special counsel Bob Mueller's Russia investigation is fueling questions about collusion and conspiracy. Is collusion a crime? Here's a hint, no.

Let's discuss with CNN chief analyst Jeffrey Toobin, and constitutional law professor at Harvard Law School, Laurence Tribe. Boy oh boy, this is a battle of the big brains this morning.

Let's start with one general conception/misconception that collusion is what Bob Mueller is looking for. Collusion is a crime that we're going to hear about.

Jeffrey Toobin, start with you.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST, FORMER FEDERAL PROSECUTOR: Well, he may be looking for collusion and it is certainly a matter of historical interest what the relationship was between the Trump campaign and Russia.

But even if there was some sort of coordination between the two, the question of whether there was a crime is not answered by whether there -- finding out whether there was some sort of collusion.

Only crimes that are defined in the United States code are crimes, and collusion is not one of them. Conspiracy is, but collusion is not.

CUOMO: All right. For you guys following at home, before we go to Professor Tribe, let's put some general definitions we put up for you.

Collusion -- what you were just hearing Jeffrey talk about. Secret agreement or cooperation, especially for an illegal or deceitful purpose: "acting in collusion with the enemy." That's what you've been hearing.

Now, let's put up conspiracy because that is a federal crime. It's also a very complicated crime. It's not an easy an analysis to say an assault.

You have an agreement, you want to violate criminal law. With some act taken to further that agreement, although sometimes you don't even need an overt act.

So, Professor Tribe, how do you see it? Is there a meaningful distinction here or do you think that we're just parsing it too close as attorneys?

LAURENCE TRIBE, CONSTITUTIONAL LAW PROFESSOR, HARVARD LAW SCHOOL, PROFESSOR, CARL M. LOEB UNIVERSITY: Well, you know, lawyers love to parse things closely and my former student and my friend Jeff Toobin is as good as anybody at doing it.

But I decided to look at what the U.S. Supreme Court has said about this and there really are only three places I could find where it talks about collusion and conspiracy in comparison to each other. And in all of them -- one of them as long ago as 1899, another as recently as 2007 -- the court basically said it's a tempest in a teapot. They're synonymous.

[07:55:10] Of course, just agreeing with somebody to do something like, let's say, play golf at Bedminster, that's not a crime.

But agreeing with somebody and then doing something to advance the agreement in order to subvert American democracy or an American election, or in order to refuse to enforce the Magnitsky Act of sanctions against Russia, that can be described as collusion or as conspiracy.

Of course, Robert Mueller is smart enough in an indictment to use the words of the statute which usually include the word conspiracy and not collusion.

But when it comes to the really big stakes in all of this, high crimes and misdemeanors, I'm sure Jeffrey will agree that there is no difference.

There's no difference in the sense that if the evidence shows -- and it's premature to say, but if the evidence shows that Donald Trump, in order to gain power made an implicit deal with Putin and his thugs that if they would help him win the election he would help them by changing the plank of the party in terms of Ukraine and, more importantly, by doing all he could to pull down the Magnitsky sanctions, that would almost certainly be a high crime and misdemeanor whether you call it collusion or conspiracy.

CUOMO: So, Jeffrey, obviously there are different standards between what Bob Mueller's looking for, which are federal crimes, and high crimes and misdemeanor which, you know, as, of course, the professor knows, that's somewhat of an illusory standard.

It's not a legal standard. Madison kind of made it up to kind of thicken out what it seemed like for standard so it wouldn't be arbitrary when doing something in the name of impeachment because their concern was they'd impeach for everything.

So do you agree with the professor that in terms of impeachment it winds up being interchangeable? TOOBIN: Well, probably for impeachment because impeachment is a political act, it's not a legal act. High crimes and misdemeanors can be defined each time Congress -- the House of Representatives considers that issue.

I'm talking more specifically about the criminal law. And about the criminal law, the question that I think a lot of people need to address, and the hard question is if there was some sort of untoward relationship between the Trump campaign and Russia, what specific criminal law was it violating?

A conspiracy is an agreement to violate the law. What law?

Now, there are possibilities out there. Were they violating the campaign finance laws? Were they violating the anti-hacking laws? Were they violating some sort of money laundering laws?

That's, I think, the important question and I don't think we have a clear answer for that yet. What law was the conspiracy to violate if there was a violation of the law in this relationship?

CUOMO: We certainly don't have proof of it by definition in the indictments that we've seen thus far, but where is your level of confidence coming from, Professor?

TRIBE: Well, I completely agree with Jeff Toobin. We don't know yet. I think pretending to know is kind of silly.

But the laws that he mentions are the criminal laws that I think may well have been violated. And an agreement, implicit or explicit, to violate them would be all the worse, and I think that's what we've got here.

We have to be patient, although I know that's hard when we have a president like this, but I think we're getting close.

CUOMO: And just answer this one quickly, Professor, before I let you guys go.

The pushback from the uninitiated -- from just, you know, regular folks, not lawyers who are watching this is if there is a basis for what you're saying why haven't we seen an indictment on that basis yet?

TRIBE: Because we wouldn't expect to. We have seen Mueller --

CUOMO: Why not? It's been a long time, people say. It's been a long time.

TRIBE: It's been very little -- not nearly as long as it usually takes to investigate something this complicated. This is an enormously complex case.

Way more complex than the Watergate burglary where we didn't have indictments of any serious kind until much later. And the main point is the smoking gun that led to the resignation of Richard Nixon didn't come until the very end.

I have a book that I'm working on that will be out next year called "To End a Presidency: The Power of Impeachment." And in that book I'm going to examine the whole history of the impeachment process.

But for now, I think we should be glad that we have Mueller on board and that he is working systematically rather than jumping the gun.

CUOMO: Well, that has become a political football, as well. Bob Mueller has become controversial in some segments of the political population.

TRIBE: Right.

CUOMO: But here's one thing for sure. You two guys helped us out this morning and made us better on this topic. Thank you to both of your gentlemen.

TRIBE: Thanks, Chris.

CUOMO: All right. There is a lot of news. Let's get after it.