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White House Lawyer: We'll Stick to Facts, Not Legal Novelties; Ex-Mueller Investigated Edited Comey Comments; Soon: Conyers to Decide on Future Amid Harassment Claims; Conyers: "I am Retiring Today". Aired 10-10:30a ET

Aired December 5, 2017 - 10:00   ET



JOHN BERMAN, CNN ANCHOR: So when is obstruction not obstruction if the president is doing it.

Good morning. I'm John Berman.

So, is the president's legal team floating a new strategy to defend himself in the Russian meddling investigation? Well that depends on which presidential lawyer you are listening to. The answer is yes, if you listen to his private attorney suggesting that president can't obstruct justice because he's the president, doesn't matter if he tried to block the investigation into Michael Flynn. But overnight, a different White House attorney says no, that's not the message, despite what we heard with our own ears. Meanwhile, new questions about a one-time deputy -- about a one-time deputy to Michael Flynn, did she lie to senators about Flynn's admitted contacts with a former Russian ambassador to the United States?

CNN's Kara Scannell, live for us in Washington with these new mixed messages from those defending the president. Kara?

KARA SCANNELL, CNN REPORTER: Hey, John. Yes, it is a mixed message and it looks like the president's attorney, Ty Cobb, who was brought in to handle the special counsel investigation is trying to reframe the issue that has really kind of caught fire over the past few days. Ty Cobb is saying that really the facts will exonerate the president and the issue behind that is for an obstruction case, Robert Mueller's team would have to find that there was, you know, a corrupt intent to obstruct justice. And so that really will be fact based. So I think he's trying to redirect the conversation to focus on that.

BERMAN: Despite what John Dowd has been saying out loud and what allies to the president have been musing about out loud in the media which is also notable, K.T. McFarland who was a key figure in the transition, a one-time deputy to Michael Flynn, now nominated to be ambassador to Singapore. She is in the spotlight this morning because of an answer she gave about Michael Flynn in some of her Senate testimony. Explain.

SCANNELL: So K.T. McFarland was sitting before the Senate Foreign Relations Committee as part of the nomination for her role as ambassador to Singapore. She was asked if she was aware of any conversations that her boss at the time, Michael Flynn, the national security adviser had had with the Russian ambassador, Sergey Kislyak. She told the committee that she was not aware of any conversations. What we learned from Michael Flynn's guilty plea, which is the version of events that Robert Mueller's team is believing to be the truth, was that she was the senior transition official who had phone calls with Michael Flynn about his conversations with the Russian ambassador in late December. So now the committee is asking her to clarify her answers.

BERMAN: And finally, news, developing overnight from the special counsel about Paul Manafort and his bail agreement. The counsel's office saying that Manafort violated his bail because of contacts he had with someone who could be a Russian operative.

SCANNELL: Yes. This is an unusual one. There was a filing late yesterday from the special counsel's office saying that Paul Manafort was ghostwriting an op-ed with a former colleague of his who is a Russian individual who is believed to have some ties to the intelligence world. And the lawyers for the special counsel's office are saying that this might violate the bail conditions that Manafort is out on and they want to, you know -- they're arguing against lightening or loosening any of the conditions around Manafort who is now confined to be in his home and the judge in the case who has previously said that she does not want attorneys or anyone speaking in a way that could prejudice the case, scheduled a hearing for next week on this issue.

BERMAN: We will be watching that very, very closely. Kara Scannell thanks so much for being with us, bringing us that reporting.

New information this hour on the FBI official who was kicked off the Mueller team for sending texts, one-time critical of then candidate Trump, officials tell us that Peter Strzok made what could have been a legally significant edit to James Comey's remarks on Hillary Clinton's e-mails back in July of 2016.

Our law and justice reporter Laura Jarrett helped break the story. Laura, what have you learned?

LAURA JARRETT, CNN LAW AND JUSTICE REPORTER: Good morning, John. Well electronic records show Peter Strzok changed key language in Comey's statement that ultimately cleared Hillary Clinton of wrongdoing, initially describing her handling of classified materials as, quote, "grossly negligent" but then later changing that to "extremely careless."

Now we're told that this process of drafting the statement was a collaborative team effort and it makes sense that language would have been adjusted down from gross negligence since that's the legal standard carrying criminal penalties and they ultimately decided not to recommend charges anyway. But from a political optics standpoint, this news of Strzok's direct hand in the statement combined with the fact that he was dismissed from special counsel Robert Mueller's team earlier this summer after exchanging those private messages that could be seen as favoring Clinton and mocking President Trump, may now further fuel those who are looking to discredit special counsel Mueller's work, since Strzok was previously on the team.

[10:05:03] And meanwhile, we've also learned that FBI Director Christopher Wray is privately trying to rally the troops at the bureau after the president's tweets over the weekend where he said the reputation is in tatters. Now Wray never mentions the president by name or Strzok but he told staff in an e-mail they should welcome tough questions and told them to keep calm and tackle hard, John?

BERMAN: Laura Jarrett for us. Thanks so much. You always keep calm and tackle hard. We appreciate you being with us.

Joining me now, CNN national security and legal analyst Susan Hennessey. Susan, there a lot of developments overnight, I want to try to tick off the newest ones with the greatest significance and one is the lingering discussion about obstruction of justice. This notion floated by John Dowd, the president's personal attorney, that the president can't be charged with obstruction while White House attorney Ty Cobb now says, no, no, we're not making that case, even though we heard it with our own ears here. Why is this important to hear these things from lawyers out loud?

SUSAN HENNESSEY, CNN NATIONAL SECURITY AND LEGAL ANALYST: Right. So the argument that Dowd sort of had initially put forward that other White House lawyers are now walking back is that the president of the United States cannot obstruct justice by virtue of sort of his constitutional position. You know, that's a pretty extreme argument.

Now, it might be an open to question whether or not the president can be indicted for obstructing justice, held criminally accountable but sort of this, you know, responding to the allegations, specifically sort of following President Trump or allegedly doubt on Trump's behalf admission that he was aware that Flynn or may have lied to the FBI. You know, to immediately default to a position that's not just what he didn't obstruct justice based on the facts but actually he can't obstruct justice, you know, this White House and even this legal team has sort of has an instinct towards shining a light on some of their biggest problems. And so, this really does sort of raise the spectrum, you know, why are they moving so quickly from you know defending the president on the facts to trying to say, well, he can't violate this law no matter what he does.

BERMAN: When you hear these things, ask why. They're not happening at random or by coincidence. K.T. McFarland, now a new spotlight shining on the one-time deputy national security adviser, because the testimony she gave in her nomination hearing to be ambassador to Singapore, she was asked in a memo, in written testimony, pretty directly by Cory Booker if she knew anything about the conversations that Michael Flynn had with Sergey Kislyak the one-time Russian ambassador to the United States and she basically said no. And legally, she says no. Is she in potential trouble here?

HENNESSEY: Well, people like to sort of jump immediately to the question of perjury. It is a crime to lie to a Congressional committee, whether or not you're under oath or not. You know, that said whenever you're actually talking about the legal issue of perjury both the question and the answer have to be absolutely unambiguous, something like the question and answers that Michael Flynn provided to the FBI. She probably has enough wiggle room, at least based on what we've seen in public, to say that she is not in sort of legal jeopardy. That said this certainly could be a profound issue for her confirmation to her post as ambassador. I mean, it also just raises questions about sort of the general lack of candor and truthfulness on the part of the Trump team and about sort of Russia issues specifically. It seems pretty clear from reporting at this point that the K.T. McFarland was aware, you know, in substantial detail about these conversations that Flynn had with Sergey Kislyak.

BERMAN: All right. Finally Peter Strzok, he was the one-time counter intelligence official in the FBI, dismissed by Robert Mueller because he wrote politically charged texts during the campaign that came to light, seems to have been present in key moments over the last two years during the first Clinton investigation and then the beginning of the Bob Mueller investigation. The impact of that, Susan?

HENNESSEY: Well, so clearly this is an optics issue. You know that said, the notion that FBI agents or people who work on behalf of the government aren't supposed to have any political feelings or any political biases, you know that's a little bit of an overstatement right there. They aren't supposed to allow it to infect their work at all. There's just no evidence here.

Clearly it was an error in judgment for him to express those views and apparently that was related to other potentially compromising misconduct. That said there's no indication here that those views or that bias caused him to improperly interfere in the investigation. By all accounts, you know, Robert Mueller removed him from the case as soon as this became an issue. So you know I'm sure the Republicans are going to try to make a lot of political hay out of this story, but in terms of the substance, there's very little indication that there was any kind of real wrong doing here.

BERMAN: All right. Susan Hennessey, great to have you with us, thanks so much.

Developments all morning long here, minutes from now we're expecting to hear from Congressman John Conyers, Democrat, who plans to make a big announcement about his political future amid claims of sexual harassment, several claims of sexual harassment.

[10:10:00] We're also waiting for House Speaker Paul Ryan to speak to cameras, right now speak to reporters. What is his latest sense of the Russia investigation and whether he thinks the president can obstruct justice.

And high winds, fueling a wildfire that has already burned through 30,000 acres. We are seeing dramatic pictures from Ventura County. We'll check back in there in a little bit.


BERMAN: All right. You're looking at live pictures of the Mildred Gaddis radio show from Detroit. She will be speaking to Congressman John Conyers who will announce whether or not he's going to stay a member of Congress.

[10:15:00] UNIDENTIFIED MALE: Him with their issues, for the last 50 plus years, he's felt it was important that he address his constituents on your show separate and apart from those in Washington. So, without further ado, Mildred, with me, is the Dean of the House, Congressman John Conyers.

REP. JOHN CONYERS (D), MICHIGAN: Good morning, Mildred Gaddis.

MILDRED GADDIS, RADIO HOST: Good morning, Congressman. How are you? I want to know how you're doing health wise and how's the family?

CONYERS: Well, thank you very much for asking. I first wanted to acknowledge the incredible support that this excellent attorney has given me in the process of moving through these issues that I've confronted. You should know and I'm glad you asked, that health wise, my family is doing well, doing great, and I think that it has not impacted negatively on their health. They're doing well to support me entirely, and I am so proud of them and love them all very much.

GADDIS: Congressman, these -- the question is, how has these allegations, how have they impacted you and your family and your legacy?

CONYERS: Well, we take these in stride. Look, this goes with the issue of politics, the game of politics, which we're in. We take what happens, we deal with it, we pass on and move on forward as we keep going, trying to make as much as we can of this tremendous opportunity that's been given me for so long. And I'm very, very pleased to let you know that my family is doing very well. My wife and my two boys are doing great. Even my brother Nathan is in here, pitching in, in a very important way. And so our family and health are excellent.

GADDIS: Congressman, no one can doubt even your critics that your legacy is a phenomenal one. You have picked your issues, you committed yourself to them and you've seen them through. I think perhaps the one, you can share with us, that probably when you look back over your life and your term in Washington, was the inability to get the total House or the majority of the House to respect and honor your reparations push. Do you think that these allegations at all will impact that legacy?

CONYERS: Oh, absolutely not. My legacy can't be compromised or diminished in any way by what we're going through now. This, too, shall pass. I want you to know that my legacy will continue through my children. I have a great family here and especially in my oldest boy, John Conyers, III, who incidentally I endorse to replace me in my seat in Congress. So we're all working together to make this country a better one, to make a quality and justice more available for any. And of course (INAUDIBLE) that's the issue that brought us in this thing together and we've been steadily moving forward and we're going to continue to do so.

GADDIS: For -- those listening, I want you all to make sure you heard that news bomb that Congressman just dropped, and that is, that he's endorsing his son, John Conyers, III, to replace him. Congressman Conyers, Nancy Pelosi and some other Democrats have abandoned you as you've gone through this challenge. Some people are saying it's time for Congress to open the books and share the names of all of the Congress people who are responsible for $7 million in these kinds of sexual harassment lawsuits to be paid out. Do you think those books should be opened?

[10:20:14] CONYERS: I think there should be a complete disclosure and revealing to all of the citizens of the country of what their federal legislators, federal legislators are doing or not doing and any costs that may have been incurred as a result of that. So my answer to that is a strong, unequivocal yes.

GADDIS: Congressman Conyers, do you -- you're a lawyer. I mean, the judiciary has always been your thing. The law, the law, the law and you've used the law to support some of these issues and causes that you have presented there in the House. Does the fact that you did not receive due process in this issue concern you? Does it bother you at all?

CONYERS: I've been through this with other people for many years. This is why I came to the House Judiciary Committee when I was first elected. I asked immediately to be assigned a seat on that very important committee, which examines constitutional issues and due process in particular. And so this doesn't come as a shock to me. I've been working in this area for years and years, longer than anybody else as a matter of fact, and I am very proud of the fact that I am the Dean of the Congress and that I will continue to - (INAUDIBLE) yes. I'm in the process of putting my retirement plans together and I will have more about that very soon.

GADDIS: Congressman, OK, I want to get clarity here and I do have it, but for the record for those who may not have understood or heard what you said, is that you're very confident in your legacy. You are today at this time, at this moment, in this period, preparing for your retirement, a date in which you're not prepared to announce at this moment?

CONYERS: Yes. Thank you for helping me get this into focus. I am retiring today and I want everyone to know how much I appreciate the support that is incredible, undiminished support I've received across the years of my supporters, not only in my district but across the country as well.

GADDIS: So people, you have it here on the Mildred Gaddis Show, Congressman Conyers announces his retirement as of today and also said during this interview. He is supporting his son, John Conyers III, to replace him. Congressman, as you exit this interview, do you still maintain that the allegations that have been leveled against you are false?

BERMAN: There you have it. Congressman John Conyers, the Dean of the House, the longest serving member of the House, a former ranking member on Judiciary Committee, a long-time Democrat, just announced he is retiring today. John Conyers has retired from the U.S. House of Representatives, this after a series of sexual harassment allegations against him by various women who have worked in his office, John Conyers, gone.

Joining me now to discuss Patrick Healy, CNN political analyst and CNN political commentators Amanda Carpenter and Patti Solis Doyle. Patti, you know, Nancy Pelosi ultimately did call for him to step down, the Speaker of the House Paul Ryan did ultimately call for John Conyers to step down and then just now, after a somewhat meandering intro right there, John Conyers made clear that he is leaving the House of Representatives and incidentally endorsing his son to replace him.

PATTI SOLIS DOYLE, CNN POLITICAL COMMENTATOR: Yes. I don't know what to make of this interview. It seems like he's -- he was completely unaware of the current environment we're living in, where men are -- who are accused of sexual harassment are losing their jobs, are being ostracized or being ruined, Harvey Weinstein and Kevin Spacey. And he just seems completely unaware he's choosing to retire rather than to resign.

[10:25:10] And me, as a woman, as a mother, that really angers me. We have several credible women accusing him of sexual harassment and he is -- he clearly did a very friendly interview where the questions were very friendly and he says that his reputation cannot be tarnished, cannot be diminished. He refuses to take responsibility for his actions. He refuses to give credit to these courageous women. He refuses to give back the taxpayer money that he used to settle the settlements with. I just really am quite angry at this interview.

BERMAN: He admitted to nothing, Amanda Carpenter, but he did retire as of today. I'm not sure there's a distinction between retiring and resigning. He is leaving office as of today, which is not something that Al Franken has done from the Senate, Democrat there, you know, he's not dropping out of a race. I mean, Roy Moore hasn't dropped out of the race in Alabama. John Conyers is out.

AMANDA CARPENTER, CNN POLITICAL COMMENTATOR: Yes. It is kind of funny he says he's retiring because of health reasons and not resigning because of sexual assault allegations. But that said, politically speaking, I think the Democrats will be able to claim a little bit of moral high ground even though they still have to find a way to deal with Al Franken and the fact that former Speaker of the House Nancy Pelosi called on him publicly to resign. And now the net effect is that he is out.

And so what I'm looking for, are what women in my party are going to do because I woke up this morning pretty darn disappointed. The RNC is back in the race in Alabama with their money, with their endorsements and the chair of the RNC is a woman, Ronna Romney McDaniel. And I think there is a special obligation for her to come on TV and do an interview like Jane Porter did with Poppy Harlow last hour and talk about what changed in their decision making because a lot of things have changed. More women have come forward to accuse Roy Moore of sexual assault. There's been more evidence against him. And so I want the RNC to explain not only to Alabama voters but to Republicans across the country why she felt a special obligation to get back into that race.

BERMAN: You know under withering questioning from Poppy Harlow, I might add, Jane Porter would not say whether she believes the accusers against Roy Moore. She would not answer the question, Patrick, and to an extent, shockingly to me, the frame of this debate has changed from, do you believe them, to do you care whether or not what they're saying is true, because taxes?

PATRICK HEALY, CNN POLITICAL ANALYST: Really is surprising, John, you've seen Senate Majority Leader Mitch McConnell go from saying I believe the women, you know, very pretty strong, clear statement, to now basically saying, we're going to let it up to the -- let the people of Alabama decide this, sort of putting any kind of moral authority or moral clarity on the shelf. I mean, in 2012, the Republican National Committee withdrew funding and Congressman Akin race in Missouri when running for Senate because of his statements about legitimate rape. I mean, basically, Mitt Romney, the head of - you know the nominee of the party, other Republicans you know were leaving in droves over Congressman Akin remark.

Here you have several women who have made very credible allegations against Roy Moore and now you see the Republican National Committee coming back and putting money back into Alabama when they weren't doing it in Missouri. I mean it really is just -- night and day from where the party seemed to be a couple weeks ago in this sort of reckoning.

CARPENTER: Yes, John, I have to raise one other point on that, because the argument right now is not just because of taxes. What was outrageous about that interview, I'm going to express the outrage that I think Poppy Harlow had every right to but she was so calm and cool and powerful and collective in that interview. Jane Porter opened the interview by claiming the sort of moral high ground saying that she is supporting the candidate who is going to protect Poppy's baby. That's not even a below the belt kick, that is in the gut. It was heart wrenching to watch. I am pro-life and that is not an argument to make. For all these people to come up and support Roy Moore because of abortion, while there are accusers saying that he sexually molested them as young women. Well, you know what, I'm pro-life, but I'm also pro protecting young women too. And I think more people in the Republican Party should be that way.

BERMAN: Patti, last word to you, how come some politicians survive these accusations and some don't?

DOYLE: Well, our politicians don't have a HR department, you know. They're -- certainly in Congress we have seen the wave of sexual harassment victims have exposed how Congress deals with sexual harassment, you know. It's this convoluted process, you know you have to go through 30 days of therapy.