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Sources: Mueller's Team Continues To Be Interested In Interviewing President Trump; Special Counsel Slams Michael Flynn's Criticism Of FBI Interview; Reporters Shooed Away As Mystery Mueller Subpoena Fight Rages On; Federal Judge In Texas Rules Entire Obama Healthcare Law Is Unconstitutional; Trump Defenders Draw Comparisons To Edwards. Aired on 8-9p ET

Aired December 14, 2018 - 20:00   ET


[20:00:17] JOHN BERMAN, CNN HOST: All right. Good evening.

John Berman, in for Anderson.

We begin with breaking news in the Russia investigation. And it could lead straight to the president.

CNN's Pamela Brown has just received word and she joins us now.

Pamela, what are you hearing?

PAMELA BROWN, CNN SENIOR WHITE HOUSE CORRESPONDENT: Well, John, we've learned that special counsel Robert Mueller's team continues to be interested in interviewing President Trump. This is according to two sources familiar with the matter. Mueller's stance on interviewing the president has been constant for a year and a half now. It is not a settled issue, and nothing has changed on that since from day one.

One of the sources I spoke to said now the president and his lawyers are still very much opposed to any interview. We know, John, that the president's legal team has resumed some discussion with special counsel, with the special counsel in the weeks since the president responded to written questions, mostly regarding collusion and the time period before the inauguration. The two sides had agreed to hold off on discussing any interview while the president wrote responses to those questions which were returned, as you'll recall, just before Thanksgiving.

That was seen as a first step to concluding more than a year of back and forth between the two sides. And the president's lawyers had hoped would bring Mueller closer to finishing his probe. But we're learning that Mueller's interest in talking with the president continues, and it includes an interest in asking questions about the president's state of mind in regards to actions under scrutiny in the obstruction probe.

Now we should note there has been no indication Mueller is moving to subpoena the president. You'll recall there was a threat to do so by Mueller's team last year according to our reporting. The sources I spoke with when asked if Mueller head also had follow-up questions to the president's written responses, these sources declined to comment. We should note, I spoke to Rudy Giuliani, the president's attorney

tonight. And he reiterated the opposition on Friday -- tonight on interviewing the president and any potential interview. He stressed the mistrust of Mueller's aggressive investigation and the lawyer's view, saying I'm pretty disgusted with him. That's what Rudy Giuliani said about this whole notion. And the office of the special counsel declined to comment -- John.

BERMAN: All right. Let's try to break this down and get a few further explanations here, Pamela. Did Rudy Giuliani and the president's legal team, did they believe that after they answered the written questions that the special counsel would stop asking or pursuing an in-person interview?

BROWN: You know, they haven't actually come out and said that they thought the interest would suddenly wane. I can tell you, though, there was certainly hope that once they provided the responses to the questions that they were getting one step closer for this wrapping up and that perhaps the whole idea of interviewing the president would be tabled. That Mueller would get all the information they need. Mueller's team, I should say.

And they have maintained, the president's lawyers that they don't need to interview the president because they have all of these documents, thousands of documents. They've interviewed all of these witnesses and now they've answered his questions. They have maintained that Mueller has everything that he needs. So, I do think it was hopeful on the president's legal team's part that this would be the end of it or nearing the end.

But what is clear, John, is that certainly for Mueller and his team, the idea of interviewing the president is not a settled matter.

BERMAN: OK. And then you alluded to this before. It's one thing to want to talk to the president. It's a completely different thing if you are going to take action to try to force it to happen.

Any sense that the special counsel will push beyond just asking nicely?

BROWN: Well, here's the thing. We know last year, as I mentioned, Robert Mueller threatened to the president's attorneys to subpoena the president for an interview when negotiations got very tense. I am told that that hasn't been brought up in recent months in negotiations, that there has been sort of a cordial back and forth between the two sides and that there is no indication that Robert Mueller will subpoena the president.

You also have this new dynamic at play with the Acting Attorney General Matt Whitaker who would then have to approve any subpoena to interview the president. So there are certainly changing dynamics at play in that part.

BERMAN: And finally, any sense that the special counsel's interest and desire to talk to the president has anything to do with following up specifically on new questions that may have been raised from his written answers?

BROWN: No. And I want to be clear on that. The continued interest is the same as it was from the very beginning, according to a source I spoke with. It's not as though the interest has increased or is there something new at play because of the answers the president's team gave in response to those questions, John.

[20:05:00] BERMAN: Pamela Brown, great reporting.

BROWN: Thank you.

BERMAN: One thing is clear, though. If the president and his legal team thought it would go away, it hasn't. And it didn't.

All right. Pamela, I appreciate it.

I want to get the latest now from CNN's Jim Acosta. Jim is at the White House.

Jim, tell us more about the president's view on this. As Pamela mentioned, the White House has been awfully reluctant.

JIM ACOSTA, CNN CHIEF WHITE HOUSE CORRESPONDENT: That's right. If you talk to the president's legal team and people familiar with the discussions going on inside the president's legal team, they view a potential sit-down interview with Mueller or his investigators of the president as a perjury trap. They've said that time and again. They don't want the president to sit down with Mueller because they feel as though he's essentially going to try to entrap the president and catch him in a lie and the president will then be in trouble for lying to federal investigators. They, obviously, want to avoid that.

But at the same time, I think that this was something that was a very strong possibility when the president fired off those written answers to Mueller's team weeks ago. We knew when that happened. And I know Pam is saying that, well, this is not because of what the president said in his written answers, but we knew when that happened that there was the potential that Mueller's team would say, wait a minute. This answer is incomplete here. This answer is incomplete there. We need to go back and ask the president these questions.

And so, John, I mean, I've talked to sources inside the president's legal team for months now. And months ago, they were concerned about this as a possibility that if they were to send off these written questions, Mueller's team would come back and say, no, no, no, we would like some in-person responses from the president.

BERMAN: Jim, we'll come back to the subject in a second with a panel. Before I let you go, a big announcement from the president on Twitter. He has a new at least temporary chief of staff.

ACOSTA: That's right, John. A bright shiny object descended on us late this afternoon when he announced his Budget Director Mick Mulvaney is going to be the acting chief of staff over here at the White House. I'm told by a source familiar with how this all went down that essentially the president was tired of all of these headlines, tired of the coverage this week that he couldn't find a chief of staff, that people didn't want to be his chief of staff, that people were pulling out of the running to be chief of staff, and someone even tweeted in the last several minutes, many, many people wanted to be my chief of staff and that he went to Mick Mulvaney and said I need someone to fill this job and Mulvaney said I want to do this on a temporary basis. That's according to a source familiar with these discussions.

However, having said that, this source said Mulvaney is eager to do this job. He wants to jump in and try to turn things around inside this West Wing where people are obviously feeling weary from all of these Mueller and Michael Cohen headlines. It's weighing down on everybody here and Mick Mulvaney has to deal with that and also a president who is difficult to manage. Make no mistake, Mulvaney is going into this eyes wide open, that the president is not exactly someone who is easy to manage on a daily basis, John.

BERMAN: All right. Jim Acosta at the White House tonight in the midst of the breaking news.

Joining us now, CNN Legal Analyst, Carrie Cordero, also Van Jones, host of "THE VAN JONES SHOW", and a former adviser to President Obama. Also joining us, former Trump campaign adviser Michael Caputo.

Carrie, I want to start with you with Pamela's breaking news. The special counsel's team still wants to talk to the president. So at a minimum, if the president and his legal team thought that was going to go away, it hasn't.

CARRIE CORDERO, CNN LEGAL ANALYST: Yes, well, John, there's a number of things in the investigation that still would be greater informed by the president's actual interview or testimony, in particular, the whole part of the investigation that pertained to obstruction. How the president has tried to obstruct or detail the various investigations that have fallen under the special counsel's pursue. All of those go to his intent and he really is the only person who can provide that information. So, they could use the other information, write up a prosecutive memo, make a determination as to whether or not he has met the elements of that crime.

But he really is the only person who can lend it one way or the other by his own testimony. And then there's other things related to their investigation. For example, the Moscow project, the Trump building deal that has been revealed through some of the Michael Cohen aspect of this case. Whether or not the president knew that a deal was still in the works throughout the campaign. That's an important point. And again, goes to his knowledge.

BERMAN: Van Jones is here with me in New York.

This has been a heck of a week for President Trump. This news comes on top of the president being connected to a felony in legal documents and new witnesses coming forward saying, yeah, he was there. We saw him do it.

This news -- you and I were on the set just minutes before the show started and this broke 30 seconds before we came to air. You looked at this and said, wow, this is not good news for the president.

VAN JONES, FORMER SPECIAL ADVISER TO PRESIDENT OBAMA: It's not good news. There's a context here which we've now just gotten used to. It's important to remind people. Why won't the president sit down and have a conversation with Mueller?

[20:10:02] They could sit down. Most people wouldn't want to do it. They'd lawyer up and get it over with. Bill Clinton figured out a way to do that.

The reality is, everybody knows -- everybody knows that Trump can't talk without lying. Now, this is a massive disability for anybody, let alone the head of a country, that literally his lawyers are terrified that if he opens his mouth, he cannot tell the truth and would wind up going to jail. So now the entire world has to bend around this disability that the president has around the truth. That's just baked into the cake.

Now you move beyond that. You're in a situation where they hoped they'd be able to get rid of this by turning in some paperwork. This is a state of mind question. In this situation, when you're trying to obstruct, you can do the same thing. Nobody says you didn't have the right to do the things he did. The question is, was it right to do it? Was he doing it for the right reasons?

And you only can figure that out in a conversation. So Mueller is not going to let this go. And at some point, I think you'll have president Trump say, I would rather have this thing fought out at the Supreme Court level to determine once and for all whether I can be subpoenaed in a criminal investigation rather than just sit down and do what people do all over the country, all over the world and talk to the prosecutor.

BERMAN: So what is it like to speak to the special counsel and his investigators? We have someone with us who happens to know. Former Trump campaign adviser Michael Caputo who has faced questioning from the special counsel's team.

And to Van's point, Michael, could the president handle it?

MICHAEL CAPUTO, FORMER TRUMP CAMPAIGN AIDE: Well, I don't know any former prosecutor, my attorney or any other attorney, who is working for anybody as a witness or subject or target in this investigation who would say that it's a good idea for the president to sit down with the Mueller team in a Q&A. Not one. And I've talked to many of them.

I think it's a terrible yet, a horrible idea. And as a witness, I volunteer to sit down with the Mueller team and encountered my own perjury trap. You don't have to look any further than how the FBI treated General Flynn to see how they'll likely treat the president of the United States when they created a perjury trap for General Flynn.

I think it's a terrible idea for the president to do it. I would advise him never to even think about it.

BERMAN: Michael, I have to -- I get your point that you don't think the president should sit down for an interview because perhaps he could get caught in a lie but to call what happened to Michael Flynn a perjury trap. Here was man who was a three-star general. Here's a man who was director of the Defense Intelligence Agency who lied to the FBI and should have known that lying to the FBI was against the law. In fact, he admitted to them.

We're going to talk about this later in the show. But I just want to make sure our viewers know, he admitted to the FBI investigators that were talking to him that he knew that they knew what he had said on the phone and that he still chose to tell them lies about --

CORDERO: And, John, John, it's important to clarify that a perjury trap is a specific thing. That's different than when a -- and that's a defense that is asserted by defense counsel. So that's something that a defense counsel would allege the prosecutors were doing. That's very different than a person who is being interviewed and doesn't tell the truth.

BERMAN: Right.

CORDERO: That says something that contravenes what other evidence or other witnesses have provided. So there is no evidence on the public record that indicates that any of the individuals who have been prosecuted, convicted or plead guilty in this case have been caught in any kind of perjury trap.

BERMAN: Carrie, there's one other aspect of Pamela's reporting though I think is worth examining here which is Pamela specifically says that this is the same level of interest the special counsel's team has always had in speaking to the president. And Pamela doesn't have any indication, as we sit here tonight, that the special counsel will take legal action to force the issue. That's significant.

CORDERO: It is, although I'm not sure if it just -- we simply don't know more about what their next step is. I don't have any reason to think that the special counsel would not be willing to litigate a subpoena to the president. This is a case that, obviously, this massive enterprise investigation involves the president, involves his campaign, involves White House officials.

There's no indication, I don't think, that they would not be willing to litigate that. It's, obviously, an issue of constitutional significance. It just means that as far as we know publicly, they haven't reached that step yet.

BERMAN: And, Van Jones, when we talk about the take-home written exam the president had with the written answers directly about Russian collusion, a lot of people made light of it saying this is easy. He has his lawyers answering. They have all the time in the world.

However, now that it's done, there's also a sworn written record that can be tested.

[20:15:01] JONES: Yes, absolutely. And there are some people who thought, hey, they got the president to lock himself in. The four corners of a document. This is true. This is false. This happened. It didn't. Now he's

locked in. And little did we know very soon afterwards, all these people were going to come out with handcuffs and everything else who had things to say that Trump didn't know they were saying.

So it's conceivable -- I know she was saying that -- this has nothing to do with anything. This is a normal thing. All he wants to talk with him.

But there's a scenario in which they've caught him and they do want to talk with him to reconcile the four corners of that document with other evidence they've got and to do that, they're not going to give you another take-home exam. They'll say come in here, buddy, and let me talk to you because what you said on paper does not square in anything else in the known universe of reality.


CORDERO: And just on that -- just on that point of the four corners of the document as Van was saying. The special counsel's office has already prosecuted Michael Cohen for lying in a written document. And in that case, a written document he provided to the Senate Intelligence Committee. But they have actually prosecuted that exact false statements charge.

BERMAN: Mike Caputo, the second thing I that besides oh, wow was, this doesn't sound like the kind of news you hear from an investigation that is days away from being over.

CAPUTO: No, I don't think it's days away from being over. I think this has always been the way we've been going, this has always been a part about getting a gift for resistance Christmas to keep this thing going through the New Year.

I think we're getting closer to the end. I'm also curious. I never thought they weren't going to try to still talk to the president. I'm curious as to whether or not they'll ask questions that come from the Southern District of New York investigation. I think that's very interesting to see if they'll talk about the porn stars and the allegations surrounding that and the Moscow Tower allegations.

I think, you know -- I don't think they're going to give up on this. In the end, I think they'll take this all the way to the Supreme Court. But also, I think there's a lot of questions around what happened with General Flynn.

I think the president owes General Flynn and the American public the opportunity to look at all the FBI documents surrounding this. He should declassify them and release them for everyone to see.

BERMAN: All right. Carrie Cordero, we're going to be back with you shortly.

Michael Caputo and Van Jones, thanks very much.

A quick reminder, New York Senator Kirstin Gillibrand is Van's guest this weekend. See it tomorrow at 7:00 Eastern, right here on CNN.

Next for us tonight, Michael Cohen breaks his silence after learning he'll be spending three years in prison.

Also, the president's TV lawyer weighs in on the felony Cohen pleaded guilty to and that the president is implicated in. What he said is really something.


[20:21:59] BERMAN: Donald Trump's former lawyer and fixer Michael Cohen is speaking out about the crime he committed, in the words of federal prosecutors at the direction of and coordination with the president.

Here's what he told ABC's George Stephanopoulos about the president's involvement in the arrangement with "National Enquirer" publisher David Pecker to buy a woman's story to keep it from the voters.


MICHAEL COHEN, FORMER TRUMP LAWYER: First of all, nothing at the Trump Organization was ever done unless it was run through Mr. Trump. He directed me, as I said in my allocution, and I said as well in the plea. He directed me to make the payments. He directed me to become involved in these matters, including the one with McDougal which was really between him and David Pecker and then David Pecker's counsel.

I just reviewed the documents in order to protect him. I gave loyalty to someone who truthfully does not deserve loyalty.


BERMAN: The president told Fox News yesterday that the crime he's implicated in isn't really a felony. And his TV lawyer Rudy Giuliani said this: Nobody got killed. Nobody got robbed. This was not a big crime, which is news to a lot of New Yorkers who once knew Giuliani as the mayor for whom no crime was too small. Now no big deal. That's so 1994.

And now this is so 1972. That's when CNN Legal Analyst, John Dean did things in coordination with and at the direction of Richard Nixon and he testified about it and changed the course of history. He also saw his motives come under question. The question is: what are parallels with today, and what's different?

John Dean joins us now.

John, thanks so much for being with us.

As you are well aware, Michael Cohen has said he sees himself as a John Dean type of figure. You are the original John Dean type of figure. So, given what we've heard from him today, do you agree with the comparison?

JOHN DEAN, FORMER NIXON WHITE HOUSE COUNSEL: Well, we have some parallels, but some big differences. I happen to be internally in the White House. Tried to blow up and stop the president from covering up.

I tried to get my colleagues to go to the grand jury. I couldn't sell that. I broke rank internally. I was still at the White House, not unlike Don McGahn when dealing with the prosecutors. And that went on for about a month.

They -- when they thought I was going, they didn't believe I was going to tell the truth, and they were kind of shocked when they found out I was being very honest.

But I think there are some parallels. I didn't give a lot of interviews, but a few to refute the president's efforts to discredit me. And so I think that's what we saw today from Michael.

BERMAN: Yes, along those lines, in the book "The Final Days" by Woodward and Bernstein, which chronicles the last days of the Nixon administration, this is what they write about you. To the White House, Dean was the tricky, conniving, bottom-dwelling slug who would drag the president into the cover-up.

You know, bottom-dwelling slug may be different types of language, but in general, it does sound similar to what the president is saying about Michael Cohen, no?

[20:25:03] DEAN: He hasn't read that Joe Alsop's line, I guess. He can probably use it.

And they were trying to discredit me. They were working full time at doing it. I've had some of the people who were there in the years since apologize for what they did. They said they knew they were doing dirty work to try to discredit me and owned up to it. Some never did.

But those were the only times I really did speak out before I formally testified. I didn't give much of anything other than just to defend myself.

BERMAN: And, again, Michael Cohen facing some of the same heat you did.

DEAN: Yes.

BERMAN: So, about all of this today, this is what you wrote. This, what we're seeing today is much more damning than Watergate and it's just getting started. You believe this is already more damning than Watergate?

DEAN: Well, the few sentences that precede that, I noted how we have the president's campaign is under investigation. The president's -- his transition is under investigation. His inauguration is under investigation. His presidency is under investigation. He and his family are under investigation for their foundation and other activities.

That's far broader than anything that happened during Watergate. And those investigations are just starting.

BERMAN: So what are the differences? Nixon played hard ball, still, when the scope of all the charges were brought against him and people associated with him, voters were pretty surprised. This time around, there are people who support the president, especially who give sort of a shrug because they feel that they are well aware of the kind of guy that they voted for.

Is that going to be something in some ways that is -- is a strong suit for him?

DEAN: It could well be. We don't know all the charges that will result here. With Nixon, of course, he was never formally legally charged in a criminal proceeding. He was a draft bill of impeachment was in process, was never formally voted on by the House as a final document of the charging in any way with impeachable offenses, but nevertheless, the thrust of it was clearly obstruction of justice, abuse of power and contempt of Congress were the three general areas of the articles.

Frankly, I'm delighted there was no impeachment trial because I was told I'd be one of the key witnesses. And Nixon, however, I think he left office because he looked at so many people in the eye and told them false stories that he just couldn't -- he just couldn't look them in the eye again and ask them for defense.

BERMAN: John Dean, thanks so much for joining us. Really appreciate it.

DEAN: Thank you.

BERMAN: More breaking news from the Russia investigation next. Later, some mysterious other moves made by the Mueller team today. And all the questions that come with it, including why would it involve clearing out an entire floor of a courthouse in Washington?


[20:31:24] BERMAN: In our last segment we mentioned the dubious claim that a felony isn't really a felony unless someone gets robbed or killed. Now there's a variation on it namely that the felony of lying to the FBI isn't really a felony if the FBI didn't warn you against it ahead of time. Even though you've already pleaded guilty to it.

That's part of the argument attorneys for fired National Security Adviser Michael Flynn have been trying to make as a federal judge gets ready to sentence him. Today, Robert Mueller's team smacked that argument down in a remarkable and revealing sentencing memo to the court. Our Pamela Brown is back with us. She's been going through the memo. Pam, walk us through these documents and what they say about the FBI's investigation of Flynn.

BROWN: Well, it was quite a scolding, John. The special counsel is pushing back, punching back at Michael Flynn's lawyers assertion that the former national security adviser wasn't appropriately warned about the repercussions of lying to the FBI. In this new filing, Mueller's team says Flynn chose to lie weeks before the FBI interviewed him by claiming he did not discuss sanctions with Russian Ambassador Sergey Kislyak. And they made the case his false statements were, quote, voluntary and intentional and noted that the FBI gave him multiple opportunities in the interview to correct his false statements and that he only did so once the FBI laid it out for him, presented to him the exact language that he had used with Kislyak from the phone call during that, you know, the phone conversation.

Now, what it finally notes the FBI didn't think Flynn was being intentionally deceptive at the time, it does say he should know better that lying to the FBI is a crime, and he shouldn't have to be warned. John?

BERMAN: So just to be clear, General Flynn knew the FBI knew what he had told Sergey Kislyak, correct?

BROWN: Yes, so at the last page of this filing, it's pretty remarkable there were notes from Andy McCabe, the then deputy director and McCabe said Flynn told him during the phone conversation that McCabe was probably aware of what the FBI -- of what was said in that conversation with Kislyak. He said to McCabe, well, you probably know what we talked about.

So, this was before he was interviewed by the FBI. So it's unclear and puzzling, frankly, why Flynn would proceed to make false statements in his FBI interview if he thought the FBI knew the truth. Knew what they had discussed.

BERMAN: Puzzling indeed. Why did he lie is still the giant unanswered --


BERMAN: -- question here. Pamela Brown, thanks very much.

BROWN: Thank you.

BERMAN: Joining us now, two top former officials at the FBI, Phil Mudd and Josh Campbell who were special assistant to former FBI Director James Comey. Phil, I want to start with you. There's this notion being put forward by the president that Flynn was somehow convinced into lying by the FBI. Doesn't seem that way from these documents.

PHIL MUDD, CNN COUNTERTERRORISM ANALYST: What do you mean it doesn't seem that way? It's not that way. Let's not dance around this. Let me give you a couple of facts. He already lied before. He had his story down. He lied to Vice President Pence, he lied to Sean Spicer. So, no surprise he walks into the feds and lies again. It's the same story.

Let's remember as well, it's a voluntary conversation. He didn't have to show up. And I close by saying the feds come in and give you a chance to speak. They'll come in and say talk to us about your relationship with the Russians. If he doesn't come clean about what he talked about with Kislyak, they might give him another chance. You had phone calls with Kislyak. Obviously, they know what was in those phone calls. They might have had the transcript. What did you say during those phone calls? He lies again.

Can I say one thing? I've been interviewed, I remember one interview years ago by the FBI when I was approached by a couple lobbyists in Washington, D.C. It turns out those lobbyist were involved in illegal activity and were later convicted.

[20:30:05] The FBI walked in my office. I almost peed my pants. I was at the White House. They said we're involved in a counterintelligence investigation. You know what you do at the other side of the table? You get nervous but look at the feds and say, here's what I know. What else do you want to know? That's it. It's not that hard.

BERMAN: So Josh, the fact that Flynn told McCabe and McCabe probably already knew what Flynn had said. If Flynn knew the FBI knew, why on earth continue to lie?

JOSH CAMBELL, CNN LAW ENFORCEMENT ANALYST: That is the million-dollar question. I think it shows that there's some type of sinister motive afoot here. Because as, you know, Flynn mentioned himself, suggesting that the FBI was already aware of what was said. It's interesting, if you look at someone who was in Michael Flynn's position.

Now in this document today, Robert Mueller lays out the reasons why he should have known lying was wrong. But one thing that's really important for our viewers to understand is when you look at the head of the defense intelligence agency, you look at the national security adviser, roles that Flynn had, he knows the intelligence collection capabilities of the United States government. These are sophisticated techniques that people like Phil and myself would go to jail if we talked about with any specificity but he knows what those capabilities are.

And so going into that conversation, knowing they had the receipts, knowing they had a transcript, knowing they would have been up on a foreign official like the ambassador it leads to that question, why do you sit across from the FBI and lie? Again, we can't draw lines through any of these data points but they're all leading in that direction. Whatever the reason was it was more important for him to keep that a secret and perhaps protect someone than risk himself going to jail.

BERMAN: Phil, you want to jump in?

MUDD: I think it's easier than I'm just going to -- don't disagree with Josh. But I'll give you -- I'm an Occam's razor guy, I think the simplest explanation is often the right one. He'd already lied as I just mentioned to the vice president. If he admits that he's lied, he's done with the biggest job he'll ever have in his life. So he walks in with the feds and says I'm in for a dime, I'm in for a dollar. And then like a lot of people Josh had seen him, I used to him in counterterrorism cases when we had people who are under investigation and lied, they think they can get away with it. So he was stuck and I think he made a simple choice. I'm already stuck. Let me give it a shot.

CAMPBELL: And obviously it didn't pay off for him because Mueller indicated in that document. He didn't go into that interview and slip up and accidentally lie. He started planning these two weeks in advance. And it's important to look at the calendar because the first thing that kicked this off was a "Washington Post" article by David Ignatius where he indicates there was a conversation that the U.S. intelligence community knew about.

And then as Mueller indicates, the next day, Flynn was directing people in the transition team to lie to "The Washington Post," to lie to others. So you see that pattern starting. Again it's very damning for Michael Flynn. I'll say it's something very important for all of us really to understand. I went back and actually did the math.

If you look at Michael Flynn's career, when he started out as a second lieutenant in the United States Army working his way all the way up to lieutenant general and to the national security adviser, 10 times he took an oath to uphold and support and defend the constitution of the United States. And explicit in that oath is your respect for the rule of law. He failed. This isn't something he slipped up and fell into.

BERMAN: Since you brought up the rule of law, Phil, if I can close with one question about what Rudy Giuliani said today where he was talking about campaign finance violations. Felony campaign finance violations. And he said, you know what, nobody got killed. Nobody got robbed. This was not a big crime. As someone who has devoted his life to law enforcement, is that how it works?

MUDD: I think there's two messages here. One is the message beyond the law about what the president should say to a third grader in civics class. And that is you should not only not violate the law, you should live according to the values that we Americans think we should live by every day. Be nice to other people and tell the truth.

So, I would tell Giuliani, who cares about the law. What about telling the truth. Beyond that, let me tell you, I think Giuliani is right. Unless we get beyond campaign finance, I can't believe the Congress of the United States is going to say we're going to come together as Democrats and Republicans and expel the president for money violations. It's got to get worse, I think, for the Congress to get serious.

BERMAN: All right, Phil Mudd, Josh Campbell, thanks for being with us.

Coming up, a Mueller mystery at the courthouse in Washington after an entire floor of the courthouse is shut down, off limits to the public and the press for more than an hour. What do we know about the mysterious scene that played out? That's next.


[20:43:02] BERMAN: The Mueller investigation has been shrouded in mystery. There are no public statements, no telegraphing once they come. But today the level of intrigue was heightened even more as this mystery played out in a Washington courthouse. An entire floor was closed to the press and public for more than an hour. CNN's Senior Justice Correspondent, Evan Perez joins us with more on this Mueller mystery. So Evan, do we have any idea what the heck was going on here?

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Well, we know it has to do with the Mueller investigation. That's about all we know and that's what the mystery remains. That's what's killing us. You know, this is why we have people staking out the courthouse, trying to figure out even for little scraps of information. And that's what happened today. Twenty reporters who were there waiting to see whether or not we could get even a glimpse of the lawyers, they made sure we couldn't even see the lawyers coming in and out of the courthouse today.

BERMAN: So you didn't see anybody? No one saw anyone coming in or going out?

PEREZ: No, we luckily have a team that sits and stakes out the Mueller Office. So we saw Michael Dreeben and another member of the Mueller team heading back to their offices. And so we believe they came from the courthouse.

But, you know, the mystery here is this. Dating back to September, there's been these proceedings in the courtroom of Judge Beryl Howell, who's the chief judge in the D.C. Courthouse. And at least a couple of times, she appears to have ruled against whoever it is who is fighting this grand injury subpoena. And it is gone up through the appeals process. Got sent back down.

And so that's all we know. We simply know it has to do with the Mueller team. We know someone is fighting a grand jury subpoena. We don't know the importance of it, we don't know the substance of that argument.

One time I was -- I happened to be in the courthouse and I followed a couple of the lawyers out to try to see if they would tell me anything. I followed them a couple blocks and they never said a word.

[20:45:00] BERMAN: Nice try. That's what they say to you. How unusual is it to shut down an entire floor of a courthouse like this?

PEREZ: It's very unusual. I mean, this is, you know, this is the kind of thing you do maybe for security purposes if you have a terrorism trial. You know, you have some security concerns. In this case, they shut down the entire floor. As a matter of fact, one of our reporters got stuck in the elevator trying to get out on the fifth floor just to see if we could sneak a peek. They even made sure they sealed off the stairwell. So, I mean, everything that reporters were thinking that they could try to get at least a glimpse, they were blocked from.

BERMAN: It's like intrigue on top of mystery. All right, Evan Perez, thanks very much. Back with me is Carrie Cordero, former Counsel to the U.S. Assistant

Attorney General for National Security. And Carrie, talk about a covert operation here. They shut down the stairwells, locked reporters in elevators. Any clues that jump out to you?

CORDERO: Well, you know, grand jury -- if what Evan is reporting is correct which is this is related in some way to an appeal of an issue regarding what was brought before the grand jury, grand jury has the highest secrecy related measures.

And so they -- it is under the federal rules of criminal procedure that grand jury matters have to be kept secret. And obviously, because of whatever would be the heightened interest in this particular issue that's before the court, they felt that it was necessary. The court security officials and the prosecutors and the team involved in this at the court felt it was necessary to take extra measures.

BERMAN: So any sense to you that this might have something to do with the white house or national security issue?

CORDERO: Well, it's hard to say. Because it's grand jury and because our reporting is that it's related to the special counsel's investigation, I am inclined to think, based on what we know, that it may be a subpoena fight involving at least somebody in the White House where there is an important issue that's being challenged.

So, for example, the presence of Michael Dreeben who is a constitutional lawyer came to the Special Counsel's Office from the Solicitor General's Office. Nonpartisan career justice department, attention to legal detail. His presence, if those two things go to together, as Evan reported, would indicate that maybe this -- the issue they are litigating is a matter of constitutional significance. So that could be potentially a subpoena to the president to testify. That could be or produce records. That could be a subpoena or order to the White House where maybe they are litigating some issue of executive privilege or something along those lines.

BERMAN: The thing that's interesting is there have been no leaks from the special counsel's team but a ton of leaks from the president's legal team. More than leaks. The president's legal team often just tells us what it's doing in terms of the Special Counsel's Office which leads me to believe or wonder if this does have to do directly with the president or the White House. Wouldn't it have leaked?

CORDERO: No. Because grand jury secrecy they can be held in contempt. So grand jury rules are so severe that if somebody, no lawyer who wants to continue to practice law is going to leak information, no matter how sort of publicly interesting this case is. They are not going to leak information regarding the grand jury.

BERMAN: So, Dreeben, you mentioned Michael Dreeben, which is the one will tip we got. He was seen in and around. Is there anything he works for, for the special counsel? Any sign of his presence that tells us what type of subject it might be? CORDERO: Well, again, because he came from the Solicitor General's

Office. So, my sense of the case is that he's working on matters that pertain to constitutional issues. So again, trying to extrapolate from the little tidbits that we know it may be an issue regarding executive privilege. It could be a significant issue like subpoenaing the president, which, of course, is a novel issue of law and, in that case, will probably go up to the Supreme Court. So it could be, I think, a significant legal issue if he's present on it and combined with the amount of secrecy they put on this particular appellate hearing.

BERMAN: Finally, Carrie, very quickly, have you ever seen anything like this?

CORDERO: Well, you know, I come from the national security side and so, certainly, you know, there's extra measures taken on that side. But this does look unusual for a typical type of proceeding. But, of course, normally in cases, there are not reporters staking out stairwells.

BERMAN: Normally. We're good at that kind of stuff, though. Carrie Cordero, thank you so much for being with us.

CORDERO: Sure. Thanks.

BERMAN: Up next, breaking news just in on the Affordable Care Act and a new court ruling on whether the central part of it is constitutional.

Also President Trump and allies say his potential legal trouble over the hush money to two former alleged mistresses is nothing, no biggie. They point to the acquittal of former presidential candidate John Edwards. But others in Washington say, hold on. That is -- this is a bad comparison, and it's weak. I'm going to speak to one of the folks saying that, next.


[20:54:09] BERMAN: No shortage of breaking news tonight, including this. It concerns the Affordable Care Act, the Obamacare. Just moments ago a federal judge in Texas said that the law's individual coverage mandate is unconstitutional and that because it was taken out in the tax bill, the rest of the law must also fall. So, we know the Supreme Court is already upheld key provisions on the Affordable Care Act several occasions, but with new members it is an open question if and when this latest case goes all the way to the top. We'll have much on this as the night and days continue.

Now back to the potential legal trouble for President Trump. Defenders of the president are quick to compare questions over hush money payments over two alleged former mistresses that he denies, the compare to the case of one person, former senator and presidential candidate John Edwards.

Back in 2011, Edwards was indicted on six counts related to allegations he accepted illegal campaign contributions to cover up an extramarital affair and hide his mistress from the public during the 2008 election.

[20:55:09] The president's allies have argued any possible case against the president would end like the Edwards case, without a conviction. He was acquitted on one charge and there was a hung jury on the other.

But, folks, look at this now and say hold on. This is serious stuff. This is the argument laid out in a Washington Post op-ed today. "The campaign finance violations here are the most important ever in the history of this nation given the razor thin win by Trump and the timing of the crimes. They very well may have swung a presidential election." Those words were written by Neal Katyal, the former acting solicitor general of the Obama Administration, also George Conway, a critic of the president. He was also the husband of Trump White House Senior Adviser Kellyanne Conway, and Trevor Potter, who is appointed by former president George H.W. Bush to lead the federal election commission. A guy who knows a lot of the rules tied to campaign financing.

One of these men joins me now, Neal Katyal. So Neal, you wrote an entire op-ed with George Conway and Trevor Potter, looking at the Edwards case and comparing it to this. I won't make you go through the whole thing word for word, but basically speaking, the main points, why do you see this case as stronger than the one against John Edwards.

NEAL KATYAL, FORMER ACTING SOLICITOR GENERAL, OBAMA ADMINISTRATION: We actually think the Edwards case boomerangs on the president. And so we think it was a mistake for Rudy Giuliani to invoke it. And the reasons are three-fold. Number one, that court in the Edwards case actually said, when you look at it, that it is a federal felony to take hush money if one of the purposes of that hush money was to influence the campaign.

BERMAN: One of the purposes, not -- the key thing here is one of the purposes, not the only purpose, correct?

KATYAL: One of not -- exactly. So even when the president says things like or his defenders say, oh, it was done for personal reasons because to embarrass -- void embarrassment to his wife or whatever, that doesn't get him out of the Edwards precedent, which as you say, one of the purposes being to influence an election.

Number two, the documentary evidence here and the witnesses in the Trump investigation are very, very different than the 101-year-old key witnesses who couldn't even show up in the Edwards trial. And here you also have shell corporations and all sorts of fraudulent payments and records being adduced. So you have that problem.

And then number three is the timing. So, these payments that Trump caused to be made were made days before the 2016 election. These two affairs he had were in 2006, a full decade before. Now, it just strains a lot of credulity to think that, oh, all of a sudden he's worried about protecting his wife and family when particularly one of them is Daniels, actually 2011 had gone public and had all sorts of stuff back then and there was no offer of hush money or anything like that.

BERMAN: Orrin Hatch, senator from Utah, a couple days ago he looked at all of this and basically said I don't care. The argument being this isn't a serious crime. Hatch has since come back today and said he regrets that. But what about the argument that he and others were making, that basically a lot of candidates do this type of thing. Would that hold any merit in a court of law?

KATYAL: Look, no. I can't imagine anything more despicable than what Orrin Hatch said. And one of the reasons we wrote that piece, all three of us shared a common interest in making sure that Americans don't listen to that, you know, garbage because that's what it was and I was glad to say he repudiated it. In America we live under the rule of law. And we don't sit there and make excuses for federal felons and say, oh, other people are doing it, too.

I mean, first of all, other people aren't doing it. I mean, this is a brazen campaign finance violation of a magnitude that we haven't seen. And, second, even if other people are doing it, I mean that's the kind of defense you use in kindergarten. That is not the defense you use for any grown adult. Let alone the president of the United States who takes an oath to uphold the constitution and laws of the United States.

BERMAN: And Rudy Giuliani just today said it wasn't "a big crime like murder or robbery. No one got killed. No one got robbed." The co- author of your piece George Conway wrote, after that, he said, "I do solemnly swear affirm that I will faithfully execute the Office of President of the United States and will to the best of my ability preserve, protect and defense the constitution of the U.S. except where nobody gets killed or robbed."

His point is basically that a crime is a crime is a crime, correct?

KATYAL: Exactly. I think you see through George's tweet a commonality, again, between he and I. Even though we come from very, very different sides of the aisle, but a common belief, a core belief in the rule of law in America. And, you know, that's a belief that Rudy Giuliani himself shared as a prosecutor. I don't think he was only putting murderers behind bars. I mean there are whole, you know, series of other federal crimes. I mean whole statue books that are being enforced everyday.

And it would turn our nation upside-down to adopt Giuliani's new position.

BERMAN: Neal Katyal, thank you very much.

KATYAL: Thank you.

BERMAN: The news continues so I now hand it over to Chris Cuomo. CUOMO PRIME TIME starts now.