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Pres. Trump to Flynn: "Good Luck"; White House: Flynn was "Ambushed" by FBI, Flynn Says He Wasn't. Aired on 8-9p ET

Aired December 18, 2018 - 20:00   ET


[20:00:09] JOHN BERMAN, CNN HOST: A judge today all but called him a traitor. The president today wished him well. The question is, why? That's not the only one.

John Berman here in for Anderson. This was supposed to be sentencing day for fired national security adviser Michael Flynn, who pleaded guilty to several felonies including lying to the FBI about contact with Russians during the transition. Almost everyone thought this would be simple, in, out, no jail time.

A small number, the president's most ardent supporters, did hope this would be the moment Flynn would take a stand, play victim to unfair prosecution and back out of his plea deal. None of that happened. Not even close.

But before all the surprises, the president tweeted this: Good luck today in court to General Michael Flynn. It will be interesting to see what he has to say despite tremendous pressure being put on him about Russian collusion in our great and obviously highly successful political campaign.

Now, we'll try to divine what he meant there and contrast his good luck and his gentle treatment of Flynn with that of Michael Cohen, who was also cooperating with investigators. But before we do, keeping them honest, in all the noise you've been hearing today I just want to put up this presidential tweet from about a year ago.

I had to fire General Flynn because he lied to the vice president and the FBI. He has pled guilty to those lies.

President Trump himself a year ago saying he fired General Flynn for lying to the FBI, acknowledging his guilty plea. And today, Flynn reaffirmed it. He did not complain, as the administration has, about FBI entrapment, an argument by the way that General Flynn rejected when asked by the judge today and his attorneys.

But if that weren't drama enough, Judge Sullivan rebuked Flynn saying with respect to other charges, arguably you sold your country out. Now, he later walked that back, and he put off sentencing until March.

So, quite a day. Not a good one for claiming anyone claiming, as the White House did, that Flynn was ambushed by the FBI. Yet when asked about it this afternoon, this is what Sarah Sanders said.

(BEGIN VIDEO CLIP) SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY: Those are facts, and certainly there may be other issues there, but that we don't have any reason to want to walk that back.


BERMAN: Wait, what? Was that some sort of attempted Jedi mind trick? Because General Flynn himself today blew a hole straight through the claim that Sanders and those around her were making.

Flynn wasn't ambushed by the FBI. He wasn't trapped. He said so himself today.

And Sarah Sanders, the Sarah Sanders who last week said she wanted her legacy to be honesty and transparency, said she didn't see any reason to walk back her false claims. Those are not the droids you're looking for.

Anyway, that element was not the only intriguing part of the day. As you might know, Michael Flynn has been offering in Robert Mueller's words substantial cooperation. But the president has kind words for him. Michael Cohen is cooperating as well, yet as you also know the president is lobbing tweets like this at him.

Remember Michael Cohen only became a rat after the FBI did something which was absolutely unthinkable and unheard of until the witch hunt was illegally started.

Now, you might be wondering why does one cooperator get good luck from the president and the other get good riddance? Keeping them honest, you wouldn't be alone.


JOSH DAWSEY, THE WASHINGTON POST: He seems to be concerned that Michael Cohen is a liar. Is he concerned that one of his top aides lied to the FBI and was working for a foreign government?

SANDERS: Not when it comes to things that have anything to do with the president. The activities that he has said to -- and again, we'll let the court make that determination -- to have engaged in don't have anything to do with the president.

DAWSEY: Is the president concerned that Michael Flynn lied to a representative of his own government and was working for another government during the campaign? Does that concern him or not?

SANDERS: There's certainly concern, but that's something for the court to make that determination and we'll let them do that.

DAWSEY: He's made positive comments about this when he pleaded to this.

SANDERS: Again, we're going to let the court play that out and they'll make a determination on whether he engaged in something right or wrong. (END VIDEO CLIP)

BERMAN: OK. First off, the court has made a determination about right or wrong. Flynn pleaded guilty. The judge accepted his plea.

When Sarah Sanders was asked today again and again and again about what makes Michael Flynn different from Michael Cohen to her boss, she had no good answer, which did not go unnoticed in the briefing room on her way out the door.


SANDERS: Thanks, guys.

REPORTER: Do your job, Sarah.


BERMAN: More now on some of those unanswered questions about why Michael Flynn seems to be getting kid glove treatment from the president and the White House's inability to say why.

Joining us for that, strategic analyst and author, retired Army Lieutenant Colonel Ralph Peters.

Colonel, thank you so much for being with us. I appreciate it.


BERMAN: Let's set aside the legal aspects of this for a second, what do you make of the president preemptively urging Michael Flynn good luck today?

[20:05:03] Does that make any sense to you?

PETERS: I think he's dangling a pardon. But also, if you look at the disparity between the treatment of Cohen and the treatment of Flynn, it suggests to me as a former intelligence officer that Flynn knows things that are even more damaging potentially to Trump than Cohen does.

And again, looking at it, reading the externals, as it were, it would appear to me that Flynn was the messenger boy. He was the conduit between Igor, Ivan X and the president. And we shall see what emerges from the Mueller investigation.

But there's clearly more to this, John, than we know and Mueller is sitting on a volcano.

BERMAN: So, your analysis from what you see based on your experience is you think the president is treating Michael Flynn differently because he has to?

PETERS: Well, he feels that he has to. President Trump is not a generous man. You saw the decision in New York today about his charities. He doesn't give freebies to much of anybody.

Here's Mike Flynn, who in the past as you just pointed out, he called General Flynn out for lying. And suddenly Flynn's not so bad, Flynn's OK. I think he may have had second thoughts, may have realized that there are probably conversations between Flynn and Trump, with nobody else there, and quite possibly conversations involving the Russians.

So, again, all this is speculation, John. We need to see where it goes, but I will tell you this. That today a judge in Washington, D.C., stood up for our country. He spanked everybody in Washington.

He was telling everybody with those angry remarks -- yes, he had to walk some back. But he was angry, and it was refreshing to see someone in Washington in genuine anger, not calculated anger. Someone who really cares about this country and who reminded even Robert Mueller, whom I admire enormously, reminded even Mueller of the seriousness, the gravity of Flynn's offenses.

Here's a former three-star general who in the judge's words appears to have sold our country out. It certainly appears that way to me, but I have a very high standard when it comes to military officers. So, I felt we should all be proud of our judicial system today, and also what happened in New York.

But the judges -- you know, the judges came through. You know the good news in all of this is although it can be frustratingly slow to some, our system of government works and those who need to be held accountable will be held accountable.

And I have to wonder about Judge Sullivan, who's my new hero. He's a D.C. guy. He went to Howard University. He's seen the grave disparities in D.C. and disparities in treatment. I wonder if it didn't rub him the wrong way to know that a young punk steals a car, wrecks, it goes to jail. A three-star general sells out his country and walks.

BERMAN: All right. Let me see if I can get a few questions in and break down just a little bit what you said. First, to be clear, we do not know what Michael Flynn has testified he talked to the president about when it comes to Russia.

PETERS: Yes, of course.

BERMAN: We may learn more about that. The judge may know more about that because maybe there's something in those large redacted sections of the legal documents that have been submitted. Again, we simply don't know.

To the issue of selling out the country, the judge, Judge Sullivan, the man you call your hero, he had to sort of back off that a bit. He had to back off that because it turned out Michael Flynn wasn't doing more for Turkey when he was national security adviser. He didn't back off it much. He still said he was disgusted, but backed off a bit, and used the word "treason."

Now, there are some people who thought it went too far when he asked if Michael Flynn committed treason. Do you think he went too far when he raised the question?

PETERS: No, I don't think he went too far. We have gotten too blase about this. Whether it's selling your country or giving away your country or lying about your country, defrauding the country -- choose your words. There's a dictionary full of adjectives we can use. Throw in some adverbs as well.

But the bottom line is this. Mike Flynn betrayed his trust as an officer, as an intelligence officer, an army officer, a high government official, who aspired to be and briefly was national security adviser. You know, everybody's focusing on Turkey right now. That's a sideshow, the whole Trump affair, at the bottom of all this. Despite the other evidences of corruption in the Trump mob and Trump empire, it all comes down to Russia, Russia, Russia.

Mike Flynn, for me as a former officer, who believes military officers must subscribe to a much higher level of ethics than you see in Washington, D.C. on a daily basis, for him to have taken money essentially from Vladimir Putin, from Russian television, which is Vladimir Putin.

[20:10:03] For him to have collaborated as he appears to have done with the Russians, that for me is the grave concern. By the way, clearly as you observed, John, the judge today saw things we haven't seen, and it made him angry, and I trust the judiciary.

BERMAN: Very quickly, one unanswered question from today and all the documents is why Michael Flynn lied about his conversations with Ambassador Kislyak. Do you have any thoughts about perhaps why he lied?

PETERS: Because he thought he could get away with it, because it was an easy way. Because he -- he'd been a golden boy.

Mike was a brilliant soldier. He did terrific work in Afghanistan and Iraq. There's no taking that away from him. He can be proud of that.

But he needs to be ashamed of what he did afterward and he needs to be punished for. And there's a saying in the military which I will clean up for the television audience. One aw-shucks cancels 100 attaboys.

BERMAN: Colonel Ralph Peters, thanks very much for being with us. I appreciate it and thank you for cleaning it up.

PETERS: Thank you, John.

BERMAN: All right. A bit more now on Judge Sullivan's background. He's been appointed to several seats on the bench first by President Reagan then George W. Bush -- George H.W. Bush I should say, and Bill Clinton.

Joining us now is CNN chief legal analyst and former federal prosecutor Jeff Toobin, also "USA Today" columnist and CNN political analyst Kirsten Powers. Plus, former senator and Republican presidential candidate Rick Santorum. Jeffrey Toobin, this was not the day we were expecting. Really. We

were expecting it to be basic. Robert Mueller's team called for basically no jail time. We thought this would be short. That's not what happened.

So what did happen?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: I think those of us who have been following these stories, we perhaps have become too cynical. And we have become used to the fact that, well, of course people around Donald Trump lie, of course they get rewarded for cooperating by Robert Mueller. And Judge Sullivan, who is not involved in this day to day, said wait a second, this guy should not get away with lying to the FBI given who he is, given his background, given the stakes here, and Robert Mueller shouldn't be so quick to reward him for cooperating given the magnitude of his crimes.

Now, it sounds to me like at the end of the day, he's not going to get jail time. But everybody minimizing his crime, both Mueller and his own lawyers, who made a terrible mistake by saying, well, you know, he wasn't really prepared and you know -- I mean, making excuses about the surrounding circumstances. None of them understood the basic moral outrage that Judge Sullivan was going to bring to the proceedings.

BERMAN: He may ultimately get no jail time, but Judge Sullivan all but told us that if he were to sentence Michael Flynn today he would have given him jail time.

TOOBIN: He didn't do it but he might have.

BERMAN: So, Senator Santorum, you heard Colonel Peters earlier, who sound equally disgusted by Michael Flynn's behavior as Judge Sullivan told the world, that he was today. Are you disgusted by Michael Flynn's behavior lying to the FBI?

RICK SANTORUM (R), FORMER PRESIDENTIAL CANDIDATE: You know, if you take Michael Flynn at his word in front of the judge, that he knew he was lying and deliberately lied -- again, I don't understand why he would have, it doesn't make sense to me. But, again, if you just take the face value of what Michael Flynn said in that courtroom, I think the judge had every right to be upset and to say -- well, I don't think it was treason, but I do believe it's a serious offense. If you did that knowingly, you should -- obviously should know better, so I can understand the way the judge reacted.

BERMAN: Can you understand, then, if the judge reacted that way, and you say you shared that feeling, not the treason part, do you think the White House is taking the right attitude here, which is to wish General Flynn luck?

SANTORUM: I don't know. I mean, this is one of these things -- I listened to Ralph. I like Ralph, but, you know, the conspiracy theories flying and they continue to fly all day long around here.

We don't know. I wish I knew the context of why General Flynn did what he did, because on the face of it, it just doesn't make any sense that a man who probably knew that they listened to the conversation and probably knew that he said what he said, would lie about something like that when the other side knew the information. So, again, there's more context, maybe the White House knows that and is trying to influence somehow. I don't know.

None of this makes sense. I just can't wait for the Mueller -- this Mueller report to come out so some of the pieces start to fit together.

BERMAN: You want to see the next chapter in this book.

One of the mysteries that Senator Santorum was bringing up, Kirsten, is why Michael Flynn lied. No one has a good answer for that. And we don't have an answer for Michael Flynn on that yet.

The other odd question today is why the president is treating Michael Flynn like his, you know, long lost friend and pal and hero?

[20:15:00] Good luck, pal, you're going to plead guilty for lying to the FBI. Wish you luck.

Why he's treating Michael Flynn like that and why he's calling Michael Cohen a rat. Why the discrepancy?

KIRSTEN POWERS, CNN POLITICAL ANALYST: Well, the president's always self-motivated. So he must believe that he's going to get something out of doing that and perhaps he's dangling the idea that there could be a pardon. It's unspoken. But, you know, that's the only reason he would do something. He doesn't -- there's nothing else that motivates him that I can think of.

But when we say why would he lie about these things? Well, people lie usually for one reason and that's to cover up something they don't want people to find out about. So -- and they usually do it because they think they're going get away with it.

So I'm just going to go with that. I'm going to assume there's a reason that he doesn't want to be honest about this and that there's probably some pretty damning information here and that for some reason he thought he could get away with it. And then you add in that they were attacking the FBI, they walked that back.

But to me that's clearly sending a message to the president, who loves to attack the FBI and to claim this conduct on behalf of the FBI, no matter how absurd it seems, that we were supposed to believe that this general wouldn't know that you're not supposed to lie to the FBI. Nonetheless, they made that accusation.

BERMAN: Senator Santorum, you disagree?

SANTORUM: Look, it just -- it's inconceivable to me that General Flynn, as an intelligence officer sitting down with the FBI, as you read these -- the 302, the report that the FBI did, I mean, they were sort of coaching him. You remember this, sort of prompting his recollection, because they knew what the conversation was. I mean, and he had to know. And I think he even made a comment that

you probably have heard this or something. So that's why this doesn't make any sense. I mean, why would you lie when they know that you're lying?

It just -- again, the only thing that makes sense to me on the face of it was, well, maybe he forgot. But now he stepped in front of 'judge and said, nope, I lied and I intended to. None of it makes sense to me.

TOOBIN: You know, I share Rick's mystification about why he lied. But it is worth remembering what is it that everyone involved in the Trump campaign keeps lying about? Russia, dealings with Russia.

Jeff Sessions can't remember who he dealt with with Russia. You know, Jared Kushner can't remember.

There's this constant failure to acknowledge the relationship between the Trump campaign and Russia. Is that because something improper went on there? That's certainly a reasonable implication, when people lie about things they're not supposed to do.

That is the best explanation I can come up with. But, certainly, Michael Flynn's behavior when he was talking to the FBI is deeply inexplicable.

BERMAN: You know, Kirsten, I'd like to say I was surprised --

POWERS: Jeffrey --

BERMAN: Go ahead, Kirsten.

POWERS: I'm just wondering, though, isn't it possible that they're lying in the hopes that they're going to get pardoned by Donald Trump? By doing -- trying to cover up for him.

TOOBIN: Well, I don't think in January of 2017, last year, sitting in the White House, a newly appointed national security adviser, Michael Flynn is thinking, well, I'm going to lie, plead guilty and then get a pardon. I don't think people think that far in advance. That's very hard for me to believe.

Today, he might want a pardon and today, I would say he's a pretty good bet to get a pardon. But I don't think that was the original motivation to lie.

SANTORUM: Yes, the other thing, Kirsten, is he's lying about something they already know. He said did you say this to the -- to Kislyak. And the answer is no, I didn't. But they knew he did.

So he's not withholding information. I mean, they had the information. That's why this doesn't make any sense.

BERMAN: I want to get one last question in to Kirsten here. Given all of this and given the fact that if you read the 302, it's pretty clear that Flynn wasn't ambushed, given that mike Michael Flynn himself wasn't ambushed and his lawyers said he was not ambushed by FBI agents. I'd like to say I was surprised that Sarah Sanders continued that line of attack today. But I guess I'm not.

POWERS: I love that you can still be surprised. I think that's amazing. That's just -- I mean, this is kind of what she does, isn't it? I'm not even remotely surprised.

BERMAN: At a certain point, though, I mean, are we going to start seeing higher membership of the Senate Judiciary Committee, Kirsten, rise up and say, wait a second, Mr. President, Michael Flynn told us he wasn't ambushed, you shouldn't be saying this and Sarah Sanders shouldn't be saying this from the press room?

POWERS: I don't think so. I mean, I think it's pretty clear that people aren't -- at least Republicans aren't interested in particularly challenging this White House and that's why I think that Sarah Sanders can keep doubling down on these kinds of things, because there's no accountability.

[20:20:04] And I think -- I'm totally serious when I say I'm glad you can still be surprised because I think it is important to still hold people to standards but this is just kind of the way it is with her.

TOOBIN: You may not be surprised. Kirsten may not be surprised. But Judge Sullivan was surprised.

And that's what's different, is that he doesn't have the cynicism of dealing with this every day and he was uncynical enough to be appalled by General Kelly's behavior.

BERMAN: I think all four of us --

TOOBIN: General Flynn.

BERMAN: I think all four of us saw Judge Sullivan was looking at this much differently than people have on television and elsewhere in the last several months.

Jeffrey Toobin, Kirsten Powers, Rick Santorum, thanks very much.

And on this very note, next stop at the White House. More on how this is playing out there.

Later, the end of President Trump's charity and some of the truly disgusting allegations surrounding it.


(20:23:47] BERMAN: We were talking about what it was like inside the courtroom as former top adviser to the president in one of his most highly trusted positions there got a blistering rebuke from the judge but not yet a sentence for his crimes. And at the top of the program, you saw how the administration's top spokeswoman dealt with questions about it or failed to as the case may be.

More now on a pressure packed day from CNN's Jim Acosta who joins us now from the White House.

Jim, what does it tell you we actually haven't heard from the president himself since Michael Flynn left the court?

JIM ACOSTA, CNN CHIEF WHITE HOUSE CORRESPONDENT: John, I think that's interesting, though he did tweet about the wall and how he wants a wall on the border, despite the fact that they seem to be giving up on getting funding for the wall in this showdown with Congress over a possible shutdown.

But yes, I do think it is notable that the president didn't weigh in when he started off the day wishing General Flynn good luck. Obviously, the luck did not turn out the way the White House had hoped when they heard Michael Flynn -- or at least heard tweets coming out of the courthouse that Michael Flynn basically said he knew he was committing a crime when he was lying to federal investigators and that his legal team said no, their client was not being harassed and entrapped when he was being questioned by federal investigators.

[20:25:03] That ran completely contrary to what the White House was saying.

John, we should point out the White House -- that briefing that they had today with Sarah Sanders lasted only about 14 minutes. That was four minutes longer than a segment she had on a conservative news outlet earlier today. So, there wasn't a whole lot of time for answers but at the same time they were trying to make the case that it was OK for -- essentially OK for Michael Flynn to lie in this investigation whereas Michael Cohen is a rat.

That is obviously tough sledding any day in a White House briefing, especially this White House.

BERMAN: Yes, it's hard to understand that distinction. It's one of those areas we've been asking as much as we can to try to figure out what's going on there.

When it comes to Michael Flynn, I believe the White House legal team, just like everyone else that he would go into that courtroom, probably get no sentence, and walk out. Now, no sentencing for at least three more months. So, what kind of pressure does this put on this White House, dealing with so much?

ACOSTA: My guess, John, is what you're going to hear over the next three months. We did not get a chance to ask this question today. But I believe this question is going to come and it's going to come over and over again for this president. That is whether or not he's contemplating a pardon for Michael Flynn.

What we saw from Michael Flynn today and it was surprising coming out of the courthouse, that essentially the White House had no plan B from a messaging standpoint. They said, OK, we believe Michael Flynn was bullied, he was entrapped and so on. And then when that blew up in their faces, now they're left with the pressure that comes from looking at redacted court filings from the special counsel's office and so on. I would have to expect that that is going to weigh down on people

inside the White House, most notably the president. But when I talked to a source close to the White House earlier this evening, an outside adviser, there is still a strong belief inside Trump world that Michael Flynn does not hurt Donald Trump, that the crimes that Michael Flynn is pleading guilty to have to do with lying to federal investigators, that collusion with Russia was not proven and even though there are all those redacted sections in those court documents, at least inside Trump world, there's not -- panic has not set in in thinking oh, my goodness, Michael Flynn just gave up Donald Trump, they've now proven collusion.

There is some confidence, at least tonight, can't say this moving forward, but at least tonight that they haven't made that link just yet.

BERMAN: All right. Jim Acosta for us at the White House -- great to have you on. Thanks so much.

ACOSTA: You bet.

BERMAN: So, Kenneth Starr no stranger to moments like this. As independent counsel, Starr led the investigation which led to the impeachment on President Clinton.

Now, his comments on Fox News about a few of the multiple investigations of the president have gotten the attention of, you guessed it, the president, who tweeted: Judge Ken Starr, former solicitor general and independent counsel, just stated that after two years, there is no evidence or proof of collusion and further that there is no evidence that there was a campaign financing violation involving the president. Thank you, Judge.

Now, Ken Starr, I should note, has a book out "Contempt: A Memoir of the Clinton Investigation" and most importantly he joins me now.

Judge, thanks so much for being with us.


BERMAN: So, I've had the chance to talk to you a lot, usually in the morning, not at night. Nice to see you without the bags under my eyes.

STARR: After sunset.

BERMAN: Yes, after sunset.

Listen, I know that you have said that you have not seen any evidence of collusion yet. I also know, which maybe the president has missed, you've also said there may be a lot that you haven't seen.

STARR: Absolutely.

BERMAN: And you've also said that Robert Mueller is a man of high integrity and you trust him to conduct a thorough investigation.

STARR: Yes. And I haven't changed my position.

No, I've known John, as I think you know, Bob Mueller for a long time. I have questioned his judgment in terms of some of the people around him, but I know him to be a person of absolute integrity and he's going to be out to get the truth as quickly, as efficiently as he can.

So what happened today in Washington, D.C., those dramatic moments in Judge Sullivan's courtroom -- and by the way, I know Judge Sullivan. I know him to be a man of great honor, tremendous experience, very high integrity -- is in its own way a testament to the Bob Mueller investigation even though, even though sentencing didn't occur today. That's a huge setback, obviously, above all for General Flynn.

But in a way, it's a setback for Bob Mueller as well. You've got a deal and you want to go for it and you want it to even though, even though sentencing didn't occur today.

BERMAN: Why is that a setback? What impact does it have going forward?

STARR: Well, it shows that the judge was not prepared to go forward or at least there was fear that he was not going to accept the recommendation. Prosecutors look to judges to listen to their recommendation with respect, and the judge apparently may not have been ready to accept Bob Mueller's recommendation.

BERMAN: I guess I was trying to figure out why it would be a setback for Mueller. Would it be because if Mueller's trying to dangle a deal in front of someone else they'll be like you know, what you promised me no jail time but all these judges, they're not believing you.

STARR: I think that's a little remote. You just work these cases so that you have a deal and you want the deal to be consummated and you want it to go smoothly in court.

[20:30:00] Other witnesses can have confidence in you and that the judges have confident in you. You didn't have that today. I'm not saying there was a vote of no confidence. I'm just saying the thing to not go today the way Bob Mueller wanted it to go and that's a setback.

JOHN BERMAN, CNN ANCHOR: Back to the idea of collusion and the President referencing you in his public statements on Twitter, to be clear, he is using you to claim exoneration. You don't think he has been yet exonerated.

STARR: Right. We don't have to get all the evidence, so I've been consistent on this. Let's gather all the evidence, which I think Bob Mueller is doing. Let's assess it, evaluate it. I think what has been proven at least in-charge indictments and there's a presumption of innocence, is enormous, the Russian interference.

And the more the data come in, the more we see that the Russians at very high levels were interfering with the American Democratic process and that's unconscionable. But what we have not seen, then, is the next step of collusion or conspiracies between the Trump campaign and these Russian operatives.

BERMAN: Do you think the administration has taken the Russian interference, the Russian attacks seriously enough as a citizen?

STARR: Oh, no. I think that -- well, the administration -- there's been a difference between what the administration has done, including imposing sanctions. And I have said publicly, I wish the President would stop in any way suggesting that there's a slightest doubt about what our intelligence agencies have concluded and what the evidence of the Mueller investigation is also pointing to, which is Russian interference.

BERMAN: So you've been in the legal business for a long time, a lot of time as a prosecutor as well. When the President keeps referring to Michael Flynn as a rat for cooperating with federal prosecutors, how does that term strike you?

STARR: I think it's unwise and unfortunate. The President is there in his official capacity to uphold the law. And so I think using those kinds of terms which are -- shall I say not typically coming out of any White House, is unwise.

BERMAN: Unwise politically or unwise factually?

STARR: No, unwise in terms of his duties to enforce the law and to be an example of we have a rule of law country. We're not like Russia. We have a rule of law country. We saw that today with the checks and balances of Judge Sullivan. I do think Judge Sullivan got, I will say this, a little carried away, but he's a very wise man.

He brought himself back. He used the "T" word. He used treason. I don't think -- I disagree with what was said earlier in the program. I don't think that was called for at all. In fact, I was stunned by that.

But the -- going back to chambers, the judge caught himself. I think he was so offended by this very high-ranking official doing what he did do, which is lying to the FBI and also then violating the law with respect to his representation to Turkey, he was deeply offended by what the general had done.

BERMAN: Judge Ken Starr after sunset, thank you so much staying here. Great to have here. Appreciate it.

STARR: Thank you, John.

BERMAN: Up next, this could really be something, breaking news in the fight over President Trump's tax returns.


[20:36:34] BERMAN: All right, this just in. CNN's Dana Bash just spoke with the President's T.V. lawyer, Rudy Giuliani, about Democratic efforts to go after the President's tax returns. And he just told Dana, Giuliani did, that the administration is ready for a court fight on it.

Quoting Giuliani now, "They have to have a reason for wanting them and I fail to see a reason. They can't just look at them. It has to be linked to some wrongdoing." He continued, "We will fight it in court and I think we would win unless they had some specific allegation." Look for plenty more on this, perhaps, coming down the road.

I want to dig deeper now for someone who knows what it's like to seek answers from this administration, Maine's Independent Senator Angus King. He spent more a sheer of time on it in his capacity on the intelligence committee where he caucuses with the Democrats. Senator King, thank you so much for being with us. We just got this news. Dana just talked to Rudy Giuliani, so it's new to me, it's new to you.


BERMAN: What do you make of this? What do you make of Giuliani's argument that the Democrats don't have a reason to get the President's tax returns?

KING: Well, I think the first thing to say is I hope you never refer to me as a T.V. lawyer, I like that. That was a nice note there. No, I think -- I don't think anybody is talking about going after the President's tax returns just as a fishing expedition. I think there are going to be a number of investigations in the House and there may be some rules under which getting the tax returns are appropriate and we'll just have to see how that it plays out in the House.

It is curious that this President is the only -- even candidate for president in the last 40 years, not to voluntarily release their tax returns. It does raise a question of what's in them and -- but I think we'll just have to wait and see how this process plays out in the House.

BERMAN: We should. There's a 1924 law which quotify that the House Ways and Means Committee, the chair can get someone's tax returns if he has a reason. So I think that Mayor Rudy Giuliani is going to have a hard time fighting that in court given the law is fairly clear on it. But the House issue we'll leave that aside.

I do want to talk to you about what happened in the court room today, Michael Flynn's sentencing hearing where there was no sentence. Prior to that hearing, President Trump tweeted out, "Good luck to Michael Flynn." Is it appropriate for the President to be tweeting "good luck" to someone who is pleading guilty to lying to the FBI and admitted to lying to the Vice President?

KING: Well, I've said before, I think it's inappropriate for the President to be dangling pardons in front of Manafort and calling Michael Cohen names and complimenting Michael Flynn. It's just not appropriate, particularly when these people are involved in an investigation of the President or his administration. It just doesn't have the right feel.

And -- but I do think there's an important point, John, about what happened today and that there's a feeling that somehow the Mueller investigation is on its own, that it is moving, you know, just as a separate engine of the United States government.

And what we saw today was checks and balances that if there's a -- for example, to raid Michael Cohen's office, it required a warrants signed off on by a federal judge. That's the way our system is supposed to work and its working and they went into court today.

It didn't go exactly as Michael Flynn hoped or Mr. Mueller, but the judge was an independent party who interposed his decision. He decided to delay the sentencing, as you know, and I think it could be an important development because basically it gives Michael Flynn a longer period of time to cooperate with Mr. Mueller.

[20:40:03] BERMAN: You know, it's interesting, Kenneth Starr who just noted Michael Flynn definitely didn't want this today. This didn't go well for Michael Flynn, but also not for Robert Mueller's team. They had suggested no jail time. They had suggested this be over today.

KING: But I think if you look at what happened today, and I wasn't in the courtroom, but just seeing the reports of the judge's mood, it certainly would be an encouragement, if you will, to Michael Flynn to be entirely forth coming so that Mr. Mueller will renew his proposal for no jail time when the sentencing comes up.

Now, you've got to remember, and I said last week there was all this ado about Michael Cohen's guilty plea in his three-year prison sentenced, I think that the filings in Michael Flynn's case are really enormously significant.

Number one, there was a lot redacted, so he's talking about things we don't know about. Number two, he's had 19 meetings with Robert Mueller and they weren't talking about the weather or the Red Sox, they were talking about a significant development in relation to this case.

So, I think he has already, apparently, given a lot of information to Mr. Mueller and now there's going to be time for further cooperation.

BERMAN: And there was a bit of news he gave to the country today, the judge and Michael Flynn and Michael Flynn's lawyers, they all told us that claims from the President and some of the President's supporters that Michael Flynn was ambushed are simply not true. They all said no.

KING: That's right. And Michael Flynn was given -- the judge explicitly gave him an opportunity to withdraw his plea, and in effect argue that he was ambushed or perjury trap or something like that, he did not do so and I think that really does underline the fact.

You know, he was a general in the army. He was in the White House to argue that somehow he didn't know that he wasn't supposed to tell the truth to the FBI just doesn't pass the straight-face test.

BERMAN: Senator Angus King, thanks so much being with us. Thank you also for mentioning the Red Sox, I couldn't help but smile.

KING: Thanks, John. BERMAN: All right, more now on the tax story breaking news and on that legal provision underlying. It goes back nearly a century under this 1924 provision in the Internal Revenue Code that chairman of the House Ways and Means Committee and/or the Senate Finance Committee, they're authorized to request the President or indeed anyone's tax returns from the IRS to conduct an investigation.

CNN's Dana Bash is on the phone. Dana, thank you so much for joining us this evening. It sounds like you had quite a conversation with Mayor Giuliani.

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT (on the phone): Good evening, John. Well, yes. I mean, as you mentioned, the news of the evening comes from our colleague, Lauren Fox, who was told by a source that the incoming Ways and Means chairman, Richard Neal, is going to start to move to get those tax returns because that law allows him to do so.

And he's made pretty clear that he's going to at least have a hearing after the first of the year. Well, as you can imagine, this is something that the President and his team are not that thrilled about.

I did speak with Rudy Giuliani this evening who said that his belief is that they have to have reason for wanting them, and he says that he fails to see a reason and he also said that they will fight in court and think that they could win unless they have a specific allegation that is leading them, and by them I mean, of course, the Democrats, to make this request.

BERMAN: I got a feeling the Democrats will find a reason. I also have a feeling that that law is pretty clear. This may be a hard fight for Rudy Giuliani, the President's lawyers. Dana Bash, thank you for the reporting. Thanks to Lauren Fox as well.

Coming up, something that is ordinarily tax deductible but now it could be a liability. The Trump Foundation has agreed to shut down. A New York attorney general investigation found out what it called -- found what it called a shocking pattern of the legality, unlawful coordination with the campaign, repeated self-dealing and on and on. And let's not ever forget when it used other people's charitable donations to buy two large portraits of Donald Trump and a signed football helmet. The latest, next.


[20:47:27] BERMAN: The Trump Foundation is shutting down, which means it will actually give some money to charity for a change. That's because the New York attorney general's office is going to approve where the foundation's remaining money goes. And as we've been reporting, and as we are looking at all week just about every aspect of the President's life is under investigation, the campaign, the transition, the administration, the Trump organization, and yes, the Trump Foundation.

The so-called charitable foundation has agreed to dissolve, but a lawsuit is ongoing, accusing the President and his three eldest children of not operating as a charity at all, but as a sort of personal piggy bank.

"The Washington Post," David Fahrenthold, has been covering the story for months. He found that the largest donation in the foundation's history was more than $264,000 in 1989, which paid to restore a fountain outside Trump's plaza hotel here in New York City. The smallest donation, $7,000 to the Boy Scouts, the amount to enroll in the scouts the year his son, Don Jr. was 11. And the list goes on and on. Randi Kaye reports.


RANDI KAYE, CNN CORRESPONDENT (through translation): The Trump Foundation was originally created to donate money to charitable causes, but Donald Trump stopped contributing his personal funds a decade ago, instead relying on other people's money like WWE's Linda McMahon, who with her husband reportedly donated $5 million.

But the New York attorney general alleges the money didn't go to charitable causes at all, but instead helped pay off Trump creditors and helped the then candidate win the White House.

Donald Trump has denied the foundation did anything wrong, yet the lawsuit says during the presidential campaign, Trump allegedly used the foundation for his own benefit by using foundation money to settle a dispute with Palm Beach, Florida over a flagpole he put up at Mar-a- Lago. The town agreed to wave $120,000 in unpaid fines if Trump's club donated $100,000 to a charity for wounded veterans. The donation was instead paid by the Trump Foundation.

According to "The Washington Post," Trump's foundation also allegedly paid $12,000 for a football helmet signed by then Denver Broncos Quarterback Tim Tebow. Trump's foundation also allegedly paid $20,000 for a six-foot-tall portrait of Trump painted during a gala at Mar-a- Lago, and another $10,000 for a painting of Trump himself at another charity gala.

DAVID FAHRENTHOLD, WASHINGTON POST REPORTER: Trump used it to buy things that basically he should have bought, things that he should have paid for with his own money. He used this charity's money to buy it.

[20:50:06] KAYE: The attorney general's lawsuit accuses Trump and his three eldest children who are on the board of the foundation of persistently illegal conduct. That includes allegedly using foundation money to hold a campaign rally disguised as a charity event before the all important Iowa caucuses. It found so little oversight on the foundation's spending that its board of directors hadn't even met since 1999 and the foundation's treasurer wasn't even aware he was on the board.


KAYE: And about that Tim Tebow helmet and artwork the foundation allegedly purchased, the New York attorney general is saying now that the Trump Foundation will have to sell off its three physical possessions, including Tebow's signed helmet and the two paintings of Trump himself. Trump reportedly paid $42,000 for them using foundation money and says they're now worth $975 combined based on an IRS filing. John?

BERMAN: All right, Randi Kaye, thanks so much.

Joining me now, former director of the IRS Exempt Organizations Division, Marc Owens, and former Obama White House Ethic Czar Ambassador to the Czech Republic and CNN Contributor Norman Eisen.

And, Ambassador, I want to start with you. You have been saying for a long time that this foundation was abusing the rules governing charitable foundation, so what's your reaction to the news tonight that has been shut down?

NORMAN EISEN, CNN CONTRIBUTOR: Well, it's about time. I'm grateful that the attorney general of New York has arrived at this agreement. You know, John, it's a persistent pattern of taking cash that is intended for a charitable public purpose and using it to benefit Trump himself, his political events, his business needs, his own family.

It's an abuse of the public interest for private gain that is very like the pattern in the White House. So, we can expect more of this accountability. I'm glad it happened to the foundation, finally.

BERMAN: So, Marc, when you go through this, $42,000 for paintings of President Trump, signed Tim Tebow helmet, a $7,000, foundation gift to the Boy Scouts the year that Donald Trump Jr. was joining. What do you make of this? Any ambiguity there?

MARCUS OWENS, FORMER DIRECTOR, IRS EXEMPT ORGANIZATIONS DIVISION: No. Clearly the foundation was being used to pay personal expenses on a recurring basis. That's a pattern of behavior that is significant for both state charity law in the state of New York and for federal tax law as well.

They tend to penalize the same sorts of activities, the same sort of misuse of money, the same sort of use of money for political purposes. He -- Trump was even televised with a check from his foundation at a political rally.

BERMAN: I've read --

OWENS: It's difficult to deny that.

BERMAN: I've read you said this is even more egregious than some other similar cases you've seen.

OWENS: That's correct. That's correct. It has an element of frequency, of continuity, a wide variety of expenditures, small and large, a use of money for any number of personal and private purposes. It's not a one-off or a few dollars here and there. It's a pattern extending over a period of years.

BERMAN: So, Ambassador, New York Attorney General Barbara Underwood said she found the foundation's decision to shut. She thought it was an important victory for the rule of law. What do you think is next here? This lawsuit is not going away?

EISEN: No. There's going to be continued proceedings there. It may be an order for reimbursement. Trump and his three eldest children may be barred from serving on other foundations. There could be federal review of these issues here.

But, John, the important point is this is part and parcel of Donald Trump's M.O., abusing the public trust for his own personal gain, whether it's in monuments, whether it's the fact that he spent a third of the days of his presidency at his own clubs turning the presidency into an infomercial or whether it's the shocking abuse of the rule of law that's now being investigated by Robert Mueller or the campaign finance abuses in New York. It's a larger pattern. We're just at the beginning of the accountability and there'll be much more like the shuddering of this foundation.

BERMAN: And, Marc, when you look at how this organization was run, and that may be a euphemism because -- with the Wild West inside there. There was no oversight, no systems at all.

OWENS: That's correct. And, in fact, it's rare that a state attorney general would take the steps that Barbara Underwood did to shut down the foundation. That only happens when a state attorney general concludes that there has been a total absence of governance that it cannot be retrieved, that there is no public good that would be served by continuing the life of the foundation.

[20:55:05] BERMAN: Marc Owens, Norm Eisen, thanks very much for being with us. Appreciate it.

Let's check in now with Chris Cuomo to see what he's working on for "Cuomo Prime Time" at the top of the hour. Sir?

CHRIS CUOMO, CNN ANCHOR: Good conversation. It goes a step further. Not only is Trump settling, not only is he shuddering, but he may agree to be shunned. One of the things the New York A.G. wants is for him and his kids to not be able to sit on the boards of any charities for different periods of time. Can you imagine that? A sitting President of the United States not allowed to sit on the board of a charity. We're taking that on.

We're looking what happen in court today. Major implications going forward the way this Judge Sullivan framed up with General Michael Flynn today. And I have a piece of paper here that proves that the President of the United States is changing the facts of a big part of the Russia story. The question is, why? I'll take you through it.

BERMAN: We'll see that piece of paper in about four minutes. Chris, thank you so much.

Up next, more breaking news on a vote that could result in the biggest reshaping of the criminal justice system in generations.


BERMAN: More breaking news tonight. It is practically the definition of news that when the unexpected happens. The Senate tonight taking bipartisan action on something substantial, overwhelmingly passing a major present reform bill, the First Step Act eases federal sentencing for non-violent offenders, aims to reduce repeat offending and expands early release programs.

The vote was 87 to 12. All the votes against the bill were by Republicans, but many Republicans voted for it. Those that voted against complain the reforms were too lineate and could allow dangerous criminals back into society prematurely. The bill was back by the White House negotiated with the help of Jared Kushner, President Trump's son-in-law and senior adviser. The House is expected to take up the bill on Thursday.

The news continues so I'll now hand it over to Chris Cuomo. "Cuomo Prime Time" starts right now.

CUOMO: Thank you, JB. I am Chris Cuomo and welcome to "Prime Time."