Flynn takes the 5th . . .

“The Wall Street Journal” is reporting that Michael Flynn, the national security adviser who only lasted 24 days on the job, has offered to talk to the FBI and others (provided he is given immunity from prosecution). Flynn, you’ll recall, was fired for lying about phone conversations with the Russian ambassador in Washington.

CAROL LEE, WALL STREET JOURNAL: Well, we’ve learned that through his lawyer, he has had conversations to achieve some sort of immunity in exchange for his testimony or for cooperation in terms of the FBI. Those discussions have happened in recent days.

There’s a statement now out from Michael Flynn’s lawyer who is saying that he would agree to testify under certain circumstances and that they have had these conversations and his lawyers are saying that they’re concerned is not so much that Michael Flynn has something to hide — they’re saying he doesn’t or that he has something that he should be concerned about. But that in this political environment, he would not be treated fairly.

And so, he’s asking for immunity from any prosecution to be able to give his testimony and cooperate and not have any consequences should something arise that could be criminally prosecuted.

(CNN 360 host) ANDERSON COOPER: And I think in your story, you cited the FBI as well as the House Intelligence Committee and the Senate. The House Intelligence Committee spokesman for Chairman Nunes has said Michael Flynn has not asked for immunity. The lawyer’s statement does talk about the House Intelligence Committee and the Senate. I just read it very quickly. It doesn’t directly mention the FBI.   Is that correct?

LEE: No, his statement — I just took a quick look at it. It does not. But the FBI is obviously a natural place to go and if you’re trying to seek immunity, or if you’re going to be investigated, we know the FBI had interviewed Michael Flynn a couple of months ago when he first was under scrutiny or reported publicly that he was being — his communications with the Russian ambassador were being investigated and other potential communications between him and Russian officials were being looked at. And he was, at that time, interviewed by the FBI.

So, it would make sense for him obviously to have that discussion with the FBI because they are conducting an investigation and then, obviously, the House Intelligence Committees are as well.

COOPER: I guess the statement — when I first read the statement from Chairman Nunes’ spokesperson saying that he had not asked for immunity before the House Intelligence Community, it seemed at odds with your reporting but also the lawyer’s statement. But when you read the lawyer’s statement closer, it basically — it doesn’t use the term immunity.

So — and the lawyer does say that they have had talks with the House Intelligence Committee. So, really, it’s kind of maybe a question of semantics.

LEE: It’s maybe a question of semantics. If you look at the lawyer statement and in our discussions with various sources, you know, he is seeking immunity. What he’s asking for is to be able to cooperate and to deliver testimony in exchange for not being prosecuted in some way because of something that he were to say or something that may arise in that.

And so, it’s — everyone’s kind of parsing words here but certainly his lawyer, as his lawyer says in the statement, has discussed this with the House committee.

COOPER: And do you have any details on what Flynn has offered to talk about?

LEE: No. We don’t know what he has offered to talk about. We don’t know if it’s, you know, specifically things that he did or experiences he had while he was on the Trump campaign. We don’t know if it has to do with some of the things that he himself has did as a consultant.

You know, there’s a number of things — Michael Flynn had consulted for foreign governments. We know he did work for the Turkish government. We know he’s been paid tens and thousands of dollars by Russian companies and he was made a very — what got a lot of attention and appearance in 2015, for instance, for the Russian media organization where he sat at the table with Vladimir Putin.  So, we don’t know exactly what he’s offering to talk about or what they want him to talk about.

COOPER: Do you know if the FBI or congressional officials from either the House or Senate, have they responded to Flynn’s offer of immunity?

LEE: No. They have not. Our understanding is that there has not been any sort of deal as yet worked out and that these discussions were ongoing and that they’ve been happening in different forms over the last couple of days.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, just to start with what it means, is that it means that Michael Flynn is taking the Fifth, is that he is refusing to testify without immunity on the grounds that it might incriminate him. And frankly, the idea that the national security to the adviser to the president of the United States is taking the Fifth is pretty big news in and of itself.

What it means is, though, he will not cooperate either with the FBI or the congressional investigations without getting immunity.

Here’s where things potentially get complicated. They make those decisions separately. There have been conflicts between the two in the past. Oliver North got immunity from Congress, didn’t get immunity from the independent counsel where I was one of the prosecutors, and that destroyed the case against Oliver North.

So, there’s going to be a difficult negotiation between the Justice Department, the FBI and congressional communities on whether they want to give him immunity. But it is usually a smart move, and certainly, Flynn’s lawyers are acting prudently by saying, we want to get immunity, we have a great story to tell, we’re going to tell it if we can but you better give us immunity first.

COOPER: Yes.

TOOBIN: They’re protecting his client. We’ll see what he has to say. I don’t.

COOPER: Yes. Jeff, I want to read our viewers part of Flynn’s lawyer statement. It reads, quote, “General Flynn certainly has a story to tell and he very much wants to tell it. No reasonable person who has the benefit of advice from counsel would submit to questioning in such a highly politicized witch hunt environment without assurances against unfair prosecution.”

They’re basically painting a picture of this as kind of — I mean, they are saying it’s a witch hunt environment, it’s a politicized environment, kind of indicating that the entire investigation is unfair and that’s why he needs immunity, not that he did anything wrong.

TOOBIN: Right. And that the lawyer is trying to tantalize the community and the FBI by saying, wow, if you give him immunity, you’re going to get this bombshell.

Now, the way sober prosecutors work in circumstances like this is they have what’s called a proffer session, or sometimes known colloquially as a queen for a day, where the witness goes in under effectively immunity and says, if you give me immunity, I will tell you the following. That is what should happen I think. But it’s got to be negotiated with both Congress and the FBI, and it just shows why these investigations sometimes take a long time because these negotiations are complicated, even before you get any testimony from the witness.

COOPER: So, Jeff, just to your earlier point, this would be negotiated with the FBI, the House and Senate all at once? Or as what happened with Oliver North, could the — you know, could the Senate grant him immunity to testify and not others?

TOOBIN: Right. I mean, as a — in part as a result of the North case, the congressional committees and the Justice Department try to coordinate their efforts. They don’t have these conflicting situations much anymore. But, you know, as a strictly legal matter, they are separate decisions but consultations between the two certainly should take place.

A proffer session should take place involving all these parties. But it’s a lot of moving parts. It takes a while to negotiate and then, only then we find out perhaps — and then presumably, if he testifies in public, then we hear what he’s got to say.

COOPER: You know, Gloria, it’s interesting about how the Trump administration is going to handle this. I saw on Twitter, some — an old tweet from Sean Spicer back during the whole Hillary Clinton e- mail buildup where he was kind of gleefully saying, you know, grab the popcorn, a bunch of people have asked for immunity or been granted immunity around Hillary Clinton who set up the server and even General Flynn, when talking about Hillary Clinton’s e-mail server story said — and went on the video yet, but we’re going to put it up soon, said, people don’t ask for immunity unless they’ve committed a crime.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Right. And don’t forget, he was out there at the convention as the “lock her up” chant went and led the “lock her up” chant.

So, you know, this is somebody who’s been very political. I think what’s sort of stunning to me is this notion that somebody that was a national security adviser to the president of the United States, albeit for a very short time, would be saying to Congress and to the FBI, I’m going to plead the Fifth. I am not going to tell you what I know. It’s — it’s — it is kind of shocking.

COOPER: Not only that this could happen but happen within the first, what, 60, 70 days of the new administration.

BORGER: Right. And then my next question is — and maybe Jeffrey could answer this, I don’t know — is that when he teases out to authorities what he might offer, you know, the question is, what would they go for? You know, do they want him to give up a bigger fish? Do they want him to give up — you know, I don’t know who — why it would be of such interest to them if nobody in the transition had been actually communicating with or dealing with the Russians during the election and would they all do the session together or separately?

COOPER: So, Jeff, would conversations between General Flynn and the president or then president-elect, would those be something that he could discuss or would there be presidential privilege?

TOOBIN: Things start to get very complicated. I mean, certainly nothing that Donald Trump said with — between him and Flynn before January 20th would be off limits at all. There’s no such thing as executive privilege for candidates. After January 20th, that possibility would certainly exist. Particularly during the Clinton investigation, the Kenneth Starr investigation, there was lengthy litigation about what conversations are covered by executive privilege and what are not.

And the answer is, it’s complicated and it’s not a lot — it’s not easy to say. But certainly nothing prior to January 20th of this year could conceivably be covered by executive privilege.

COOPER: Carol, do you have a sense why the House Intelligence, why Chairman Nunes through a spokesman would come out and say General Flynn didn’t ask for immunity before his committee?

LEE: No, except that maybe he’s — they are parsing words here. We do know that they clearly have been having conversations about him getting some sort of immunity. So, I’m not really clear why.

The only other thing I would say, just in terms of bringing it back to the White House, which Gloria has talked about, which is the real important point, like this is the former national security adviser to the president and when I talked to the White House officials earlier today about this, you know, their at least outward posture is, you know, we don’t care, it’s fine if he gets immunity, we have nothing to hide and he can say what he wants.

But certainly, it would be a very uncomfortable place for this White House to be in if this were to go forward.

COOPER: Ryan Lizza, what do you make of this?

RYAN LIZZA, CNN POLITICAL COMMENTATOR: Well, I mean, the question of course is, the tantalizing thing that Jeff was saying is the story he has to tell here, is that who is that a shot at? Who is he saying, oh, you have something to worry about with the story? Is he talking about people in the current White House? Is he talking about people from the Trump campaign?

Remember, this is a guy who up until recently was the top foreign policy adviser to Trump not just for the entire campaign and the White House and he was fired, right, and was not very happy about the way that he was treated by the White House at the end there. So, one question would be, what does he know about other White House officials or either the president himself.

And the second thing is: we don’t — and correct me if I’m wrong, Carol, from your piece — we don’t really know the area around which the FBI is looking at Flynn. Is it related to the conversations with Kislyak and the alleged Logan Act — possible Logan Act violations? Does it have to do with the FBI’s investigations of the potential collusion during the campaign?

And depending on what the FBI’s looking at, it’s not just Flynn that has some serious potential exposure here.

And the other thing is, this is the first time someone’s asked for immunity, right? We actually, a lot of the names that have come up in this investigation seem to have gone to the committee and say, look, I’ll come in and talk, right? Roger Stone, Manafort, Kushner. So, this seems like in a various, separate category, someone that thinks he has much more exposure than the other names that have come up so far.

LEE: If I could just interject in terms, to answer your question, we know that investigators were looking at his contacts not only with the Russian ambassador in December but earlier contacts. And we’re not quite sure how far they go back. But right after the inauguration, those contacts and contacts going back through the campaign were also being looked at by investigators.

MATTHEW ROSENBERG, THE NEW YORK TIMES: I was going to jump in and say that we’ve spoke to people on the Senate side in the last hour.  And they told us that, yes, the conversations have been ongoing in recent days. But the Senate is not interested at the moment. They may at some point be willing to grant immunity but right now, they were not interested in the offer.

COOPER: And, Matthew, also put this in perspective, if you can, because today we have your reporting that Chairman Nunes’ two sources were in the White House, which we’ll get more into later. We have the deputy chief of staff leaving the White House and now Michael Flynn saying that he’ll testify for immunity.

ROSENBERG: I mean, and we’re like three months into this thing already. It’s pretty amazing. And, you know, I think we’ve seen a number of situations where the line between political and say policy and national security policy is very blurry in this White House and there’s real danger there because you do things with intelligence, with foreign relations in pursuit of political goals, purely political goals that very quickly take you to treacherous territory when we’re trying to run a government.

LEE: Right. That’s our understanding. We have spoken with a number of people who have said that General Flynn, through his lawyer, has spoken with the House and Senate Intelligence Committees about immunity, as well as the FBI. His lawyer’s statement clearly says that they have had discussions. They are clearly trying to frame this as him not wanting immunity because he’s done anything wrong, but wanting immunity because of the political environment in which this investigation is taking place and so that’s what their argument is there.

So we know that. We don’t know exactly what General Flynn is offering to testify and to cooperate with. His lawyer’s statement said that he has a story to tell if they are willing to cut a deal with him. We also know that no one has cut a deal with him yet, that these conversations are ongoing and they have been going on for the last couple of days and they are continuing. COOPER: Jeff, based on your experience with this sort of thing, how

do the discussions go? I mean, you talk about sort of — you know, he gets kind of immunity for a day and what he can tell — what he would say and then they can judge whether or not they’re going to offer him immunity. But for these discussions since they are happening with the FBI according to reporting, the House and Senate, do they happen in a room together? Is it in a conference call? Do they all have to be together?

TOOBIN: It’s almost always face-to-face, I mean, because one of the things that a prosecutor or an investigator is trying to decide in whether to grant immunity is whether someone is telling the truth. I mean, that’s the most important thing. You’re certainly not going to give immunity to someone you think is lying to you. So, this is a — this is a face-to-face encounter.

I think it’s interesting why the Senate — in Carol’s story, the Senate committee said we’re not prepared to deal with this now because that makes sense because you want to do background investigation first. You want to look at the documents. You want to read the e- mails, you want to see if there are national security intercepts so that you can test whether Michael Flynn is going to tell you the truth.

You want to have background information to be able to test against what he says and only then will you decide whether to grant him immunity. Yet another sign of why these investigations take so long. I mean, we’re not talking weeks. We’re talking months here. I mean, just as a political matter, it gives you an idea how long this is going to plague the Trump administration.

COOPER: Paul Callan, just to contradict what General Flynn himself said there, just because somebody does insist on immunity, it does not mean automatically they are guilty of something. His lawyers are setting this up as, well, he’s got a story to tell but needs protection because it’s such a politicized environment and, you know, this is a witch hunt going on.

That could very possibly be the explanation, that he’s going to defend himself. He says he’s done nothing wrong. But it’s too politicized environment for him to say anything without getting immunity.

PAUL CALLAN, CNN LEGAL ANALYST: Yes, General Flynn’s statement is totally inaccurate. I mean, I represented a client who — we asked for immunity and I can assure you, she wasn’t guilty of any crime. That’s just lawyers being careful.

However, it’s like asserting the Fifth Amendment, it certainly looks like you have something to hide. And also, there’s sort of a doctrine that the first witness through the door usually gets the best immunity deal. And from what we’re hearing now, he seems to be the first person who may be openly shopping an immunity deal. So, that would suggest, I think, that in his case, maybe there is something to hide and, of course, we do know that he had dealings with the Russians and we also know that the thing that trips people up more than anything in these investigations is lying to the FBI or lying to federal investigators.

We don’t know all of the details of his prior statements with or to the FBI and that may be something that the general is worried about and his lawyers are worried about. So, we’ll have to see the details as they develop.

TOOBIN: If I could add one point about that, is that immunity deals never give you immunity for lying to the FBI in the course of your immunized statements.

COOPER: Right.

TOOBIN: So, you still have to tell the truth once you get immunity. And that’s why they don’t want to give you immunity unless they are pretty sure that you were telling the truth, which means you have to do all of this other investigating first.

COOPER: And, Ryan, I want to read again the first line of the statement from General Flynn’s attorney. It said, “General Flynn certainly has a story to tell and he very much wants to tell it should the circumstances permit it.” I mean, it’s very loaded a sentence in terms of what could be coming?

LIZZA: Yes, maybe that’s just to tantalize the FBI into, you know, getting serious about an immunity deal. But I would be — if I were in the White House right now and I heard that, I would be thinking, this is a guy we fired, this is a guy that a lot of White House aides said some pretty negative things about. I don’t get the sense that he has much loyalty anymore to the Trump administration.

And so, if the FBI’s investigation is as broad as Comey suggested last week, then I would be a little bit worried if I were in the White House right now because Flynn knows everything, right? He was —

CALLAN: You know, Anderson, when I hear a witness say through his lawyers, I’ve got a story to tell, that’s very, very aggressive by the defense attorneys and very suggestive that Flynn’s got something of substance to put on the table to trade for a deal. So, that’s an unusual statement to hear from a criminal defense attorney at this stage.

LIZZA: Paul, can I ask you? Paul, do you think it suggests that — would you say it suggests, well, there’s someone else here did something worse and that’s what I’m getting at or is that just too vague?

CALLAN: Yes. I would say the only way you get an immunity deal is if you’re trading somebody else for your scalp and this certainly would suggest that he has information about possibly improper, possibly criminal activity. Obviously, we don’t know who. When we hear a statement like that, that’s what I’m hearing as a criminal defense attorney.

TOOBIN: If I could offer a little skepticism on that, it’s very much in the defense attorney’s interests to try to tantalize the prosecutors, try to tantalize the committee because he wants immunity. I mean, that’s what you want.

COOPER: Jeff, you said they would hear in advance in a private meeting from him what he would offer up and that’s how they would decide whether or not to grant him immunity. So, theoretically, to Paul’s point about giving up somebody else in order to get immunity, if all his story is, is I’ve been wrong in the public discussion of this, I did absolutely nothing wrong. There’s nol there there. There’s nobody else. There’s nobody else I’m pointing a finger at, do you give immunity for somebody who basically is just saying I’ve done everything fine?

TOOBIN: It depends on what the other evidence in the case shows. That’s why you have to get the documents. That’s why you have to get the other material because, you know, this is a case — I mean, again, the complexity of this case is so enormous because it deals with national security information, information in possession of the National Security Agency, which hates to divulge anything.

So, there’s going to be a tremendous amount of negotiating with these committees and it’s only after the NSA has disclosed this material, if they do, that you can make an intelligent judgment about whether or not Michael Flynn is telling the truth and did I serve deserves immunity.

COOPER: Gloria, the other thought is, if you’re Michael Flynn and giving information to these committees, including the House Intelligence Committee, to Chairman Nunes, essentially, if I was doing that, I would be concerned that any of this stuff would leak out if I’m talking to the Senate, FBI or the House, or that it would get back to the White House in advance.

BORGER: Right. Well, of course you could because you’re dealing with Congress. I think right now, that’s not — his main concern is getting immunity.

And I was thinking about this. The real precedent, and it’s not exactly the same that we have here, as Jeffrey mentioned earlier, the Iran-Contra committee and Oliver North. Oliver North was given immunity by the congressional committees, but there was also an independent counsel and the independent counsel separately convicted Oliver North, but that conviction was overturned because he couldn’t prove that he was able to sustain this conviction without using the immunized testimony that was given in Congress.

TOOBIN: — coordination now at least in theory between the FBI and congressional investigation about immunity.

BORGER: Well and the — the question is, will there be coordination? You have Jeff Sessions, who recused himself from this and that’s probably a very good idea since he was a member of the transition. I know the president wasn’t happy about that.

But now, you know, the FBI has to decide what it’s going to do. And will they work with the Congress? And, you know, Comey has got a counterintelligence investigation going on. So —

RYAN LIZZA, CNN POLITICAL COMMENTATOR: One of the things to watch is, what do Nunes, Schiff, Burr and Warner say about this? You know, especially Nunes and Schiff. So far Nunes is mostly acted as protector of the White House and it’ll be interesting to see how he decides the issue of whether Flynn —

COOPER: Right.

LIZZA: — should get immunity or not. I think that will tell you what he thinks about, you know, who he thinks this would damage.

COOPER: Well, until the Flynn immunity story hit, we had quite a lead story. The man who speaks for new president of the United States, is not denying a report on collaboration between the White House and the chairman of the House Committee investigating the White House. It does not get any plainer than that and it adds credence to what we and many others have been reporting for days now.

Today, the “New York Times” reported that two White House National Security staffers including a protege of Michael Flynn’s provided House Intelligence Chairman Devin Nunes with intelligence reports.

Now, it is the latest in a drama that has been unfolding for weeks now. We’ve watched President Trump use the story line to justify his early morning tweets, accusing President Obama of wiretapping him, which it doesn’t do that at all. It doesn’t provide any kind of partial vindication’s the president said.

In any case, when asked this afternoon about “The Times” the story, Press Secretary Sean Spicer said a lot of things, but it did not say their forward (ph) is untrue. It was a nuclear-powered non-denial and we’ll play a portion of it shortly. That and the report only adds the suspicion that we’ve all been witnessing a charade put on by public servants to dupe the public. And again this all stems from those early morning Saturday tweets which again the president has yet to provide any evidence of support for.

And said the administration has latched on to a different story line and it’s becoming clear they’re using Devin Nunes to help sell it, using intelligence, whatever it may be worth, that they already had. But this has been going on for weeks, and it’s more than just spin. Many believe it is a diversion. Every moment spent on this is time not spent on Russians influencing the election or questioning surrounding contact between Moscow and Trump team members, or other work the White House wants to do.

ROSENBERG: It’s this convoluted tale at this point, where last week, Devin Nunes gets up on Wednesday and says, you know, I’ve been given these intelligence reports and they show that Trump and his associates are swept up in American intelligence gathering, suggests there’s a lot of improper unmasking of their names in these reports. And kind of suggests the whistle-blowers have come to them with this very troubling information, that the Trump White House, of course, immediately seizes on to it and says, you know, this somewhat vindicates our claims of being wiretapped.

And this kind of goes on. And Nunes eventually admits he did get the information in a meeting at the White House. Put it’s a story that makes no sense, because you don’t go to the White House to randomly meet with people, it’s not like you can walk in and say, hi, I’m Devin Nunes, this is Jim from the NSA. We’re going to check out the intelligence.

So what’s finally emerged is that there were two White House officials who, one of whom kind of dug out and find the intelligence. The other of whom who appears to have provided it to Mr. Nunes. They provided it to him at the White House, or he was (inaudible) the White House, then went to Capitol Hill the next day, had a press conference, and went back to the White House to brief President Trump the same information he had got at the White House. It doesn’t make any — it is kind of bizarre at this point.

And this is raising a lot of questions, you know, you have two people who seem to be using intelligence for political ends, there are questions about did they do this on their own, were they asked to do it by others, was this an attempt to find post-facto justification for the presidents tweets? We don’t have those answers, because as usual the White House doesn’t really answer questions about this.

COOPER: And Matt just a couple of things. One of the people was basically brought to the NSE by Flynn.

ROSENBERG: Yes.

COOPER: And when — according to your reporting, I think, when the new National Security Adviser wanted to remove him, actually President Trump intervened, specifically at the request, I guess of Bannon and Kushner to keep him? Is that right?

ROSENBERG: That’s accurate, yes.

COOPER: And then what I don’t want to understand, and maybe it’s because it doesn’t make any sense, is if this information was already with the National Security Council, with these two people, at least, on the national security council, on the White House grounds, why did they immediate need to bring, other than to give them cover and make it look like this was something not generated by the White House, but something coming from Devin Nunes, why did they need to bring Nunes in there to then go back over to the White House and brief the president on something that his own NEC team already — NSE, that his own NSE already had?

ROSENBERG: If there’s another reasonable explanation than the one you just offered, nobody said it to us. Nobody’s offered that other explanation, because it doesn’t make any sense. I mean it’s the most circular thing there.

 

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