Mueller releases memorandum. TRANSCRIPT: 12/4/18, The Rachel Maddow Show
RACHEL MADDOW, MSNBC HOST: All day long, I`ve been convinced and worried
that this was going to come out while I was live on the air. But then it
happened to you.
CHRIS HAYES, MSNBC HOST: Your staff had a betting pool on it. I was –
there it goes.
MADDOW: We did. And whoever won the betting pool was supposed to get
HAYES: You got tacos anyway.
MADDOW: I got – we got tacos for everybody at 8:00 anyway, because we
were so stressed out. I couldn`t wait any more.
HAYES: It worked, it worked it, because I got it.
MADDOW: We brought the tacos, we did not bring your staff any tacos, we`ll
make that up to you tomorrow, but we did bring this upon you, my friend.
Thank you. Well done.
All right. So, usually when I start this show at 9:00 p.m. Eastern, I have
a script that I have written because there are things in the news that I
would like to tell you about. Tonight, there is no script because I`m
going to go through what we just learned from the special counsel`s office,
I`m going to go through it with you, basically as I am learning this.
This just came out within the last 30 minutes, God bless Chris Hayes who
was able to very ably digest this, handle, go to the – I think the key
elements of it right away, bring in lots of expert guests in order to
explain what this meant. But we really have had this for less than a half
hour, and I feel like this is the kind of document, the sentencing document
which has been filed by the special counsel`s office tonight in the case of
Michael Flynn, who was Trump`s national security adviser.
This is the type of document that is available and sort of I think readily
accessible to all of us who do not have law degrees, who are not lawyers or
professionals in this matter. So, I`m going to go through what we`ve just
learned, what we`ve just received from Mueller`s office. I`ll tell you how
I understand it, and what I think that Mueller`s office is telling us, with
this document, as we go through it.
But then only after we have gone through this material are we going to
bring in some experts who are taking their own look at it, people who do
have law degrees, people who have worked in the Justice Department, who
have worked on criminal cases like this, and some senior security reporters
who have been following the incredible case of Mike Flynn ever since it
first broke. So, we`re going to get expert advice. But, first, let me
just show you what we just got, because it really is just in.
All right. It`s dated today, the United States of America versus Michael
T. Flynn. He`s the defendant. It`s the government`s memorandum in aid of
The United States of America by and through Special Counsel Robert S.
Mueller III, respectfully submits this memorandum in aid of sentencing
defendant Michael T. Flynn.
On December 1st, 2017, the defendant pled guilty to one count of making
materially false statements to the FBI. As calculated by the U.S.
probation office, the defendant`s applicable total offense level is 4,
criminal history category 1, resulting in an advisory guideline range,
meaning sentencing range of zero to six months.
That offense level and guideline range however do not account for a
downward departure pursuant to United States sentencing guidelines,
reflecting the defendant`s substantial assistance to the government, which
the government has moved for contemporaneously.
So, this is our first indication right at the top of the sentencing
memorandum, that Mueller is pleased with what has gone on between his
office and Mike Flynn in the past year and a couple days since Flynn first
pled guilty and agreed to cooperate. Right up front, they`re saying that a
downward departure from the sentencing guidelines is warranted in this
case, because of the substantial assistance that Flynn has provided to the
And it continues in that vein, given the defendant`s substantial assistance
and other considerations set forth below, a sentence at the low end of the
guideline range is appropriate and warranted. A sentence at the low end of
the guideline range, including a sentence that does not impose a term of
So, Lieutenant General Mike Flynn, former head of the Defense Intelligence
Agency, the subject of a lot of intrigue and a lot of unanswered questions
in terms of reporting about the Russia scandal, the first major figure from
the Trump administration to fall in conjunction with this scandal, off the
bat, out of one year of cooperation with the special counsel`s office.
They are recommending no prison time for Mike Flynn.
Now, that`s, of course, not binding. The judge can depart from that, but
that`s what the special counsel is recommending, and we get a lot more
detail in this document of why.
Here we go: the nature of the offense and the defendant`s history and
characteristics are set forth below. In addition, the addendum to this
memo describes the defendant`s assistance to the government. Meaning what
Mike Flynn told us.
Because the addendum includes sensitive information about ongoing
investigations, the government is seeking to partially seal the addendum
and has filed publicly a redacted version of the document that excludes the
sensitive information. So, that`s coming up in a few pages. The addendum
is where the special counsel`s office explains exactly how Flynn has been
helpful, what exactly he has given them information about. And I`ll show
you big pieces of it that are redacted, but we do get a substantial amount
All right. So, this – at the sentencing memorandum, though, before we get
to exactly what he told the government, we basically get a rundown of how
the government got to Flynn in the first place, and why he ended up lying
to them. The defendant`s offense is serious.
Quote: As described in the statement of offense, the defendant made
multiple false statements to multiple Department of Justice entities on
multiple occasions. The first series of false statements occurred during
an interview with the FBI on January 24th, 2017. Now, for context here,
January 24th, 2017 is not yet one week into the brand new Trump
administration. Trump was sworn in like January 20th, right? So, January
24th, 2017, I think it`s like the first Tuesday that Trump was president.
Mike Flynn was already lying to the FBI the first Tuesday that Trump was
president. Quote: At the time of the interview, the FBI had an open
investigation into the Russian government`s efforts to interfere into the
2016 presidential election, including the nature of any links or
coordination between the Russian government and individuals associated with
the campaign of President Donald J. Trump.
Days prior to the FBI`s interview of the defendant, “The Washington Post”
had published a story alleging that Flynn had spoken with Russia`s
ambassador to the U.S. on December 29th, 2016. The day the U.S. announced
sanctions and other measures against Russia in response to that
government`s actions intended to interfere with the 2016 election. So,
again, this is right after Christmas 2016, so this is after the election,
we know that Donald Trump is the incoming president, but Obama is still
And Obama after – around Christmastime, during the transition, orders new
sanctions against Russia to punish Russia for what they did to mess with
our election. On December 29th, between Christmas and New Years, Mike
Flynn calls the Russian ambassador, according to “The Washington Post” and
says, hey, hey, hey, don`t worry about those sanctions. We`re going to
have a different attitude toward those sanctions, don`t retaliate, et
cetera. “The Washington Post” reports that, that ends up being relevant to
the FBI`s subsequent interview of Flynn on that subject.
Quote: “The Post`s” story queried whether the defendant`s actions violated
the Logan Act which prohibits U.S. citizens from corresponding with a
foreign government with the intent to influence the conduct of that foreign
government regarding disputes with the United States. Subsequent to the
publication of “The Post” article, and prior to the defendant`s FBI
interview, members of President-elect Trump`s transition team publicly
stated they had spoken to the defendant and that he denied speaking to the
Russian ambassador about the sanctions.
All right. So, that`s what the FBI is facing, in the first week of the
Trump administration. David Ignatius has reported in “The Washington Post”
that during the transition, when the U.S. government under President Obama
was sanctioning Russia, Mike Flynn called them and was like, don`t worry
about those sanctions. Ignatius in that column, in “The Washington Post”,
questions whether or that`s kind of illegal or at least improper.
Mike Flynn, then a private citizen, even though he was the incoming
national security adviser, shouldn`t be messing with this dispute that the
U.S. and Russia have over Russia interfering with our election. Then,
thereafter, Flynn and other people within Trump`s transition team say that
Flynn told them that Flynn didn`t actually have those conversations.
So, that creates a counter intelligence worry for the FBI, right? If the
Ignatius column is correct and those conversations did happen between Flynn
and Russia, then Russia knows they happened, right, because they were in on
the calls. And if those conversations did happen, and Russia knows they
happen, but Flynn`s lying about them, that`s a counter intelligence
The FBI handles counter intelligence issues in the United States. If the
national security adviser of the United States is telling lies about
something, trying to cover something up, and Russia knows the truth about
it, and Russia knows that he`s lying about it, they can lord that over him,
right? They can potentially blackmail him with that. They can threaten
him to expose that thing, since they know he wants to cover it up.
This is a counterintelligence worry. The FBI handles counterintelligence
measures. They want to find out if what`s been reported about Flynn`s
behavior in “The Post” is true, given his public statements and his
statements to other government officials, other people in the transition,
that he didn`t do it. That`s why the FBI is interested.
OK. Quote: When the FBI interviewed the defendant on January 24th about
his interactions with the Russian ambassador, the defendant falsely stated
that he did not ask the Russian ambassador to refrain from escalating the
situation in response to the sanctions many and he falsely disclaimed any
memory of his subsequent conversation with the ambassador, in which the
ambassador stated that Russia had acceded to the defendant`s request.
Meaning, Flynn initially spoke to the Russian ambassador and said, don`t
escalate in response, don`t respond to these Obama sanctions, don`t worry,
we`re going to be different.
And then he has a subsequent conversation with the Russian ambassador, who
says, you know, we didn`t respond to those sanctions because you told us
not to. Apparently, Flynn lies about both of those conversations to the
FBI, right? So, if the FBI is worried about Russia having compromised
Flynn, once they get these false statements from him, not only is he
committing another crime by lying to them about it, now, they realize this
is a counterintelligence emergency.
He has been lying and Russia knows it, so they can lord that over him.
Having leverage like that, hostile foreign power having leverage like that
over a national security adviser, that`s a catastrophe.
Quote: In addition, the defendant made false statements to the FBI about
his prior interactions with the Russian government, in December 2016,
concerning a pending U.N. Security Council resolution. The defendant`s
false statements to the FBI about, one, his contacts with the Russian
government emissary. Two, the requests he conveyed to the Russian
government through that emissary. And three, Russia`s response to those
requests, those were all material to the FBI`s investigation into the
nature of any links or coordination between the Russian government and
individuals associated with the Trump campaign.
So, at this point on January 24th, 2017, in the eyes of the FBI, Mike Flynn
is three big problems. Number one, he`s a felon, because he just lied to
them. Number two, he has given false statements that are material to a
serious ongoing counterintelligence investigation, and criminal
investigation, into how Russia interfered in our election.
So, he`s given false statements in conjunction with an on going
investigation, he`s lied to investigators and he himself is a huge
counterintelligence and national security risk because he`s compromised.
That`s already in place while Mike Flynn is getting his drapes measured for
his new desk, right? This is the first Tuesday that Trump`s in office.
So, that`s the first set of lies, January 24th.
The defendant made a second series of false statements to the DOJ
concerning his contacts with the Republic of Turkey. Specifically on March
7th, 2017, so this is after he`s out of the Trump administration, but he`s
– so he`s been fired or resigned at this point in mid February. He`s out
and now talking to investigators.
On March 7th, Flynn made materially false statements in multiple documents
that he filed pursuant to the Foreign Agent`s Registration Act, pertaining
to a project he and his company had performed for the principle benefit of
the Republic of Turkey. In those filings, Flynn disclosed that he and hi
company began work on the Turkey project in August 2016, soon after a coup
was attempted in Turkey. Ultimately, the project lasted approximately
three months. So, August, September, October, maybe November. And the
defendant and his company were paid just over half a million dollars for
The FARA filings omitted the fact that officials from the Republic of
Turkey, provided supervision over the Turkey project. At the time, Flynn
was a national security adviser and surrogate for the Trump campaign who
opined publicly on foreign policy and national security issues. The
defendant`s business relationship with the Republic of Turkey was exactly
the type of information FARA was designed to ensure was within the public
The purpose of FARA is to ensure the U.S. government and United States
people are informed of the identity of foreign entities, in this case, a
foreign government, behind information or propaganda being used to
influence public opinion, policy and laws.
So, they`re saying that when Flynn retroactively filed as a foreign agent,
who had been representing the government of Turkey during the campaign, he
omitted material facts from that filing. And the government has over the
course of the Russia investigation become aggressive on this issue of FARA,
the Foreign Agent Registration Act. This is them sort of pounding their
chest a little bit, saying this is what FARA is for, so we don`t have
people acting in the political sphere or in government who are acting on
behalf of a foreign entity, without the American public knowing that a
foreign entity is at work here.
Quote: On election day in 2016, Flynn published an op-ed for the Turkey
project that called for the removal of a Turkish cleric residing in the
United States and the president of Turkey blamed for the failed coup in the
country. The cleric`s responsibility for the coup attempt was a subject of
great debate, and Flynn`s op-ed about the cleric`s role was valuable to
Turkey`s efforts to shape public opinion. Flynn falsely represented in his
FARA filings that the op-ed was written at his own initiative as opposed to
for the Turkey project and for the Republic of Turkey, he thus again
deprived the public of the very transparency FARA was deigned to ensure.
Flynn`s false statements impeded the ability of the public to learn about
Turkey`s efforts to influence public opinion about the failed coup,
including its efforts to effectuate the removal of a person legally
residing in the United States.
Now, this is materially relevant to what Flynn did. It also explains one
of those oddball stories about Flynn, which have been sort of hanging out
there ever since he left the Trump administration, which was, why did he
write that bananas op-ed in “The Hill” on election day that called for this
Turkish cleric to be sent back to Turkey where they would definitely tar
and feather him. It also, of course, relates to current news, because of
recent reports that the Trump administration is once again negotiating to
maybe try to send that cleric back to Turkey, where they would still tar
and feather him. That is something that Mike Flynn was being secretly paid
to advocate during the campaign, including on election day, the Trump
administration has since pursued that same super dodgy aim of its own
All right. And here`s the end of this part of the Flynn filing. History
and characteristics of the defendant. The defendant`s history and
characteristics present both mitigating and aggravating circumstances. As
detailed in the presentence investigation report, the defendant`s military
and public service are exemplary.
Flynn served in the military for over 33 years, including five years of
combat duty. He led the Defense Intelligence Agency. He retired as a
three-star lieutenant general. The defendant`s record of military and
public service distinguish him from every other person who has been charged
as part of the special counsel`s office investigation.
However, senior government leaders should be held to the highest standards.
The defendant`s extensive government service should have made him
particularly aware of the harm caused by providing false information to the
government, as well as the rules governing work performed on behalf of a
foreign government. The defendant deserves credit for accepting
responsibility in a timely fashion and substantially assisting the
government, as described in the addendum, shortly after the special
counsel`s office reached out to Flynn to seek his cooperation, he accepted
responsibility for his unlawful conduct and began cooperating with the
In conclusion, for the foregoing reasons, as well as those obtained in the
government`s addendum and motion for downward departure, the government
submits that a sentence at the low end of the advisory guideline range is
appropriate and warranted. And again, given the guideline range here, what
the special counsel`s office explicitly is asking for is no jail time for
Mike Flynn. It`s signed on behalf of the special counsel`s office – well,
it`s signed. Mueller`s name is first, Brandon Van Grack, who`s a veteran
counterespionage prosecutor, and Zainab Ahmad, who has got incredible
record in terms of counterterrorism prosecutors. Those are – they`re
signed on as senior assistant special counsels under Mueller`s name.
Now, we get to second document that was just filed. This is the addendum
to that. Which spells out how exactly Flynn helped. And I`m just going to
give you a little spoiler alert here. By the time we`re on page two, it
already looks like this.
So, NBC News had reported last night before we got any of this stuff, that
while we were expecting this Flynn memo today, because the deadline was
midnight tonight. NBC reported that at least some of this document about
Flynn, about his crimes, about how helpful he`s been, about his
cooperation, about what the special counsel`s office thinks he should get
in terms of punishment, NBC reported last night that at least some of it
would be public facing, it wouldn`t all be filed under seal. I think the
best parts of it are filed under seal. But even the parts that aren`t
blacked out are really interesting.
All right. United States district court for the District of Columbia.
Again, the case is United States of America versus Michael Flynn. This is
the addendum to the government`s memorandum in aid of sentencing.
This addendum to the government`s memorandum in aid of sentencing describes
the significance and usefulness of defendant Michael T. Flynn`s assistance
to the government and the timeliness of that assistance. As described
herein, the defendant`s assistance to the government was substantial and
merits consideration at sentencing.
I will say one of the things that I`m going to want to check with our
expert guests as we go on over the course of this hour, is this consistent
emphasis by the special counsel`s office on timeliness. Both in the
sentencing memorandum and what you`ll see here in this detailed exposition
of how exactly Michael Flynn helped. The special counsel`s office goes out
of its way to say Flynn didn`t delay. He helped right away.
So, I mean, big picture here, we`re getting Flynn with no recommendation of
jail time, in terms of how that relates to other witnesses and other people
who are considering whether or not they`re going to cooperate. This is
obviously a message that if you do cooperate well and fully, and
expansively with the special counsel, and you don`t hold things back, and
they think you`re telling the truth, you can get zero jail time. Doesn`t
that sound good?
But they`re also going out of there way to emphasize one of the things they
like so much about Flynn, is that he told the truth right away. He
accepted responsibility, and he told them – despite his crimes, which they
say were serious – he told them right away what they needed to know.
Maybe that`s boilerplate, but it does seem like it sticks out to me in
terms of how they`re talking about what they like about Flynn here.
All right. Point one, significance and usefulness of the defendant`s
assistance, the defendant has assisted with several ongoing investigations,
a criminal investigation – redacted, comma. Then secondly, the special
counsel`s office`s investigation concerning any links or coordination
between the Russian government and individuals associated with the campaign
of President Donald J. Trump, comma, redacted.
Now, what that makes it look like is that Mike Flynn has helped with three
different ongoing investigations. One of them is a criminal investigation
that gets listed before Robert Mueller ever gets mentioned. Before the
special counsel`s office investigation even gets mentioned here, there`s
some other criminal investigation that Flynn helped with too, that we don`t
know anything about, other than the fact that it`s a criminal
And then after we get the special counsel`s office investigation into links
or coordination between the Russian government and Trump, there`s also some
other investigation too, that we get no information about. Presumably, it
could be some subsidiary or related investigation from the special
counsel`s office, or it could be something totally separate. It looks like
Flynn is helping with three things.
Quote: As part of his assistance with these investigations, the defendant
participated in 19 interviews with the special counsel`s office or
attorneys from other Department of Justice offices. He provided documents
and communications – redacted. While this addendum seeks to provide a
comprehensive description of the benefit the government has thus far
obtained from Flynn`s substantial assistance, some of that benefit may not
be fully realized at this time, because the investigations in which he has
provided assistance are ongoing.
The defendant and the government agree that sentencing at this time is
nonetheless appropriate because sufficient information is available to
allow the court to determine the import of the defendant`s assistance to
OK. So, what`s that`s about is that in general – and again, not a lawyer,
but I talk to lawyers on TV, who fact check me. In general, when you`ve
got a cooperating witness, the – and again, we`ve seen slightly different
variations on this with different witnesses. In general, the way we`ve
seen this happen is that the witness pleads guilty, the witness is advised
at that point of what he or she could potentially face in terms of
punishment, but then the witness, if the witness is agreeing to cooperate
with prosecutors, prosecutors then basically promise to tell the court how
well that witness does as a cooperator, how completely they cooperate,
whether they tell the truth, apparently how timely they are in their
cooperation with prosecutors.
And then the judge in the case of this person who has pled guilty then
factors in that cooperation when they decide whether or not the person is
going to be sentenced to jail or how much time they`re going to get if at
all. In this case, they`re saying, listen, the cooperation has here has
been substantial. We like the way that Flynn has dealt with us.
This is not over, though. They`ve delayed his sentencing like four or five
times at this point. They`re finally ready to go ahead with the
sentencing, essentially to get on with his life, but they`re saying that
the things that he helps them with are ongoing investigations. That itself
is interesting, the decision to not make Flynn wait for his sentencing.
Wait for the end of his involvement here, until the end of these
investigations, to let him go through while they`re still on going, that
itself seems like sort of a mercy, an act of mercy from the special
counsel`s office. But again, we`ll get expert advice on that as we go
So then we get point by point a list from the special counsel`s office of
how exactly Flynn has helped these three different investigations that
appear to be laid out in the first part of this memo. The first one is the
criminal investigation that we know nothing about, and we get nothing on
that. It`s point A. It comes even before the prosecutors talk about how
he helped the special counsel`s office.
But in redacted criminal investigation, quote, the defendant has provided
substantial assistance in a criminal investigation. And then it`s
basically a full page of redacted lines and we get no other information
about how Flynn has helped in that investigation or what exactly it is.
So, we can skip ahead to B, the special counsel`s office investigation.
The defendant has also assisted with the special counsel`s office
investigation concerning links or coordination between the Russian
government and individuals associated with the Trump campaign. The
defendant assisted the special counsel`s investigation on a range of issues
including interactions between individuals in the presidential transition
team and Russia, comma, redacted, period. A non-exhaustive summary of the
relevant information the defendant provided is described below to aid the
court`s assessment of the defendant`s assistance.
So, even when it comes to the special counsel`s office investigation,
specifically into the contacts between the Russian government and the Trump
campaign, some of that we get described here, at least in general terms,
but some of that is apparently part of an ongoing investigation that is
still blacked out. But here`s the detail they give, number one,
interactions between the Trump transition team and Russia. Flynn provided
firsthand information about the contents and context of interaction between
the transition team and Russian government officials.
For example, after the election, Flynn communicated with the Russian
ambassador to the U.S. as a representative of the transition team on two
sensitive matters, a U.N. Security Council vote on a resolution calling for
Israel to cease settlement activities in Palestinian territory, and the
Obama administration`s imposition of sanctions and other measures on Russia
for interfering in the 2016 election.
Several senior members of the transition team publicly repeated false
information conveyed to them by the defendant Michael Flynn about
communications between him and the Russian ambassador regarding the
sanctions – redacted, redacted, redacted, redacted. OK?
The defendant also provided useful information concerning – redacted,
redacted, redacted. More than a full page of redactions at this point.
So, Flynn helped with three different things. One of them is the special
counsel`s office investigation into contacts between Trump and Russia.
Some of that is redacted. One of them is a criminal investigation, all of
which is redacted. The other one, we don`t know if it`s a criminal
investigation, because that whole thing is redacted.
Nevertheless, special counsel`s office thinks the amount of cooperation
they are able to describe to the court and again none of these things that
are redacted are redacted to the judge, the judge knows what`s behind all
these black bars. It`s just us the public that don`t know this.
The special counsel`s office believes it can convey enough information to
the judge about what Flynn has done with them, that Flynn should be allowed
to go forth and be sentenced and the recommendation is zero prison time.
Or as little as zero prison time.
So, there`s still a lot of us – there`s still a lot of us being in the
dark here. But in general, it`s positive. And before they wrap up here,
the last thing they say is, once again, going back to the timeliness of the
defendant`s assistance, it`s the last point.
The usefulness of the defendant`s assistance is connected to its
timeliness. Flynn began providing information to the government not long
after the government first sought his cooperation. His early cooperation
was particularly valuable, because he was one of the few people with long
term and firsthand insight regarding events and issues under investigation
by the special counsel.
Additionally, Flynn`s decision to plead guilty and cooperate likely
affected the decisions of related firsthand witnesses to be forthcoming
with the special counsel and cooperate. Meaning, when Flynn flipped, that
made other people flip too.
But then after that, it`s one big long redacted line. And then it is
respectfully submitted, Robert Mueller. That`s what we`ve been waiting for
in terms of the government`s public facing sentencing documents, sentencing
recommendations when it comes to Flynn.
The amount of information here that is redacted, the way that it is
redacted, indicating he`s Cooperating in three different investigations,
but we`re only allowed to know part of one of them is fascinating, but some
of the legal points here are things for which I need some expert advice.
Boy, do I have a good expert. Joining us first here tonight is Chuck
Rosenberg. He`s former U.S. attorney. He`s a former senior FBI official.
Chuck, it`s great to have you with us tonight. Thank you so much for
looking at these documents as soon as they`ve come out, and for helping us
understand what`s here.
CHUCK ROSENBERG, FORMER U.S. ATTORNEY: Oh, my pleasure, Rachel. Thank you
for having me.
MADDOW: I am told that in the addendum in particular, you think that there
is – there`s something that jumps out for you, sort of late in the
addendum in that piece that I just read.
Can you talk to us about that?
ROSENBERG: Yes. Sure can. It`s that last paragraph you cited on page
five of the addendum. It talks about a couple things that are really
That Mr. Flynn`s cooperation was early, timely. That it was firsthand,
that it was long term, and that, in fact, as you noted. It caused other
people also to cooperate.
So, you asked earlier and it`s a great question, why does timely matter so
much? And you see it here, and the government tells you precisely why it
matters, because other people followed his lead. Other people came forth.
By the way, Rachel, in that same addendum, where it notes that he was
interviewed 19 times. It also says that he provided documents and
communications. That`s also critical.
So, it`s not just the word of Michael Flynn upon which they are relying.
He has stuff to corroborate what he said, documents and communications.
And that`s also critical to prosecutors, the sooner they get that, the
quicker they can build a case and rope in other people.
MADDOW: Now, Chuck, you mentioned when you`re describing what`s
interesting to you about that part of the addendum, that them describing
his cooperation as firsthand. His early Cooperation was particularly
vulnerable – excuse me, valuable because he was one of the few people with
long term and firsthand insight regarding events and issues under
investigation by the special counsel.
What`s interesting to you about that firsthand reference there and what
that means in this context?
ROSENBERG: To quote from Hamilton, he was in the room where it happened.
He heard it, he saw it, he remembered it and he told it. And apparently,
Rachel, he told it truthfully.
What also – so, this is an ordinary sentencing memorandum in an
extraordinary investigation. Ordinary in the sense that every time
somebody is sentenced in federal district court, the government files a
sentencing memorandum laying out what he or she did, and what consideration
they ought to get from the court at sentencing.
What makes this unusual is that the government goes out of its way to say
that even though this investigation is not complete, look at all those
redactions, we trust this guy. He was early, he was firsthand, he was
honest, he was forthright. He met with us 19 times. And we`re comfortable
with this guy not going to jail.
That timeliness, that firsthand information, that firsthand information
that puts the government in the room where it happened is what`s so crucial
MADDOW: And when they use the term insight – I think of insight as sort
of a non-legal term. I think of it as a wooly term, meaning he`s
essentially helping them form contextual appraisals of the meaning of
information. It almost makes them sound like he was sort of consulting
with them in terms of how they should approach various evidence that they
collect in the course of their investigation.
Is that of – should we see that as a legal team right here? Is that a
sort of thing providing insight, giving us understanding of the information
that we were going to accumulate here? Is that typical of sentencing
memorandum as well?
ROSENBERG: It`s a very savvy point. You don`t often see that word per se
in a sentencing memorandum. What does happen during all those debriefs,
those 19 meetings that they reference here, is that people will ask –
agents and prosecutors will ask Flynn for context. Who was there? What
did it mean?
Sometimes you`ll see this in mob cases or drug cases, where the language
used isn`t automatically apparent to other people. And so, sometimes,
people talk in code or sometimes they have acronyms, sometimes the fact
that someone is in the room or not in the room, has some importance to the
participant that it would not to you and me. And so, he`s giving them
insight, he`s giving them context, he`s giving them fiber if you will.
And that makes him also particularly valuable, considering it was early,
firsthand, long term and forthright.
MADDOW: The phrase that they use right up at the top in the sentencing
memorandum, not in the addendum where they spell out how he helped them,
the defendant`s substantial assistance to the government.
MADDOW: Are those – is that a trigger word?
MADDOW: Is that a specific term that the judge is looking for in terms of
what sort of impact this should have on Flynn`s sentence? Substantial
ROSENBERG: Yes. In fact, unlike insight, “substantial assistance” is a
term of art. Under the United States federal sentencing guidelines,
Rachel, the government can move for a downward departure, below the
recommended guideline range if the defendant provides, quote-unquote,
Now, here, of course, the guideline range is zero to six months. You can`t
really go much lower than that. But they nevertheless want to flag for the
sentencing judge, Judge Emmet Sullivan, that his cooperation rises to that
level. And federal judges recognize that term, substantial assistance, and
they know that the government only gives it to those who provide
MADDOW: I have one last question for you, Chuck, and again, I really
appreciate. I know how careful you are in all of your work, and in
everything you say, so reviewing this quickly, and giving us your top line
– your top line take on it, and in order to help us through it, I realize
it`s a lot to ask of you tonight. So, I am thankful for you.
ROSENBERG: My pleasure.
MADDOW: But I raise the question while I was going through the document as
to whether or not this might indicate a sort of merciful attitude toward
Flynn on the part of the special counsel`s office.
MADDOW: And I raise that specifically because of these redactions. The
special counsel`s office explains in writing, in plain language that the
reason all this stuff is blacked out and redacted in this filing is because
a lot of the stuff that he helped them with turned into ongoing
investigations, stuff that isn`t wrapped up yet. And it`s my impression,
just as a lay observer of these things, that cooperators usually expect to
have to wait until the case is over before they find out how valuable their
cooperation was, whether it resulted in prosecutions and convictions of
other people and therefore, how the judge should weigh it against the
gravity of their crimes.
By allowing the sentencing to go forward, while so many of things that
Flynn helped them with are still ongoing and still aren`t settled matters
and still aren`t being disclosed to the public even a little, should we
essentially see that as generosity toward Flynn?
ROSENBERG: Yes, I think that`s a fair read, Rachel. Here`s why. The
government could have asked the judge to keep postponing sentencing. The
judge I presume would have done so. And most defendants have to wait until
their cooperation is complete in order to get this consideration.
A couple things might be going on here, though. Number one, remember his
guidelines – the guideline recommendations was still zero to six months,
he was perhaps not likely to go to jail no matter what, even though the
judge could sentence him to a period of incarceration.
And, second, I presume that they have had him testify in the grand jury,
meaning, and we`ve discussed this before, they`ve locked in his testimony
under oath. So, if they need him at a trial down the road, they still have
some leverage over him. They have that locked down sworn grand jury
testimony to make sure he doesn`t sort of stray from the script that he has
already provided to them.
So is it an act of mercy? I think that`s a fair read. But does the
government have what it needs? Absolutely, they seem quite satisfied here.
MADDOW: Chuck Rosenberg, former U.S. attorney, former senior FBI and
Justice Department official – thank you, Chuck. Really, really appreciate
you being here.
ROSENBERG: My pleasure.
MADDOW: Next, I want to bring into the conversation, Carol Leonnig,
national reporter with “The Washington Post”. She`s been a top byline on a
lot of the scoops in this scandal thus far, and along with all of us, she`s
been absorbing this information about the Michael Flynn part of this case,
as we have received it tonight.
Carol, thank you so much for being here.
CAROL LEONNIG, NATIONAL REPORTER, THE WASHINGTON POST: Glad to be here.
Sorry, it`s a little bit scattered here.
MADDOW: Well, you know, it is here too. Usually I write things that I say
on TV. But not tonight.
LEONNIG: I understand.
MADDOW: Let me ask you – first of all, just for your top line impression
of how Flynn seems to be fitting in to the overall Russia scandal, to the
overall investigation, and how this document has advanced our understanding
of that tonight?
LEONNIG: Well, I think there were three big, striking moments in this
filing, for me. One it didn`t advance our knowledge a heck of a lot. I
don`t mean to downplay the news value of this. There is news value.
But one of the most striking things is how many things Mueller kept
shrouded in secrecy. How many places you`re reading that Flynn provided
help in a criminal investigation we`re not really sure about, and it`s
entirely redacted. How many ways in which he helped the special counsel
investigation on matter that are also redacted. How much of the detail of
what Flynn told Mueller about Trump transition officials, senior officials
and contacts with Russia that are also redacted.
So, that`s the first biggie, is a lot of this stuff is still under wraps.
And you`ve got to wonder, why is it that Bob Mueller wants to keep it under
wraps right now, and only share it with the sentencing judge, what is the
Another striking thing I saw in this item was how much Mueller values the
firsthand, first person knowledge of Michael Flynn, a person who shocked
Justice Department officials in early January by lying to FBI agents about
something he had to know was recorded, a conversation with the Russian
ambassador during the transition period. But in this filing, Mueller says,
look, he`s been critical and important early witness who probably,
according to Mueller`s filing, probably persuaded other transition
officials and Trump campaign officials to be more forthcoming and
cooperative with the probe. In other words, more honest.
MADDOW: Carol, when I read the special counsel`s sort of recitation of the
seriousness of Flynn`s crime, and the – even as they`re saying, you know,
we basically think he shouldn`t get prison time, and he`s been super
helpful to us. When they`re laying out what he did wrong, they talk about
that first time in January 2017, when he lied to them, it seems to me that
the FBI, with its counter intelligence mission at that point, had a few
different problems with Mike Flynn right off the bat, in the first week
that Trump was in office.
Number one, he was lying to them about something they definitely know.
Because as you say, that conversation with the Russian government, he had
to have known, would have been recorded, we have since learned through open
source reporting, that it likely – there were intercepts if not
recordings, and transcripts of that conversation. The government knew what
happened there, so they knew he was lying, lying to the FBI is a crime, so
they`ve got a criminal working as a national security adviser.
It`s also problem as we learn in this document tonight that the lies he
told there, were material to what was then the open FBI investigation into
Russia`s interference in the election, and their contacts with the Trump
campaign. So, he was lying to them in conjunction with a case in a way
that was material to what was being investigated. But the third problem
had to be a counter intelligence problem itself, because he was telling
lies publicly about something Russia knew the truth of.
He had been in contact with the Russian government, the Russian government
knew that, when he started covering that up, and telling lies about that,
publicly to other administration officials, and also to the FBI, Russia had
something on him. They could use that as leverage – threaten to out him,
threaten to blackmail him, use it to pressure him as national security
adviser, which, of course, is very dangerous.
I wonder just from your reporting, your understanding of how this all
unfolded with Flynn, what sort of alarms that would set off within the FBI?
What else that would activate in terms of the U.S. government to try to
neutralize or mitigate the harm caused by somebody who was that many urgent
problems all at once, the first week of a new presidency?
LEONNIG: You know, you summarized that so well, Rachel, and what`s – I`ve
interviewed several of the people who are on both sides of this exchange,
and several of them have testified publicly, so there`s lots out there that
you can understand about both sides of this experience.
Flynn was lying about something to FBI agents that he had to have known
they would discover was a lie. Why in the world Justice Department
officials ask themselves back at headquarters, why in the world had he not
been truthful? What was so important that he couldn`t share this piece of
And that`s still today a really important mystery that`s not been entirely
As well, you had the president getting alerted by his White House counsel,
Don McGahn. Remember, Sally Yates, after the FBI interview that doesn`t go
very well for Flynn, as she describes it, Sally Yates decides it`s so
important, she has to come over to the White House, basically two days
later, she tells Don McGahn, Trump`s White House counsel, hey, look,
there`s a problem. Your guy is compromised, I`m not the person to decide
for you what to do, but this is an issue. He`s vulnerable. The Russians
know this, and by the way, he`s lying.
McGahn takes this immediately to Donald Trump. Donald Trump is four days
into being president, and his instant reaction is, I don`t see what the big
problem is, and what in the world are these people doing from the Obama
Justice Department coming over questioning my – you know, my heads, my
choices of senior advisers?
So, on both sides there`s huge distrust, and at least on the Justice side,
alarm. On the president`s side, annoyance.
LEONNIG: But they`re very worried about this, and now, Mueller has a lot
of cooperation from Flynn and he now has no doubt explained to him why it
was so important to lie on January 24th and eventually become the shortest
serving national security adviser in history.
MADDOW: Carol Leonnig, reporter for “The Washington Post” – thank you so
much for joining us tonight. I know, again, it is putting pressure on you.
It`s not usually the way you work to have to turn something around like
this instantly. So, I`m all the more thankful that you were able to join
us on such short notice. Thank you, Carol.
LEONNIG: Thank you.
MADDOW: All right. I want to now bring into the conversation, Barb
McQuade, former U.S. attorney for the Eastern District of Michigan. Barb
has been absorbing this information just as we have this evening.
Barb, thank you so much for staying in the studio and for helping us
through this. I really appreciate you being here.
BARBARA MCQUADE, FORMER U.S. ATTORNEY: My pleasure, Rachel.
MADDOW: So, let me ask, your top line view of this. I mean, you`ve seen a
lot of sentencing documents, a lot of sentencing documents pursuant to
cooperation agreements. Does this strike you as unusual in anyway? Is it
a typical sort of sentencing document? What seems important about the
overall Russia investigation here now that we`ve got this new information
MCQUADE: Well, it is typical. Other than the redactions, waiting all day,
eating our popcorn, waiting to see the big reveal to get all of those
redactions is somewhat unsatisfying.
But I think there are a couple of things that are disclosed even in the
heavily redacted form that we see. Number one, the fact that they met 19
times. That is a huge number of meetings, and suggests that Michael Flynn
has shared an awful lot of information with the special counsel.
The other thing you pointed out, by going through the redactions in the
addendum, it looks like there`s not just one, but three separate
investigations that Michael Flynn has cooperated about, the special counsel
investigation. And then one that`s partly redacted but says criminal
investigation. And a third that`s completely redacted.
And if you say criminal investigation, is that in contrast with something
else that`s in that third investigation? Is it not criminal? Is it
something else? Is it a civil investigation? Or is it a counter
And so, that raises some additional questions about, are there other
matters that Robert Mueller`s looking at, because remember, his mandate was
to investigate links between Russia and the Trump campaign and the second
part of that was, and other matters that might arise in the course of the
So, have they found other things, does this involve things happening in the
Seychelles islands? Or with Saudi Arabia? Or the things that George Nader
has been talking about? Conversations with Erik Prince and foreign
So, it makes me wonder what other things Mike Flynn might be talking with
MADDOW: Right. And I`m reading that exactly the same way you are, you try
to put these things in context, and you think, well – all right, given how
long Flynn lasted in the Trump administration, as Carol Leonnig was saying,
the shortest lived ever national security adviser, didn`t even make it a
month, it can`t be that he`s a great source of information for things that
happened during the administration, he can really only be contributing
materially substantial information for the most part, about the campaign,
and what may have happened before the campaign conceivably and during the
But also, what would the special counsel`s office, the prosecutors in the
special counsel`s office, list before their own investigation? If they`re
making a list of three things of which he`s helping? The first thing they
list is, A, criminal investigation – redacted, redacted, redacted.
MADDOW: The second thing they list is their own investigation, the special
counsel`s office investigation.
And then the third thing, as you mentioned, we – it comes after an oxford
comma. We know there`s something else there. They don`t even say as much
as just a criminal investigation, as they do in the first time.
I don`t know how much to read into – how much to finally parse these
things. I guess we`ll only find out if these redactions are ever made
public. Do you think these redactions will ever be undone? Will ever be
allowed to see this full document?
MCQUADE: I do. I think a day will come when it gets unsealed. Typically,
documents are sealed only as long as necessary to protect the integrity of
an investigation. So, at some point, these investigations will be over,
either because charges will be filed or because they decide to decline to
And so, I think the day will come some day. I don`t know when, when we`ll
see what is behind these black bars.
MADDOW: On that point, Barb, there`s the issue of right now how the
special counsel`s office fits into the Justice Department, and what`s going
on with the acting attorney general, Matt Whitaker who President Trump has
installed there after having fired Attorney General Jeff Sessions.
We have presumed that the acting attorney general, Mr. Whitaker, has been,
you know, back channeling information to the White House in terms of his
access to information about the Mueller investigation. That is a
presumption on our part. It`s based on the change in language that the
president has used since Whitaker has been in there, claiming that he now
has information about the inner workings of the Mueller investigation and
other things like that.
But aside from those presumptions and suppositions we have admittedly been
making, would you expect the way the Justice Department works, the way the
special counsel`s office works and those regulations governing that, would
you expect that Whitaker would have seen the full unredacted documents
here? And if there is, particularly sensitive or damning information
there, there`s a possibility that Whitaker might back channel that stuff to
the White House?
MCQUADE: I say yes and yes. I think that he certainly would have had
access to seeing the unredacted version of this. I don`t know whether he
has availed himself of that. You know, we have heard no reporting he`s
been recused from this case. So, I imagine he`s not.
I would imagine that Rod Rosenstein is still the one interacting with
Robert Mueller most frequently, just because of the nature of the way the
Justice Department works. The attorney general is usually the outward-
facing person and the deputy attorney general is one who actually
supervises the high level cases.
But in light of how incredibly important this case is, and the unusual
nature of Whitaker`s appointment leapfrogging Rod Rosenstein to get this
job, I would think he would be immensely curious. He has a right to see
it, he even has a right to stop it if he thinks it`s completely
inappropriate or contrary to Justice Department policies. He apparently
didn`t think it was the case here.
But if he wanted to, I think he could go tell President Trump exactly
what`s behind those redactions. You know, if he were to do it with some
corrupt intent, with some effort to impede the investigation or to get
other people to change their stories to coordinate with what`s here, I
think that could be problematic and some obstruction of justice. But I
think that he could probably find out what`s in here, and share it with the
MADDOW: Barbara McQuade, former U.S. attorney for the Eastern District of
Michigan – thank you for being here tonight, Barb. Invaluable to have you
here for us. Thanks.
MCQUADE: Thanks so much, Rachel.
MADDOW: All right. Much more to get here tonight. Again, the big news is
that within the last hour or so, the Justice Department, the special
counsel`s office has released its sentencing memorandum, saying essentially
that they want the judge to give Mike Flynn as little as zero time in
prison. And that he has provided substantial assistance to the government
in multiple ongoing investigations.
If you want to know about that substantial assistance, you will have to
wait until the judge unseals those portions of these filings, because
there`s page after page after page after page that look like this, spelling
out what investigations Mike Flynn is helping with and how exactly he has
Stay with us. We`ll be right back.
MADDOW: Before we got the Mike Flynn sentencing memorandum tonight from
Robert Mueller`s office, “The Wall Street Journal” was first to report that
Bill Priestap is leaving the Federal Bureau of Investigations. I know that
is not a household name, but Bill Priestap is the number two official in
the counterintelligence division at FBI.
His departure from FBI is a landmark moment in the Russia investigation
because Bill Priestap is the last senior FBI official who was directly
involved at a senior level in the Russia investigation from the very
beginning. He is the last one who was still at the FBI. And now as of
this reporting tonight in the “Wall Street Journal,” apparently, he is now
gone, too. Or at least he`s on his way out.
And I know that these guys sometimes just age out. The “Wall Street
Journal” says there is nothing unusual about this departure that Priestap
hit his 20-year benchmark at the department and just decided to leave for
that reason and that reason alone, but it is striking that as of tonight,
all of the senior FBI officials who were involved in investigating the
Russia scandal from the beginning, they are now all gone. And the specific
official who was actually running the Russia investigation inside the
bureau on a day to day, hands on basis, before it was handed over to Robert
Mueller, that was Bill Priestap, assistant director of counterintelligence
at the FBI, and he is the official who we are just learning tonight is
about to leave the bureau himself.
And, you know, maybe this is totally normal. Maybe this is all
coincidental and this is just your typical turnover. But it is remarkable
it has been 2-1/2 years since the FBI started investigating what Russia
interfering in our election, to mess with our country`s election of our
That investigation is not wrapped up, which is very, very clear by all the
multiple redactions in the Mike Flynn sentencing tonight, about all of the
things he`s helping with that are still not wrapped that are still ongoing.
But since the FBI started that investigation in the summer of 2016, the FBI
has lost or turfed out its director, James Comey, its deputy director,
Andrew McCabe, the head of counter espionage, Peter Strzok, the FBI general
counsel James Baker, the FBI chief of staff, James Rybicki, the head of
national security division, Carl Ghattas, the chief counsel to the deputy
director, Lisa Page, and now, the assistant director of the FBI`s
counterintelligence division who was personally running the Russia
investigation before Mueller.
As of tonight, they are, all of them, gone. And that is intriguing tonight
in terms of why Bill Priestap is leaving and why now. But it is also a
good reminder of the night that we get the sentencing documents on Michael
Flynn. Actually, Congressman Adam Schiff had a good op-ed about this today
in “USA Today”, just this morning, even before we got the Flynn sentencing
documents. It`s a good reminder that the whole Russia scandal was being
run by the deputy director of counterintelligence at the FBI because it all
started as a counterintelligence investigation.
And the counter intelligence division at the FBI is charged with stopping
other countries from running foreign intelligence operations inside our
borders, right, to affect this country. In this Trump campaign, now Trump
administration scandal, this counterintelligence investigation has
specifically been looking into how Russia`s intelligence services, their
military intelligence wing, how they were trying to mess up our
presidential election in 2016. And whether there were Americans who were
helping them in that effort.
And the first dramatic counterintelligence development we the public ever
knew about in all this, because we saw it unfold in the newspapers. We saw
it unfold with dramatic action in Washington, was the case of Mike Flynn.
And tonight, even with these details that we got from his sentencing memo,
there remain all these intriguing questions that we still don`t have
answers to about the Mike Flynn part of this.
I mean, when Mike Flynn went to Russia and attended a gala dinner promoting
the Russian propaganda channel RT in December 2015, why did he accept that
invitation, as a former senior intelligence official in the U.S. military?
And why did he publicly lie about the fact he was actually paid by the
Russian government to make that trip?
It is relatively easy to figure out that the Russian government paid for
Mike Flynn to take that trip. Why did he publicly lie about it and deny
that? He said he wasn`t ashamed of it and there was nothing wrong with it.
Well, if so, why did he lie?
There was also the Peter Smith story. Republican activist now deceased
Peter Smith, exposed in “Wall Street Journal” for having run a sort of
private intel operation during the campaign where he contacted hackers
offering to pay good money for hacked e-mails stolen from Hillary Clinton.
Before he died, Peter Smith told Shane Harris at the “Wall Street Journal,”
he specifically sought out Russian hackers for this plot, and he bragged to
potential investors and co-conspirators that Mike Flynn and Mike Flynn`s
son were both working with him on that.
Was Peter Smith lying about or was Mike Flynn, in fact, involved in that
When “The Wall Street Journal” and then “The Washington Post” and then “The
New York Times” each reported successively on details of Flynn`s secret
involvement in a weird plan to build nuclear power plants in the Middle
East, a plan that would involve Russia, that`s the plan that reportedly led
Mike Flynn to text one of his business partners in that deal, literally on
inauguration day to text him that economic sanctions against Russia would
be ripped up as one of the Trump administration`s first acts, which, of
course, he was excited about because that would have an impact on their
When Flynn was having his repeated conversations with the Russian
government about lifting sanctions, when he was lying publicly to the FBI
about those communications with Russia, were those discussions knowingly
connected to his own business dealings that would have benefitted from
Russia dropping – from dropping Russian sanctions? Were those
conversations knowingly related to President Trump`s secret business
dealings with Russia, which would have benefited from the dropping of
Russian sanctions? And if so, Russia presumably knew about all of that,
too. Is that why those sanctions discussions were kept secret?
I mean, according to open source reporting, Flynn is tied up in all these
different elements of intrigue involving Russia and its interference in our
election, and counterintelligence worries about Russia, you know, running
operations inside our country to compromise senior members of the U.S.
government, including the U.S. president and the national security advisor.
Now, we`ve got news that Michael Flynn has been cooperating with the
special counsel`s office, offering significant, substantial contribution
much to the satisfaction of the special counsel and therefore he should
serve no prison time. That said, what he`s been cooperating about we`re
not allowed to know because it is still ongoing investigations.
In that context, Politico.com was first to report tonight that inside the
Trump White House, a new White House counsel is due to start on Monday.
His name is Pat Cipollone. He`s apparently due to take over as White House
counsel after an unexpectedly long security clearance process. I don`t
know why it took unexpectedly long for him to get his security clearance.
But what`s interesting about Pat Cipollone is taking over as of Monday, the
previous White House counsel, Don McGahn, has been gone for a while. In
the meantime for the past like couple of months, the person who has been
filling in as acting White House counsel is Emmet Flood, the president`s
lead lawyer on the Russia investigation.
So, what that means is for the past couple of months, the president`s lead
lawyer on the Russia investigation has only been working on Russia part
time because he`s been otherwise filling in as White House counsel, too.
If “Politico” is right tonight that Pat Cipollone is finally due to take
over as White House counsel on Monday, that means, at least, President
Trump will go back to having a full-time lawyer representing him on Russia
starting next week. With apparently all that is still ongoing, and that
they`ve been getting lots of help from people inside the transition and the
campaign, it seems like that might be right on time.
That does it for us tonight. We will see you again tomorrow.
Now, it`s time for “THE LAST WORD WITH LAWRENCE O`DONNELL”.
Good evening, Lawrence.
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