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Mueller releases memorandum. TRANSCRIPT: 12/4/18, The Rachel Maddow Show

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 tacos. 

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 sentencing. 

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 government. 

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 incarceration. 

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 of information. 

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 president. 

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 problem, right? 

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 their work. 

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 sphere. 

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 accord. 

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 government. 

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 investigation. 

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 his sentence.

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 forward. 

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 critical. 

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 here. 

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 assistance? 

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, substantial assistance. 

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 extraordinary assistance. 

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 issue there. 

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 information? 

And that`s still today a really important mystery that`s not been entirely unlocked. 

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. 

MADDOW:  Yes. 

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.


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 about Flynn? 

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 intelligence investigation? 

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 investigation. 

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 leaders? 

So, it makes me wonder what other things Mike Flynn might be talking with them about. 

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 transition. 

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. 

MCQUADE:  Right. 

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 bring them. 

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 president. 

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 helped. 

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 next president. 

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 operation? 

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 nuclear deal. 

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, 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. 


Good evening, Lawrence. 

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