Show: THE LAST WORD WITH LAWRENCE O`DONNELL Date: December 11, 2018 Guest: Glenn Kirschner; Eric Swalwell; Jennifer Rubin; John Heilemann
LAWRENCE O`DONNELL, MSNBC HOST: Good evening, Lawrence.
And when I saw at 15 minutes before 9:00, that this memo was coming. Yes, but we didn`t actually -- when did you actually get it in your hands?
RACHEL MADDOW, MSNBC HOST, "TRMS": I got it in my hands while we were playing the sound bite in the a block of Mike Pence telling Mike Barnicle that Mike Flynn, Jr., didn`t work on the transition. That`s when it was handed to me.
O`DONNELL: That`s kind of when it was handed to me. And so, as soon as I heard this, I just thought this is so unfair. This is so unfair to Rachel.
But, OK, so how about this? How about this? What if -- what if tonight when this memo arrived, I had simply slipped into your chair and taken the first half hour, OK, and you are reading the memo off stage somewhere, then you come in at 9:30, you go from 9:30 to 10:30, I`ll be reading the memo then. And then -- I mean, we`ll both end up with an hour of TV in this mix somehow.
MADDOW: So, we`ll do this like -- we`ll pass news -- we`ll pass breaking news like a baton in a delayed relay designed to put the most informed person on TV at any given moment.
O`DONNELL: Yes. And, you know, that first half hour when I`m covering for you, that`s not going to exactly be news. That`s going to be me talking about what I did today and maybe some old memories of working in the Senate or whatever I can come up with to just kind of cover for you over in the corner reading.
MADDOW: You know, next filing we could try this, you know.
O`DONNELL: Whatever you say.
MADDOW: Both Flynn filings have been between 8:30 and 9:00, so --
O`DONNELL: They know. They know, Rachel. They are testing you, and you are passing the test every night. Extraordinary how you handled it tonight.
MADDOW: You are very kind, my friend. Thanks, Lawrence.
O`DONNELL: Thank you, Rachel.
Well, we had a vivid display today of the reason President Trump`s criminal defense lawyers do not want him to testify under oath to Robert Mueller`s grand jury. John Dowd, who quit the president`s legal defense team, gets the last line, the very last line in Bob Woodward`s book "Fear" where it says: In the political back and forth, the evasions, the denial, the tweeting, obscuring, crying fake news, indignation, Trump had one overriding problem. Dowd knew but could not bring himself to say to the president, you`re a f-ing liar.
That`s how the book ends, F-ing liar. Earlier in Bob Woodward`s book, John Dowd does tell the president this. You do have trouble staying on the subject, ask that can defeat you. Then you try to catch yourself, and you misstate something, and then, bam. It`s like Mike Flynn not remembering the conversation with Kislyak.
There`s the president`s criminal defense lawyer telling him if he testifies under oath in the Mueller investigation, he will commit perjury. And on that same page of the Woodward book, Dowd simplified his advice to the president this way. Don`t testify. It`s either that or an orange jumpsuit.
When John Dowd and the criminal defense lawyers watched what Trump did in the Oval Office today, none of them were surprised. And all of them knew what they were watching was a version of what would happen to Donald Trump if he had to testify under oath, answering questions from Robert Mueller.
In the Oval Office today, the role of Robert Mueller was played by Chuck Schumer.
(BEGIN VIDEO CLIP)
SEN. CHUCK SCHUMER (D-NY), MINORITY LEADER: One thing I think we can agree on is we shouldn`t shutdown the government over a dispute. And you want to shut it down. You keep talking about it.
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: The last time, Chuck, you shut it down.
SCHUMER: No, no, no. Twenty times.
TRUMP: You opened it very quickly. I don`t want to do what you did.
SCHUMER: Twenty times you were called for, I will shutdown the government if I don`t get my wall. None of us have said --
TRUMP: You want to know something?
SCHUMER: You said it. You said it.
TRUMP: I`ll take it.
TRUMP: You know what I`ll say? Yes, if we don`t get what we want, one way or the other, whether it`s through you, through a military, through anything you want to call, I will shutdown the government.
SCHUMER: OK, fair enough. We disagree. We disagree.
TRUMP: I am proud to shutdown the government for border security, Chuck.
(END VIDEO CLIP)
O`DONNELL: Imagine, just imagine what Robert Mueller and his team of prosecutors would do with a witness like Donald Trump. They would easily get Donald Trump animated and emotional and carried away like we just saw him because that`s what happens to Donald Trump when he`s faced with resistance or a challenge, like he got from Chuck Schumer and Nancy Pelosi sitting in the Oval Office today, telling him that he was wrong about everything he was saying, and telling him that they will not vote to provide funding for the border wall that Mexico was supposed to pay for.
It took Chuck Schumer and Nancy Pelosi a matter of seconds -- seconds to get Donald Trump to say, I will shutdown the government. I am proud to shutdown the government. How long would it take Robert Mueller to get Donald Trump to say, I`m proud that Russia helped me win the Electoral College. I am proud that I directed an illegal conspiracy with Michael Cohen to pay off Stormy Daniels and Karen McDougal for their silence in the last days of the presidential campaign.
I am proud that I lied to the American people about my pursuit of business deals in Russia during the presidential campaign. How long would it take?
Nancy Pelosi pointed out that Donald Trump was lying in the room today, but she used big words, so Trump didn`t actually understand what she was saying, and so after Nancy Pelosi says, he was lying, Donald Trump actually says, I agree with that. Here it is.
(BEGIN VIDEO CLIP)
REP. NANCY PELOSI (D-CA), MINORITY LEADER: The president is representing his cards over there are not factual. We have to have an evidence-based conversation about what does work, what money has been spent and how effective it is. This isn`t -- this is about the security of our country, take an oath to protect and defend, and we don`t want to have that mischaracterized by anyone. And I --
TRUMP: I agree with that.
(END VIDEO CLIP)
O`DONNELL: The mischaracterizer agrees with that.
Donald Trump made the mistake of putting his terrible performance on the Oval Office today on camera because he believes the camera loves him and he obviously really loves the camera. But no one in that room changed anyone`s minds out there in the country today. The people who support Donald Trump`s wall and his willingness to shutdown the government, like what they heard Donald Trump talk about today, they like what had he heard him say.
But the people who do not support the Trump wall and do not want the government shutdown which is, according to polling, a majority of the country, they didn`t like what they heard from Donald Trump. But it wasn`t very easy to make sense of what they were hearing from Chuck Schumer and Nancy Pelosi, especially because of all the disruptions and interruptions and the wildly disorganized flow of that dialogue as it played out on TV.
Chuck Schumer and Nancy Pelosi have obviously learned that they cannot treat Donald Trump the way they would treat any other president in the oval office. They have to be willing to interrupt him and turn away from him and play to the cameras when Donald Trump is playing to the cameras. And they did that today. They did a good job of that today. But they could do better.
The Democrats in that room today could have delivered a much more clarifying and much more humiliating moment for Donald Trump. When Donald Trump decided to publicly turn the discussion about funding the government into a threat to shutdown the government if the Democrats didn`t pay for his wall, the Democrats should have said, we expect the president to fulfill his promise to obtain funding for the wall from Mexico.
Chuck Schumer should have actually put that in writing. Nancy Pelosi and Chuck Schumer should have cosigned a letter to the president before they even arrived there saying that. They should have put their position for funding the government in writing and added a note to it saying, that the wall should not be part of the budget because the president said Mexico will pay for the wall. They should have forced Donald Trump to say in the Oval Office today, Mexico will not pay for the wall. That`s why I need Democratic votes in the Senate to pay for the wall, and that`s why I`m angry, and that`s why I`m out of control, and that`s why I`m saying I would be proud to shutdown the government.
Democratic leadership made the mistake long ago of releasing Donald Trump from his promise to force Mexico to pay for the wall. The most painful thing that Donald Trump could possibly have heard in that room today is Mexico will pay for the wall. The chant that he led and lived by on the campaign trail would have been the most painful thing that the Democrats could have said to the president in the Oval Office today, but they don`t know yet how to fight Trump with Trump, by which I mean, fighting Trump with Trump`s own words, not with said to the president in the oval office today, but they don`t know yet how to fight Trump with Trump, by which I mean, fighting Trump with Trump`s own words, not with Trump`s vulgarity, not with Trump`s ugly brawling style, but with Trump`s own words.
But Nancy Pelosi and Chuck Schumer have been in Washington too long and have become far too professional to see how easy and clarifying it is to fight Trump with Trump`s own words. They make the mistake of approaching Oval Office meetings with this president the way they would with any president. They put a serious proposal together for funding the government, and they brought it in Oval Office to discuss it seriously with a man who has no capacity to discuss anything seriously -- nothing. Nancy Pelosi and Chuck Schumer have not yet figured out how to publicly deal with the unserious man who is the president of the United States.
And so, they did not force Donald Trump to wrestle with his own words in the Oval Office today. They did not force him to say, Mexico is not going to pay for the wall, and so I need ten Democrats in the Senate. Instead, the president lied and said he could easily pass a bill through the Republican House of Representatives and get a majority of the Senate to vote for that, the Republican Senate. That`s not true. They probably could not get a bill through the Republicans in the House and the Senate.
And instead, the discussion today seemed to be a discussion about the parliamentary device of the 60-vote threshold in the Senate that can block legislation like this. There probably isn`t a government funding bill that could get support from all the Republicans in the House and all the Republicans in the Senate anyway. So, even that part of what the president said is not true. But Donald Trump was allowed to hide behind the idea publicly that this meeting was taking place simply because of this troublesome parliamentary threshold of 60 votes in the United States Senate.
But that`s not why this meeting was taking place. This meeting was taking place for the same reason that Donald Trump is an unindicted conspirator tonight in the Michael Cohen case in federal court in New York City, because Donald Trump lied to American voters. Donald Trump directed the illegal payments that Michael Cohen made during the presidential campaign, and then lied to the American public saying he knew nothing about it.
Donald Trump lied to American voters also saying that Mexico would pay for the wall. That lie, that Mexico would pay for the wall, is the reason there was an argument today in the Trump Oval Office about the Trump wall.
Robert Mueller is never going to force Donald Trump to admit that he lied to American voters about paying for the wall, but the Democratic leadership in Congress should never give up on forcing Donald Trump to admit his lie, to own his lie, and tell America that Mexico will not pay for the wall. The Trump wall will never be built. We can all see that now.
And sometime next year, Donald Trump will probably stop talking about the wall when he realizes it is his most prominent failure. And he doesn`t want to remind people of it. But the Democrats should never let America forget Donald Trump`s big lie about his big wall.
Leading off our discussion now, John Heilemann, national affairs analyst for NBC News and MSNBC. He`s co-host and executive producer of Showtime`s "The Circus". Also joining us is Ezra Klein, editor at large at "Vox" and the host of the podcast "The Ezra Klein Show". And Kimberly Atkins, Washington bureau chief for "The Boston Herald", and an MSNBC contributor.
Ezra, let me start with you tonight.
What I`m watching in the Oval Office for the most part with Nancy Pelosi and Chuck Schumer is the old method. They are stepping up their game in a certain way, interrupting Donald Trump and playing to the cameras like Donald Trump is. But they seem to think it`s going to be a serious in the Oval Office, so we have to stay serious and present our serious position all the way through here.
And one of the reasons they don`t want to bring up Mexico will pay for the wall is they know how ridiculous it is, and they don`t want those ridiculous words to come out of their mouths. But it seems to me there is still room for them to figure out how to deal with Donald Trump in one of these meetings that turns out to be a circus.
EZRA KLEIN, EDITOR-AT-LARGE, VOX: I do think that they did a nice job, to give them some credit here, of putting him in a corner. What struck me so deeply about that meeting was that Donald Trump doesn`t himself want the wall. That is not the meeting you hold if you want the wall. The difference in what he wants in funding and what he`s currently got in funding is $3.7 billion.
I mean, Lawrence, you know federal budgets. That is nothing in the federal budget. If he wanted that wall, he would not have put that meeting in front of the cameras, which is something they kept saying. And he`d be willing to give them something for it. Dreamers protections would be a very easy trade. It actually would be a popular trade for him to make and even for them to make.
But the thing did Trump is he doesn`t want the wall, he wants the fight over the wall. I think you`re right. I don`t think they know exactly what to do with the president who doesn`t want his policies because he doesn`t care about policy. What he wants to do is have fights with Democrats about policy or about policy ideas or about words that sound like policy ideas and have those fights on camera.
The fact that those fights don`t rebound well for him, the fact that he`s in a popular position doesn`t seem to bother him. Trump runs his presidency as if the question is whether the ratings in the television show he`s starring on are good. Whether the plot twists are interesting. Today was a good day in the Trump show.
If you`re somebody who actually believes in Donald Trump`s vision for America, it was a terrible day. It was a day when you saw his he has no interest at all to get that vision done.
O`DONNELL: Kimberly Atkins, Eli Stokols reporting tonight that Trump stormed out of the Oval Office right after the Pelosi/Schumer meeting ended, flicking away a folder and scattering briefing materials in frustration, said one staffer who saw it. And so, Kimberly, according to one leaking staffer in the White House, Donald Trump was not at all pleased with the way things went.
KIMBERLY ATKINS, WASHINGTON BUREAU CHIEF, BOSTON HERALD: And I can`t really blame him. I mean, we`re talking about how Chuck Schumer and Nancy Pelosi -- what they`re used to dealing with in the White House. But what struck me was that President Trump, for the first two years of his presidency, has been used to leaders in the House and the Senate who, at best, ignore what he`s doing and, at worst, capitulate to some of his own worst instincts. They`ve never stood up to him, they`ve never really pushed back against him.
And now, he`s facing Nancy Pelosi who is about to take the gavel of the speakership. And I think he`s beginning to understand both in messaging and on policy that she is going to be a very different speaker than Paul Ryan was, that she is somebody who will stand up to him. She was trying to show some decorum in the White House, saying several times that this was a discussion that perhaps should be held off camera. But when Donald Trump took a swipe at her about the speakership battle that she`s having right now, she made it pretty clear that she`s not the one -- that she`s not the one to be messed with and advised him not to do that.
And so, I think what we saw is the beginning of what could be a roller coaster ride of a relationship between Donald Trump as he finally stands -- faces someone who can stand in the way of his policy, who can push back, and who is going to lead an effort to try to hold him accountable in a way that he hasn`t been for two years.
O`DONNELL: John Heilemann, "The Associated Press" is reporting Donald Trump did say in the closed door version of the meeting, Mexico will pay for the wall one way or the other. Nancy Pelosi was shocked by that, and then Trump told the lie that in the new version of NAFTA, you know, the money will be used to pay for the wall. He doesn`t understand the American government collects no money in the new version of NAFTA or in the old version of NAFTA. That`s not the way it works.
Eli Stokols reporting this about the meeting. The closed door session, he says, am told very little of substance took place after the pool cameras -- once the president has been aggravate today that level, there`s no coming back from that and refocusing according to the source who leaked about the meeting.
JOHN HEILEMANN, NBC NATIONAL AFFAIRS ANALYST: Your prism you view Trump as a pathological liar, you take that as the most fundamental thing about him and figure out what your strategies and tactics are based on that. The sole -- I think it may be a fatal flaw in your perspective -- is that Trump lies to himself as much as he lies to everyone else.
O`DONNELL: Sure, sure.
HEILEMANN: So lying to yourself at that level turns into a delusion, right? So, the thing about Mexico, you could confront him with his own words about Mexico paying for the wall. And you imagine he would say on camera what he said in the private session, which is he would just yell at you more how Mexico is going to eventually pay for the wall.
The delusions of the man were on display to an extraordinary degree here today. The lie that he tells himself that he`s a better negotiator than everyone else, when it`s clear now he`s not just a bad negotiator, but the worst negotiator. We`re going to see that play out. That played out today.
The why he`s better on television -- if he forces a couple people who aren`t used to the reality TV milieu into an unexpected televised confrontation, he`ll get the better of them. Again, you learn quickly, Trump is in cloud cuckoo land about his television performer since he got outplayed completely by Pelosi and Schumer.
And the final thing that I thought was incredible today was he still seems to really believe there is a moment you can tell he`s being earnest with Nancy Pelosi, we won the Senate, Nancy, we won the Senate. And you wanted to look at her and say, you know, you have the Senate. You didn`t win the Senate. You had the senate. You picked up a couple seats in the most forbidding decline of Democrats in 100 years. You failed in every respect in the midterms.
How can you be clinging to this notion that somehow, well, you won the House and we won the Senate? The man truly, though, believes that. And all of those delusions I think what we learned today are going to cause him a lot of problems in the coming next two years.
O`DONNELL: Yes. Let`s listen to -- if we stay with the Mueller example of this and consider what was going on in the Oval Office, Donald Trump testifying about his crimes and he eventually confesses that he wants to shutdown the government and commit that crime against government, let`s listen to the Trump defense lawyer whose job was to speak after Donald Trump today. That role was played by Mitch McConnell.
Let`s listen to how the Trump defense lawyer tried to clean this up.
(BEGIN VIDEO CLIP)
REPORTER: The president says he`s willing to take full ownership of a government shutdown. How does that sit with you?
SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER: Well, I hope that`s not where we end up. I understand it was a rather spirited meeting. We all watched. But I`d still like to see a smooth ending here and I haven`t given up hope that`s what we`ll have.
(END VIDEO CLIP)
O`DONNELL: Ezra Klein, if Mitch McConnell wants a smooth ending, Chuck Schumer wants a smooth ending, Nancy Pelosi wants a smooth ending, there`s going to be a smooth ending, right?
KLEIN: It`s like a fight club. The first rule of shutting down government is you don`t talk about shutting down the government, you never talk about shutting down the government. You never want to be the person shutting down the government.
There is a moment in the meeting today where you can just tell. I think you played the clip earlier. That Schumer cannot believe, he can`t believe he just got Donald Trump to say, I will shutdown the government. That will be all me.
The thing presidents typically do after there was a midterm is they back off a little bit. They try to moderate in between a new opposition Congress and their own party. They try to move a little bit to the middle and they try to negotiate. And they try to show that the party that just came in, the party that just won the midterm, will stop at nothing, including shutting down the government to stop their agenda.
What they want to show they`re on the side of the country. They, the president, and this new, you know, House majority, whatever it might be, is on the side of some narrow partisan agenda.
What you don`t do is turn around and say I, the president, will stop at nothing on my agenda. I will shutdown the government. I will try to get something after an election in which I lost the election -- by the way, in the Senate, they lost the popular vote in the Senate very, very, very badly. He did not win the Senate in terms of popular opinion. They had a good map.
It`s a bizarre performance and at that moment, and I think you see with McConnell there, too, Schumer and Pelosi cannot believe what Donald Trump has just said in the negotiating position he just put himself in. And McConnell now also cannot believe the negotiating position Trump has just put him in because now there is a shutdown, there is no way for McConnell, no way to do exactly what he would want to do and what he maybe would have profited doing which is blame it on the Democrats.
O`DONNELL: I`m sure he`ll do it anyway if it comes to that.
Kimberly, the polling on this, on the wall, I could not be clearer, 50 percent say it`s not a priority at all, only 19 -- let`s see, 28 percent, which is Trump world, say it`s an immediate priority. The public is with the Schumer/Pelosi side of this argument.
ATKINS: Yes. But this is one of those things that the president keeps going back to. I call them the crowd pleasers, right? The things that he says at rallies usually that he knows gins up his crowd, he sees it as a rallying cry akin to lock her up, And I think he knows it`s not going to happen. But he keeps going back to it.
What`s surprising is how much he went to it during this meeting. I checked the White House transcript, and he said the word "wall" 45 times, which is what I believe Nancy Pelosi later said -- you know, was talking about his obsession with it and thought that it was perhaps a manhood thing.
It`s a part of his identity now. It`s something that transcends a policy. And I think going into this meeting, I thought one of two things could happen. Given the Mueller investigation, given the roller coaster of the stock market and the problem finding a chief of staff, Donald Trump could either go in this trying to negotiate a deal in order to get a win and to change the subject of the headlines, or he would be so frustrated by all those things that he would go in, you know, with a terrible disposition, and lash out.
It looks like he did the latter. And it didn`t work out for him too well. I mean, I think he missed even when Chuck Schumer was trolling him what he said about the Senate, I don`t think he even caught it. He was not on his game. But he retreated to the place where he`s comfortable, which is calling for that wall.
O`DONNELL: John, I think the Democrats, Nancy Pelosi, Chuck Schumer have to reconsider all tactics in dealing with the president in these situations, including not attending this meeting, simply putting their proposal on one piece of paper, releasing it publicly, and saying, we know the president can`t read more than one piece of paper, here`s our funding proposal. There`s no -- why go into a circus -- discussion with a circus clown? The other is if you are in a discussion with a circus clown in the Oval Office, for the first time in history, I think the -- what will be the speaker of the House and the Senate minority leader have to consider when they get up and leave.
When they stand up and say, here`s our proposal right here on one page for you. That`s it. And leave. Once he goes into these crazy rants. The power of them walking out on him is a power that at some point they might want to exercise.
HEILEMANN: I totally agree that all reconsideration of tactics is in order. I totally agree a different kind of counter theater is in order.
HEILEMANN: And particularly because, again, to go back to the thing we`ve been talking about here, what was clear today is although they may not have done everything they could have done to unnerve Donald Trump, that they did unnerve him. What is clear is that psy-ops work with Donald Trump. He has a fragile psyche, an easy to game out psyche, right?
So, if this -- in this meeting which they came to with a relatively traditional approach, and they came to without a lot of kind of avant-garde theatrics to play, what they could do if they went to avant-garde theatrics, and I want to put a cinematic button on a point that Ezra, your book made related to Bob Mueller. What that moment was with Chuck Schumer right here was "A Few Good Men" moment. It was the moment when Kathy -- when Jackie Gleason finally says, you`re dam right I went to code red. Kathy sits there and looks like, I can`t believe he admitted to doing it.
That was Chuck Schumer`s face. It was Tom Cruise at that moment, sergeant of arms says, listen up, that`s the moment we could have in the Mueller investigation.
O`DONNELL: I think they did a fine job of improvising today. I think they have to think about improvising, think about their next meeting, when is their walk out moment, let it happen and let Donald Trump be afraid of inviting them up there.
John Heilemann, Ezra Klein, Kimberly Atkins, thank you for starting us off tonight.
We have breaking news tonight obviously about Michael Flynn`s case. You heard all that in Rachel`s hour. We`re going to go over it. His lawyers have filed a sentencing memo describing exactly how Michael Flynn lied to the FBI and just how much he`s been cooperating with Robert Mueller.
O`DONNELL: We have breaking news tonight. The attorneys for President Trump`s first national security advisor Michael Flynn have filed a sentencing memo before his sentencing, which is scheduled for next Tuesday. In that memo, they asked a federal judge to spare Michael Flynn a prison sentence and to sentence him to probation with minimal supervision and 200 hours of community service.
Joining us now, Glenn Kirschner, former federal prosecutor, and an MSNBC legal analyst. Glenn, you`ve had a chance to read this memo. There is a very detailed description of exactly how the scene played out when the FBI interviewed Michael Flynn and how he ended up lying to them. And what else is there in this memo that is new?
GLENN KIRSCHNER, FORMER FEDERAL PROSECUTOR: Yes. Lawrence, it`s a really interesting memo. It is about 170-plus pages. Much of it is attachments by way of letters of support and General Flynn`s commendations over the years. It starts out the first six or seven pages not surprisingly talks about his military career. And it`s beyond dispute, he had a remarkable military career.
But then when we get to page seven, as you mention, curiously he begins to sort of set the table and the circumstances for the interview in which he lied to the FBI. And I found it curious that he talked about how the meeting was set up by Deputy Director McCabe and we`ve heard about his problems. Then he talks about one of the two FBI agents who actually interview him being Peter Strzok. We`ve heard about his challenges and problems.
And I`m wondering why in the world is he criticizing the FBI agents who ran the investigation or the interview. He also notes that they didn`t even advise him that it was a crime to lie to the FBI, though he certainly, General Flynn certainly knew that to be the case and there is no requirement that they advise him that it`s a crime. So it looked like he was criticizing the FBI.
But then as I continued to read, I saw what he was really doing. What he did is he set out the circumstances of the Alex van der Zwaan interview with the FBI in which he lied. And he set out the circumstances of the George Papadopoulos interview with the FBI in which Papadopoulos lied, and he wanted to distinguish his circumstances from theirs. Why? Because they both got jail time. His attorneys desperately don`t want him to get any jail time.
So he highlighted things like, well, van der Zwaan is an attorney, so he should have known better. Van der Zwaan was notified during the interview that lying could be a crime. Similarly, Papadopoulos was notified that it was a crime to lie to the FBI. And in a follow-up interview, Papadopoulos had a lawyer with him and he continued to lie. So that`s why I think Flynn was -- and his lawyers, it`s a nice piece of advocacy, were trying to distinguish his lies and his situation from theirs.
And then the second reason, Lawrence, is they are obviously playing to Judge Emmet Sullivan. Judge Emmet Sullivan is a legendary judge here in D.C. I have appeared before him. He is a fiercely independent man, and I think they wanted to set out the equities of the situation because, even though Bob Mueller`s team said no jail time and the defense team said no jail time, Judge Emmet Sullivan will decide what`s right in this case. And he could look at it and say, "Wait a minute, a national security advisor lying to the FBI about talking with Russians? That is a serious offense."
So I think the defense team really wanted to do everything it could to persuade Emmet Sullivan that probation is the appropriate sentence.
O`DONNELL: Glenn, you know, as I read it, I didn`t read it as so critical of the FBI so much as just a straight descriptive by Flynn of how it actually happened and some FBI tactics are revealed there. They clearly thought it was possible that Michael Flynn might lie about it and they approached him in a way that would allow him -- they wanted him to feel comfortable.
This is a common thing that investigators and law enforcement officials do all the time. They conduct interviews this way all the time, to make it appear friendlier than the circumstances actually are, hoping that the person will relax. And so I mean I can`t believe that a judge is going to read any of that and think harshly of the FBI on that.
KIRSCHNER: I wouldn`t think so but I found it interesting that they named two of the three FBI participants, McCabe and Strzok. They declined to name the third. And I agree that sometimes we do want to put people at ease. We want to give them the opportunity to lie if they`re going to do it and it looks like that`s what the FBI did.
O`DONNELL: Glenn Kirschner, thank you very much for joining us tonight. Really appreciate it.
KIRSCHNER: Thanks, Lawrence.
O`DONNELL: We are joined now by Congressman Eric Swalwell, the Democrat from California. He`s a member of the Intelligence Committee and the Judiciary Committee in the House of Representatives. Congressman Swalwell, first of all, your reaction to what we are learning about Michael Flynn`s sentencing memo tonight. He goes into a pretty detailed description, his lawyers do, of how he ended up lying to the FBI. You can sense a certain defensiveness, a minimal amount of defensiveness in it, but he did plead guilty to these crimes.
REP. ERIC SWALWELL (D-CA), JUDICIARY & INTELLIGENCE COMMITTEES: He did. Lawrence, good evening. He came clean. And people who come clean should be rewarded, especially if they provide information that cannot otherwise be obtained. And it looks like General Flynn did that. Now, it pains me to say that because this is a national security advisor who had gone to Russia in 2015 when the primary campaign is going on and sits at the table next to Vladimir Putin and didn`t disclose that property -- properly.
This is somebody who said lock her up all throughout the campaign about Hillary Clinton`s conduct and somebody who definitely knows better not to lie to the FBI. So I don`t have much sympathy for him, but I do think you have to make it clear to other witnesses out there that if you come clean, you`ll be rewarded. And if you don`t come clean, like Paul Manafort, like others who have tried to lie, that the hammer will be brought down on you.
O`DONNELL: Congressman Swalwell, I wanted to read you something that President Trump said tonight in an interview with "Reuters". He`s talking about the Michael Cohen case where he has been named as an unindicted co- conspirator in this case in New York. The president said, "Michael Cohen is a lawyer. I assume he would know what he`s doing."
This is from the "Reuters" interview, Trump said when asked if he had discussed campaign finance laws with Cohen. "Number one, it wasn`t a campaign contribution. If it were, it`s only civil. And even if it`s only civil, there was no violation based on what we did, OK". And what he appears to mean there is that if there was a problem with this in terms of campaign finance, that`s not a criminal violation, it`s a civil violation. What`s your reaction to what the president said tonight about his involvement with Michael Cohen?
SWALWELL: I`d love to see the live video of his lawyers screaming into their pillows as he is saying that because, one, Michael Cohen is not just a lawyer. He was the president`s lawyer. Two, the president directed him to do this. Michael Cohen didn`t just wake up one morning and say, "I`m going to go find problems that candidate Trump has and take care of them on my own." And three, whether the president knew it was a crime or not, that is not a defense. You know, not knowing the criminal code is not a defense. You know, generally, people know right from wrong. He was a candidate. This was on the eve of the election.
All of that being said, Lawrence, I see this as evidence of prior bad acts, as we would say in the law, meaning that this shows that when it comes to Russia, Saudi Arabia, China, this is probably how this shadowy operator worked, and we should look at those transactions because they`re probably more important to the American people, and not hang our hat on this as the reason to fully investigate Donald Trump.
O`DONNELL: And Congressman, I want to get your reaction to what you saw take place in the oval office today and what you think the final resolution will be on funding the government.
SWALWELL: Well, we want the government to stay open. It is completely avoidable of it being shut down. I was in the -- I chair the Steering and Policy Committee where Leader Pelosi came back and gave us a report. And, Lawrence, she did confront him about just who is going to pay for this and, you know, very, very stunningly the president`s defense to that is that the deal he struck, he`s going to have Mexico pay for it by taking away money that should be going to the American worker.
I think leader Pelosi all but sealed the speakership there because you saw her stand up to the president in a dignified stately way. She dressed him down and she gave him a Constitutional lecture. And he admitted what we all know that this is his shutdown.
O`DONNELL: Congressman Eric Swalwell, thank you very much for joining us.
SWALWELL: Yes, my pleasure.
O`DONNELL: Really appreciate it.
And when we come back, what Republicans are saying about the crimes Donald Trump has been accused of by prosecutors in New York.
O`DONNELL: Orrin Hatch is 84-years-old and he no longer thinks the way he did when he was 64-years-old. Here is what he said when he was a 64-year- old Republican United States Senator. "This great nation can tolerate a president who makes mistakes, but it cannot tolerate one who makes a mistake and then breaks the law to cover it up." And that is why Orrin Hatch voted guilty in President Bill Clinton`s impeachment trial in the United States Senate. Orrin Hatch voted to remove Bill Clinton from the presidency 20 years ago.
Now he says, "I don`t care." Actually said, "I don`t care if the president committed a crime." Here`s what Orrin Hatch said yesterday.
(BEGIN VIDEO CLIP)
SEN. ORRIN HATCH (R), UTAH: I think the Democrats will do anything to hurt this president, anything.
MANU RAJU, SENIOR CONGRESSIONAL CORRESPONDENT, CNN: But this is not the Democrats. It`s the Southern District of New York, the U.S. Attorney. I mean that`s who is making this allegation.
HATCH: OK. I don`t care. All I can say is he`s doing a good job as president. I don`t think he was involved in crimes. But even then, you know, you can make anything a crime under the current laws.
(END VIDEO CLIP)
O`DONNELL: You can make anything a crime. He actually thinks that now. Republicans like to think of themselves as the party that is tough on crime. Next year, they will have to consider just how tough they are going to be on Trump crime.
Jennifer Rubin and John Heilemann join our discussion of Trump crime after this break.
O`DONNELL: The "Associated Press" is reporting that the president`s worsening legal situation is privately "unnerving" for some Republicans and could foreshadow a true turning point in the Republican relationship with him when Special Counsel Robert Mueller releases his report on the Russia investigation.
Joining us now is Jennifer Rubin, opinion writer at the "Washington Post" and MSNBC contributor, and John Heilemann is back with us. Jennifer, the turning point is possibly arriving but Republicans are very slow turning around that turning point.
JENNIFER RUBIN, OPINION WRITER, THE WASHINGTON POST: Yes, this is waiting for the Republicans to recover their sense of intellectual and moral decency. So I wouldn`t hold out much hope frankly. We`ve heard this before a few times and I think the segment you just had, Lawrence, exactly exemplifies what the issue is. When they were the party of law and order, it was because Bill Clinton was in the White House. No longer the party of law and order. It`s the party of whatever will fly. And that`s a shame for the party but it`s a tragedy for the country.
O`DONNELL: John Thune said this about the Cohen filing that revealed the president was an unindicted co-conspirator. Says, "Most of us has made mistakes when it comes to campaign finance issues. In many cases, campaigns end up paying fines and penalties but I think it`s too early to say one way or the other on this one. I think we have to wait and see what ultimately comes down the pike."
And, John Heilemann, that is what passes for threatening comment for the president. I mean because there are other Republicans out there like Orrin Hatch saying "No problem." John Thune is not saying, "No problem". He`s saying we have to wait and see.
JOHN HEILEMANN, CO-HOST AND EXECUTIVE PRODUCER, THE CIRCUS: Well, we have to keep saying again and again and again just because the spin on this campaign finance thing is going to be relentless. We have to keep saying, again and again, this is not a bookkeeping error, this is not a tactical violation. This is an effort to defraud the American people in the final days for the presidential election where the particular -- there are campaign finance violations that are technical violations that should be resolved by paying a fine. There are others where a(INAUDIBLE) of fraud of the American public are at stake, where the matters are more significant and should carry greater consequences.
I just -- but I`m with Jennifer Rubin on this. I mean, the reality is that the Republican party, the fact that Donald Trump was able to stage a hostile takeover of the Republican party demonstrates the fact that it was already intellectually, morally, ideologically, conceptually bankrupt. So the fact that it behaves in an intellectually, ideologically, et cetera, et cetera, bankrupt way now, should not surprise any of us. If it were -- if it had anything other than bankruptcy, there would be no Donald Trump. Donald Trump would never have been the nominee. He would not be president of the United States.
It was that bankruptcy that allowed him to take over and, of course, they`re all in their bankrupt state now clinging to the vague increasingly dim hope that somehow all of this will go away and they will be the last, except for maybe Donald Trump, to recognize the moment when it comes where it becomes unavoidable that it`s not going to go away and that it may -- it will, I think, likely cause Donald Trump to have to leave the White House before the end of his first term.
O`DONNELL: Jennifer, I used to be in the business of predicting Senate votes. And in some cases when I was working in the Senate, I had to do it a year in advance on some of the legislation we would work on. It wouldn`t get to the Senate floor for over a year. It`s a very tricky business. And I think people who are presuming that the Senate will never reach the two- thirds level on guilty on Donald Trump if there`s an impeachment trial are making a mistake.
I think that there`s all sorts of things that will change between now and then. It`s more than a year away. You would have investigative hearings in the House of Representatives, the Judiciary Committee. You`d be developing evidence. You`d have the special prosecutor`s report and a changed environment. And I`ve seen predictions about how senators were going to vote. When the environment change, the way they were going to vote changed. And so you don`t need all the Republicans but you need a bunch and I`m not sure how that turns out.
RUBIN: Well, I think John Thune is right. And although it seems a little slippery that these Republicans never want to see an opinion, he is right. The facts matter a lot and we have a fraction of the facts.
RUBIN: A fraction of the fraction of the facts every time we get a document. Now, whether it`s out of the Southern District of New York or there is from Mueller, we`re always surprised at the level of detail, of more information of how emphatic may are because they are not relying on one witness. They are relying on a whole panoply of witnesses and documentation. So you`re right, we just don`t know what`s coming down the pike.
And we also don`t know what Donald Trump is going to do. What if he goes ahead and pardons his son-in-law? What if he goes ahead and does pardon Paul Manafort? At that point, I think all bets are off. And listen, he`s completely unrestrained. He can`t even find someone to be a chief of staff because he`s so unrestrained and so unrestrainable.
So I agree that it is not yet known but I think, frankly, we are going to have to rely on the prosecutors who so far are acting as impeccable professionals and also on the Democrats to make meaningful, not seeming to go overboard, but meaningful oversight hearings on these and a whole variety of other matters and we`ll see. Lots going to determine -- be determined on how unpopular he is a year from now, whether the Republicans think they`re going to go down in smoke in 2020 with him.
HEILEMANN: Right. And that`s the -- there are two things to say about this. One is it`s not going to just be this campaign finance violation.
O`DONNELL: Right, right.
HEILEMANN: Right now, they`re trying to diminish, they`re trying to focus on the one crime in which Trump has been clearly implicated. He`s an unindicted co-conspirator on this one crime. And then they`re trying to diminish that crime. It won`t be just that one crime. It will be many crimes. We now assume if we look at what that all signals, everything that we look at what Mueller is doing, everything else the Southern District is doing, it`s going to be a panoply of crimes.
The second thing is that for all the intellectual, moral, spiritual, and otherwise bankruptcy of the Republican party in its current state, they can still do math. And this is the thing that you know, Lawrence, from your vote counting exercises is these are not matters most of the time in principle. They`re matters of calculation. They`re matters of, as Jennifer suggested at the end of her comments, they`re matters of when does the balance tip? When it becomes more expensive for their personal careers, their personal futures, their personal ability to make profits in the future if they leave the Senate.
When does the moment tip where it`s more expensive to stay with Donald Trump than it is to stay with Donald Trump? At that moment -- it`s what happened in Watergate but when that moment, when the tipping point comes in the polling and the electoral calculus that these people do in their self- interested way, that`s the moment where the tide can turn when all these other factors will come into play because all of them will weigh on that calculus.
So again, you can be morally, intellectually, spiritually and otherwise bankrupt but you can still be out to save your own skin. And that`s what most of those people are.
O`DONNELL: And Jennifer, Orrin Hatch isn`t going to be there next year. Mitt Romney is going to be there in his place. I don`t think Mitt Romney is going to be locked on Trump the way Orrin Hatch has been. Jennifer Rubin, John Heilemann, thank you both for joining us tonight. Really appreciate it.
Tonight`s last word is next.
O`DONNELL: Time for tonight`s last word.
(BEGIN VIDEO CLIP)
STEPHEN COLBERT, HOST, THE LATE SHOW WITH STEPHEN COLBERT: On Friday, Mueller dropped his sentencing recommendation for former Trump attorney, and regret emoji, Michael Cohen. Cohen has argued for a lighter sentence citing his support for other charitable causes and it`s true. Yes, we know he gave to charity and Destiny and Candy and Ginger and Cheyenne.
(END VIDEO CLIP)
O`DONNELL: Stephen Colbert gets tonight`s last word.
"THE 11TH HOUR WITH BRIAN WILLIAMS" starts now.