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Ex-White House McGahn Defies House Subpoena, Skips Hearing. Aired 10-10:30a ET

Aired May 21, 2019 - 10:00   ET




POPPY HARLOW, CNN NEWSROOM: All right, big morning. Top of the hour. I'm Poppy Harlow.


For the second time this month, the House Judiciary Committee is staring in an empty chair as the White House defies yet another House subpoena. And as more House Democrats begin to think enough is enough. Former White House Counsel Don McGahn, he is supposed to be testifying in public under oath any minute now, chiefly, about the accounts that he already gave to the Special Counsel of apparent obstruction of justice attempts by President Trump.

HARLOW: Instead, McGahn almost surely will be cited for contempt, though maybe not today. And democrats who have sided with the House Speaker, Nancy Pelosi, against beginning impeachment proceedings, may begin to rethink their reluctance.

Let's go to Manu Raju. He joins us on the Hill. And we all remember the fireworks three weeks ago. The Attorney General did the same thing to the same committee. So more fireworks on tap today?

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: No question about it. Expect democrats to express their outrage at what they believe is what they're calling a lawless administration, not listening to subpoenas, and the White House instructing Don McGahn not to show up because they say he's not to be compelled to testify because he's a senior level White House Aide, and expect Democrats to lay out their next steps. Namely to hold don McGahn in contempt, along with Bill Barr and others, and those votes could happen in a matter of days.

So the fireworks are about to begin, and this is just the beginning of the process as democrats grapple with what to do now that the administration is saying no to all of their demands.

SCIUTTO: Now, this is happening, Manu, as you have more democrats pushing in defiance of their leadership to begin an impeachment inquiry. Does McGahn's non-appearance today in effect give more ammunition to them?

RAJU: Essentially, yes. A number of democrats I have spoken, from top members to rank and file members, all say it's time to start an impeachment inquiry.


RAJU: Do you believe that it's an impeachment inquiry is warranted now given the stonewalling from this administration?

REP. ADAM SCHIFF (D-CA): You know, I think that the administration is certainly pushing the Congress in that direction.

UNIDENTIFIED MALE: I think it's time.

REP. JOAQUIN CASTRO (D-TX): Yes, I think it is. I was hoping we would hear from McGahn and Mueller, but it doesn't look like that's going to happen.


RAJU: So those members have some influence with the democratic leadership, and also some who are very outspoken, including freshman members, like Alexandria Ocasio-Cortez, who I just caught up with as well, and also said this caucus should not be hesitant in moving forward with impeachment.


REP. ALEXANDRIA OCASIO-CORTEZ (D-NY): You know, I trust the Speaker is taking a measured approach to ensure that we're moving everyone around forward and that, you know, being a Speaker is hard. Holding this party together is a difficult task. But I personally think so. And I think we have to move forward.

RAJU: Thank you. I appreciate it.


RAJU: So you're seeing the pressure that is building on Nancy Pelosi, the House Speaker, who has urged a more methodical approach, a go slow approach. And I'm told in multiple meetings that occurred last night, this debate played out behind the scenes. Pelosi is saying, look, we need to be deliberative, we have a process, we're issuing subpoenas. They're saying no, we're going to court. And in one case, going on one yesterday, they are winning. She is arguing they are getting results. They don't want to be too hasty in moving forward with impeachment, but they also don't want to rule it out.

And at the moment, democratic leaders are on the same page. Jerry Nadler, the House Judiciary Chairman, who would oversee any impeachment proceeding discusses with her in a closed door meeting. And he also, at the moment, is on the same page with the Speaker. The question is, will she ultimately bend if more democrats say it's time to move forward. Guys?

HARLOW: That is the question, as we see the Chairman of the House Judiciary Committee, Jerry Nadler, just getting seated next to the ranking member republican, Doug Collins. We're going to listen to their opening statements. But, Manu, as we wait for that, can I just ask you, is the democratic strategy here by leadership, at least Pelosi, et cetera, to let the clock run out on this, ask for more and more, not get any of it from the White House, and then essentially push forward with impeachment akin to Nixon and Article III of the impeachment proceedings against Nixon and just say, look, they're not turning over papers here, they're not turning over documents?

Hold on. Let's listen in. Here is Jerry Nadler.

RAJU: Well, I think there's a --

REP. JERRY NADLER (D-NY): We welcome everyone to today's hearing on oversight of the report by Special Counsel Robert Mueller III, former White House Counsel Donald McGahn II. I will now recognize myself for an opening statement.


More than a year ago, White House Counsel Don McGahn sat for the first of several interviews with Special Counsel Robert Mueller. Over the course of those interviews, he described how the President directed him to have the Special Counsel fired. He described how the President ordered him to lie about it. He described several other obstructive incidents outlined in the Special Counsel's report.

The President, in contrast, refused to be interviewed by the Special Counsel or even to answer written questions about his attempts to obstruct the investigation. Instead, to address the allegations spelled out by Mr. McGahn and outlined in the report, President Trump relied in his preferred mode of communication. He took to Twitter do call Mr. McGahn a liar. His lawyers went on cable television to do the same, to call Mr. McGahn a liar.

There are reports of the President and his lieutenants exerting other kinds of pressure on Mr. McGahn. In short, the President took it upon himself to intimidate a witness who has a legal obligation to be here today. This conduct is not remotely acceptable.

The White House asserts that Mr. McGahn does not have to appear today because he is entitled to, quote, absolute immunity, unquote, from our subpoenas. We know this argument is wrong, of course, because the executive branch has tried this approach before.

In 2007, President George Bush attempted to invoke a similarly broad and unjustified assertion of executive privilege and asked his former Counsel, Harriet Miers, who ignore a subpoena issued by this committee. Ms. Miers also did not appear at her scheduled hearing.

Judge John Bates, who was appointed by President Bush, slapped down that argument fairly quickly, quote, the executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisers in this or any other context. That simple yet critical fact bears repeating. The asserted absolute immunity claim here is entirely unsupported by the case law, close quote, from the judicial decision. In other words, when this committee issues a subpoena, even to a senior presidential adviser, the witness must show up. Our subpoenas are not optional. Mr. McGahn has a legal obligation to be here for this scheduled appearance. If he does not immediately correct his mistake, this committee will have no choice but to enforce the subpoena against him.

Mr. McGahn did not appear today because the President prevented it, just as the President has said that he would, quote, fight all subpoenas, close quote, issued by Congress as part of his broader efforts to cover up his misconduct.

This stonewalling makes it all the more important to highlight some of the incidents that Mr. McGahn has said to have witnessed. Let me recount some of them.

We know that the President directed Mr. McGahn to prevent then Attorney General Sessions from recusing himself from overseeing the investigation into Russian election interference.

On March 3rd, 2017, shortly after Attorney General Jeff Sessions did recuse himself from the Russia investigation, the President summoned Mr. McGahn to the Oval Office.

According to the Mueller report, quote, the President opened the conversation by saying, I don't have a lawyer, unquote. The president told Mr. McGahn that he wished Roy Cohn was his attorney instead.

Roy Cohn, of course, is known principally as the chief architect of the Arm-McCarthy hearings that destroyed so many lives back in 1954, an actual political witch hunt, not the imaginary kind the President decries.

Mr. Kohn served as President Trump's lawyer for a long time, defending the President against federal discrimination suits before he, that is Mr. Cohn, was ultimately disbarred for unethical practices in 1986.

Mr. McGahn refused to follow blindly into unethical behavior. Mr. McGahn told the President that the Department of Justice Ethics officials had weighed in and that Mr. Sessions would not unrecuse himself, and he advised the President not to have any contact with Mr. Sessions on the matter.


Days later, the President did exactly the opposite. He summoned Mr. McGahn and Mr. Sessions to Mar-a-Lago, where the President again, quote, expressed his anger, unquote. He said he wanted Mr. Sessions to act as his fixer. He said he wanted Mr. Sessions to undo his recusal and to limit the scope of the investigation. But Mr. Sessions, too, refused the President's orders.

On June 17th, 2017, the President took his displeasure a step further. He called Mr. McGahn at home and directed him to order Rod Rosenstein to fire Robert Mueller. Mueller has to go, the President barked. Call me back when you do it. Once again, Mr. McGahn refused. This time, Mr. McGahn felt the President's behavior was so inappropriate that he said he would rather resign than trigger a constitutional crisis.

In early 2018, after press reports described the President's attempt to force Mr. McGahn to remove the Special Counsel in his behalf, the President repeated his pattern. He summoned Mr. McGahn to his office and he got angry. Quote, this story doesn't look good. You need to correct this. You're the White House Counsel, close quote.

President Trump told Mr. McGahn, what about these notes? Why do you take notes, the president said to Mr. McGahn, inquiring why Mr. McGahn had documented their conversation.

The President then told Mr. McGahn to tell the American people something that was not true. He asked him to deny those reports publicly. Mr. McGahn again refused the President's order. He refused the President's order to lie to the American people on the President's behalf.

Six months later, the President announced that Mr. McGahn would be leaving the White House. The Special Counsel found Mr. McGahn to be, quote, a credible witness with no motive to lie or exaggerate given the position he held in the White House, close quote. That's from the Mueller report.

The Special Counsel also found the following, quote, substantial evidence indicates that by June 17th, 2017, the President knew his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury.

Substantial evidence indicates that the President's attempts to remove the Special Counsel were linked to the Special Counsel's oversight of investigations that involved the President's conduct, and most immediately, to reports that the President was being investigated for potential obstruction of justice.

Substantial evidence indicates that these were all quotes from the report, substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn's account in order to deflect or prevent further scrutiny of the President's conduct towards the investigation.

Substantial evidence indicates that the President's efforts to have Sessions limit the scope of the Special Counsel's investigation to future election interference was intended to prevent further investigative scrutiny of the President and his campaign's conduct, close quote.

Those were all quotes from the Special Counsel's report.

I believe that each of these incidents documented in detail in the Mueller report constitutes a crime. But for the Department of Justice's policy of refusing to indict any sitting president, I believe the President would have been indicted and charged with these crimes.

I am not alone in this belief. Over 900 former federal prosecutors from across the political spectrum whose job was to determine when the elements of a crime have been satisfied have stated, have agreed that the President committed crimes that would have been charged if he were not the sitting President. And I believe that the President's conduct since the report was released with respect to Mr. McGahn's testimony and other information we have sought has carried this pattern of obstruction and cover-up well beyond the four corners of the Mueller report.

The President has declared out loud his intention to cover up this misconduct. He told Mr. McGahn to commit crimes in his behalf. He told Mr. McGahn to lie about it. After the report came out, the President claimed that Mr. McGahn lied to the Special Counsel about what happened. Then he directed Mr. McGahn not to come here today so that the public would not hear his testimony and so that we could not question him.

President Trump may think he can hide behind his lawyers as he launches a series of baseless legal arguments designed to obstruct our work.


He cannot think these legal arguments will prevail in court, but he can think he can slow us down and run out the clock on the American people.

Let me be clear. This committee will hear Mr. McGahn's testimony even if we have to go to court to secure it. We will not allow the President to prevent the American people from hearing from this witness. We will not allow the President to block congressional subpoenas, putting himself and his allies above the law. We will not allow the President to stop this investigation, and nothing in these unjustified and unjustifiable legal attacks will stop us from pressing forward with our work on behalf of the American people. We will hold this president accountable one way or the other.

It is now my pleasure to recognize the ranking member of the Judiciary Committee, the gentleman from Georgia, Mr. Collins, for his opening statement.

REP. DOUG COLLINS (R-GA): Thank you, Mr. Chairman. Thank you for all that have gathered here. Again, here we go again. The theater is open and the summations are

coming in. In fact, right now, we're running over the norms of congressional oversight, we're dabbing at the edges of running roughshod on the constitution, asking for things that we don't.

But I am glad about one thing. I am glad that the Chairman read into the record today the Mueller report. I'm glad that he quoted, as he said, this is a quote directly from the Mueller report. I wish my Chairman would actually read the rest of it that he has been offered to read, which he has chose not to read. But he did leave out one thing. He left out something in the Mueller report from just now. He read McGahn's testimony beautifully and did everything. But he left out what he doesn't want to have to come back to and the frustrating thing that has brought us here again and again and again, and that is the conclusions. There was no collusion. There was no obstruction charges. There's nothing here.

After two years of doing this, we can read it in, you can talk about how you don't like it, you can talk about what you would like to ask. But at the end of the day, it's interesting, we're reading the quotes that make the headlines but we're also not going to read in the bottom line of what was actually concluded.

So the democrats are here trying again. The Mueller report concluded there was no collusion, no obstruction, because the report failed to provide damning information against the President. The majority claims we need to dig deeper, deeper than the two years of investigation conducted by what is considered a prosecutorial dream team because that probe ended without criminal charges against the President or his family. The Special Counsel closed up shop without giving democrats anything to deliver to their base.

Now, the democrats are trying desperately to make something out of nothing, which is why the Chairman has again haphazardly subpoenaed today's witnesses. That move has ensured the witness will not testify.

You know, this is becoming a pattern. The Chairman knew this, I believe, when he sent the subpoena last month, but instead of inviting the witness to testify voluntarily and working with McGahn's counsel to find mutual agreeable time and scope for the testimony, the Chairman rushed to maximize headlines by issuing a subpoena. That subpoena was the third in just four months, more subpoenas than the prior Chairman issued in six years.

The Chairman has several ways out here. He took none of them. The Chairman could have invited the witness to testify voluntarily. That was the practice in the 1990's when the White House Counsel testified before Congress, but the Chairman did not do that. Instead, he launched a subpoena at the witness without any consultation or follow- up with the witness' lawyer. The Chairman could have invited the witness to testify behind closed doors, but that would have been politically expedient and wouldn't have been here and the show would not have been as exciting.

A closed-door conversation would not have generated those headlines and everything that we're looking at today, even gaveling in today's hearing without a witness is theatrical. The cameras love a spectacle, and when a majority loves a chance to run against the administration, I just am glad today to see that we don't have chicken on the dais.

The Chairman orchestrated today's confrontation when he could have avoided it because he's more interested in the fight than the fact finding. Take the Mueller report, which we've already heard quoted from. More than 99 percent of the Justice Department has offered to the Chairman for an entire month, the Chairman refused to look at it. The Attorney General who volunteered to testify before the committee, the Chairman changed the rules for the first time in the committee's 200-year history, thus blocking General Barr from testifying.

I cannot emphasis this enough. The track record demonstrates he does not actually want information. He wants the fight but not the truth. The closer he actually comes to obtaining the information, the further we run from it.

The democrats claim the need today's witness to investigate obstruction of justice. But investigation was already done. Robert Mueller spent two years running it and then closing it. We're not a prosecutorial body, but a legislative body that does have valid congressional oversight.

But let's talk about that Mueller report for just a second. It's really interesting to me that the Mueller report was actually within 24 hours of coming out, the Chairman and the majority subpoenaed for all of the documents.


In fact, we have an illegal subpoena that actually the Attorney General to provide documents he cannot legally provide. That's been covered in this committee for the last two weeks exhaustively, and even the panel that was with us last week agreed that the subpoena asked the Attorney General to do something illegal by exposing 6-e information. That was his own witnesses who said that last week.

But you know what's interesting to me is that we have subpoenaed the documents, we have subpoenaed that we want underlying documents, subpoena stuff that we can't get. But you know the one thing that we seem to avoid is Mr. Mueller himself, the one who wrote it. We've asked since April about Mr. Mueller coming. But every time we seem to get close to Mueller, Mueller just gets pushed on a little bit. I haven't seen a subpoena here.

And this is what's really amazing. We'll get back to subpoenas in a moment. But just think about that. You wanted the work of the author but you don't want to talk to the author. Keep that pinned for just a moment.

When we look at this, 99 percent of the information is at the democrats' fingertips and it's the Mueller report, the Attorney General offered to speak to Speaker Pelosi, Chairman Nadler and others have seen but they refused. So don't be fooled. The majority wants to fight, they want the drama, he does not actually want the information he claims to be seeking.

After the administration made volumes of information available, the Chairman issued overall (ph) subpoenas and now harangues the administration for being unable comply with those subpoenas. In fact, they said democrats are engaging -- not engaging in accommodation process, abruptly cutting off negotiations and rejecting olive branches by the administration. This is what I want to come back to something my Chairman said a moment ago. His quote was in his opening statements that our subpoenas are not optional. Well, we found out a lot about subpoenas over the last month or so in this committee. I found out the subpoenas maybe now are not optional.

Let's add to the list. Subpoenas are also a discussion starter. A subpoena is to give us better standing in court, not my quotes, the Chairman's quotes. So what is it? Is a subpoena the legal document that we've talked about all along and the forceful document all attorneys actually use or is it a discussion starter? Is it to help our standing in court or is it we don't want it ignored?

At this time, it is amazing to me that the accommodation process, and we talk about the committee and the Chairman forcefully talked about our oversight, I agree with the Chairman on this point. This committee and all committees in Congress have oversight responsibility, but it is also the sacred responsibility of the Chairman and the majority to use it properly and to not headlong rush into subpoenas when you don't get what you want. That's always seen in five months here.

When we don't get what we want, we subpoena. The first was the acting Attorney General. We subpoenaed and then backed off. We caved. Then everything else has become a race to get a headline. The accommodation process, not happening. The accommodation process, never here.

So don't be fooled. You may have come, you may have an opinion that says everything is wrong today with the Mueller report and the President is guilty, but don't undercut congressional oversight because you can't wait. That's the problem we have right now.

And so the question is, are we tearing at the fabric of congressional oversight? It was really interesting to hear some of that last week. When you have a committee that has issued subpoenas that asked the Attorney General to do something illegal, when you have subpoenas when no accommodation process has been in place, when you have contempt issues that have been in part with no process and no time going through, I just submit to you this. Whatever your opinion on the Mueller report, great, glad you have it.

But you didn't get it here today and you're not getting it from this committee because this committee undoubtedly doesn't like the author and won't talk to the author of the report. They just want to talk about the report and make innuendo and attack the President in the middle of the day, when this committee who has charge of immigration, who has charge of intellectual property, who we have touched none of with a crisis at the border, we have an admission that the economy is good, jobs are happening, unemployment is at its lowest rate.

I guess at the end of the day, we can't find something that the Mueller report lets them hang their I-word, impeachment on, which they can't even agree on because the President is continuing to do his job, and we're here again with the circus in full force.

With that, I yield back.


NADLER: Thank you, Mr. Collins. Who seeks recognition? Strike the last word, the gentleman from Tennessee.

UNIDENTIFIED MALE: Move to adjourn.

NADLER: Motion is made to adjourn.


NADLER: Motion to adjourn is not debatable. All in favor?

ALL: Aye.

NADLER: Opposed?

ALL: No.


NADLER: Do I hear a request for a recorded vote?

UNIDENTIFIED MALE: Request for a recorded vote.

NADLER: The Clerk will call the roll on the motion to adjourn. Do we have the clerk?




UNIDENTIFIED FEMALE: Mr. Nadler votes aye.

Ms. Lofgren?


UNIDENTIFIED FEMALE: Ms. Lofgren votes aye.

Ms. Jackson Lee?


UNIDENTIFIED FEMALE: Ms. Jackson Lee votes aye.

Mr. Cohen?

Mr. Cohen votes aye.

Mr. Johnson of Georgia?

Mr. Johnson of Georgia votes aye. Mr. Deutch?

Ms. Bass?


UNIDENTIFIED FEMALE: Ms. Bass votes aye.

Mr. Richmond?


UNIDENTIFIED FEMALE: Mr. Richmond votes aye.

Mr. Jeffries?

Mr. Cicilline?


UNIDENTIFIED FEMALE: Mr. Cicilline votes aye.

Mr. Swalwell?

Mr. Lieu?


UNIDENTIFIED FEMALE: Mr. Lieu votes aye.

Mr. Raskin?


UNIDENTIFIED FEMALE: Mr. Raskin votes aye.

Mr. Jayapal?


UNIDENTIFIED FEMALE: Ms. Jayapal votes aye.

Ms. Demings?


UNIDENTIFIED FEMALE: Ms. Demings votes aye.

Mr. Correa?


UNIDENTIFIED FEMALE: Mr. Correa votes aye.

Ms. Scanlon?


UNIDENTIFIED FEMALE: Ms. Scanlon votes aye.

Ms. Garcia?


UNIDENTIFIED FEMALE: Ms. Garcia votes aye.

Mr. Neguse?


UNIDENTIFIED FEMALE: Mr. Neguse votes aye.

Ms. McBath?


UNIDENTIFIED FEMALE: Ms. McBath votes aye.

Mr. Stanton?


UNIDENTIFIED FEMALE: Mr. Stanton votes aye.

Ms. Dean?


UNIDENTIFIED FEMALE: Ms. Dean votes aye.

Ms. Mucarsel-Powell?


UNIDENTIFIED FEMALE: Ms. Mucarsel-Powell votes aye

Ms. Escobar?


UNIDENTIFIED FEMALE: Ms. Escobar votes aye.

Mr. Collins?


UNIDENTIFIED FEMALE: Mr. Collins votes no.

Mr. Sensenbrenner?

Mr. Chabot?

REP. STEVE CHABOT (R-OH): No, and this is disgraceful. UNIDENTIFIED FEMALE: Mr. Chabot votes no.

Mr. Gohmert?

Mr. Gohmert votes no.

Mr. Jordan?


UNIDENTIFIED FEMALE: Mr. Jordan votes no.

Mr. Buck?



Mr. Ratcliffe?

Mr. Ratcliffe votes no.

Ms. Roby?

Mr. Gaetz?


UNIDENTIFIED FEMALE: Mr. Gaetz votes no.

Mr. Johnson of Louisiana?


UNIDENTIFIED FEMALE: Mr. Johnson of Louisiana votes no.

Mr. Biggs?

Mr. McClintock?


UNIDENTIFIED FEMALE: Mr. McClintock votes no.

Ms. Lesko?

Mr. Reschenthaler?


UNIDENTIFIED FEMALE: Mr. Reschenthaler votes no.

Mr. Cline?


UNIDENTIFIED FEMALE: Mr. Cline votes no.

Mr. Armstrong?


UNIDENTIFIED FEMALE: Mr. Armstrong votes no.

Mr. Steube?


UNIDENTIFIED FEMALE: Mr. Steube votes no.

NADLER: Anyone who wishes to vote who hasn't voted?

Clerk will report.

UNIDENTIFIED FEMALE: Mr. Chairman, there are 21 ayes and 13 nos.

NADLER: There are 21 ayes and 13 nos. The motion to adjourn is adopted and the hearing is adjourned.

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: So there you have the hearing from the House Judiciary Committee. Right now, Jerry Nadler, the Chairman there, opened the proceedings with an empty chair for Don McGahn, the White House Counsel who has skipped the hearing at the instructions of President Trump.

We heard from Jerry Nadler there his concerns. He says that, according to the Mueller report, the President committed offenses for which he would have been charged if he had not -- if he was not the sitting president.

We also heard from the ranking member, Republican Doug Collins, and he called the entire hearing a theater. He said that the democrats in the hearing had even refused to go read the unredacted portions of the report, which are at the Justice Department at the invitation of the Attorney General. They have been invited to come read that. And he said that they had even refused to come see what they're now fighting over.

We now obviously have the hearing has now been adjourned. And we now wait to see what the democrats will do, what will Chairman Nadler do. Will he hold Don McGahn in contempt of Congress simply because he has refused to show up to even answer questions at this hearing?

Now, we have a panel joining us to discuss what we just saw. With us is David Gergen and Ilya Shapiro. We should note, Ilya worked with McGahn at an international law firm more than a decade ago and has remained on friendly terms.

David and Ilya, thanks for joining us. We'll be right back to discuss a little more about what we saw.

Okay, we'll stick with the pictures there from the hearing.

David, first, to you. Tell us a little bit about what you think happens next as a result of what we just saw.


DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Well, I think the Chairman very much wanted to have a chance to delay the.