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Don McGahn Does Not Answer Subpoena Today; Trump's Attorneys to Appeal Court Financial Ruling; Severe Flooding Today in Oklahoma. Aired 10:30-11a ET

Aired May 21, 2019 - 10:30   ET


[10:30:00] EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: It 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 case out (ph) of obstruction by the president. And lacking Don McGahn, he just gave us his own rendition of what the -- what the problems are and why he thinks the president, if he were not president right now, would be charged with criminality.

I think what happens next, is he (ph) gives it (ph) a couple of days. Let everything sink in and then he's going to issue a contempt citation.

And I would assume that very quickly, he will take this to the courts. It -- clearly, on two fronts now, we're going to have courts getting engaged here and giving us judgments. The Trump team lost a round yesterday on one of those fronts, when a federal judge said, "You have to produce your financial records." But they think they can do better in the upper court.

And I think that all of this may be -- you know, we're going to have two or three sets of court cases going on for a while.

PEREZ: Well, let's see -- Ilya (ph), one of the things that I think Jerry Nadler brought up in the hearing just a minute ago, was the idea that in previous cases, courts have ruled -- including during the Bush administration -- courts have ruled that you can't just ignore a subpoena. You can show up and say that, you know, you're claiming executive privilege on behalf of the president, the president has claimed it.

Why didn't, do you believe, Don McGahn do that today?

ILYA SHAPIRO, EDITOR IN CHIEF, CATO SUPREME COURT REVIEW: Well, actually, there's not much precedent. Setting aside the example of Watergate, when it was an impeachment inquiry, criminal investigation, different sort -- situation.

There's been one district court ruling, which Chairman Nadler alluded to, about Harriet Miers' testimony from the district court in D.C. And that was quickly stayed by the D.C. Circuit and there was a settlement. And that's why there's not much precedent. And the Supreme Court has never ruled because these sorts of things

tend to be worked out. There are cooperation agreements or a negotiation of some sort. But I don't that that one district court decision is really going to be deciding, particularly given that this has been the accepted practice of an administration's -- all administrations of both parties, going back decades.

So I'm sure we'll go to court. But it's not at all clear, how that court will rule. There is a very strong argument that to allow the candid advice by senior advisors, the president can invoke this kind of testimonial immunity.

PEREZ: Thank you, Ilya.

Thank you, David.

We have Jim and Poppy rejoining us from New York -- Jim and Poppy.



SCIUTTO: Slight technical difficulties there, which we worked out. But it's good to have you three smart people there to help us break down --

HARLOW: We appreciate you having our back on that one.

SCIUTTO: What happened.

Ilya Shapiro, thanks for coming on. I just wanted to ask you. I mean, you're saying that the court precedent here that Nadler is citing is not relevant. Why?

SHAPIRO: No, it's not that it's not relevant. It's not decisive. So there's one district court ruling from about a decade ago that was quickly stayed by the D.C. Circuit, the federal appellate court, and that's it. And there was a settlement.

HARLOW: Right.

SHAPIRO: And presidents from both parties have asserted this kind of privilege, this kind of testimonial immunity. So, you know, we're really -- you know, this is open field that the lawyers are going to be working on.

HARLOW: Yes. It's --


SCIUTTO: but just to be clear, presidents have claimed executive privilege before. This is a blanket claim across multiple investigations. Documents, witnesses, et cetera.

David Gergen, you worked with a handful of presidents through the years. Have you seen anything this broad? And is that relevant? GERGEN: Oh, certainly not since Nixon, have we seen as broad-scale

and as formidable a stonewall as we're seeing here.

But I think some distinctions are in order. Listen, the courts have spoken clearly about the president's right to invoke executive privilege, whether it's for his general counsel or for other people in the White House.

And then the question becomes, when that person -- when the president does not invoke executive privilege and waives it, in effect, for McGahn to go and talk to the Mueller people, which he did, does that invocation of executive privilege then waive the -- McGahn's -- or the president's -- the executive privilege, does it waive executive privilege when McGahn is asked to go testify in the congressional -- to the congressional branch of government?

The courts have simply not addressed that, as best I can tell. Instead, what we have are a series of internal documents at the Office of Legal Counsel at the Justice Department, saying that if the president -- you know, giving this president some ammunition to say if you -- if your aide testifies in front of one -- one branch of government, it does not waive executive privilege when he goes in front of the Congress. That has not been tested.

[10:35:02] It is -- what the president is asserting here, is this broad immunity for everybody. We -- that goes way beyond anything the courts have looked at, and I think is -- as an expression or an assertion of a hugely expanded executive authority.


HARLOW: So, David, let me ask you just on that, to Jim's really important point, which is this is broad. This is just across the board. We're just not --


HARLOW: -- going to cooperate with anything. Documents, testimony, none of it.

Here's the thing. You worked --

GERGEN: Right.

HARLOW: -- in the Nixon White House. And the final article of impeachment --

GERGEN: Right.

HARLOW: -- Article 3 against President Nixon, let me read you part of it. The president, quote, "has failed without lawful cause to execute, to produce papers and things directly and duly authorized by subpoenas issued by the committee on the Judiciary."

Sound familiar? That was 1974. "In refusing to produce these papers, Richard M. Nixon, substituting his judgment as to what materials were necessary. Interposed the powers of the presidency against the lawful subpoenas of the House of Representatives."

What's different, if anything, today on that front?

GERGEN: Well, I think -- just that was the third article of impeachment, that Nixon stonewalled and refused to cooperate. And the House of Representatives was moving to vote and that that was an impeachable offense. And they had the votes to drive Nixon out.

But the -- what's different, I think, though, Poppy, is that in Nixon's case, there was also an underlying crime. You know --

HARLOW: Right.

GERGEN: -- if you go to Article 1, Article 2, there was an underlying crime. And the Trump people are claiming, basically, "Listen, you're not obstructing if there's no underlying crime."

Yes, I don't --

SCIUTTO: Is that true?

GERGEN: -- I don't -- I think that's a --

SCIUTTO: Is that true? I mean, Justin Amash, that was part of his --

GERGEN: -- controversial point.

SCIUTTO: -- case, the Republican congressman, in his analysis post- Mueller report, one of the points he made is that actually, law -- maybe we should refer to -- we should defer to the lawyer here.

Do you need an underlying crime? Because Justin Amash, Republican congressman, he made the point that courts have found, in fact, that obstruction by itself is enough because the presumption is that law enforcement, if you're obstructing --


SCIUTTO: -- they can't establish that there was an underlying crime because you're obstructing the investigation. What does the law say?

SHAPIRO: You're asking me, now?


SCIUTTO: Yes. Because you're a lawyer. Sure.

SHAPIRO: I must say, sorry to disappoint. But I think I agreed with most or all of what David set out for you there. Because each of these responses to each of these subpoenas is very different.

It's (ph) a subpoena cannon that we were expecting since the November elections. And, for example, the ruling by the judge in the Trump accounting firm disclosures yesterday, I think that was very well- reasoned but that's a very different issue. That's his own separate non-presidential business dealings.

Here, we're dealing with the testimony of a former aide. The attorney general's testimony, he objected to being questioned by counsel rather than members. Each one has a -- I mean, clearly, there's a blockade or there's a pushback on all of this, but each one is a separate legal issue.

Can obstruction of justice be its own crime? Absolutely. Martha Stewart, lots of people get convicted of --

SCIUTTO: There you go.


SHAPIRO: -- lying to the FBI without a conviction beyond that, for example, for insider trading or whatever else. You know, that's a judgment to be made. And we should also remember that you could impeach someone for something that's not a crime. And something could be a technical crime and not be an impeachable offense, which is ultimately a political judgment.


HARLOW: Evan Perez, to you, I'm just reading here, some of the comments that Alexandria -- Congresswoman Alexandria Ocasio-Cortez made to our Manu Raju. Let me read you part of this. Quote, "I think impeaching and choosing not to impeach when there is an abundance of evidence, could also be construed as politically motivated. We can't be scared of elections. We need to uphold the rule of law."

It seems to us like the last 24 hours has changed things a great deal within the Democratic Party. That it's not just on (ph) the far left.


HARLOW: That it's Representative Cicilline. That it's Representative Jamie Raskin of Maryland, who are saying to their leadership, "Enough is enough. Another empty chair. When are we going to push forward on impeachment?"

PEREZ: Yes, look --

HARLOW: Are you feeling that, Evan?

PEREZ: Yes. No, I think you are seeing the pressure build on the leadership in the Democratic -- on the Democratic side. And, look, I got to tell you, I think the president is essentially daring them to do that. I think the president looks at this process and believes that he can run out the clock, as David laid out. Look, this is going to take a long time.

But he also laid out some kinks in this -- in this particular case that are different from other cases, right? The fact that this Mueller report is now out. And so the question is, a judge will have to say whether the fact that some of the stuff he has already testified to, to the special counsel, the fact that that is now public, does that mean that that is still privileged? That that privilege has been waived. That's a big question for the judge.

The question is, how quickly do we get there? Is that something that's going to take a couple of years? If you heard Jerry Nadler and Doug Collins talk about this, they pointed out that in the Bush administration, there was a fight like this that began in 2007 and didn't get settled until 2009, at which time nobody cared any more, right?

[10:40:11] That's the gamble the president is making right now. He wants to run out the clock and he's daring the Democrats to begin what is going to be a very political process --


PEREZ: -- because he thinks it'll help his election prospects.

SCIUTTO: All right. David, Ilya, Evan -- and special thanks to you, Evan, for pinch-hitting for us there --

HARLOW: Yes (ph). Thank you.

SCIUTTO: -- as we sorted out some technical difficulties. All of you stick around because we got a lot more to discuss, and we'll be right back.


[10:45:31] SCIUTTO: There is more breaking news this morning. President Trump's attorneys are going to now appeal a court ruling that would force an accounting firm to turn over the president's financial records to Congress, in an important investigation.

HARLOW: It is. Let's go to Abby Phillip at the White House.

So this is really interesting because this is his financial records from before he was president. Obviously, the White House didn't want this to happen and now they're fighting back with an appeal.

ABBY PHILLIP, CNN WHITE HOUSE CORRESPONDENT: They are. They're fighting back on what could be a particularly important case. Because in this case, the White House and the president's lawyers lost this battle.

A federal judge, D.C. District Court judge, said that the Congress does have an oversight interest here, that they do have the right to demand these documents. And that this accounting firm does in fact have to turn them over.

Now, this appeal could halt that order. Which, you know, at the moment, they have six days. This accounting firm has six days to give over those documents. With this appeal, they could get a stay that allows them to stop those documents from being turned over.

But it really sets off this legal battle about what is Congress' oversight ability. What is the ability of the White House and the president to stop these kinds of oversight activities. And this judge, Amit Mehta, in his ruling, made it very clear that

impeachment is not the only mechanism for Congress to go forward with some of these inquiries.

And I think that will be particularly important, and have reverberations, really, on a lot of these other cases that are going forward, as the White House tries to push back on, you know, more than two dozen cases here, in which Congress is seeking documents, seeking testimony, seeking information from companies, from individuals associated with the White House as they pursue all of these oversight inquiries.

The president and his lawyers are making it clear, though, that they are going to fight this. They're not going to just take these rulings sitting down and hoping that down the line, they can get some court decisions that are favorable to them.

But right now, they've lost this one and they're looking for a round two, an appeals court decision that might be in their favor, particularly to stop these documents in the next week from being released --

HARLOW: Right.

PHILLIP -- to the Democratic Oversight Committee.

HARLOW: Yes. Six days and counting now, right, Abby? They've got to move fast on this one. We appreciate the reporting at the White House. Abby Phillips, thank you. We'll be right back.


[10:52:29] HARLOW: Severe weather right now, powerful storms moving from Dallas to Kansas City. You're looking at live pictures out of El Reno, Oklahoma. This is just outside of Oklahoma City, where, as you can see, major flooding has forced a number of people out of their homes.

SCIUTTO: Yes. Look at what they have to do to stay safe. And just moments ago, rescuers deployed a rescue boat to homes surrounded by flood waters like that. Our Ed Lavandera was there as they were being rescued.

Tell us what you're hearing from these families.

ED LAVANDERA, CNN CORRESPONDENT: Hey, Jim. Well, this is the Oklahoma City Swift Water Rescue Team. They've been working with the El Reno Swift Water Rescue this morning.

You can see the flood waters here. The boat is up. They've rescued about 10 people here, just off of this street that we're on. It's called Elm Street. And we're on -- in El Reno here, and this is where the flood waters, the Sixmile Creek is out there in the distance, and those flood waters have come up slowly overnight.

We talked to some of the families that were pulled out of here, 10 people in all, here in the last hour and a half or so. And they say they had gone to bed last night. And when they woke up this morning, their homes were essentially sitting on an island, surrounded by water.

The rescue teams were brought in here and they were all pulled out. Mostly adults, but there were about four children, having to go through all of that here this morning. So rather traumatic experience for those young kids, seeing all of this unfold as those flood waters, creeping into their homes. And these people wanted to get out as quickly as possible.

In all, this has been an operation that's been going on all night. Oklahoma City team tells us they've rescued about a dozen different operations. The El Reno folks say they've done about 40 swift water rescues in the overnight hours. So it has been an incredibly busy morning in overnight hours, here in El Reno, which is about 20 miles west of Oklahoma City -- Jim and Poppy.

HARLOW: Just, Ed, look at these pictures. And when we started, when we came to you, there was a sweet little maybe four- or five-year-old girl in that rescue boat. You know, it's got to be terrifying for those children.

What about major roads, major highways that are being affected by this? Because, as you said, you're just about 20 miles outside of Oklahoma City.

LAVANDERA: Right. So there's -- just south of where we are is Interstate 40, that connects Oklahoma City all the way into the Texas Panhandle. And the portion of that interstate has been under water for much of this morning, traffic impassable. So imagine the interstate completely shut down there.

And one of the local firefighters told me, he's been working here on the El Reno fire department for 33 years and he's only seen that interstate flood three times in his career.


[10:55:03] SCIUTTO: Ed Lavandera, good to have you there.

Think of how many lives affected by that, imagine if that was out your front door --

HARLOW: Right. Look at that.

SCIUTTO: -- we're going to stay on top of that story.

Other news we've been following, a brief but intense hearing on the floor of the House Judiciary Committee. It's over already without its star witness again. So what happens next? "AT THIS HOUR WITH KATE BOLDUAN" starts right after the break.