CHRIS MATTHEWS, MSNBC HOST: That`s HARDBALL for now. Thanks for being with us. "ALL IN" with Chris Hayes starts right now.
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CHRIS HAYES, MSNBC HOST: Tonight on ALL IN.
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: It`s called presidential harassment.
HAYES: The President loses big in court.
TRUMP: We disagree with that ruling.
HAYES: As he tries to block his former White House Counsel from testifying tomorrow.
TRUMP: Don McGahn is a really good guy.
HAYES: And a top Democrat finally goes there on impeachment.
REP. DAVID CICILLINE (D-RI): If Don McGahn doesn`t testify, it is time to open an impeachment inquiry.
HAYES: Tonight, the massive stakes over the Don McGahn fight, the implications of the new sweeping repudiation of Trump`s claim that Congress cannot investigate him, and now bipartisan calls for impeaching the president. And the new reporting that Donald Trump`s current lawyer instructed his former lawyer to lie to Congress.
MICHAEL COHEN, FORMER LAWYER OF DONALD TRUMP: I am done with the lying.
HAYES: When ALL IN starts right now.
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HAYES: Good evening from New York I`m Chris Hayes. Tonight, for the very first time, a federal judge has ruled on a key question in the escalating battle between the President and a Congress that is attempting to investigate him. And the ruling is not good for Donald Trump at all.
You might remember, earlier this month the president challenged a House Oversight Committee subpoena to his accounting firm for financial records relating to the president, and his lawyers tried the fairly audacious argument before the judge that Congress basically almost has no power to investigate the president.
Well, today, in an expedited ruling, a federal judge laughed their argument out of court saying, "it is simply not fathomable that a constitution that grants Congress the power to remove a president for reasons including criminal behavior would deny Congress the power would investigate him for unlawful conduct, past or present, even without formally opening an impeachment inquiry."
In other words, no, too bad, you got to comply with the subpoenas. Congress has the power to do this. So that`s one thing that`s happening in the constellation of battles happening between the White House and Congress.
Meanwhile, the Trump administration is so utterly desperate to prevent former White House Counsel Don McGahn from testifying before Congress tomorrow which is on the schedule as far as we know. They have now issued a legal argument to the Department of Justice saying Congress cannot compel him to testify.
And tonight it McGahn`s attorney told the House he defer to Trump until an agreement is reached with the White House. Now, Don McGahn matters quite a bit here because he spent as you might remember 30 full hours detailing to Robert Mueller Trump`s repeated attempts to shut down and subvert the Mueller investigation.
And Trump does not want Don McGahn to come before a committee and basically literally say in front of cameras all the stuff that`s already in the Mueller report that almost nobody has read. Because if Don McGahn does that, if he just says what he told Mueller, it will look terrible because the president pretty clearly tried to and did obstruct justice.
Here`s how the Mueller report describes McGahn. "McGahn is incredible witnessed and with no motive to lie or exaggerate given the position he held in the White House. McGahn decided to quit because he did not want to participate in events that he described as akin to the Saturday Night Massacre. That`s of course when the President tried to fire Bob Mueller and told McGahn to do it.
He called his lawyer, drove to the White House, packed up his office, prepared to submit a resignation letter with his chief of staff told Priebus the president had asked him to do crazy expletive and in before Priebus and Bannon, he was leaving."
All right, all of this comes with the House Intelligence Committee testimony voting tonight to release Michael Cohen`s testimony from earlier this year. As a Washington Post first reported, Cohen, told the committee that Jay Sekulow, the President`s personal attorney, one of them, instructed him to lie to Congress about Trump`s negotiations to build a Trump Tower in Moscow.
Now, lawyers for Sekulow said in a statement that is very notably not a denial that this or any committee would rely on the word of Michael Cohen for any purpose much less try and pierce the attorney-client privilege and discover confidential communications of four respected lawyers defies logic, well-established law on common-sense.
The Trump administration`s stonewalling is pushing Democrats day by day, step by step, inch by inch to a tougher position. You could watch it happen in real time. Here is Congressman David Cicilline who`s a member the Democratic leadership just a little while ago.
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CICILLINE: Now they`re making this really broad claim that essentially says the president and his team are immune from ever coming before Congress. That`s legally incorrect and certainly, a court will ultimately have to decide that. But I think let me be clear. If Don McGahn doesn`t testify, it is time to open an impeachment inquiry.
STEVE KORNACKI, NBC NEWS NATIONAL POLITICAL CORRESPONDENT: Let me just make sure I heard you correctly there. If McGahn does not show up tomorrow before your committee, you say it is time for Democrats to begin an impeachment proceeding?
CICILLINE: An impeachment inquiry, absolutely. We have -- we have really left with no other choice.
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HAYES: More on the escalating constitutional showdown between the White House and Capitol Hill, I`m joined by MSNBC Contributor Chuck Rosenberg who`s a former U.S. Attorney, also served as Chief of Staff to the FBI under then-Director James Comey. He`s got a new podcast out called the oath with Chuck Rosenberg. I`m also joined by Harry Litman who`s former U.S. Attorney and Deputy Assistant Attorney General.
Harry, let me begin with you there. So we got three sort of channels of news all in this sort of major theme right, as we get the showdown between the President and Congress, and I want to start on the first and I think in some ways the biggest. A federal judge`s decision, 41-page opinion basically saying to the President`s argument the Congress can`t investigate you, no way. This doesn`t work.
I`m not a lawyer but it felt like a fairly scathing argument opinion. What do you think?
HARRY LITMAN, FORMER U.S. ATTORNEY: Yes, so it`s a complete slap down and it`s not just -- this is the argument Trump made to Cummings but it`s been made across the board. It`s the same argument for example that Mnuchin has made in resisting the tax subpoena, no legislative purpose.
And of course it`s the exact opposite argument that the administration is made in other litigation where they said you have to defer to us, you have to trust us. Well, the District Court said it`s same thing for Congress. I`m not going to go and try to psychoanalyze them. There is, in fact, a valid oversight purpose here. That`s all we have to know, end of story, and forget any kind of second-guessing. The subpoena stands.
HAYES: And Chuck, I mean, this federal court decision, it`s the first of what I think we`re going to see a lot of things -- a lot of battles being waged that are ultimately going to work towards appeal courts and proved to be extremely high stakes question before the court about what Congress can and cannot do here.
CHUCK ROSENBERG, MSNBC CONTRIBUTOR: Yes, that`s absolutely right. And Harry is right in his analysis, right. What the court said is I, the judge, I`m not going to second-guess whether or not Congress has a legislative purpose. Now, to your point, Chris, it isn`t over. It`s going to be appealed. An Appellate Court will have to weigh in.
In fact, we may have several different courts in several different places weighing in on this as more and more people try to fight subpoenas, resist production. But in the end we`re going to get an answer and that`s what the courts are for to give us an answer. Whatever that answer is, folks on either side have to abide by it.
HAYES: O we`ve got this opinion from a federal judge, it will be the first of I think several. This is going to continue fight it out. Now, we got Don McGahn. OK. Don McGahn is supposed to come tomorrow. Don McGahn no longer works the White House. He`s essentially now a private citizen. He has been called to testify.
Today the Department of Justice OLC puts out a 15-page document basically saying no he has to listen the president. The president says he can`t do it. How broad, how aggressive is this move by the White House, Harry?
LITMAN: So it`s very aggressive, although it`s not that much more aggressive than other White Houses have done. But the real big move here is to say that it applies in the case of former officials. They have -- they said no legal authority because no court has decided it with one exception. A district court previously ruled against basically the identical argument in the Harriet Miers case. That was then settled out on Appeal.
But this is a tough one. I think the previous argument is going to prevail across the board at the D.C. Circuit. This is one whether or not the -- there`s a testimonial privilege that applies to former close advisors that that likely will go all the way to the Supreme Court.
HAYES: Yes. So this is a closer issue it seems, Chuck, that Harry -- that`s Harry`s point here, and it`s always been the case. I mean, the White House gets to say like for instance, you can`t call my current White House Counsel before Congress. That`s a fairly established.
This question here, there`s both a procedural but to me, the bigger thing is McGahn, and McGahn is a key figure because of what we know he told Mueller, because of what we know he saw, and the desire did not have this guy basically saying what he knows in front of everyone.
ROSENBERG: Yes, there`s an irony here, Chris, and you touched on it in your opening. Almost everything we need to know about what McGahn knows is in the report.
HAYES: Right.
ROSENBERG: But so few people have read it which I think is a shame that we now sort of feel like we need to hear from him. I get that but I`m frustrated by it too because we already have access to this stuff.
Now, whether or not McGahn actually ends up testifying, once again will be decided by the courts. I think Harry is right again. Look, this is a -- this is an aggressive posture but it`s not different than all the posture, the position taken by almost every president in every White House for the last 50 years. The difference, of course, is that McGahn is now former, not in current, and that`s an issue that will have to be resolved by the courts.
HAYES: And part of why I think McGahn is so crucial here, Harry, even from a narrative perspective is we have reporting that he refused to counter -- to come out and support the President`s statements after he left. We know that he essentially threatened to quit when the president tried to fire Mueller.
He essentially saved Trump`s presidency I think when he did that. He isn`t -- he is very different than Michael Cohen in terms of a credibility standpoint.
LITMAN: Yes. I mean, especially from a narrative perspective. Chuck is right of course, we do know this stuff. And in fact the White House opinion acknowledges that it`s waived the actual material in the Mueller report as opposed to other material, but there`s just no substitute in the last few weeks and the apparent sort of shrugging shoulders of the 448 report shows it of having the guy in the lights actually saying those words.
That`s what the Democrats so dearly want and what the White House so crucially opposes.
HAYES: All right, Chuck Rosenberg and Harry Litman, thank you both. Make sure to check out Chuck`s new podcast. It`s great. The Oath. You can find out wherever you get your podcast. Thank you, gentlemen.
LITMAN: And the other podcast.
HAYES: Democratic Congressman -- Democratic Congressman Raja Krishnamoorthi joins me now. He`s a member of the Oversight Committee that subpoenas Trump`s financial records in the Intelligence Committee that interviewed Michael Cohen.
First, the latest appears to show that Don McGahn has submitted a letter basically saying he cannot appear because he`s going to respect the President`s claim to prevent him from testifying. What does that mean?
REP. RAJA KRISHNAMOORTHI (D-IL): Well, it means that we have to enforce the subpoena. I think that it`s clear that the president is obviously trying to obstruct this testimony just as he`s trying to obstruct the presentation of financial records by (INAUDIBLE) and others.
And I think in court we are going to probably win again because I think courts routinely uphold our constitutional system of checks and balances and the rights of Congress to conduct oversight.
HAYES: Yes. You won a very big victory today pertaining to your committee and its subpoenas in which the judge said look, basically this is Connors` constitutional prerogative. I`m not going to sit here in second-guess unless they`re doing something obviously wildly on its face out of bounds and this does not meet that. Were you satisfied with that decision?
KRISHNAMOORTHI: Yes, we believe it was a resounding victory for the law and the principle that nobody is above the law, not even the President of the United States. Another issue which came up is that the president actually sought to stay the order and the judge refused the stay.
And so I think that at this point the committee intends to under the leadership of Chairman Cummings enforce the order once it becomes final in a few days, and hopefully, we`ll have some financial records.
HAYES: I want to ask you about this new reporting about Michael Cohen`s testimony for the House Intelligence Committee and what it would mean. But before I get to that, I have a sort of broader question here.
Here`s my read on what`s happening. Democrats don`t want to impeach the president generally or they don`t want to seem to be seen to getting out ahead of the facts. There`s reticence there. The President is obstructing at every step and that is leading to more and more Democrats growing frustrated with the current posture and moving towards starting an impeachment inquiry. Is that a correct read of the vector of movement right now?
KRISHNAMOORTHI: Possibly. But there`s been a difference of opinion on this impeachment issue for some time. However, one thing that I want to make very clear, Chris, is that the caucus is entirely unified on this issue of whether or not there should be checks and balances with regard to the president.
Whether we should be able to enforce the subpoena with regard to Don McGahn, whether or not we should be able to see the full unredacted Mueller report, whether we should be able to see the president`s tax records and of course these financial records and the money laundering records from Deutsche Bank.
All of these issues are ones where Democrats are 100 percent United that we cannot allow the president to obstruct the people`s oversight of the executive branch.
HAYES: There`s reporting tonight that one of the items contained in the transcript that I think is about to be released -- I don`t know if it`s out yet in it`s entirely -- from the House Intelligence Committee testimony they took from Michael Cohen, the Cohen says that Jay Sekulow, the President`s lawyer told him to lie before Congress. How big a deal is that?
KRISHNAMOORTHI: If that`s true, that`s a big deal. Obviously, you know, Mr. Sekulow is a lawyer himself and he has certain ethical constraints that he would obviously have violated if he counsels someone else to lie. But on top of that, he would potentially be suborning perjury and that`s very serious.
HAYES: Do you feel like you understand the entirety of the facts before us? And I asked this because you just mentioned a whole bunch of things that the caucus is unified about not letting them obscure, obstruct, deny things. But just the public facts as they already presently exist in daylight, do you, Congressman, personally feel like you have a synthesized version and you can sit down with a constituent and give them a 60-second version?
KRISHNAMOORTHI: I might be able to give the cliff notes of the -- of the Mueller report but there are a lot of unanswered questions. I`ll just give you one very broad area of inquiry that none of us have answers on which is you know, there are 14 ongoing matters that were referred by special counsel and Mueller to other jurisdictions and I think 11 of them were completely redacted within the Mueller report.
And so there might be all kinds of other wrongdoing that is being investigated currently that we have no knowledge of. We don`t know the subject matter nor do we know the targets. This is very important. And from an oversight standpoint, we must know what those matters are about.
One other issue which is a subject of great inquiry around here is the counterintelligence information contained within the special counsel`s investigation. We still haven`t received those findings despite the fact that Chairman Schiff and ranking member Nunes in a joint bipartisan manner requested this information. We must have that information so that we can protect our national security.
HAYES: All right, Congressman Raja Krishnamoorthi, thank you very much.
KRISHNAMOORTHI: Thank you.
HAYES: The Congressional call to impeach Donald Trump is now officially bipartisan and the President and his allies are flipping out and trying to fight back. The new phase of that battle next.
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CICILLINE: Let me be clear. If Don McGahn doesn`t testify, it is time to open an impeachment inquiry. The President has engaged in an ongoing effort to impede our ability to find the truth.
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HAYES: Congressman David Cicilline, a member of Democratic leadership raising the stakes of the showdown between the President and Congress threatening to open impeachment proceedings and inquiry formally if former White House Counsel Don McGahn defies a subpoena to testify tomorrow which it now looks like he`s going to do.
Now that comes as call for impeachment has officially gone bipartisan over the weekend. Congressman Justin Amash of Michigan became the first Republican to join in after completing his own review of the Mueller report.
He explained his thinking in a long Twitter threat over the weekend and it is worth, I have to say, taking the time to read through that whole thing. Amash`s principled conclusions were that one, Attorney General Barr has deliberately misrepresented Mueller report. Two, President Trump has engaged in impeachable conduct. Three, partisanship has eroded our system checks and balances. And four, few members of Congress have read the report.
He went on to say that contrary to Barr`s portrayal, Mueller`s report reveals that President Trump engaged in specific actions and a pattern behavior that meet the threshold for impeachment.
Now, Amash is a libertarian. He`s broken with his party and the president before, but he still has a 100 percent score from FreedomWorks, a tea party conservative group. As far as we can tell, he`s not doing any interviews and isn`t trying to get anything out of his new public stance.
Amash appears to have simply read the report and come to the same conclusion reached by almost 1,000 former federal prosecutors who`ve also read it, that the President United States obstructed justice and in doing so violated his oath of office.
For more on the reaction to Amash`s call for impeachment from his own party, I`m joined by Norm Ornstein, Resident Scholar at the American Enterprise Institute, co-author of One Nation After Trump.
Norm, the reaction here is notable to me. You could make the argument that Amash is sort of suey-generous. He has been an independent thinker. He`s broken with the party in the past. The reaction though from Kevin McCarthy, the president, everyone on down is they seem pretty freaked out by it.
NORM ORNSTEIN, SENIOR FELLOW, AMERICAN ENTERPRISE INSTITUTE: No question they`re freaked out and they`re trying to portray him as some kind of kook in a lot of ways and not one of them. And it`s right, Chris, that he has been an outlier in a lot of ways. He first came across my radar screen right after he came to Congress.
He would cast votes including some that were present instead of aye or nay, and then he would go on Facebook and other social media to deeply explain why he`d voted the way he did to his constituents, and it was smart and in- depth. He`s a pure libertarian but he is a smart guy who takes his oath of office seriously and most of his colleagues on the Republican side have not.
HAYES: This is Kevin McCarthy -- I mean, clearly the word that the president tweeted out and clearly the word went out to nuke the guy. And this is Kevin McCarthy on T.V. doing just that. Take a listen.
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REP. KEVIN MCCARTHY (D-CA): He votes more with Nancy Pelosi than he ever votes with me. It`s a question whether he`s even in our Republican conference as a whole. What he wants is attention in this process.
He`s not a criminal attorney. He`s never met Mueller, he`s never met Barr. And now he`s coming forward this, it`s very disturbing. This is exactly what you would expect from Justin. He never supported the president and I think he`s just looking for attention.
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HAYES: Just to note there, he did not vote more with Nancy Pelosi than McCarthy. That`s false. But the attention thing is fastening. He`s -- there`s -- what`s so striking about what he`s doing here is there`s no political upside to the guy. He`s now got -- he`s got a Republican challenger --
ORNSTEIN: Immediate.
HAYES: Yes, immediate challenger who`s going to primary him. He`s going to have to fend that off. There`s no upside on a long Twitter thread over the weekend saying I think the president should be impeached. He gets nothing out of it. It`s much easier to swallow your whistle but obviously, he felt moved to say this.
ORNSTEIN: You know, it was interesting because when you have the committee that interviewed Michael Cohen, virtually every Republican attack Cohen and Justin Amash tried to dig in and find out what he knew and when he knew it. Took his responsibilities seriously, and he is the only one who has. And he`s done this on Twitter in different places before, but you`re absolutely right.
The idea that this is some liberal and somebody who`s just out to get attention to further his own career is frankly bizarre. And it shows the degree to which as you said Republicans are freaked out because this is a card-carrying Republican, even if he is a pretty pure libertarian who has followed the conclusions, read the report. and taken it to where it belongs which is obstruction of justice.
And as he indicated in his Twitter feed, a very real logic and depth that you don`t have to have a criminal offense to meet the threshold for high crimes and misdemeanors and it`s very, very powerful.
HAYES: Very interesting response from House Speaker Nancy Pelosi tonight when asked about this. She -- Justin Amash is now out passed her, right. I mean, he is officially on the record the President has committed impeachable offenses. This is what she says about what he says in the bipartisanship. Take a listen.
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REP. NANCY PELOSI (D-CA): It`s one person speaking out when so many Republicans have remained silent not honoring their oath of office to protect and defend the Constitution of the United States.
UNIDENTIFIED FEMALE: Is this the bipartisanship you`re looking for an impeachment proceeding?
PELOSI: No. I said that bipartisanship is necessary in the Senate.
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HAYES: What do you think of that.
ORNSTEIN: Well, Pelosi I think is trying in a pragmatic way to say, if we push forward with this, he`s not going to be removed from office and there may be enough of a blowback that it will enhance his chances of winning reelection and downplay the Democratic agenda.
But an increasing number of her own members are I think moving out in a different direction. It`s going to be very hard to strike a different balance. And frankly, now that it is bipartisan, it`s going to make it more difficult along with McGahn`s refusal to testify not to move forward in some fashion with at least a formal inquiry.
And I must say at least her point about the Senate, watching Mitt Romney dance around this and refused to make the kind of commitment that Amash has made is a little embarrassing too.
HAYES: All right, Norm Ornstein, thank you very much.
ORNSTEIN: Thanks, Chris.
HAYES: If Trump`s former lawyer is indeed a no-show tomorrow, and it looks right now like he will be despite a subpoena to appear for Congress, at least one member of the Judiciary Committee says it`s time to begin impeachment inquiry. That`s next.
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HAYES: Former White House counsel Don McGahn is now a private citizen. But according to a statement released through his lawyer tonight, he`s still taking direction from his former boss saying, he "remains obligated to maintain the status quo and respect the president`s instruction that McGahn not appear as scheduled in front of the House Judiciary Committee tomorrow."
Joining me now a member of that committee who would be questioning Don McGahn were he to show up tomorrow, Congresswoman Pramila Jayapal of Washington State. Your reaction to this announced intention on the part of Don McGahn not to come?
REP. PRAMILA JAYAPAL (D-WA): Well, I mean, we were waiting for something like this to happen, because the White House has been stalling and obstructing every step of the way, it`s ongoing obstruction. Don McGahn was ready to come. His letter to us says you know I`ve got these competing things. I`m going to go with the White House.
But if you read the OLC opinion that the White House sent in saying that they were exerting, essentially, immunity across the board for senior presidential advisers to not testify, that was most recently tested in 2007 under George W. Bush with Harriet Miers.
HAYES: Yep.
JAYAPAL: And I pulled out the quote, Chris, that the district court judge said. And here`s what he said. He said 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 has been repeating -- bares repeating. The asserted absolute immunity claim here is entirely unsupported by existing case law.
So, in other words, this memo makes no sense. It is obviously a ploy just to continue the obstruction, and it`s unfortunate that Don McGahn chose to listen to that. I think we had a lot of good questions for Don McGahn to get onto the table around what he heard, specific instances where he heard the president obstruct justice.
HAYES: Why is McGahn key from your perspective?
JAYAPAL: Well, I think he`s key because he was actually there. And his chief of staff, Amy Donaldson, her notes are also key. But he was actually there on a number of instances where the president tried to obstruct justice, around the firing of the special counsel, around telling Rod Rosenstein, you know, some of the things he told him. Four instances where the president tried to get Don McGahn -- this was going to be my line of questioning -- to actually say that he did not try to fire the special counsel and one of those was after the Mueller report was released.
I mean, one of the things I was thinking about is had Don McGahn come and testified before us, it wouldn`t have just been about his role as a senior advisor to the president, it also would have been as a private citizen, because the fourth time the president asked him to deny what was true was when he was a private citizen.
HAYES: Your colleague on the committee, David Cicilline, says, look, we should move towards a formal -- the opening of a formal impeachment inquiry in the House, in your committee, should he not show up tomorrow. Do you agree with that?
JAYAPAL: I said yesterday that that`s what I thought as well, if Don McGahn did not come to testify before us, because this is now just a pattern of obstruction, ongoing obstruction, stonewalling, destruction of that very basic relationship between our co-equal branches of government. And so I think the only thing that we can do is to start that impeachment inquiry.
And I think we have to be very clear with the American people, this doesn`t mean the president is going to get impeached tomorrow, it means we start a process of hearings to get more information and to decide what we have in front of us and whether or not it will precede in formal impeachment proceedings.
So, I think the American public has to understand this doesn`t mean he`s going to be gone tomorrow, it means we`re starting an inquiry.
HAYES: Final question on a piece of news that happened another committee, but I think bears on precisely what we`re talking about here in terms of the questions of obstruction, transcripts of questioning of Michael Cohen under oath before the House Intelligence Committee in which he asserts that Jay Sekulow, the president`s attorney, told him to lie about Trump Tower Moscow.
Is that a big deal to your mind?
JAYAPAL: I think all of these instances where the president tells people to lie, that should be a big deal to everybody.
HAYES: I mean, in this case I should just be clear, it`s the president`s attorney right now who is being accused of that. We don`t know if the president was behind it.
JAYAPAL: Yeah. I mean, this is why we wanted to get all the underlying information so that we could look at exactly what was said, how it was said. But of course if this turns out to be true, if there`s other evidence that comes out that shows that the president actually directed Jay Sekulow to do this, then that would be a big problem.
I think the reason you asked me earlier about Don McGahn, that`s why this is so compelling. Don McGahn directly said the president told him to lie and he would not do it, and that is huge, I think. And that`s information that the American people need to see.
HAYES: All right, Congresswoman Pramila Jayapal of the House Judiciary Committee, thank you for making time for me tonight.
JAYAPAL: Thank you, Chris.
HAYES: If congress ultimately begins impeachment proceedings against President Trump, today will be seen as a turning point, I think. Jennifer Rubin and Kurt Bardella join me next.
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HAYES: There is now one Republican member of congress who is out in front of most prominent Democratic politicians on whether the president has committed high crimes and misdemeanors. Republican Congressman Justin Amash says he reached his conclusion by simply reading the publicly available Mueller report, something he thinks a lot of people in congress haven`t done.
And on the day now when the administration is once again fighting tooth and nail along a variety of different ways to block congressional inquiry, this time by directing former White House counsel Don McGahn to defy a subpoena, it calls into question whether more Democrats will follow the Republican lead in calling for congress to impeach Donald Trump.
To talk more about this, I`m joined by Jennifer Rubin, columnist for the Washington Post, and Kurt Bardella, a contributor to both USA Today and NBC News Think and a former spokesperson for the Republican House committee on oversight.
Jennifer, for all of what you can say about Justin Amash, it just strikes me as significant the adjective bipartisan calls for impeachment now exist in the world and cannot be unrung.
JENNIFER RUBIN, THE WASHINGTON POST: Correct. That he is a solitary figure is a sad commentary on the Republicans, but it does say that this is no longer purely a partisan affair. And moreover, I think what he did, laying out the step-by-step analysis for why there is obstruction of justice is the most effective thing any member of congress has done to explain this to the American people.
Why the House Democrats have been so incapable of breaking this down, I don`t know, with charts or, you know, short phrases, I don`t know. But he was able to do it in a thread on Twitter. And for the life of me, I can`t understand why they find it so difficult to tell the story, which is what they`re really attempting to do by calling McGahn, by calling Barr and others.
HAYES: Kurt, this is such an obvious -- a question with such an obvious answer, I hesitate to almost ask it, but I want to hear it from the horse`s mouth, you worked for Darrell Issa on the Oversight Committee for the Republican majority when it had the majority. With this set of facts against President Hillary Clinton, would a Republican House already be moving formally towards impeachment?
KURT BARDELLA, FORMER REPUBLICAN SPOKESMAN: Absolutely, Chris. I mean, again, it almost begs not even asking the question because there is no doubt that after...
HAYES: I don`t even think, by the way -- I wonder if you would get pushback from a lot of Republicans on that, like it just seems like an obvious thing like, you know, the Earth revolves around the sun.
BARDELLA: Right. And this is the thing, Chris, I watched for years as we issued more than 100 subpoenas to the Obama administration. If the Obama administration had done anything like the level of obstruction we`re seeing from congressional Republicans supporting this president and this administration, completely saying no to every piece of oversight that this committee is trying to conduct, if that had happened during the Obama years, they would have moved for impeachment.
And I think back now as I watch Jim Jordan and Mark Meadows, these members of the oversight and judiciary committees stand by and do nothing as this president runs roughshod over check and balances, the same checks and balances that they exhaustively, ad nauseum, talked about to justify their -- what they called vigilant necessary oversight of the Obama administration, they`re doing nothing now.
The fact that Justin Amash is the only Republican right now that`s willing to read the report and draw a logical conclusion that other former U.S. attorneys have drawn the same conclusion, that the president obstructed justice, committed crimes, the fact that no one else is willing to do that underscores how soulless, how morally bankrupt, how completely hypocritical the Republican Party has become.
HAYES: Why do you think, Jennifer, that we saw the sort of going nuclear reaction from McCarthy, from House Republicans and from the president on this?
RUBIN: They cannot have one infidel, because from one infidel there will be more infidels. So they have to make sure that they so intimidate every other member -- this is not meant to harm Amash, it`s meant to send a signal to everybody else, which is you will politically die if you follow this guy and therefore, we`re going to come down like a ton of bricks on you.
And I think it is very revealing, frankly, about how nervous they are that people would actually start reading the report. It was very interesting, Mitt Romney went on Sunday and said I have read the report and I don`t see all of the elements of intent, I don`t see all the elements -- well, I wrote a piece today saying what do you mean? You know, six of these categories of behavior have all of the elements, according to Mueller. What`s your explanation? And his office really didn`t have any explanation.
Someone thought of an excuse, and that`s what the Republicans are doing, coming up with one kind of silly, picayune excuse after another rather than saying, you know, in a bunch of instances there was intent, there was action, it was tied to a proceeding, and that`s what makes obstruction. And it wasn`t one incident, it was a whole bunch of them.
And by the way, with regard to McGahn, understand what they are doing. They are saying that the guy who came and testified to Mueller, which is in a report, which is public, cannot come to congress and repeat that same testimony to congress.
HAYES: And you know what I think that`s about, my executive producer put it this way today, and I thought it was a very good line, that they have the book, but don`t want it to be made into a movie. And I think that`s right, Kurt. Like, it`s like -- yeah, there`s this 500-page report that`s sitting there, that`s not the way the thing is going to be communicated. And people getting up and saying it in 20-second sound bites in the evening news, even the local evening news, is probably what they fear.
BARDELLA: Well, there`s no question about that. And, again, look at the impact that Michael Cohen`s testimony before congress had, both in driving the president apoplectic, but also in the ruling today in district court where the court held and ruled that the oversight committee has a right to subpoena the documents, tax documents. Michael Cohen`s testimony, the fact that he testified and said these things under oath in front of congress is cited multiple times throughout the judge`s decision.
And so extrapolate that to Don McGahn. There`s a reason why they don`t want McGahn to do this, because they know that as other battles are going to happen for sure in court, that is going to be used as reference to uphold congressional oversight authority.
HAYES: All right, Jennifer Rubin and Kurt Bardella, thank you both for joining us.
President Trump is reportedly considering pardons for U.S. service members who a re convicted or facing trial for war crimes. Colonel Lawrence Wilkerson joins me on that, just ahead.
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HAYES: A 16-year-old Guatemalan child has died in U.S. custody. Carlos Gregorio Hernandez Vazquez he was apprehended by Customs and Border Protection on May 13. He ended up in the Westlico border patrol station in Texas where officials say he was, quote, found unresponsive this morning.
Border Patrol says they don`t know the cause of death, but he had been diagnosed with the flu the day before.
He is the fifth migrant child to die after being detained in U.S. custody since just December. There was a 7-year-old Jakelin Caal Maquin, 8-year- old Felipe Gomez Alonzo died in December, a 16-year-old Juan de Leon Gutierrez died last month, and a 2-and-a-half-year-old boy died last week.
And the Trump administration has deflected any responsibility at every turn, even attempting to blame desperate parents for their own children`s fate. Listen to then DHS Secretary Kirstjen Nielsen on the death of little Jakelin.
(BEGIN VIDEO CLIP)
KIRSTJEN NIELSEN, FORMER SECRETARY DEPARTMENT OF HOMELAND SECURITY: My heart goes out to the family, all of DHS. You know, this is just a very sad example of the dangers of this journey. This family chose to cross illegally.
(END VIDEO CLIP)
HAYES: The family chose to cross illegally, so, well -- we still have no acting of what accounting of what is happening in these facilities. There is general consensus that they are wholly inadequate to the task they now face.
There`s also a real question about the culture of the Customs and Border Protection, an agency that views itself as holding the line against dangerous infiltrators, but is in fact right now largely responsible for processing thousands of desperate migrants fleeing violence and often turning themselves in.
And more broadly, there are questions about the direction and management of the entire Department of Homeland Security which now has an acting head who is head of CBP, and who is one of the members to survive a Stephen Miller- led purge on those viewed as too soft on immigrants, which is to say there is very much a humanitarian crisis at the border and the Trump administration is exacerbating it day by deadly day.
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HAYES: This weekend we learned that Donald Trump appears to be moving towards granting pardons to U.S. service members who have either been convicted of or are facing trial for war crimes.
The New York Times reporting the Trump administration had made expedited requests for paperwork to grant pardons on or around Memorial Day. Any of those service members Trump is reportedly moving toward pardoning have been championed on Trump TV, including Navy SEAL Edward Gallagher whose trial is set to begin next week.
Gallagher is accused of shooting and killing an unarmed elderly man and school-aged girl from a sniper`s nest, firing machine guns indiscriminately crowds of civilians and stabbing a defenseless teenage captive to death and then posing with the corpse.
Gallagher was first accused of the crimes by his fellow SEALs, who a navy investigator said had grown so concerned they would not tell him when his sniper rifle settings were off and would fire warning shots to clear when he was around. Gallagher`s lawyer says his client is being falsely accused by his former colleagues.
Among the other folks that Trump is believed to be moving towards pardoning is a former contractor for Blackwater, not to be clear, a U.S. service member, named Nicholas Slatten (ph). He was convicted of first- degree murder for his role in a mass shooting in Iraq that killed 14 unarmed Iraqi civilians.
Another potential pardon involves a marine staff sergeant charged with urinating on the corpses of dead Taliban fighters, an act that was captured on video.
And the fact that we have learned the Trump administration is moving towards granting these pardons suggests to me, at least, that there are people inside either the Justice Department and/or the Pentagon who are deeply disturbed by the possibility of the pardons.
Joining me now, Colonel Lawrence Wilkerson, former chief of staff to Secretary of State Colin Powell. Colonel, what message would pardons such as these send?
COL. LAWRENCE WILKERSON, (RET.) U.S. ARMY: I would be extremely disturbed if I were in the Justice Department or in the Pentagon also. It takes me back to when Donald Rumsfeld, under Dick Cheney`s tutelage, authorized the armed forces to engage in, along with the CIA, torture. And we got the photographs at Abu Ghraib.
This is like reaching into that prison where horrible things happened and grabbing the worst offenders and saying I think I`ll pardon you.
Not only that, it`s also interfering with the system, the legal system for the president to say these things before a trial actually occurs. But it`s very disturbing of good order and discipline in the military. It is the most heinous thing a president could do with respect to the uniform code of military justice, the legal system within the military, and with respect to that good order and discipline in the military.
There will be people who will hate Donald Trump for doing this. And they`ll be wearing uniforms.
HAYES: Yeah, that -- on that last point, you know, I think he views in his mind his mental model of this that he`ll be greeted as a liberator, to use a phrase, that, you know, obviously the U.S. military will love this and the Pentagon will love this. My sense of what I know and the reporting I`ve ever done at the Pentagon is that at the Pentagon particularly, this would go over terribly.
WILKERSON: You`re absolutely right. I mean everyone will be talking about the bone spur president.
This is not something that will thrill the basic fundamental entourage in the Pentagon. This is something that will appall them. This is something that will disturb them majorly, because as I said, it`s hard enough to maintain good order and discipline, especially in combat, but when you`ve got something going on like this from the highest levels of policy making, decision-making in the land, the president, the Oval Office, it`s reprehensible. And the military will see it that way.
HAYES: You know, I`ve wanted to talk to you for a while now as the conversation about Iran has intensified. A kind of war of words, selective leaking of intelligence that purports to show increased Iranian threats. You were in an administration where there was talk about the possibility of regime change in Iran with John Bolton, who was in that administration. What do you make of where we are right now with respect to Iran?
WILKERSON: Chris, one of two things is happening. The first possibility is that Trump is using Bolton as his front man, as his -- call him a rocket man, put pressure on Rouhani, put maximum tension on Tehran. And Trump`s objective here strategically is to get talks, and to get a better deal, and that`s what he`s after. That would take some cunning, some cleverness, and even some strategic forethought, so not for a moment do I really believe that`s what Trump is doing.
Instead, what I think is happening is underneath Trump`s basic inattention, it is John Bolton and others like John Bolton, who are leading this administration with regard to its policy toward Iran. And I know what John Bolton wants, he wants regime change. And if that takes, and he`s allied about Mohammed bin Salman, his buddy in the UAE, with Bibi Netanyahu, if that takes bombs dropping on Tehran as a sort of start, that`s what John Bolton will get. Trump`s inattention to it will bring that about.
I`m hoping, I`m hoping that Bolton slips up here. He`s not the smartest man in the world, as some people allege. I met him. I talked to him. I knew what he thought about war in North Korea and so forth. I`m hoping he slips up and I hope Trump winds up getting rid of him, because he`s getting a little bit too far out in front of the president right now. And I`m hearing rumblings that Trump is not liking that.
HAYES: One of the things that Bolton appears to be arguing is that there would be no need for any congressional authorization here. And in fact they appear to have tried to lay a few predicates for using the AUMF famously passed after the September 11th attacks. What do you think of that arguments?
WILKERSON: Well, Pompeo has actually testified to the congress in an indirect way that he doesn`t think any further authorization is necessary. I think I`ve heard a lot of powerful congressmen, and I hope they`ll find some courage here, political and moral, and live up to this, say that isn`t going to happen.
Tim Kaine from Virginia and a number of others have said that`s not going to happen, not on our watch. The president is not going to use the 9/11 AUMF to authorize action in Iran.
Of course the president can go ahead and do it and then that`s just a marker down there for impeachment.
HAYES: How do you think the Iranians, as someone who worked on this issue quite a bit and have sort of thought through how these international relations play out, how do you think the Iranians are modeling what`s happening here right now?
WILKERSON: I think the administration has made a real error here in thinking that Rouhani, Zarif and the rest are Kim Jong-un and his crowd. They`re not. All Kim Jong-un wanted was a meet with the president of the United States. That gave him great status. These guys are not Kim Jong- un. We are steeling them right now, steel with two es. We are giving them resolution.
The recent intelligence on Iranian activity was a farce, because what it was reporting was Iran`s attempts to defend itself, and its deployment of missiles and so forth to do so, understandable when the United States is threatening to send 120,000 troops to Iraq tomorrow morning. I mean, this is very understandable.
Iran is not North Korea. Iran is not Iraq. Iran will fight and they will fight back and they will do so asymmetrically.
So to interpret their movements recently as aggressive in the region was absolutely stupid. I understand why Bolton would do it, because Bolton wants an incident, but it`s stupid to be doing this. The Iranians are not the Iraqis.
HAYES: All right, Colonel Lawrence Wilkerson, as always, it`s a great pleasure to have you on. Thank you.
WILKERSON: Thanks for having me.
HAYES: That is ALL IN for this evening. "THE RACHEL MADDOW SHOW" starts right now.
Good evening, Rachel.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END