STEVE KORNACKI, MSNBC HOST: And that`s all for tonight. We will be back with more MEET THE PRESS DAILY.
And a quick programming note, do not miss Rachel`s interview with Congressman Seth Moulton from Massachusetts. His first television interview since announcing his presidential bid, tonight, 9 Eastern right here on MSNBC.
And "THE BEAT WITH ARI MELBER" starts right now. Good evening, Ari.
ARI MELBER, MSNBC HOST: Good evening, Steve. We have a big show tonight on THE BEAT. Two legal powerhouses are here on the Democrats` epic fight that shaping up over what to with this Mueller report.
Former SDNY chief David Kelley and Neal Katyal are both here live.
Plus, our special report in the overwhelming obstruction evidence against President Trump. And the most famous White House counsel since probably John Dean. What Don McGahn told Mueller and why Democrats tonight in breaking news are going to force him to testify too, they say.
President Obama`s White House counsel also here on THE BEAT tonight in an exclusive. So, as you can see, we are back, and we have a lot to bring you.
We begin with Democrats meeting over their next moves. How do you hold Donald Trump accountable for the damning revelations in the Mueller report when the caucus hasn`t resolved exactly what it will do?
At this very hour, Speaker Pelosi is leading what we`re told is a conference call with her leadership team and her members. In a moment, I`ll be joined by one of them to discuss where the party stands tonight.
(BEGIN VIDEO CLIP)
SEN. ELIZABETH WARREN (D-MA), PRESIDENTIAL CANDIDATE: I have called on the House to initiate impeachment proceedings.
SEN. ELIJAH CUMMINGS (D-MD): I`m not there yet, but I can foresee that possibly coming.
REP. JERROLD NADLER (D-NY): A lot of other people.
CHUCK TODD, MSNBC HOST: Do you think this is impeachable?
NADLER: Yes, I do. If proven, which hasn`t been proven yet. Some of this - - if proven, some of this would be impeachable, yes.
(END VIDEO CLIP)
MELBER: That`s some of the range of views. So, the speaker today trying to balance them. Telling members, they have a range of views which can include impeachment and they want to find the truth. The priority she still says is that the American people need to see they`re proceeding free from passion or prejudice, strictly on the presentation of fact.
Also noting that President Trump has engaged in highly unethical and unscrupulous behavior, and the Republicans should be ashamed of what Mueller revealed.
Now as the Democrats are huddling, they also have specific demands. One is that Mr. Barr has to turn over the full unredacted report. Two, is for Bob Mueller to personally testify with a deadline on May 23rd. And three, breaking moments ago here in our newsroom, a formal subpoena for Bob Mueller`s star witness, White House counsel Don McGahn, the guy who talked about all the crazy stuff, except he used a more severe word and who warned of a Saturday night massacre, the crazy stuff Trump was demanding that he refused to do.
All of this looks like a lot. There are the hearing as well, that should focus on Donald Trump`s activities as displayed in the Mueller report. And all of that raises the questions of whether it`s oversight or whether it`s impeachment.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Thank you.
UNIDENTIFIED FEMALE: Are you worried that your staff are ignoring your orders (Inaudible).
TRUMP: Nobody disobeys my orders.
UNIDENTIFIED FEMALE: Are you worried about impeachment, Mr. President?
TRUMP: Not even a little bit.
(END VIDEO CLIP)
MELBER: Not even a little bit. I`m joined now with a very special guest, and it`s an exclusive. David Kelley was the U.S. attorney for the Southern District of New York.
A familiar position to viewers because it`s been held by Rudy Giuliani, James Comey, and Preet Bharara, who also says that he was contacted, that he viewed it inappropriately by the president. Thank you for being here, David.
DAVID KELLEY, FORMER U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK: Good to be here.
MELBER: I will also mention as I always do that long ago, I worked for you when we practiced law together. But you`re here because you understand how these things work. Indeed, some have said you need an underlying crime to prove that there is obstruction of justice.
You proved the opposite in the Martha Stewart case, and you sent her to jail without her being a part of the underlying crime. How does it at a broad level obstruction as documented potentially by Mueller work, and do you think he has a strong case against Trump if he were a citizen?
KELLEY: So, let me put hit the way. As a legal matter, do you need to prove the underlying crime that`s being obstructed? The answer is no, not as legal matter. What I think Bob Mueller did here was very thoughtfully look at all the different factors involved, constitutional issues concerning what a president has a right to do in his executive branch, et cetera. It`s all laid out in his report.
I think that at the end of the day, he is thinking putting all that aside, it`s not just the normal person I`m going to be indicting, I`m going to indict the president. And if I`m going to do that, I really want to make sure I have a strong case, because there is no going back.
I want to make sure this case is a winner. I want to make sure it gets all -- over all the legal hurdles, and I think at the end of the day, that`s kind of like a prosecutor`s gut, you know. Where do I end up with this case?
You put -- I got the legal stuff down. Can I prove the obstruction? Certainly not exonerating him, but it is something I really ought to charge under these circumstances. And I think that there is too many issues involved there for him ultimately to say let`s go with it. It`s a winner case. We`re solid on all fronts.
MELBER: When you read this report, and I`ve now gone through basically my second reading of it. One thing that comes --
KELLEY: You must have had a really fun weekend.
MELBER: One thing that comes through, David, is a real emphasis on the analysis of the president`s criminal intent. Why do you think Mueller, who ultimately is leaving this for Congress or others to act or not act on, why did he spend so much time, so many pages basically whether you want to call it showing the evidence or what someone called prove it that Donald Trump was not stumbling around, was not sloppy, but knew better and tried to thwart the probe anyway?
KELLEY: I think you`re trying to preempt what the arguments are. You know? And I think some of it you heard from the attorney general saying, you know, he felt like he was under siege. He felt like he was being attacked.
Well, that`s not -- that`s not a defense, but it`s important to preempt all those kinds of arguments by laying out what the facts are that helped show what his intent is. And I think it`s really important here. If you look at the evidence that he has, it`s really, he is turning to people that he trusted, his loyalists, and directing them to do things that even they wouldn`t do. I think that`s really telling.
MELBER: Why is that so powerful?
KELLEY: Because they knew that there is something wrong with what he`s asking. And if they know -- and frankly, look, I think in some people`s mind, there are some of those folks who are not -- are not of the highest ethical caliber.
You know, people have looked at -- you know, Corey Lewandowski. I don`t know him, but I think by reputation some people look at him as a political operative that doesn`t always have the strongest moral compass.
MELBER: Well, to your point, according to Mueller, you are talking about people who would retweet foreign propaganda, would go to meetings given those offers, would talk openly about whether they could solicit other helpful dissemination of hacked material. Although they didn`t conspire to hack it according to this. And you`re saying they would do all that, but even they wouldn`t go along with let`s kneecap the pro.
KELLEY: Exactly. And I think that`s really -- I mean, I think that`s really telling evidence about what his view was of the president`s intent. But notwithstanding that, you still at the end of the day have an awful lot of legal issues to get by.
And an obstruction case, look, we did it in the Martha Stewart case. But there aren`t many obstruction cases out there where you don`t have an underlying crime that was being obstructed. The investigation is being obstructed.
MELBER: Two things, and then I want to bring in Congresswoman Speier who is all over this. One is, Mueller alludes to but doesn`t exactly say the other underlying crime might have been other things Donald Trump did that he was worried would be uncovered or would be crimes apart from 2016 election stuff. Is that a good argument? And what did you think of the fact that there were 12 referrals. Is that normal or is that a lot?
KELLEY: Look, in the first instance, I do think to your first point, yes. I think it is -- it could be evidence of other crimes. It is kind of nonspecific. But even then, you`re going down a path where that thing that`s being obstructive becomes more and more amorphous.
And I think from a prosecutor`s perspective you really need to nail down what is he trying to -- the investigation of what is he trying to obstruct, you know. And it`s not good to just kind of throw a bunch of it up on the wall and hope what sticks, you know.
I think you need to really focus, have a concrete theory and nail that down. And I think in this instance, there is probably for him, Bob Mueller, too many of these -- too many hurdles to get by comfortably.
MELBER: And 12 is a lot or normal?
KELLEY: Twelve is a lot.
MELBER: Twelve is a lot. Have you ever -- I mean, you were in SDNY. Have you ever finished a probe and handed off 12 other criminal referrals?
KELLEY: I don`t think so. I`d have to think about that. That`s a lot of referrals. Look, there is a lot out there. So, for people who think that people are exonerated here, I don`t see any exoneration going on there. And there is still a lot out there, a lot out there that has not yet come to public`s eye with the referrals.
MELBER: Yes. Out of everything you said, 12 is a lot, sticks with me. Stay here live on THE BEAT. I want to bring in as promised California Congresswoman Jackie Speier who serves on the intelligence and oversight committees and was on this call with Speaker Pelosi.
Thank you for joining me.
What do you take from the call and what do you view is on the table? Is impeachment off the table coming out of this call?
REP. JACKIE SPEIER (D-CA): I think what comes out of the call is a clear appreciation that we do have a date with destiny, as Chairman Cummings has said. The facts, ma`am, just the facts. That`s what we want.
And we get the facts by having Special Counsel Mueller come and testify openly. You know, all of this has been done in a closed environment. We need to have him speak openly. We need to know what those 12 other cases that have been referred, and we need to step back for a minute and realize what has taken place here.
We have identified the president as an unindicted co-conspirator in the Michael Cohen case. He has already a, has participated in a criminal act. There are obstruction of justice allegations that have been made here, and whether the actual obstruction took place or not, the intent to obstruct is also a crime.
So, I think the American people have to have the opportunity to hear this in an open setting, to be able to chew on it, to understand that this is just not a game as the president thinks of it.
This is in fact a challenge to our democracy. The facts should take us to our conclusion. And I don`t think anything is off the table as far as the Democratic majority in the House is looking at it.
MELBER: Very striking to hear you put that it way, Congresswoman. I want to read from a constitutional expert who is known to be somewhat conservative in the classic sense of the word about this question.
I think Americans have been genuinely wondering about, which is was Mr. Barr doing what he was supposed to do in announcing his views of this before even turning over anything? Or was he usurping the traditional congressional role?
And as you know, I say that wholly apart from what Congress decides. It could be Congress` role to then decide not to go forward with oversight or not to impeach. But the notion that might be your job and not Barr`s, I want to read from this. Which says, "It`s plausible that Trump committed impeachable offenses," that the Mueller report could be read as a, quote, "invitation to impeachment," according to Philip Bobbitt who is the author of the handbook on impeachment in the Washington Post.
And notes this is a broad-based series of hearings would be the next step.
At a procedural level, rather than just whether people want to quote, unquote, "get the president," do you agree with that analysis? And do you view that as an open debate that this is up to Congress or Barr, or a closed debate? It`s always up to Congress and the only question is what you do?
SPEIER: Well, first of all, I believe Attorney General Barr has absolutely obliterated his responsibilities as the attorney general. He manipulated that report, put out a four-page summary that does not look anything like the summary that the special counsel delivered to us.
And secondly, he has become an attorney, a mouthpiece for the president in the way he uses the term collusion and comes to a conclusion that there hasn`t been obstruction of justice.
So, putting that aside, I would then say that we have an obligation to investigate this further. You know, prosecutorial discretion is different from congressional discretion. And I believe that a high crime and misdemeanor is not the same as an indictment that you can prove beyond a reasonable doubt.
We need to know why the president of the United States is hiding his tax return. We need to know where he garners his money, why he has been so reluctant to call out Vladimir Putin, to say that in fact the intervention by Putin took place. There is so much that suggests that the president is hiding something, and we need to find out what it is.
MELBER: Very interesting coming from Congresswoman Jackie Speier who was just on that leadership call along with the caucus with Speaker Pelosi, and David Kelley, former U.S. attorney for SDNY joining us exclusively. My thanks to both of you.
After the break, I`m going to turn something that David said I had an interesting weekend. Well, this is something I`ve been working on. It is my special report to you on what you need to know about Mueller`s evidence of criminal intent and obstruction against Donald Trump.
Later, the man who wrote the special counsel rule says impeachment must indeed be an option. Neal Katyal is here.
And as Trump seize over White House counsel Don McGahn`s cooperation, I will actually speak to Barack Obama`s former White House counsel who also wrap a witness in the Mueller probe. Another Beat exclusive.
What I`m telling you is we have a lot left in the show. Don`t go anywhere. I`m Ari Melber. You`re watching THE BEAT on MSNBC.
MELBER: Now we turn to a serious problem for President Trump and the nation. The problem is the substantial evidence against Trump regarding the crime of obstruction of justice rigorously documented in the Mueller report.
This evidence actually answers several of the mysteries of the Trump era like why so many people lied even without a conspiracy, and why Trump was so obsessed with thwarting the probe, and why Trump`s own senior aides were so concerned that his presidency could literally end before his first term was supposed to end.
The answers bring clarity, but they don`t bring us any legal or civic piece because there is no easy outcome when there is substantial criminal evidence against a president as there is right now.
The path to accountability is hard and uncertain. The path toward settling with no accountability is actually dangerous because it can reward this or future presidents for obstruction. So, there is no great satisfaction to be taken in this criminal evidence against Trump.
But before America decides what, if anything, to do, we have to take in the evidence. We have to understand it. And if we can`t even do that anymore, we may not have much of a functioning republic. So, let`s do that right now.
And one way to begin I would argue is with the end of Mueller`s factual analysis of the obstruction evidence, because after he laid out all the damning stories you`ve been hearing about in the last few days, Mueller then intones, quote, "it`s important to view the president`s pattern of conduct as a whole which sheds light on the nature of the president`s acts, meaning the corrupt intent and efforts look worse taken together."
And then Mueller notes that Trump worrying his advanced knowledge of WikiLeaks release of hacked material and the Trump tower meeting itself could be seen as criminal activity by him or his family, meaning that Trump had the motive to obstruct even if there was no charged conspiracy, which is one of those mysteries.
And Mueller states obstruction is a crime even without an underlying crime because it creates injury to the integrity of the justice system, the same regardless of whether a person committed an underlying wrong.
And again, on Trump`s criminal intent, Mueller notes Trump tried to thwart a thorough probe fearing it would uncover facts about Trump that he could have understood to be crimes.
These are Mueller`s shots across the bow. Mueller is documenting the president tried to obstruct the probe repeatedly to avoid the discovery of possible crimes. And when those efforts were busted, he tried to cover them up, ordering his employees to lie, to cheat, to defy law enforcement, to falsify records, to cover up the way Trump had been covering up.
What I am saying he was not conjecture and it`s not opinion. It`s the testimony of Donald Trump`s own top aides. The footnotes of Mueller`s obstruction section read like a cross between the warm-up speakers at a MAGA rally and a star panel at C-PAC. Bannon, Lewandowski, Flynn, Kelly, Christie, McFarland, Hicks, Priebus, Sanders, McGahn, Miller. That`s the evidence.
You may remember that movie "When a Stranger Calls," and the scary part is that the calls were coming from inside the house. Mueller`s obstruction evidence is coming from inside the White House.
So, I want to go through it with you briefly, because you may have heard about 10 or 11 acts and maybe five or more show the evidence of obstruction. But these obstructive acts really boil down to three incriminating topics.
Protecting Mike Flynn from indictment, pressuring Jeff Sessions improperly and trying to oust and thwart Mueller and covering that up. On Flynn, Mueller documents that Donald Trump knew he`s demand that the FBI stop probing Flynn was wrong.
Quote, "the president cleared the room to make the request and later denied it, showing he knew his request was not a proper exercise of his power." On Jeff Session, Mueller documents Trump demanding aides help him gets Sessions to take back over the Russia probe and the evidence that Trump had criminal intent.
Mueller documents Trump`s call here was criminal to restrict the scope of the probe and shield the president from it. And third, the most obvious evidence of the president potentially committing the crime of obstruction was trying to oust Mueller, kneecap Mueller and then cover up that.
And this is the part that has gotten a lot of attention. The stories are raw because Trump`s own aides knew nothing ends a presidency like a massacre. Mueller showing Donald Trump`s criminal intent starkly, quoting, "his own aides who believed Trump`s attempt to oust Mueller was a high crime that could end his presidency, that it was crazy, that it was worth resigning over."
Mueller documents that in that very moment when Trump`s order to fire Mueller was still secret, so nobody really knew what would come next, think about that, it was obviously intense and scary time to the people involved, Donald Trump`s own lawyer not only defied the president`s order, but next he called his lawyer because he knew he was risking going to jail for that potential crime if he wasn`t careful.
That`s some of the best evidence of criminal obstruction a prosecutor can get. Now lawyers can legally know about it and represent a past crime. They cannot legally help you with a future crime that would make them criminal conspirators, not lawyers, and that`s exactly what Mueller is busting Trump on.
McGahn saying no, I won`t help with a new crime. Also, I have to quit. Now there are crimes and then there are high crimes. Reckless driving is a real crime, but few people think it`s impeachable for a president.
But multiple Trump aides, according to Mueller tell Trump that his order was actually a potential high crime. Chris Christie in the Mueller report warning Trump that ousting Mueller would lead Republicans in Congress to abandon him. And Trump covering up his effort to oust Mueller because he knew that the order was improper.
What you`re looking at right here is Mueller nailing the coffin with Donald Trump`s own criminal intent, his, quote, "awareness that the direction to oust Mueller was improper."
That is what obstruction of justice looks like when all the evidence is in. Now if a president obstructs, it`s not up to his own DOJ employees to go arrest him. The Congress decides whether to act, and that`s a fact every time Congress has considered an impeachment, from Johnson to Nixon to Clinton. A point that Republican members of Congress have made recently as they discuss their standards for obstruction charges against, yes, a president, President Clinton.
(BEGIN VIDEO CLIP)
SEN. LINDSEY GRAHAM (R-SC): You don`t even have to be convicted of a crime to lose their job in this constitutional republic if this body determines that your conduct as a public official is clearly out of bounds in your role.
UNIDENTIFIED MALE: We don`t want a president lying in office, that we don`t want obstruction of justice.
SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER: The president has engaged in a persistent pattern and practice of obstruction of justice. The allegations are grave. The investigation is legitimate.
JEFF SESSIONS, FORMER UNITED STATES ATTORNEY GENERAL: I am concerned about a president under oath being alleged to have committed perjury. And in America in Supreme Court and the American people believe no one is above the law.
(END VIDEO CLIP)
MELBER: No one is above the law. That was a throwback, Jeff Sessions. That wording is what ends the Mueller report. Sessions was talking about a single perjury count. Mueller`s got five incidents of obstruction.
So, if that was obvious then, why is there any question about it now that Congress considers obstruction? Well, one answer is that Donald Trump`s new attorney general broke with past practice to announce that he had reached his own decision about Mueller`s findings before even briefing Congress on them.
But now that we have the Mueller report, everyone can see the evidence, that one, Mueller did not find evidence to charge an election conspiracy. Two, Mueller did find substantial evidence of Trump obstruction. Three, Barr didn`t tell the whole truth about all of that. And four, Bob Mueller explicitly refers to Congress deciding obstruction cases against a president, something Barr obviously left out.
So, take that all together, everything I`ve just presented to you as facts in the Mueller report, what do we do about it? Right now, there are people who are trying to predict the, quote, "politics of impeachment." That is futile.
The D.C. Establishment couldn`t even predict the 2016 election, nor could the media. And there are thousands of people who focus on trying to figure that out full-time. Nobody really knows how an impeachment process would proceed or shape minds or ultimately end.
And comparing what happened with Bill Clinton in 1998 is only slightly more relevant to comparing this to the Whigs or the Renaissance. This is a different world. Trump is different. America is different. If insanity is doing the same thing over for different results, political insanity is living throughout that past three years and applying a pre-2015 world view to make these decisions.
And more importantly, Congress shouldn`t even use political calculations for these highest constitutional obligations. Sure. Politics can touch everything.
But I ask you tonight, now that this report is setting in, have we become so cynical we don`t even ask our leaders to aspire to live up to their oaths when they vote to send us to war, when they evaluate national security or when they decide if the president is a crook?
The public can demand more, and this public two-year fascination with Mueller has some constructive features because it`s highlighted fact finding, integrity, and using rules rather than bluster. But it`s not all positive. I want to say that tonight.
This partisan hunger for Mueller to find what some people want to hear also risks blunting the import of what he didn`t find. No election conspiracy. No criminal syndicate led by Don Junior. But the other issue is the passion for Mueller had some people thinking he might do what he wasn`t assigned to do, which was make these decisions, these tough calls for other branches of government.
Bill Barr was wrong to claim he could decide himself if Trump obstructed. Mueller would have been wrong to do that as well. Difference of course is Mueller followed that rule. Barr did not. And that tells us something about both men.
But in honoring that line, Bob Mueller was respecting the Constitution`s role for Congress to decide any high crimes. So what would it say about Congress if after all that, after Mueller`s 22-month-long probe busting four interference crimes and a record-breaking number of indictments of the president`s advisers and the lies and the obstruction by other people, and then this documenting substantial evidence of Donald Trump`s obstruction, what would it say if after all of this Congress takes that evidence and announces we can`t even begin proceedings to assess these facts because the politics might be bad for us.
I`m going to tell you something. If that is how this all ends, a whimper topped with a blatant confession that it`s all based on self-interest, then the responsibility will lie not only with the president who saddled with this criminal evidence against him, but with those who had a chance to act here and now and instead said we won`t use our power to stand up to this. We`re afraid of the politics.
Isn`t fear part of what got us here? Aren`t Democrats in Congress the ones who spent two years asking when would Republicans stand up to Donald Trump, regardless of their politics? Now my observations to you tonight are not a call for a particular outcome. We don`t even know what House proceedings and testimony and fact finding would uncover or lead to or what that ultimate vote might entail if there were a vote.
But if you`re watching this unfold and you`re thinking wait, isn`t there something to do with Mueller`s findings after all this? Yes, there is. If you`re thinking wait, I watch the news. Didn`t we know all along the DOJ doesn`t indict the president, so the whole thing was always going to be up to Congress? Yes, you`re right.
And if you`re thinking facts matter most when people make facts matter, yes, they do. Anyone telling you the facts don`t matter or telling you to just move on tonight, or telling you don`t need to bother reading the Mueller report, that sounds like someone who might be trying to hide something.
And as Bob Mueller so meticulously documents it, when you do it in court trying to hide and lie is an element of corrupt intent. In life, it`s just a sign there may be a whole lot more work to do.
MELBER: Welcome back to our special coverage. I`m joined now by Neal Katyal who wrote the special counsel rules that governed Mueller and has been writing about this for some time including something he noted in the New York Times. If indictments off the table impeachment must be on it. If impeachments off the table because of nefarious congressional activity, then indictment must be on it.
That is some context for what we`re seeing including this defense from the Trump team. The Trump Organization now suing the House to try to prevent a subpoena of Donald Trump`s confidential financial records. Joining me now as part of our "OPENING ARGUMENT" series is former Solicitor General Neal Katyal. Good evening.
NEAL KATYAL, MSNBC LEGAL ANALYST: Good evening, Ari.
MELBER: What do you think is most important as the country is still learning about what`s in this report and trying to understand whether Congress has a role to play or as Mitch McConnell said today everyone should just move on?
KATYAL: Well, I think if folks were just listening to David Kelly who`s a fabulous lawyer, they would be like why would we think about impeachment because Mr. Kelly said you know, that Mueller`s prosecutors got was that there wasn`t obstruction evidence that was there, that there was too many hurdles and so on.
But actually, Mueller said none of that. And I think the most important thing for all Americans to understand is what Mueller actually said and on the first two pages of his report where he has two rules. Rule number one, I, Mueller can`t indict a sitting president and I won`t tar and feather a sitting president because I can`t indict him and he won`t have an opportunity to defend himself.
And what that means he says, is that even if the president is guilty is sin, I`m not going to tell you. It`s not going to be in the report. That`s rule one.
Number two is if the evidence shows that Trump did nothing wrong, I`ll exonerate him, I`ll clear him. And Mueller does not do that. So when we think about what are -- what are the next steps, we have to understand the Mueller report in its context. And as you just said so helpfully for the last few minutes, the report actually when you look at the evidence on obstruction is devastating.
I mean, Mueller points to example after example in which all the elements of obstruction of justice are met, criminal intent, an obstructive act, and a nexus to a proceeding. So when you`ll add all that together, I think I`m where the congresswoman was just a few minutes ago with you, Ari, which is Trump is going to have a day with destiny.
There isn`t a way to avoid it. Congress is going to have to do something. Yes, they`re going to hand the ring over the politics of the thing and so on, and maybe a lot of them don`t want to do it. They`d rather talk about health care and other things, but it`s part of their constitutional duty.
MELBER: What does it tell you that people are openly invoking politics? I mean, it was as I just noted, it was Democrats and others, many others who criticized Republicans who were quiet in the face of Charlottesville or other things Donald Trump did that were obviously more important than politics of the day. Should that standard apply to the constitutional obligations here?
KATYAL: Absolutely not. And particularly so because Mueller himself has said I can`t indict a sitting president and Barr has taken that and carried it to its logical conclusion. So now Congress is the ball game. And every scholar who says a sitting president can`t be indicted couples that with the view that the way to remedy a president is breaking the law is to seek their impeachment.
Otherwise, to use the antiquated term by Jeff Sessions, no one is above the law. And by -- that`s of course not Sessions` term, that goes all the way back to 1610 and Dr. Bonham`s case in England, but that is --
MELBER: I thought -- I thought it was Jeff Sessions original. I didn`t know he was -- he was remixing older stuff. Let me also play for you, Neal, Rudy Giuliani who seems to find a way to muddy or complicate what might have been an easier set of weekend interviews. Take a look.
(BEGIN VIDEO CLIP)
CHRIS WALLACE, ANCHOR, FOX NEWS CHANNEL: It doesn`t matter whether there was an underlying crime, it`s still obstruction.
RUDY GIULIANI, LAWYER OF DONALD TRUMP: When did Mueller become God? There`s nothing wrong with taking information from Russians.
UNIDENTIFIED MALE: There`s nothing wrong with taking information --
GIULIANI: It depends on where it came from.
CHUCK TODD, MSNBC HOST: Don McGahn saved him. Why is the President angry?
GIULIANI: Don McGahn didn`t save him.
TODD: Don McGahn didn`t carry out an obstruction and saved him.
GIULIANI: That wasn`t obstruction. He could have fired Mueller. He had a perfect right to fire Mueller.
(END VIDEO CLIP)
KATYAL: OMG. I don`t even know where to begin, Ari. I mean, you know, let me just take the "oh there`s nothing wrong with getting information from the Russians." The Russians are our most sophisticated adversary. Trump has been denying that they interfered in the election time and again to that you know, consternation in the intelligence community. The idea that there`s nothing wrong, I never thought in my lifetime, Ari, I would hear a President of the United States top lawyer saying that.
It`s astounding to me and yet further reason why the Congresswoman is right. Congress has to take a deep look at this and ask what the heck is going on. Why is there so much weirdness in this administration about Russia?
MELBER: Yes. It`s a lot of important questions. We`ve been relying on your expertise a lot and luckily we get to come back to you soon. So Neal Katyal, as part of our "OPENING ARGUMENT" series, thank you as always for joining us on THE BEAT, sir.
KATYAL: Thank you. I want to mention on the series, you can always go to msnbc.com/openingarguments for not only what you just saw but all of our other segments with Neal. Coming up, Democrats tonight our subpoena Don McGahn, Donald Trump`s seething. I`ll be joined by someone who has been in that very job, former Obama White House Counsel Kathy Ruemmler next.
MELBER: Breaking news tonight. The first post-Mueller report subpoena of a major Mueller witness, this is Mueller star witness former White House Counsel Don McGahn. Jerry Nadler calling him to testify before the House. McGahn`s interviews with the special counsel cited 157 times in the Mueller reporter as McGahn detailed some of the most damning episodes of Trump`s efforts to crack down on the probe.
He is now being compared with Richard Nixon`s famous White House Counsel who ultimately broke from Nixon during Watergate. And Mueller accounts that McGahn was afraid that Trump`s demands to fire Mueller would basically be a Saturday Night Massacre like Nixon when the Watergate special prosecutor was ousted. That was the beginning of the end of Nixon`s presidency.
To discuss this White House Counsel`s unique role in the Mueller probe and beyond, I turn to a former White House Counsel Kathy Ruemmler who was White House Counsel to President Obama from 2011 to 2014. She also in all of this represented a Mueller witness George Nader. Thank you so much for being here.
KATHY RUEMMLER, FORMER WHITE HOUSE COUNSEL: Thanks, Ari. It`s great to be here.
MELBER: When you read the account of Don McGahn`s time in the Trump White House, was that similar normal like your time?
RUEMMLER: Absolutely not. No. It`s --
MELBER: Do you ever recall telling the president that a request or an order was unlawful?
RUEMMLER: No, no.
MELBER: So walk us through just how not only strange and in a way it`s amazing copy as a story --
RUEMMLER: Yes, it`s incredible.
MELBER: -- but all of your reactions to it having held the same post.
RUEMMLER: Yes. I`ve run out of adjectives to describe what it -- what it must be like and what it must have been like for Don McGahn working in this White House because President Obama and I also had the privilege of working for President Clinton before that. You know, they understood that the power and the authority and the responsibility that came with the office of the presidency, and President Trump seems not to understand that at all.
And I think that is really laid bare in the report particularly in the parts that talk about the obstruction and his instructions to the White House Council to do a variety of different things, his you know, his directives to did A.G. Sessions, to "unrecuse."
One of the things that I found fascinating in the report was the conversation that he had with the Director of the NSA, Admiral Rogers and the Deputy Director. And the Deputy Director says in the report you know in my 40 years of government service, I`ve never had a conversation like that with anyone much less the President of the United States. And they you know, they wrote a memo to the file that they then locked in the safe.
You know, there are lots of things in this report that have not even been sort of touched upon but that in I think sort of the history of our government would just be deemed in and of themselves just extraordinary.
MELBER: You know, during the campaign they talking about the Trump train. And one of the things that comes through in Mueller`s evidence and he deems McGahn not only credible but it`s his most cited witness --
MELBER: -- was that if he didn`t announce he was going to jump off the train, he thought he would be guilty of a crime, that he would end up in jail which is not what most people want to go after the White House.
MELBER: I`m going to ask you a question that you may or may not answer, I realize, but I`m going to ask you. Did you ever get an order from President Obama and then have to consult your personal lawyer for your own criminal liability?
RUEMMLER: Never, never.
MELBER: What does it tell you when we read those stories, this is the star witness, and he`s the star witness partly because he would get off the phone with the president and according to Mueller, the next call would be to McGahn`s personal lawyer.
RUEMMLER: It`s so difficult to express to people who don`t have the experience in working at the White House or don`t understand you know, what it`s like to work in government how just so outside of the realm of not even normal but just barely acceptable. I mean it`s just stranger than fiction is the only way I can describe it. It`s just astonishing.
MELBER: One of the stories that hasn`t got as much attention here is that after a lot of the stuff went down, what McGahn called the crazy expletive stuff, he was still on the job. And then Trump asked him to lie and falsify records to cover up that Trump had tried to oust Mueller, and they have a tense face to face where McGahn does stand up to him and stare him down.
And then Trump says at one point, something to the effect of -- meaning he makes the threat known that well, if you don`t go along with this you know, you might lose this job.
MELBER: And McGahn says to someone else in the White House according to Mueller, it was like the President still didn`t understand that wasn`t leverage over me. If I then left after both the massacre and then refusing to falsify records, it would be bad for Trump.
RUEMMLER: Right, right. That`s the interesting dynamic right, is President Trump doesn`t seem to get it. And there are a couple of things going on here. One is that he`s asking Don McGahn to do these things that Don McGahn says I`m not going to do.
But there`s -- but there`s no reason why the president himself couldn`t do what he`s asking McGahn to do, but the president doesn`t want to do that because he wants to presumably -- and I think Don began knows this full well -- he wanted to presumably to blame Dom McGahn, to disavow the order to Don McGahn later if you know, it was -- it came out.
So when he`s asking McGahn to call you know Rod Rosenstein and tell Rod to fire the special counsel, there`s no reason why the president himself couldn`t have picked up the phone and called Rod. And as we`ve seen you know lots of reporting, he has no hesitation to pick up the phone and call sorts of people. But he didn`t -- he was he was savvy enough to --
MELBER: He was canny.
RUEMMLER: He was canny enough. And to me the notion that well, it`s just riddled throughout the report is the canniness and the corrupt motivation that is really just I think littered throughout the report.
MELBER: Right. And Mueller -- and I was just speaking about this earlier in a report we did on the show, Mueller uses that to great effect as evidence against Trump. The constant awareness the what he was doing was wrong or corrupt and then hiding it. McGahn though ultimately was deemed cooperative, credible, has not been accused by Mueller wrongdoing.
The one White House Council has been caught up in this that has been accused hasn`t been of course to trial yet is someone that was in the Obama White House as well, former White House Counsel Greg Craig. Charges that he "lied and concealed information from the Justice Department about his work for Ukraine."
Based on what you know and having been in the same White House in the same post at different times, your view of those charges and what it means that Mueller has refer that case and it`s being pursued.
RUEMMLER: Well, I don`t know more than what I read in the indictment. I do know Greg Craig personally and I think you know, he`s a very fine lawyer and has had a really well deserved and well-earned reputation in Washington. He`s a very nice person. I don`t know the facts beyond what`s laid out in the indictment. Obviously, that`s going to have to be tried before a jury.
I think it`s unfortunate and you know a sad thing but it will be contested before a jury and a jury will decide.
MELBER: And what does it say about Mueller that he has been so aggressive on that area of the law which as you know and I think a lot of viewers have come to learn was not traditionally enforced this aggressively, and yet Mueller looked at this foreign lobbying stuff and said well, you can go after the Washington sort of corporate establishment with it if they`re not registered.
RUEMMLER: Right. Well, although Mueller chose not to charge that particular case right, and referred it out in a different office charged it. I think that as a -- as a former prosecutor, what I would say is that it`s always important for prosecutors to think about you know, just what`s fundamentally fair.
Something maybe a technical violation of a law, but if people didn`t have an appreciation because something hadn`t been enforced in a way that it`s being enforced now, you know, that`s a -- that`s a factor that should go into any prosecutors decision as to whether or not it`s a kind of a righteous case to bring.
Again, I`m not suggesting this isn`t, I don`t know enough about the facts. But I think you know, that`s important contacts and I certainly expect that Greg Craig`s defense team will bring that out in front of the jury.
MELBER: As a former White House Counsel, you bring so much expertise in first-hand knowledge. I`m so glad we got you on the Mueller report today. I hope you`ll come back on THE BEAT.
RUEMMLER: Absolutely. Thanks for having me, Ari.
MELBER: Kathy Ruemmler. Coming up, Maya Wiley is up next on obstruction and intent and what Congress does when we come back.
MELBER: Breaking news. NBC getting some of the first leaks and readouts on Speaker Pelosi`s call with House Democrats, their first discussions since the Mueller report. Democratic leaders discussing whether they`ll be aggressive investigations, there`s no public commitment to impeachment hearings.
Let`s get into this and the underlying substance with Maya Wiley, former counsel to the mayor of New York City, and a former civil prosecutor at SDNY. We had David Kelly in here earlier. It`s a big SDNY day.
MAYA WILEY, MSNBC LEGAL ANALYST: Yes, isn`t it always, Ari?
MELBER: Let me read to you from this letter here -- this report rather. Democratic conference called Democratic leadership including the leaders the oversight committee has "promised to do aggressive and extensive investigations in oversight of the president but did not commit to begin impeachment proceedings."
This according to our NBC colleagues on what`s coming out of the Speaker Pelosi`s call. What do you make of this? Is it enough?
WILEY: I think what`s critical here is that the American people get to hear the evidence for themselves. And what I mean by that is to have a Don McGahn come before them and actually hear him say what the President directed him to do is important.
And it`s because in part what Representative Jamie Raskin said that that the process for impeachment should require Congress to do its job which means take all the evidence into account to determine whether impeachment is merited.
What I will say here is that the politics should not leave the country the issue of the Constitution and our laws should leave the country. And on that one, I`m going to agree with Jeff Sessions.
MELBER: Yes, Jeff Sessions who we quoted all depends on how all the quotes are.
WILEY: You can quote but Jeff Sessions is absolutely right. I mean, do you take the keys to the White House after the president has opened the door to foreign governments to waltz right in or do you protect the country and determine whether you have to protect the country from the types of abuse of authority that leaves the country bare.
And I think the Democrats are right to say let`s put it all on the table. Let the country see it. Let it be public because, for the most part, most Americans are not reading over 400 pages themselves.
MELBER: Well, let me ask you because we`ve talked to different experts different ways. We did a lot of the formal law and in the show thus far. What do you think at a more generic level, what do you think Bob Mueller is thinking about the way the world is reacting to this now three days in public?
WILEY: Well, I hope so what he`s thinking is they didn`t get the message. My message was Congress should do its job and that I had to in my view given -- again, I think Neal Katyal was exactly right when he said -- given that the -- that the Office of Legal Counsel has tied my hands, I am going to tell Congress that they should untie theirs.
MELBER: Do you think he`s mad at Barr.
WILEY: If I were him, I would be quite upset at that Barr.
MELBER: Because --
WILEY: Because --
MELBER: I`m going to -- I mean the introduction -- you don`t -- as lawyers know and I think the public understands, you don`t put it in the introduction to have it spun and redacted. You don`t redact the opening of the introduction. That`s a message and that`s where he says as you alluded that Katyal says hey.
WILEY: William Barr is an attorney.
MELBER: So true.
WILEY: So, therefore, he understands that exactly what Robert Mueller was doing and Robert Mueller knows that William Barr understood exactly what Robert Mueller was doing which means there`s only one thing to be if you are Robert Mueller.
MELBER: I think you put it well. Mr. Barr knows better. And the question is will there be no better blues by the time Mueller testifies.
WILEY: Or Little Wayne.
MELBER: We`ll be right back.
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