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New Federal subpoenas linked to Rudy Giuliani. TRANSCRIPT: 11/25/19, The Beat w/ Ari Melber.

Guests: Neal Katyal, David Frum, Leah Wright Rigueur, Shelby Holliday,David Corn, Glenn Kirschner

KATY TUR, MSNBC HOST:  The good news is that with the legal decision coming down moments before the 6 p.m. hour is that at 6 p.m., you have your very own lawyer to break it down.

So, "THE BEAT WITH ARI MELBER" starts right this second. Ari, you get it two seconds early.

ARI MELBER, MSNBC HOST: And it`s true. We`re reading it right now. Thank you so much Katy Tur. We have a lot to get to tonight. We begin with this breaking news.

Moments ago, a federal judge has ruled in the biggest case growing out of the Mueller Report ordering former White House Counsel Don McGahn, the star witness of the Mueller Report to testify before Congress.

As you probably know, if you follow the news, this is a big decision that affects not only issues in the Mueller case, but the open impeachment probe, implications for many other White House officials and potential witnesses and Trump allies who have in various ways have been delaying or refusing to testify in the impeachment probe into the alleged Ukraine bribery plot.

We and our experts are poring over this decision and given that it`s breaking news, we`re going to bring them right in. Former Acting U.S. Solicitor General Neal Katyal, who has argued dozens of cases before the Supreme Court, including these kinds of inter branch issues. He also has a brand-new book out, Impeach, The Case Against Donald Trump coming out tomorrow.

Harvard professor Leah Wright Rigueur and David Frum, a former speechwriter for George W. Bush now at the Atlantic. Good evening to everyone. Neal, this is a decision many had been waiting on. We have not read all of it, but we have read some of it. Your view of the core news, the core holding here.

NEAL KATYAL, FORMER ACTING U.S. SOLICITOR GENERAL: Yes. So, it`s only come out five minutes ago. So, I want to caution everyone. Everyone`s got to study it, but boy, it looks like a complete win for Nancy Pelosi and the House of Representatives and a very devastating loss for the President.

What the judge has done is the judge in D.C. has said that she has followed an earlier precedent by Judge Bates, a very respected judge appointed by Republican President Bush in D.C. to say that Harriet Miers had to testify and similarly here, this judge has said, now Don McGahn has to testify.

That has massive implications because McGahn is all over some of the concerns about the cover up that happened back with the Mueller investigation. So that`s one thing Ari, but the other, even more important thing is that it`s speculated that this may change the dynamics about whether or not Ambassador - Former National Security Adviser John Bolton will now testify and other folks.

Remember, he had asked the court to say, hey, I`m not sure if I can testify or not. And it looks like this ruling`s logic and reasoning is saying, no, you`ve got to testify. I mean Trump made some absurd legal arguments saying that he was absolutely immune, and his advisers couldn`t testify, and this judge appears to have rejected all of that.

MELBER: Yes. Neal, you say all that and as you mentioned and I`ll remind viewers as well, we are just getting as we do on big Supreme Court days, we get a long ruling and we make sense of the high points. But I`m also in the spirit of legal analysis and reporting and to read some of what at the end looks like a very stark siding with the powers of Congress.

Obviously, this Congress being run by Speaker Pelosi as you say to compel this kind of testimony, reading from this again, moments ago just got the ruling. The judge saying look, this echoes the Miers decision as you mentioned that was from a different era. The court adds, this is an inescapable conclusion because the subpoena is a legal construct, not a political one.

And this is pretty significant Neal, when you think about the debates we`re having. It says. "no one is above the law." The reference there being to the potential civil defendant, Mr. McGahn is not above the law. Do you read the reference that way?

KATYAL: I read it that way, but I read it more broadly. I mean this opinion just from the few minutes I`ve looked at it is a rejoinder to the era of Trump-ism to the idea that absolute power means you as a President, you can do whatever you want. And that was literally the President`s argument in this case.

He`s absolutely immune from legal process. And I can`t think of something more American and Judge Jackson following her predecessor Judge Bates appears to have reached the exact same conclusion.

MELBER: And David Frum, who`s obviously served in the White House including the one that Miers President reaches. No one in any courtroom or in any Congress would say that a subpoena means every single topic must be discussed. There are later protections for that. This was the more initial issue or what lawyers would call the threshold issue of whether this witness even comes before Congress in any valid way.

And again, reading from a part of the opinion, I haven`t read yet. It says, when a duly authorized committee of Congress issues a valid subpoena to a current or former executive official and a federal court determines that they as a matter of law have a duty to respond, the constitutional principles that animate the structure of our government are preserved.

Your view David of the judge coming down in that way that saying this is bigger than what McGahn did or what he can and can`t say. There are obviously some real privilege issues that would yet to be determined, but that it is in the interest of the U.S. constitutional order that Mr. McGahn and as Neal said potentially other people like Mr. Bolton ultimately face Congress.

DAVID FRUM, FORMER WHITE HOUSE SPEECHWRITER FOR GEORGE W. BUSH: Well, one of my longstanding worries about the Trump presidency was that President Trump`s extreme claims in bad cases. We`re going to take a lot of issues that had always been kind of blurry. Exactly, the limits of executive privilege.

These questions have been blurry because they`ve tended not to be litigated. The branches have mutually adjusted rather than refer to them to the court. And President Trump has made a series of outrageous, as Neal said, broad, crazy claims about presidential power.

And he`s doing it, obviously, to cover up wrongdoing. And so, the courts, how can they do anything otherwise than sharply limit presidential power? But someday we`re going to need that presidential power for good ends.

And I worry a lot that President Trump, by trying to corrupt the presidency, is going to end up leaving behind an institutionally weakened presidency against future Congresses with a lot of case law that says Congress can do more than we imagined three or four years ago that Congress could do.

MELBER: Well, that`s - it`s funny to hear you say that on a night like tonight when again, viewers are just joining us, the White House getting a real stinging rebuke and loss in federal court, ordering Mueller star witness Don McGahn to testify before Congress, an issue live in the heart of the impeachment probe.

But, David, you`re also partly echoing the concerns of another conservative former colleague of yours, Jack Goldsmith, who has argued, and he`s known as a conservative able legal mind. But he said what you have said that basically if you die on too many hills and you fight too many fights with bad arguments for executive power, you actually - he argues Trump actually weakens the presidency.

FRUM: Right. Well, one of the questions that has always been obscure in American history is what are the President`s criminal liabilities in state law? The shoot the man on Fifth Avenue claim. And it`s kind of blurry because it`s weirdly we`ve gotten through all these years of the republic without litigating it, because presidents have gotten through all these years of the republic, while without committing any state crimes to litigate it.

When you have a President who then commits a lot of state crimes, it raises a question. And probably we`re going to end up with a Supreme Court ruling that, yes, the President is subject to state criminal process during his presidency. That`s a bad outcome from my point of view, from a public policy point of view. It was better never to have tested it, to left it blurry. But the way you don`t test it is you don`t commit crimes and that seems too high a bar for this White House.

KATYAL: And Ari if I could--

MELBER: Well, you put that, Neal. I want to get Leah in and then come back to you. But just Professor Rigueur who`s riding along with us. I`ll do what I`ve been doing in this ruling, which is read another new part to you and to our viewers. That`s brand new as we get - when we get breaking news.

This is a little interesting to me because again, what Don McGann did was cooperate with Mueller. Indeed, Mueller gave him a lot of credit for that cooperation. He is more cited than anyone else in the Mueller Report. And so, on that level, he got a good grade. Then he went ahead and fought this fight to not cooperate with the Congress.

And so, this is interesting in that context, as I read you from this judge siding with Pelosi over the Trump folks, saying the law has remained the same from the Bush era when then counsel Harriet Miers did not have absolute immunity to testify. And it remains the same as a lot of day.

And then a professor, this judge writes, "it goes without saying the law applies to Don McGahn, just as it does to other current and former senior level White House officials." I don`t think you need to be a scholar to note that that is a big red flag for John Bolton, because this is basically saying nobody, not the lawyers, not the national security, nobody has absolute immunity. Professor.

LEAH WRIGHT RIGUEUR, HARVARD UNIVERSITY KENNEDY SCHOOL OF GOVERNMENT: I think it`s a big red flag for everyone right now, and if I were in the Trump administration, I`d be running around into panic. Either that or I`d be furious.

It`s a slippery slope. It opens the door for not simply just, you know, subpoenas of high-level officials, but also tosses out the idea that people can be exempt. So, it creates a way of going after not only the people that we are talking about, say McGahn, who we`re talking about with regard to the Mueller investigation, but also has applications and has consequences or results for the current impeachment inquiry that is happening right now.

So, you know, if you`re John Bolton, you should be paying careful attention to this because this may change your Friday night plans this week. But I think there is something else to this really important. We have been in the midst of a - what we might call a constitutional crisis or the beginnings of a constitutional crisis.

I think this puts us full speed ahead into a constitutional crisis, because we know that the Trump administration is not going to respond well to this. And we know that they`re going to do everything within their power not to agree with the court, not to comply with the court. So, it`ll be interesting to see what they do going forward.

MELBER: Neal, I know you want to get in as well.

KATYAL: So, the big question in the light of what David said a moment ago, which is the Trump`s actions here so risk this important resource of executive privilege, executive power. The question is why would he do it? And I think the answer is and we`re seeing this both in the context of McGahn, but also in the context of impeachment and which he`s stonewalled Congress and said, zero documents, zero witnesses is one thing.

He`s got a lot to hide, a lot to hide. And this is going to change, I think, not just the McGahn and Mueller and all that stuff. This changes the dynamics of impeachment, Ari as well, because it puts the finger back on Trump`s conduct in really trying to undermine the investigation.

And there`s all this talk about whether Congress is going to add an obstruction of justice count and this kind of pattern of behavior, even though it`s a separate investigation, it`s about Mueller. It`s a kind of the same basic pattern, which is, hey, I don`t have to bother showing up to Congress.

I don`t have to - I can gag all of my employees. I can prevent all the documents from coming over because I can just on my own declare this investigation illegitimate. And what the judge appears to have done is say, not in America. You have legitimate investigations by the Congress of the United States, and those will go forward and you will provide that evidence and testimony.

MELBER: And Neal, you know, the other thing that I`m reading as I`m going through this and it`s always tricky to read a case on live TV. But we do it from time-to-time all of us here together. So, ride with us.

On page 39. I see a judge really shredding what has become known to some degree as Bill Barr`s unitary executive theory. He`s not the only one, but he`s embraced it. He just gave quite the controversial speech about some of these very issues.

And Footnote 11 likens part of the DOJ`s position to the animals in Animal Farm. It quotes, the DOJ position and then says from a similar vantage point, consider the circumstances described by, "George Orwell, the acclaimed book Animal Farm," and goes on to say that basically, unfortunately for the DOJ, while there are strong executive powers in this country, the way that they`ve made contentions quote - the Trump administration has, "distorted separation of powers, principles," beyond all recognition.

Now, Neal, I would caution for viewers, this isn`t a Supreme Court opinion. We`re not rewriting the entire balance here. But what does it say to you in a case that is likely to go up and up the line that the judge is putting this marker down against these bar DOJ claims?

KATYAL: Right. So, Ari, I doubt this case will actually get to the Supreme Court, because I think the Supreme Court - these arguments are so silly that I just don`t think the Supreme Court is likely to take them in the end.

But I think that`s the ultimate point. There is a legitimate theory, the unitary executive theory. It`s one, I and a lot of people believe, which has nothing to do with what Bill Barr said. It`s about administrative agencies and stuff like that. What Barr has said is something that no responsible constitutional scholar in our history has ever adopted, which is the idea that the President on his own can basically run the government and be immune from any sort of second guessing or criticism.

He can`t be indicted, and he can`t even be investigated. And by the way, they say he can`t be impeached because that would be a coup. So, you know, it`s King George III plus is what basically what Barr is advocating for. And I think that judge today appears to have said, along with the overwhelming consensus of people in this country, scholars from the Left and the Right, this is ridiculous. I mean, these kinds of views are really written in crayon. They`re not written in any sort of analytically sophisticated or even accurate way.

MELBER: And Neal and then David, I`m reading now again, breaking news, a response from William Burke, the attorney for Don McGahn, who says McGahn will, "comply with Judge Jackson`s decision unless it`s stayed pending appeal. The DOJ is handling this case. You`ll need to ask them whether they intend to seek a stay." Neal?

KATYAL: Yes. So, Burke is an excellent lawyer. That`s exactly the right response. Unfortunately, this Justice Department, as you know, has really sided with the President in ways that I had never seen before in my life. I mean, normally the Justice Department is supposed to have some insulation and independence and, you know, and not make crazy crayon arguments, but that`s unfortunately what they`ve been doing.

So, I suspect that they will try and appeal this to the court of appeals in D.C. I expect they will lose quickly. I think the House of Representatives will say, look, you want to appeal, fine. But let`s breathe this thing in under a week. We`re ready to argue. We`re ready to go. And I think - I expect a quick ruling from the D.C. Circuit as well.

That`s what happened in the Nixon tapes case. Everything start to finish was three months and that one went all the way up to the Supreme Court. And as I say, I think this one, the President`s arguments are so weak. I just don`t see it go into the Supreme Court in its current posture.

MELBER: David and then Leah?

FRUM: I think Donald Trump has a range of scheduled so that he is going to open 2020 with the longest string of losing presidential cases. I think we`ve probably ever seen both in his public and his private capacity. He is going to be losing cases on business documents. He`s going to be losing cases of tax returns.

And he has by stonewalling it so long and successfully stonewalling it for so long. He`s actually created a situation where he`s going to have the worst possible timing for himself where all of these things are going to be coming into the light of day just as the American people focus on an election year.

MELBER: Leah?

RIGUEUR: Yes. So, I completely agree with this. So, I think I`d also point out that it shows a kind of resiliency around our American democratic institutions. So, even as we have these larger questions about, you know, stonewalling, about the role of the executive office, about the ways in which Donald Trump has had a complete disregard for law, that again and again the courts and the institutions surrounding the courts have shown a kind of resiliency around answering this question.

On top of that, I think two, one of the things that we talked about earlier in this conversation, Donald Trump does have a lot to hide that we wouldn`t be having these questions if the documents, the courts, the institutions didn`t keep revealing misdoings, misdeeds and at the very least, unethical behaviors.

So, now what we`re beginning to see too, as these things come down the pipeline that is painting a picture that is deeply damning for the American people. And that is forcing people to pick a side, whether it be, you know, this President is corrupt or to showcase their partisan loyalties. So, ignoring all of the evidence in front of them.

MELBER: So much to think about here and so well put by - guided by our experts. Leah Wright Rigueur, Neal Katyal and David Frum, I should mention, Neal, congratulations on the new book. Thanks to all our guests.

Let me tell you, if you`re joining us here on a busy Monday night, what`s happening? We had one show planned. We threw it out the window. And we have a lot more on this breaking news. What I am holding is that very rare thing. It is an order for Don McGahn, a former top White House Counsel of the President Donald Trump to testify.

Reading from it, it says McGahn, "is not immune from rappelled congressional process, that he has no lawful basis for refusing to appear for congressional testimony before Speaker Pelosi`s House." That`s something that you probably know has been fought tooth and nail by the Trump DOJ and Mr. McGahn here for quite some time and that he is ordered to appear.

As you can imagine, this sets off implications for the obstruction part of the Mueller probe investigation and the open issues in impeachment. The timing, well, we don`t make it up. We just respond to it. So, we`re going to have a lot more on this breaking news with some of our best experts in tonight`s show.

We`re going to go into the judge ordering this, what it means. We`re also going to look at other breaking news tonight, new subpoenas from federal prosecutors going right at Rudy Giuliani`s consulting firm. We have that story with one of the reporters who broke it tonight and a whole lot more on the breaking news.

I`m Ari Melber. You are watching THE BEAT on MSNBC.

(COMMERCIAL BREAK)

MELBER: The breaking news tonight, this federal judge ruling former Trump White House Counsel Don McGahn must testify before the Democratic Congress. This decision could have far reaching implications, including shaping whether other White House officials, current and former, are allowed to duck witness testimony, including in this impeachment probe.

All of this comes as the heat is getting hotter on another potential witness or in the SDNY, a potential defended. The Wall Street Journal reporting new subpoenas issued seeking information on Rudy Giuliani`s consulting business as a parade of witnesses have publicly accused him in these hearings of coordinating the Ukraine bribery plot.

Behind the scenes, while another impeachment witness is also turning on Giuliani, indicted Ukrainian linked associate Lev Parnas is transitioning from a Giuliani client to a defendant potentially flipping.

Look at these new reports, Parnas giving Congress video and audio recordings that include allegedly Giuliani and Trump. According to ABC, as if all of that wasn`t enough. Also new reports, it was Parnas who helped arrange secret meetings in Ukraine for the top Republican on this same committee, Devin Nunes. Allegations are that Nunes hid all of that from Adam Schiff, a report that suggests a major conflict of interest for Nunes who stands basically accused of trying to execute parts of the very Trump plot this committee is investigating.

Nunes is prepping to huddle with two Ukrainian prosecutors about material that might have helped Donald Trump`s re-election campaign. Nunes is denying this. He says the reports are part of a campaign of a "totally corrupt media." He`s also been dodging questions about the details.

The White House began the impeachment hearings trying to stonewall. But as we`ve seen tonight in the McGahn ruling and with these other individuals who are talking and cooperating in many ways, the stonewall strategy is failing before our eyes and the pressure is increasing on key people, including, of course, Giuliani. And I can tell you, he was back out on TV touting his good relationship with the President while also stating, he has some sort of "insurance" against his own client, Donald Trump.

(BEGIN VIDEO CLIP)

RUDY GIULIANI, PRESIDENT TRUMP`S ATTORNEY: You can assume that I talked to him early and often. And have a very, very good relationship with him and all of these comments which are totally insulting. I mean I have seen things written like he`s going to throw me under the bus. When they say that, I say he isn`t, but I have insurance.

(END VIDEO CLIP)

MELBER: But I have insurance. Look, if you take that insurance threat as literal or serious. Well, it`s literally potential blackmail and a likely ethics violation for a lawyer to make against his own client. Now, some of that may be more minor than the actual larger criminal exposure facing people who were involved in the alleged bribery conspiracy.

Giuliani now insists those references were sarcastic and not a direct threat to Trump. But then he also cryptically warned that evidence will come to light immediately if he disappears. When you get into all of this and all the other breaking news when we`re back with a power panel in just 30 seconds.

(COMMERCIAL BREAK)

MELBER: Breaking news on this Monday night, a federal judge ruling Former Trump White House Counsel Don McGahn must testify before Congress. A big win in the House, a big loss for the White House. The decision obviously may impact the other White House officials who tried to stonewall or duck these requests, including from the impeachment probe, including, of course, the John Bolton issue.

All of this comes with new heat on Rudy Giuliani, which we`ve been reporting on, along with new reporting from The Wall Street Journal, Shelby Holliday, uncovering some of those photos of the indicted Giuliani Associates with partners Trump and Trump Junior. And she`s on a new article today. Also, we`re joined by Mother Jones Washington Bureau Chief, David Corn.

Shelby, a lot is flying around tonight, but the Giuliani news is very real and its criminal investigative developments. Explain the import.

SHELBY HOLLIDAY, THE WALL STREET JOURNAL BUSINESS AND POLITICAL REPORTER: Right. The Wall Street Journal reporting tonight that various subpoenas have gone out and it suggests that the southern district of New York is casting a wide net and they have a very broad investigation going on right now. But in those subpoenas specifically mentioned is Rudy Giuliani and Giuliani Partners, his consulting business.

So, the subpoenas indicate that the Southern District of New York isn`t just looking at Lev Parnas and Igor Fruman and what they were doing with Rudy Giuliani. They are looking at and possibly scrutinizing Rudy Giuliani`s business dealings.

Giuliani denies wrongdoing and he has said that at least in Ukraine, he`s had no clients in Ukraine since he became President Trump`s personal attorney. But, you know, when you take a step back and look at what`s been alleged over the course of the past few weeks, as Giuliani was orchestrating a campaign to oust the ambassador over in Ukraine and also to get Ukrainians - pressure Ukrainians to investigate Joe Biden.

And so, this news is very significant. And among the charges listed on the subpoenas is failing to register as a foreign agent. Also, obstruction of justice, money laundering, conspiracy to defraud the United States, mail fraud, wire fraud. The list goes on. More than half a dozen possible charges. So, big news tonight for Rudy Giuliani.

MELBER: Yes, it`s a huge development. And David, this is one of those times where a reporter like yourself who has been tracking all of this since during the 2016 campaign is really invaluable because I see a lot of things coming together here.

One of the fairest defenses that Trump`s allies made early in the Mueller probe was the worst stuff like Manafort wasn`t all done the way Mueller wrote it on behalf of Trump. There was other dirt. Now, that still leaves a lot of responsibility for who is your number one person running your campaign. But there was that argument.

Put that in the context of what we see here, what Shelby just described, Mr. Giuliani under heat for things he is doing explicitly, not only on Donald Trump`s behalf, but on behalf of the re-election campaign combined with the other breaking story that we`re going to stay on, which is the defiance of witnesses in the Mueller context coming home to roost.

DAVID CORN, MOTHER JONES WASHINGTON BUREAU CHIEF: Well, I don`t think we have enough time to cover all that, Ari. I feel like Carrie Mathison in Homeland, because if you start doing your flowcharts here, what the Democrats thought was a very simple case of Donald Trump making a phone call, taking a couple of discreet actions to lean on the Ukrainians in order to get political dirt on Joe Biden and to try to prove that the Russians didn`t hack the election in 2016 to benefit him has turned into a much more wide-ranging conspiracy to say plot or controversy, wherever you want to call it that involves business deals, perhaps in Ukraine, involvement with Rudy Giuliani, perhaps with a Ukrainian oligarch who has been indicted in the United States, is fighting extradition.

And there`s the possibility that Rudy Giuliani said that he would help him if this guy produced dirt on Joe Biden. The Lev Parnas and Igor Fruman indictment that came out a few weeks ago was very narrow, but it involved hundreds of thousands of dollars that are not accounted for that went to illegal campaign contributions. They also gave Rudy Giuliani a questionable $500,000 payment.

So, there`s really a lot going on here. But you`re right, at the very core of this and maybe this is what Rudy was counting on. He believed or he was indeed acting on behalf of President Trump to get the dirt and get this information and all the other stuff, he thought perhaps he`d have some cloak of presidential privilege and do you make all these other conversations and these side deals and to deal with the Ukrainian oligarch, whatever was going on. But he got into bed with some dead enders who have been accused of violating campaign finance law. And from that, this is just snowballing out. And I don`t think we have a false idea of the size of this yet.

MELBER: Well, you make you make such a good point there that part of what might look now in the light of day, like a real recklessness or even self- incriminating mistakes at the time, was placed on the bet of all. We can stonewall everything. The Mueller report ended without Mueller acting like Ken Starr, right. He didn`t throw a fastball right at the Oval Office. And we`ll wait it out and no one will have to testify and that failed because of A, this ruling tonight rejecting the stonewalling, forcing Don McGahn to testify.

B, everything we saw last two weeks in the impeachment hearing, the cooperation of other witnesses including current employees like Sondland.

I see your Homeland reference Mr. Corn. But I raise you a very simple Venn diagram which is there are parts of this that are all the Homeland lines within there`s parts with a Venn diagram is extort election help out of Ukraine with some unsavory characters, some of whom were indicted. And then you look and you see Devin Nunes as mentioned working with the same unsavory now indicted characters and you say, gosh, how many people are in the red hot center of this Venn diagram for you and then Shelby I want to give you Devin Nunes` semi-response. Take a look.

(BEGIN VIDEO CLIP)

MARIA BARTIROMO, FOX NEWS HOST: Bottom-line, were you in Vienna with Shokin?

REP. DEVIN NUNES (R-CA): Yes. So, look Maria, I really want to answer all of these questions and I promise you absolutely will come back on the show and answer these questions. But because there is criminal activity here, we`re working with the appropriate law enforcement agencies.

(END VIDEO CLIP)

MELBER: David.

CORN: You know if someone accuses me of being in a European capital with an indicted guy, meeting with a Ukrainian oligarch, whatever it might be. And it didn`t happen, I would say it didn`t happen. You know that`s about as shifty response as I can imagine a member of Congress. And we all - I was in the room and other people were there watching on TV sat through and watched him for hours in the last two weeks. If he was in touch with Shokin while this was going on, that`s the corrupt Ukrainian prosecutor who have kicked off the dirt digging operation against Biden. And he didn`t tell anybody that, it staggers the imagination.

MELBER: Shelby?

HOLLIDAY: You know I also think it`s interesting when you look at the reporting and the comments coming from Lev Parnas` lawyer that Lev Parnas is ready to turn over his photos, his videos, his text messages.

The Wall Street Journal a few weeks ago published a story about Lev Parnas` Instagram feed. This is just one social media feed that didn`t include every picture he had. He also had a Facebook page where he was posting all kinds of photos. The MEN documented his life quite well. I mean he took tons of pictures with Rudy Giuliani. He also took pictures with various Republican officials and President Trump.

MELBER: No, Shelby--

HOLLIDAY: It struck me when we were doing that story. He never took photographs with Ukrainian officials.

MELBER: Shelby are you saying--

HOLLIDAY: If there is evidence with Devin Nunes, you know--

MELBER: Are you saying he did it for the Gram?

HOLLIDAY: He did a lot of it for the Gram, but he also did a lot for Facebook and we don`t have those photos. So, there is a lot out there that we don`t know.

MELBER: And on Giuliani, I know that it can be tiresome to even look at what he`s saying, but when we cover potential investigations and potential cases, we always look to both sides. His problem is how weak his side has been, David.

But this was Giuliani basically talking about, well - you know blame somebody else. Take a look.

(BEGIN VIDEO CLIP)

GIULIANI: I expected the moment I heard Biden`s name.

UNIDENTIFIED MALE: Sure.

GIULIANI: I told my colleagues; they`re going to try to kill me. Because they`re going to kill the messenger. But dammit, the mafia couldn`t kill me.

UNIDENTIFIED MALE: Right.

GIULIANI: Your colleagues are not going to kill me.

UNIDENTIFIED MALE: OK.

(END VIDEO CLIP)

MELBER: David?

CORN: You know that`s what`s kind of sad here. I mean having been in New York the time when Rudy Giuliani was going after the mob. He was courageous and he also went against Wall Street traders, inside the traders in the 80s. I mean he really cared about corruption. And now he`s totally on the other side of the coin.

And it`s very simple, Rudy, if you have the goods, produce them, but every fair-minded assessment is that there is no fair allegation that Joe Biden did anything wrong. So, it just looks like you`re trying to trump things up and working with Joe diGenova and Victoria Toensing, two lawyers for that Ukrainian oligarch I mentioned before Dimitry Firtash and it just looks rotten to the core. If he had something to show I think he`d show it.

MELBER: Yes, I think that`s fair. And we will obviously endeavor to continue to include the defenses and other arguments, but they are as a factual matter quite unveiling. Shelby Holliday with the big reporting today. Thank you, David.

HOLLIDAY: Thank you.

MELBER: I want you to stay with me. I have been here going through what I can of this ruling. But we have another prosecutor in a separate location as we`re doing. So, David stays with us. Our other prosecutor is going to weigh in. Having studied this. We`re getting word on what the DOJ is going to do with what is a huge loss on presidential power and whether witnesses have to testify, when we come back.

(COMMERCIAL BREAK)

MELBER: Back with the breaking news, a federal judge ruling Donald Trump`s former counsel Don McGahn must testify to Congress. The court finding the White House officials do not have anything like absolute immunity from testifying. "Even if the President expressly directs such official`s noncompliance."

The court also likening the DOJ argument to an Orwellian animal farm folk quoting the famous line, all animals are equal, but some animals are more equal than others. Quite a rebuke. As we`ve been reporting, McGahn`s lawyer says he will comply provided the case is not further tied up in the appeals process.

NBC reporting though that Barr`s DOJ which just lost this round is expected, expected to appeal this ruling.

The House Judiciary Chairman Jerry Nadler has a new reaction basically touting the victory and says McGahn is central to the Democrats investigation. He expects him to testify.

Back with me is David Corn and joining us by phone is former federal prosecutor Glenn Kirschner. Good evening to both of you. Glenn, your first bite at the apple. David and I, I have been trying to make sense of this wall, reporting other stories on television. Glenn, what jumps out to you?

GLENN KIRSCHNER, FORMER FEDERAL PROSECUTOR: So, Ari, I was looking at Judge Ketanji Brown Jackson`s two-page order, sort of formally implementing what is in her much longer legal opinion. And the first thing that jumped out at me is this language. She concludes that Mr. McGahn`s failure to appear was without legal justification. And you know the reason that I think that`s important is because the Trump administration has been directing people to refuse to appear. And we now know that that is entirely without legal justification.

I hate to split hairs, but it really is illegal, because it really - it`s a contemptuous act. When you receive a lawfully issued subpoena from Congress and you have zero lawful basis to resist it, you are involved in an illegal act. So that becomes important in my opinion, because Trump has been telling people to commit the unlawful act of failing to appear to lawfully issued subpoenas which I think will add fuel to the obstruction of justice fire that is likely to end up as one of the articles of impeachment.

MELBER: Well, you just put your finger on it. And David this goes to the heart of it which is I try to use our words very carefully, because this case has proceeded through the normal courts not unlike precedents that we`ve seen including the Bush-Miers President which this case relies on. I wouldn`t call this alone any kind of constitutional crisis, but I would say David and I`m curious your view this coupled with everything else, the administration is doing is constitutional crisis adjacent meaning in some ways that use precedent and the appearance of a lawful process.

In other ways that are rank and obvious defiance what comes together is something the Congress has to consider which is at what point do all those patterns become a potentially impeachable event and where does tonight fit into that. David?

CORN: Well, you remember that during the Trump-Russia investigation and the House Intelligence Committee once controlled by Republicans. The witnesses came forward from the administration, Hope Hicks and others and refused to talk about things without even citing the executive privilege. They said, I`m not going to talk about my conversations with the President. Why? Well because they told me not to. But is that executive privilege? No.

So, they weren`t even citing a real privilege which may not even have covered it. They were just refusing to cooperate. And many folks did that you know Donald Trump Junior cited attorney client privilege for conversations with his dad and things like that. And this all leads me to 1974. Why do you ask? Because Article 3 as you`ve talked about of the Watergate impeachment articles was the President did not comply with congressional subpoenas.

So, as we`ve seen with McGahn case, I mean this goes directly to that. Whether there is a right of Congress to seek information from the White House and the executive branch particularly when there is an impeachment proceeding at stake or any other - or anything else it`s serious. And the White House position has been no, you don`t get that. This decision today starts changing the balance here.

MELBER: Well, and David you said why 74, I thought maybe that was a particularly good dead show at The Fillmore, but that`s just because I know you, obviously you had somewhat serious.

CORN: Actually, I`ve been to one dead show my entire life and it wasn`t 1974.

MELBER: Well, that`s your mistake. That`s your life mistake given the great decades you`ve lived through. But look, the other thing beyond the Nixon President 74 is, there has been many comparisons across the country, in Washington, in law and politics to the Mueller hearings and now these very powerful impeachment hearings.

But the big difference that I think people kind of know but it`s easy to forget and tonight put such an exclamation point on to this, what was powerful in these impeachment hearings was the witnesses and the people involved testify.

In the Mueller hearings by definition that never happened. If you ran the impeachment hearings like the Mueller hearings, Adam Schiff would have been at the main witness table. But that doesn`t make a ton of sense because the prosecutor can only take you so far. And so, I want to play for you for your analysis a reminder of who we`re dealing with.

Don McGahn was the guy dealing with everything in those heady first years of the administration that got up to or over the legal line to the point that he said under oath to Mueller, he resigned. He threatened to resign rather than carry out criminal obstruction. That`s the guy we`re dealing with. Take a look at him at CPAC.

(BEGIN VIDEO CLIP)

DON MCGAHN, FORMER WHITE HOUSE COUNSEL: Essentially government law that the President has to encounter on a day-to-day basis.

UNIDENTIFIED MALE: And that involves you and just about everything.

MCGAHN: Unfortunately, yes.

UNIDENTIFIED MALE: Yes. Hard for you to say, I didn`t do it.

(END VIDEO CLIP)

MELBER: Unfortunately, everything. And David what would it mean if he does come out because would he not be asked about things that are relevant to Donald Trump`s efforts to McGahn`s view break the law, but also could inform the current impeachment probe.

CORN: Look what happened in the last two weeks. Almost everybody who testified had given a very lengthy deposition. We knew 90 percent of the story. There were some surprises that came out. But by hearing it directly from the players, it really helps cut through a lot of the complications. And he didn`t have that with the Mueller investigation because A, Mueller didn`t want to be there when he testified, and he gave a very lackluster performance.

But this is what this fight is all about. McGahn didn`t testify even though the Judiciary Committee called him. There were lots of other witnesses who could be called who won`t testify some who were in government, some who were not in government.

So, I don`t think the public got the full flavor of the story part because what Mueller did in part because of this stonewalling from the White House. So, I think now if he and others have to testify, I don`t know what the Democrats really do on the impeachment front in terms of their timetable.

We`ve seen so much come out in last couple of days, so much come out from the hearings that deserve further investigation. We still have the Mueller story to tell, more fully the Russian story to tell, more fully - I just don`t know where their heads are at in terms of presenting that to the public. Some of the public deserves. But the Democrats really going to at this point give them the full story?

MELBER: Fastening questions advanced by this ruling. David Corn here do it on multiple topics for us. Glenn Kirschner phoning in from his MSNBC issued prosecutorial bad phone on a big night. My thanks to both of you.

Still to come, I want to dig into the impeachment revelations that are important and that go to what Mick Mulvaney and Mike Pompeo are up to this week. And later, I have news on just how many of you were watching these hearings and what it means about evidence reaching the American public.

(COMMERCIAL BREAK)

MELBER: Big impeachment news on Don McGahn being forced to testify to Congress comes after big revelations about two other figures in the center of the Trump presidency and these constitutional battles.

Mike Pompeo and Mick Mulvaney, now they`re exposed tonight by evidence that Mulvaney was actively cooking up a cover story on what would be the instrument of this entire alleged extortion of Ukraine. The now infamous freezing of military money.

Newly revealed documents showing an after the fact cover story that would be providing a later and potentially misleading justification for freezing the money. This is according to internal documents, the Washington Post is reporting on, all of this suggesting a cover up.

The White House reportedly worried their internal review is turning up unflattering exchanges and facts that could ultimately embarrass President Trump.

Now when many scandals, it takes months, years, even decades for all of these types of internal debates to come out. As you have probably noticed a lot of this is happening at warp speed. These documents shedding more light on what Mulvaney knew when he went full Mulvaney publicly admitting the Ukraine plot at the time that looked like a kind of a self-incriminating gaffe.

But this is something we`ve been reporting out and the hearings cast new light on. When you take it all together, it looks like the full Mulvaney may have been him actually trying to get ahead of his own role since he knew not everyone else did that there was this written evidence tying Mulvaney to the whole plot.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: You just described is a quid pro quo. It is funding will not flow unless the investigation into the Democratic server happened as well.

MICK MULVANEY, ACTING WHITE HOUSE CHIEF OF STAFF: We do that all the time with foreign policy.

(END VIDEO CLIP)

MELBER: We do that all the time and tonight with these documents, the emphasis is on, we. Because he was all over the plot. Now the new revelations we`re seeing are also corroborating something that you heard a lot about just last week. Ambassador Sondland`s account that everyone was in the loop with this plan, because these State Department emails show Pompeo talking to guess who, Giuliani twice during a crucial period in March, including a direct tie to Donald Trump`s staff, because his personal assistant actually intervened to arrange one of these curious calls.

All of this adding up to important evidence that the Congress will continue to sift through as they prepare a report on those hearings. And we`ll be back with one more thing I mentioned why everyone has been watching what Congress is doing. When we come back.

(COMMERCIAL BREAK)

MELBER: Have you noticed how of all the different stories and scandals and investigations of this Trump era, the impeachment hearings have stood out in several ways for their breadth, the seriousness, the way they really offer the nation a chance day-after-day to witness these witnesses, to learn about the facts firsthand, if people choose to. During the hearings though, the top Republican on the committee made a prediction that proved to be false. He claimed the audience ratings for these marathon hearings were down that people were not watching.

(BEGIN VIDEO CLIP)

NUNES: Well, Ambassador and Mr. Morrison I have some bad news for you. TV ratings are way down, way down. I don`t hold it personally. I don`t think it`s you guys or whatever drug deal the Democrats are cooking up here on the dais. American people aren`t buying it.

(END VIDEO CLIP)

MELBER: That proved false. The data for audience ratings now is in for the full week. We just lived through and it shows huge interest, 12 million people watching the hearings live on average, millions more watching coverage, clips, portions online. The hearings may have looked at times like C-SPAN, but for context, the New York Times notes these numbers are at the level of Monday Night Football or popular TV shows like NCIS.

Now do these huge numbers reflect that just opponents of Trump are seizing on maybe what could be a tough story for him? No. Viewership was at record highs across the board. That full disclosure includes right here at MSNBC last week highest rated week ever. But it also includes over at Fox News, the hearings bringing out their best ratings of the year.

So, there you have it. Tens of millions of Americans are seeing these hearings with their own eyes. A notable thing to consider when you remember that the factual issues here are a scandal that is in large part about misinforming the public.

Remember, Trump trying to extort Ukraine to announce a fake investigation to mislead Americans about the Biden`s, a plot that backfired leaving to what is now, yes, a real investigation. So, don`t forget, a key to this whole plot was that it`d be announced on TV.

(BEGIN VIDEO CLIP)

GORDON SONDLAND, U.S. AMBASSADOR TO THE EUROPEAN UNION: He had to announce the investigations. He didn`t actually have to do them as I understood it. This was a demand that President Zelensky personally commit on a cable news channel to a specific investigation of President Trump`s political rival.

(END VIDEO CLIP)

MELBER: Yes, it was all about reaching people, the way they wanted to reach people turned out to blow up in their face. It was a failure. And the investigation, well that now is reaching millions of people. What they think about it? What they do it about it? Well, that`s up as always to the American public.

Thanks for joining us on quite a busy news night. I`ll be back 6 p.m. Eastern tomorrow. "HARDBALL" starts now.

  THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END