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White House tells McGahn to not cooperate. TRANSCRIPT: 5/8/19, The Rachel Maddow Show.

Guests: Jerry Nadler, Neal Katyal

ARAM ROSTON, JOURNALIST, REUTERS:  We didn`t put any of that other material in this story. 

CHRIS HAYES, MSNBC HOST:  You just happened to report on them both.  OK.

ROSTON:  I did. 

HAYES:  Aram Roston, thank you so much for that reporting. 

ROSTON:  Thank you. 

HAYES:  That is ALL IN for this evening. 


Good evening, Rachel.  I don`t know -- I literally do not know what to make of that set of facts. 

RACHEL MADDOW, MSNBC HOST:  Can I just tell you as a viewer what that was? 

HAYES:  Yes. 

MADDOW:  Given my understanding of the story, that was looking at a crossword grid and looking at all the clues in the crossword for what the words are that you`re supposed to put in the crossword grid and then doing it as a Sudoku.  You know, I`m going to use this grid for a different purpose. 

I mean, that story is so freakin` astounding, and the holes in the middle of it are like screaming at us. 

HAYES:  Right, yes.  I agree with all of that.  All right. 

MADDOW:  It`s astonishing.  Well done, my friend.  Thank you.

And thanks to you at home for joining us this hour.  We have lots and lots and lots to get to tonight.  We`re just going jump right in. 

I have to tell you, we are about to have a live interview with the chairman of the house judiciary committee, Congressman Jerry Nadler of New York, who is the man of the hour right now.  Today, Chairman Nadler and his committee voted to hold the attorney general of the United States in contempt. 

And while those kinds of confrontations between the legislative branch and the executive branch are fairly rare in our system and they are fascinating and there is all sorts of obscure and amazing case law and precedent that comes into play for these types of fights, and honestly, learning the history of how this might work out with Barr being held in contempt and what that might mean in terms of his compliance with what they`re trying to get him to do that the doesn`t want the do.

I mean, in order to really figure it out, you got to go back and look at the history of, like, Harriet Miers as White House counsel, remember her?  Or Janet Reno being attorney general for Bill Clinton and the Eric Holder contempt controversy in the Barack Obama presidency.  I mean, you have to go back to George Washington and the whole idea of executive privilege in the first place. 

I mean, it is the exact kind of rabbit hole that I fit perfectly inside.  I could live the rest of my life plumbing the depths of this kind of political confrontation, right?  If you are a Constitution nerd, if you are a civics nerd, confrontations like this, votes like this today, this drama around this in the House today, it`s like Christmas, birthday, first day of school and first day of summer vacation all wrapped up into one. 

It`s exciting.  It`s exciting thing to cover.  It`s an exciting thing to unfold.  There is so much uncertainty in terms of how it`s going to, you know, proceed through all the various procedural stuff that has to happen and all the precedent and the courts.  In this case, though, this confrontation between this judiciary committee and this attorney general, William Barr, and what will soon be a full vote out the House of Representatives, holding Attorney General William Barr in contempt. 

In this case, however fun it may be to get into all the arcane detail of what this contempt fight means and how it might interact with other historical precedent, and how this might legally be -- in this case, for this fight, it is impossible to make sense of what is going on in this particular fight without seeing it for how it fits into the larger and much, much simpler clash that is happening now in Washington and that has eclipsed everything else in D.C. politics.  And that is the clash between President Donald Trump and the Mueller investigation. 

I mean, for all of the kinetic activity we can see, for all of the different headlines we are seeing generated every 15 minutes, 24 hours a day, seven days a week right now, that is it.  That is the blunt force collision that is happening here.  All of this crazy stuff and historic stuff that is happening so rapidly right now, and all these political and legislative and legal fights, it is all about that one simple confrontation.  This is Trump versus the Mueller investigation.  That`s the whole thing. 

And I mean, honestly, big picture, it`s roughly six weeks since Mueller turned in his report about the findings of his investigation.  At this point, there is still lots of uncertainty as to how and why Mueller`s investigation came to an end when it did and how it did.  Since Mueller turned in that report, William Barr has been publicly suggesting that in his view, Mueller had no right to continue his investigation once he notified Bill Barr and the Justice Department that he didn`t intend to declare one way or the other whether President Trump should be charged with crimes. 

The day after newly appointed Attorney General William Barr took over control of Mueller`s investigation, the day after he officially took oversight of Mueller`s investigation personally, he and Mueller discussed the fact that Mueller wasn`t going to declare one way or the other if the president should be charged.  Barr now says the implication of that to him is that Mueller therefore shouldn`t have been investigating at all.  And less than three weeks from that date, in fact, Mueller`s investigation was suddenly over and his report was turned in. 

Now at this point, roughly six weeks out from Mueller`s report being turned in under those circumstances, there is still serious just base level uncertainty as to what actually Mueller looked into.  I mean, there are no signs in Mueller`s report that he carried out a counterintelligence investigation into the potential national security consequences of Russia`s interference in our election, the potential compromise of people around the president or people involved in his campaign or head of the transition or the administration. 

I mean, just as a concrete example, that means that while Mueller`s report gives in detail a factual account of how the president and his businesses pursued a huge real estate deal in Moscow throughout Trump`s presidential campaign, a deal for which they would need help from the Kremlin and about which they were in repeated contact with Kremlin officials during the campaign while the president was publicly lying about it and denying any of that was happening -- I mean, those contacts in Mueller`s report are factually described to a T. 

But in Mueller`s report, there was no assessment whatsoever as to whether or not that dangled real estate deal, that secret negotiation during the campaign, prosecutors said it could have resulted in hundreds of millions of dollars for Donald Trump and his business, but Mueller gives no assessment whatsoever as to whether or not that deal or those negotiations for that deal again conducted in secret during the campaign, Mueller makes no assessment as to whether those might have been some sort of effort to compromise Trump, or otherwise to pursue the Russian government`s objectives when it came to his presidential campaign. 

I mean, take the names off it, right?  Here is a foreign government actively secretly pursuing a huge business deal with a presidential candidate during the presidential campaign while the candidate is lying about it.  Mueller is just silent on whether or not that might have any implications for potential compromise of the candidate or for that foreign government`s intentions toward us at a national security or intelligence level. 

And, I mean, on that question there`s no -- not only no assertion by Mueller one way or the other as to what that meant, there is no reference to the idea that even looked into it.  Six weeks now after Mueller`s report was submitted, there is still blunt base-level uncertainty as to whether he looked at any of the president`s financial records or tax records as part of any investigation into potential compromise or links either to the Russian interference campaign or to other potentially compromising foreign interests. 

I mean, they don`t appear to have looked at any financial entanglement stuff at all.  I mean, those are just things off the top of my head, right?  There are all these really big things about Mueller`s inquiry and its scope and its terms and what it looked at and what it didn`t that remain wide open.  It remains as wide open as questions today as those questions were the day we first heard that his investigation had wrapped up. 

I mean, you think that six weeks after we got that report, even some of that base stuff, what did Mueller look at?  Did he look at the money?  Was any of the Russian contact stuff dangerous? 

I mean, we didn`t know any of that the day he turned in his report.  Six weeks later, we still don`t know any of that.  And you sort of think that would be where the national focus would be, right, on this investigation and this scandal that has been such an object of focus for the entire time this president has been in office. 

Hey, what did the investigation actually look into?  What did it actually find?  What should we know about how it was conducted? 

You`d think that would be sort of what we`re talking about, but instead it`s all the fight, right.  Instead, the Trump administration for the president personally through the actions of the White House counsel`s office, through his newly appointed Attorney General William Barr, through his press spokesperson, what they`ve done over these six weeks is erected this incredibly aggressive, multi-front effort to try to freeze Mueller`s investigation where it is, to try to block any further questions about what Mueller found or what he did or did not look into. 

And while it might seem now like there is all these disparate fights breaking out all over Washington, all these different types of confrontation that might indicate some, you know, harsh new tone of partisanship between the parties, right, or between the White House and congressional Democrats or blah, blah, blah, some other beltway milquetoast both sides-ist nonsense about how, it`s so unpleasant these days in Washington, I mean, you`re seeing all these fights that look like separate battles, but they are all the same fight. 

This is one big fight.  This is Trump versus the Mueller investigation.  And that`s what all of these different battles are about.  I mean, Don McGahn, important witness in the Mueller investigation.  He has just been told by the White House to defy a congressional subpoena that ordered him to hand over documents about the things he described to Robert Mueller as a witness in that inquiry. 

The president also threatening that that witness to the Mueller investigation, Don McGahn, will be blocked from testifying to Congress about what he told Mueller.  Judiciary Chairman Jerry Nadler has now threatened overtly that former White House counsel Don McGahn may also be held in contempt, may also have to face the legal consequences for that if he continues to defy the subpoenas, whether or not it is at the White House`s request, right?

That`s about trying to block information about the Mueller inquiry from coming to light through questioning of Don McGahn and the submission of documents from him to a congressional committee following up on Mueller`s findings. 

Today, Attorney General William Barr voted by the Judiciary Committee to be in contempt.  He will soon be voted by the full house to be in contempt.  It`s not because they don`t like William Barr or they object to his recent behavior in some generic sense.  This is about Trump versus the Mueller investigation. 

This contempt vote today is because Barr is defying a subpoena that the Justice Department had issued to obtain the material that Barr redacted out of Mueller`s report and to obtain the underlying evidence that supports Mueller`s findings.  This remarkable assertion today by the White House that they are retroactively seeking as far as they`re concerned the whole Mueller report should now be seen as covered by executive privilege. 

I mean, if you`re too close to that as a story, you might think oh, that`s a whole new fight.  Executive privilege declared retroactively over the whole Mueller report, even after 90 percent of it has been made public.  No, it`s actually all the same fight, again, to try to block access to Mueller`s findings, to try to give Barr some cover for denying Congress access to the rest of the report`s findings and underlying evidence that haven`t been released, to try to freeze the investigation where Barr landed it, with nobody getting to find out anything more about what Mueller did or what Mueller looked and at nobody getting to ask any follow-up questions.  It`s all the same fight. 

I mean, just go back to that Trump tower Moscow example for just a second.  This week, Michael Cohen went to prison, in part for lying to Congress about the extent and the timing of the Trump Organization`s negotiations with the Russian government over a potential Trump Tower to be built in Moscow.  Michael Cohen went to prison for lying to Congress about that this week. 

Today, Donald Trump Jr. was subpoenaed by the Intelligence Committee in the Senate.  One source telling "Bloomberg News" that the reason they sent him a subpoena is because the committee wants Donald Trump Jr. to come back and testify to them again about Trump Tower Moscow, and now Donald Trump Jr. says, or excuse me, a source close to Donald Trump Jr. says that he`s going to fight that subpoena to come back and testify to Senate Intelligence. 

So, you know, you can add to this list of big confrontations that we`re having.  You can add to that list the president`s eldest son now saying he too will defy a subpoena to come testify on this issue. 

But if there was a problem with his testimony on the issue of Trump Tower Moscow, I mean, I think there is an interesting question to be asked about why the committee would be bringing him back in to testify on that matter again.  Michael Cohen lied about Trump Tower Moscow under oath to the Intelligence Committees.  They didn`t bring him back in to clear it up.  They gave it to the Justice Department, who charged them with a felony for lying to them. 

Sam Patten lied to the Senate Intelligence Committee as well.  They didn`t bring him back in to clarify the matter.  They referred him to the Justice Department for prosecution, and ultimately he had to admit in court as part of his plea deal that he committed a felony when he lied in his testimony to the intelligence committee. 

Roger Stone is accused by the Justice Department right now of having lied in his congressional testimony about matters related to Russian interference in the Trump campaign.  The committee did not bring Roger Stone back into clarify his testimony.  He`s going to trial on that as a felony charge. 

So, the Senate Intelligence Committee is led by Richard burr, Republican senator from North Carolina.  He has his own walk-on cameo role in the Mueller report for taking information that he learned about the FBI`s investigation from a classified Gang of Eight intelligence briefing on Capitol Hill, he took that information up to the White House and told the Trump White House what he had learned in that classified briefing. 

And I know everybody praises Richard Burr and the Senate Intelligence Committee for, you know, their lack of rancor and their bipartisan proceedings.  But if there was a problem with Donald Trump Jr.`s testimony to that committee about Trump Tower Moscow or anything, why is it only the president`s son who is getting called back in to readdress the matter when everybody else who got nailed for lying to Congress on that subject and others just got nailed in court for lying to Congress in this scandal.  Why are they bringing him back in to talk it over again? 

So the Senate Intelligence Committee proceeded with that subpoena today for the president`s eldest son.  A source close to him says he will fight it.  We will see what happens there. 

Meanwhile, the intelligence committee in the House today issued their own subpoena to obtain Mueller`s fully unredacted report and its underlying evidence.  They issued that subpoena under a provision of federal law that we actually discussed here last night on this show with noted First Amendment attorney Ted Boutrous. 

I mean, you`ve got all these different kinetic actions, all these different confrontations, all these fights, the attorney general defying the Judiciary Committee subpoena, the White House asserting executive privilege over the Mueller report, the Judiciary Committee finding Barr in contempt of Congress.  Now, the House is going to find him in contempt of Congress, and Don McGahn is defying the subpoena to come testify what he told Mueller.  He is potentially going to be held in contempt of Congress, too. 

I mean, all of these things are happening all at once.  They`re all indicative of the same big confrontation.  The House Intelligence subpoena is part of that too.  The House Intelligence Committee actually does have the law on its side in this new effort they launched today to try to get Mueller`s unredacted findings in his evidence. 

What they`ve got on their side is a post-9/11 law that actually affords them to access to Justice Department matters that involve foreign intelligence or grave hostile acts of a foreign power.  And so, under that law, that post-9/11 law, they are under statute supposed to get access to what they ask the Justice Department for.  And so they`ve asked nicely for it several times.  No response from William Barr and the Justice Department.  So, now, it`s a subpoena. 

Just as the White House and Attorney General William Barr tried to shut down the judiciary committee`s path to access Mueller`s full findings and evidence.  Tonight here opened up another path as the Intelligence Committee sends their subpoena as well.  Right?

So all of these different fights, all of these different subpoena, all of these different confrontations, they are the same thing.  It is Trump versus Mueller`s investigation.  And the apex concern that the president and the Trump White House and his helpers in this fight must have, the prospect that they must feel lurking under the bed ready to reach out and grab their ankles if they let a foot touch the floor, right, the gravest boogieman worry they`ve got to have right now has to be that Robert Mueller somehow, some way will be allowed to speak freely and for himself about his own investigation and his own findings in his own terms. 

Because this feels like we are going through this remarkable period in the news, right?  It has been a six-week festival of freak-out, trying to stop Mueller from speaking in his own terms about his own work, and we will talk with Judiciary Chairman Jerry Nadler, who is going to be joining us live in just a moment.  We will talk with him about that. 

We`re going to be talking later on this hour with a legal expert who may be able to give us the clearest possible view into how they can try to stop Mueller from testifying forever.  But given that all of these little fights are really all the same confrontation, there is one other thing that has happened tonight that hasn`t gotten a lot of pickup yet in the news at least.  You should know about it, I think, before we move on to that question about Mueller himself. 

And it is this document actually from the judiciary committee in the Senate.  You see there is a bunch of signatures there in blue.  All the Democrats on the judiciary committee signed on to this document.  It`s structured in the form of a letter to the chairman of the Senate Judiciary Committee, who is Republican Senator Lindsey Graham. 

And inform what the point is of this letter that the Democrats on this committee would like Robert Mueller to please come testify to their committee, because they have some questions for Mueller about his investigation.  But what is sort of amazing about what they have done here tonight is that in making the case to Lindsey Graham about why they think it might be important to have Mueller himself come sit down and answer some questions, they have overtly laid out in detail some of the questions they`d like Mueller to answer if they ever did get the chance to talk to him. 

And as such in this letter, which I`m not sure many people have noticed tonight, the Senate Judiciary Committee, the Democrats on the committee have kind of stepped up and provided what appears to me to be the first public road map for what Congress might want to look into, for what Congress actually might want to figure out now that Robert Mueller`s investigation by whatever means has been brought to an end.  And there are 60 questions here.  Conservatively speaking, a lot of them are compound questions, so I`d say it`s more than that.

Just as a sample, right, to what degree was the investigation able to determine why Paul Manafort volunteered to work for the Trump campaign for free and whether he discussed the possibility of joining the Trump campaign team with foreign nationals? 

To what degree was your investigation able to determine whether members of the campaign other than Rick Gates were aware that internal campaign strategy and polling data was being shared with Russian national Konstantin Kilimnik?  Good question. 

To what degree was your investigation able to determine whether internal Clinton campaign data analytics and voter turnout models that were stolen as part of the Russian hacking operation were used by Russia or shared with anyone working for or with the Trump campaign?  To what degree did your investigation examine the role of Cambridge Analytica, AggregateIQ or the SCL Group in the 2016 election?  Did your investigation examine the possibility that U.S. election or Trump campaign information was shared with Russia through these entities? 

To what degree was your investigation able to determine the Trump campaign`s and Russian government pursuing back channel communications, including between Jared Kushner and the Russian ambassador Sergey Kislyak which Kushner suggested should be arranged using secure facilities at the Russian embassy?  Also, between Sergey ahead of excuse me, between Kushner and Sergey Gorkov, the head of a Russian government-owned bank?  Also between Rick Gerson, a friend of Kushner, and Kirill Dmitriev, the head of Russia`s sovereign wealth fund who reports directly to Vladimir Putin.  Also, what about that back channel between Erik Prince, a trusted associate of the Trump transition team and the same Kirill Dmitriev who reports directly to Putin? 

To what degree was your investigation able to determine the content of these back channel communications between Trump campaign and Russian government representative? 

It goes on and on, on and on and on.  I mean, here, just finally, just this one would be really good to know.  Just this one.  To what degree was your investigation, Mr. Mueller, able to determine whether the Trump Tower Moscow project was part of an effort to gain influence over Donald Trump?  Did you look at that? 

I mean, that`s just some of it.  That doesn`t even get to fully half of their questions are about the obstruction stuff, including multiple questions about whether efforts to obstruct the investigation materially affected Mueller`s ability to get to the bottom of things.  When witnesses didn`t cooperate with the investigation after they were encouraged not to cooperate with the investigation by President Donald Trump, did it affect Mueller`s ability to figure out what was going on?  Meaning, did the obstruction Mr. Mueller to block you from figuring out the important stuff you were trying to figure out?  That`d be good to know, right?

We have had six weeks now of escalating and I think now increasing frantic efforts by the president, the White House, the newly appointed attorney general, in some cases Republicans in Congress, trying to basically screw the lead down unto Robert Mueller`s head, to keep that jar sealed up, to make sure that none of these questions get pursued by anybody who might be able to figure them out, and certainly none of them get asked of the man who might be able to explain both what he found and what he did and didn`t look for and why.

House Democrats are going to start reading Mueller`s report into the congressional record live on the House floor tomorrow night.  Elizabeth Warren started that yesterday on the floor of the Senate.

But I will just say, in the middle of what has been already a truly remarkable week in the news, don`t get overwhelmed by what feels like a thousand different process fights, all seemingly breaking out all at once or in quick succession, all over different parts of Washington involving different characters, different sources of authority, different areas of the law, it feels like a million different fights, it`s one fight.  This is the fight to try to make the Mueller investigation go poof.  And the most intriguing part of this fight today is how hard the Democrats are now fighting on the other side to stop that from happening.

And Chairman Jerry Nadler joins us next, live.



REP. JERRY NADLER (D-NY):  They have decided to oppose the role of Congress as a coordinate branch of government representing the American people.  They are stonewalling the American people from all information, and this cannot be.  We cannot have a government where all the information is in the executive branch, where the American people and the Congress are stonewalled this information that they need to make decisions and to know what`s going on. 


MADDOW:  On a signal day in the history of this presidency, and a signal day in the long and storied career of Democratic Congressman Jerry Nadler, joining us now for the interview tonight is Congressman Nadler, who is the chairman of the House Judiciary Committee.  Today, of course, his committee voted to hold the attorney general of the United States in contempt. 

Sir, thank you very much for making time to be here tonight.  Much appreciated. 

NADLER:  Thank you for having me. 

MADDOW:  This is serious act that your committee voted on today.  This confrontation with the attorney general is something that I know you did not rush into, and that you didn`t relish.  Can you just tell us a little bit about your thought process in terms of what brought you to this -- what brought you to this sort of extreme point today? 

NADLER:  Well, we certainly didn`t relish this.  We don`t need this kind of fight with the administration.  But what brought us here is that we have to defend our constitutional form of government. 

This is a lawless administration.  It is denying the American people the information they need by defying all subpoenas.  It`s the first administration you`ve ever seen where they say we`ll deny all subpoenas from Congress, whether it`s on the Mueller investigation or on security clearances or in anything else. 

They defy the law.  The law very clearly says that upon requests by the Ways and Means Committee, the IRS should turn over anybody`s taxes.  They`re simply ignoring that.  So, they`re ignoring the law, and they`re stonewalling and hoping that they can get away with it. 

We cannot have a situation where the president becomes a king or a dictator.  I mean, the American people understand that nobody, not the president, nobody may be above the law.  And we have to enforce that. 

MADDOW:  My sense of their strategy here is not that they have great faith in any of the specific subpoenas that they are defying in any of the specific stones they are putting up in this stonewall, as you describe it.  My sense of their strategy here is that they`re going to say no to everything, try to block everything, simply to try to buy themselves as much time as possible. 

They`re hoping to bog down you in particular and congressional Democrats more broadly in each of these individual fights so that these fights become your full-time job and you can`t do what -- you can`t pursue what you want to pursue. 

I wonder if you see it that way, and if so, what`s your strategy for counteracting that? 

NADLER:  Well, I certainly think trying to bog down things as long as possible, not to keep us from other things, I think, but to evade accountability, to evade the information getting out, to evade the American people having the information they need to judge the administration and to support or oppose whatever it`s doing. 

We will -- that`s why we can`t -- we can`t abide this, obviously.  We have to maintain a Democratic form of government, which means the people have to decide ultimately, and they can`t do that without the requisite information, which the administration is trying to deny them.  So that is why we issued subpoenas. 

That`s why we went to -- we cited the attorney general for contempt today.  It will be voted on the house floor in the next couple of weeks, and that will go into court to enforce the subpoena.  We`re going to ask the court to expedite the matter as fast as possible.  We have some strategies for that.  And that`s really what we have to do to thwart the administration`s desire to run a lawless administration. 

MADDOW:  You say you have strategies in terms of asking the court to expedite these matters.  A lot of commentators looking at the fights say, well, the president will succeed here in delaying this, certainly for weeks, definitely for months, hopefully in his view for years simply by getting this thing into court, he`ll delay it until after the 2020 election.  It sounds like you have a different view of the timeline on which you think will be resolved, even if it is resolved through the court system. 

NADLER:  Well, it has to be resolved through the court system.  We do think that it can be done much more quickly than that.  It may take months, but it has to be resolved, and this administration has to be called to account. 

MADDOW:  In terms of the work flow that you`ve got in mind here, I take note of the fact that Don McGahn, the former White House counsel, who is such an important witness in Mueller`s written report was the first Mueller witness essentially you`d asked to come and ultimately subpoena to testify to your committee, first to provide documents and then to testify.  He has defied the documents subpoena. 

You have written a letter now suggesting that he may ultimately find himself in contempt if he proceeds on this route.  Do you intend to call all the Mueller witnesses?  I mean, he`s number one, and you`re having this fight with him already.  Are you planning on calling --

NADLER:  Well, he is number two.  Mr. Mueller is number one. 


NADLER:  But we plan to call everybody necessary.  And it may be a lot of the Mueller witnesses.  I doubt it will be all of them, but it could be a lot of the Mueller witnesses to elucidate what was going on.  And there are many -- I mean, we have an attorney general who is not only acting as a personal attorney for the president rather than the attorney general of the United States but is really turning the Justice Department into a vehicle for evading the law -- for evading the law. 

Now, we have to get all the information, and we may have to get a lot of people besides those who are interviewed by Mueller.  A lot of questions besides that, but we have to get the information for the American people so that we can take appropriate action. 

MADDOW:  Mr. Chairman, you mentioned witness number 1 there.  I have a question for you about him, if you don`t mind sticking with us. 

NADLER:  Sure, sure, sure. 

MADDOW:  I have to take a quick break. 

Chairman Jerry Nadler, he heads the Judiciary Committee in the House today.  They voted to hold the attorney general in contempt.  The chairman is back with us right after this.

Stay with us. 



REPORTER:  Mr. Chairman, you said that the president has ordered Mueller not to testify.  Are you referring to his tweet last week saying that Mueller should not testify? 

NADLER:  Yes. 

REPORTER:  How does that made that harder?  Has Mueller specifically told you that, that he doesn`t feel like testifying? 

NADLER:  No, but it obviously puts a lot of pressure on Mueller, and the discussions are ongoing. 

REPORTER:  And how are the discussions, are they -- 

NADLER:  They`re ongoing.


MADDOW:  We`re back now with Congressman Jerry Nadler, who is the chairman of the Judiciary Committee. 

Sir, thank you for sticking around.  Much appreciated. 

On that same topic that we just had that tape from you taking questions from reporters, at one point you had said that May 15th, next Wednesday, a week from today might be a target date for getting Mr. Mueller in to testify about his investigation. 

Can you give us any sort of update? 

NADLER:  Well, no.  May 15th was the date we were trying to do it.  An agreement had not been reached on a given date.  But we certainly want Mueller and McGahn before the end -- during the month, during the month of May. 

And, again, the order by the administration to Mueller and to McGahn not to testify is a lawless order.  There is no possible interpretation of executive privilege which would justify telling someone who has already given information out publicly either to the Mueller investigation or to his own attorney that that is privileged information.  This is just the Trump administration being lawless, trying to deny Congress and the American people all information and putting pressure on Mueller and McGahn not to testify.  Of course, we have a lot of questions for Mueller and McGahn. 

And remember that Barr began this whole process by misrepresenting what was in the Mueller report twice and by making his own judgment of what the Mueller report clearly intended to be Congress` judgment, and then attempts to silence Mueller and make sure he doesn`t appear before Congress or now before anybody. 

MADDOW:  Because we`ve seen what I believe is a real escalation, a sort of steady escalation over these past six weeks from the president, from the White House, increasingly from the administration about trying to lock down as much as possible around the Mueller investigation, stepping up their ability -- or stepping up their efforts to try to keep more of the report under wraps, now exerting executive privilege over all of it, now saying they`re going to block all witnesses, all requests for documents, it seems to me like they`re probably getting more aggressive in their stance whether or not they`re going to try to prevent Mueller from testifying.  It makes me wonder what the process has been like thus far between your committee and Mueller and trying to get him there. 

Has it been the Justice Department who has been negotiating on his behalf?  Are you in communication with him directly?  Is the White House trying to assert his schedule? 

NADLER:  Well, first of all, it leads you to wonder what they`re afraid of.  Remember, the attorney general has told us repeatedly, and all the Republicans, Senator McConnell and others have told us that the finding of the Mueller report was no collusion, no obstruction.  If that`s true, why are they trying to hide it?

  It`s obviously not true. 

But secondly, we were negotiating first with the Justice Department for a date for Mueller, and then with Mueller himself. 

MADDOW:  And is Mr. Mueller willing to come in and testify? 

NADLER:  I think he will be.  The last -- the last communication we had with him as far as I know just before the president suddenly said this.  But I think he will be.  And he will no longer be an employee of the Justice Department in a couple of weeks, at which point they can`t tell him what to do at all. 

But again, even private citizens or employees of the Justice Department must testify for a congressional or a court subpoena.  It`s not optional, unless they have a legal reason not to.  And the so-called executive privilege is nonsense, period. 

And the American people have a right to that information, including information such as some of the questions you were raising.  Did Mueller -- was Mueller`s investigation stopped by Barr?  Was he told to stop?  Was he told not to mention certain subjects in his report? 

Those are certainly questions we`ll ask him. 

MADDOW:  One last question for you on this same front, Mr. Chairman.  It occurs to me when I think about the questions that I have based on reading Mueller`s report, the things that still seem like open questions and things I can tell they looked at it but didn`t seem to state what they thought were the implications of what they found, I imagine that I would get the most out of hearing from Robert Mueller and from his investigators, from the people who were on his team, either from the FBI side or the Justice Department side who were carrying out this investigation with him.  Do you expect to be bringing in Mueller and his team or Mueller alone? 

NADLER:  Well, Mueller alone initially, and then McGahn, and presumably others from his team, and other witnesses.  There are a lot of questions we have to ask a lot of people and find out what`s really going on, and to elucidate for the American people what is really going on. 

Because the bottom line in this is not a fight between Mueller and the Trump administration or Mueller and Barr.  The bottom line is, does the American people have the right to information with which they can make decisions in governing this as a democratic country?  If you can vote but you have no information, if the information is guarded by the administration and you don`t know what the administration is doing, you don`t know what crimes they`re committing, you don`t know anything, then the vote becomes very hollow. 

That`s why this is such a crisis for our democracy, and we have to -- we have to prevail here.  We have never had a president who instructed people to ignore all subpoenas.  And when you ignore a subpoena, you`re ignoring a subpoena not just from Congress, but for information for the American people.  And we`ve never had that before. 

And we have to vindicate the right of the American people to this information.  We have to vindicate the fact that the president is not above the law and that he can -- that people can tell -- can testify against him if they have something to testify about. 

MADDOW:  Chairman Jerry Nadler of the Judiciary Committee in the House -- sir, you`re in a very, very, very important job always, but particularly in this kind confrontational moment.  Thanks for helping us understand tonight.  I appreciate your time.

NADLER:  Thank you. 

MADDOW:  Thanks.

All right.  I have other things to say and request.  I`ll be right back.  Stay with us. 


MADDOW:  OK.  So House Judiciary Chairman Jerry Nadler just a moment ago right here said that President Trump`s effort to stop Robert Mueller from testifying in Congress about his investigation is a lawless order.  He just said that here on TV. 

He also said he believes that Robert Mueller wants to testify.  He said that the committee is negotiating with Mueller directly. 

He also said that Mueller will not be a Justice Department employee any more within a couple of weeks, suggesting that that may have an impact on whether the president can try to block Mueller`s testimony. 

I have a whole bunch of questions about this.  I feel like most of them should be answerable. 

I mean, Robert Mueller is the special counsel.  Is anything in the special counsel regulations speak to this in terms of whether or not he is allowed to testify or the president can block him?  Did the regulations anticipate this kind of thing?  Did they give us any indication of how this might be resolved? 

Does it in fact matter whether Mueller is still a Justice Department employee?  If he quits the Justice Department or gets fired from the Justice Department, would a private citizen Robert Mueller be more free to do whatever he pleases, including testify to Congress about his investigation? 

Does the White House now asserting executive privilege over Mueller`s work product, his report?  Does that affect whether or not Mueller might be able to testify or what he could say if he does testify? 

I mean, I don`t know if we have reason to be hopeful or not as to whether or not Mueller is going to testify, but these negotiations are clearly ongoing.  Chairman Nadler said this morning he is as of today less confident now that Mueller testify than he previously was.  The president is overtly saying that Mueller shouldn`t be allowed to testify. 

But what do the rules say about who decides?  What is the structure for how this gets decided?  Do we have anything written down in the rules here that helps us figure this out? 

Joining us now is Neal Katyal, the author of the special counsel regulations, former acting solicitor general. 

Neal, really appreciate you being here tonight.  Thank you so much. 


MADDOW:  So let me ask you first of all about what you`ve heard tonight, including what you just heard from Chairman Nadler about the prospects for Mueller testifying.  Let me just get your reaction to that and how you see it at this point. 

KATYAL:  Well, first, let me start with what you said at the outset of the show, which I think is a huge public service, Rachel, because I think your listeners are seeing ten different things going on -- McGahn, Mueller report, this and that. 

And you`re absolutely right to say this is all one big battle, and you called it Trump versus Mueller.  I might call it Trump versus the truth.  It`s basically Trump who is afraid of all of this stuff coming out to the American public and to -- and to Congress.  He is acting kind of like a vampire afraid of sunlight. 

And so, I am very concerned about whether Mueller will testify.  You know, I took the Attorney General Barr at his word over the last few weeks when he`s been saying he wants Mueller to testify, he has no objections to it.  But now, the president has, to use Congressman Nadler`s word adopted a stonewall strategy across the board on everything, from tax returns to witnesses and everything else.  It`s not going to work, and we can talk about that, but it may delay things. 

MADDOW:  In terms of Mueller specifically, was this ever -- this scenario were every anticipated in the special counsel regulations?  Was there anything in terms of the way the special counsel system was set that speaks at all to whether or not the special counsel himself or somebody working on that investigation can be called by Congress to explain the results of what they found? 

KATYAL:  A hundred percent.  We really hoped it would never happen, but we called it the "break glass in case of emergency" option, and what we did was said the special counsel should be picked from outside the Justice Department and someone of sufficient stature that they could leave their job and not have to worry about future employment.  And, obviously, Mueller more than satisfies both of those. 

So if an attorney general were to squelch a special counsel or president from -- the president would squelch a special counsel from testifying, the result could be the special counsel would resign and then testify.  And from Chairman Nadler`s comment as few moments ago, it sounds like he expects Mueller to do exactly that. 

Now, that`s not going to solve everything, because a president is going, it looks like, claim executive privilege over everything, including anything Mueller could say.  That`s a palpably ridiculous claim, but they`ve made it today in writing.  You know, the idea that everything in the Mueller report is now executive privilege, I mean, I can go on Amazon and order the thing or download it on my phone and, yes, it`s not the whole thing, but it`s about 93 percent of it, and the president yet today asserted executive privilege over even that. 

That is such a broad claim, Rachel, that even this gentleman we`ve talked about before, John Yoo, who teaches at University of California, President Bush`s very strong executive power person, John Yoo called it a novel and dangerous theory.  He said, quote, Trump is treating Congress like they`re the Chinese or a local labor union working on a Trump building. 

And, I mean, you know, when you lose John Yoo in a debate over executive power, you know, that tells you how strong these arguments are. 

MADDOW:  Whatever the merits of that claim, and that`s a striking assessment of the merits of that claim, will that assertion of privilege serve to delay any potential testimony by Mueller?  I mean, will that have to be resolved in the courts or by some other negotiation or some other means before he would even try to testify on these matters? 

KATYAL:  So, two things.  One is Congress does have tools available to it.  For example, they can cult the attorney general`s funding, the funding of the office, the funding of the Justice Department or any programs it doesn`t like. 

After the November election, the Democratic House now controls the purse strings.  So, they do have some weapons available.  But if it goes to court, I think President Trump is betting on a long fight in court and I don`t think that`s true. 

I mean, when we had the last big fight over this, the Nixon tapes case, the timeline was this.  Basically, the subpoena was issued for Nixon`s stuff, his tapes in April of 1974.  By May of 1974, the court ordered the subpoena to be enforced and then it went to the U.S. Supreme Court and held a special session on July 8th and within three weeks, that court unanimously ruled against President Nixon. 

And I know there`s a lot of viewers out there who say, well, this Supreme Court may be controlled by interests that are favorable to President Trump or something, I don`t buy that for a second, and people said that about the Nixon court, and Nixon actually had three of his appointees hear the Nixon tapes case, they all ruled against him.  And this case is even stronger against the president than the Nixon tapes one. 

MADDOW:  Neal Katyal, former acting U.S. solicitor general, author of the special counsel regulations -- Neal, thank you.  And thanks for what you said about that argument at the top of the show.  I do feel like this is a moment for sort of disambiguating what`s going on and recognizing the big fight for what it is.  Really appreciate you saying that, my friend.  Thank you. 

KATYAL:  Thank you. 

MADDOW:  All right.  We`ll be right back.  Stay with us. 


MADDOW:  Quick update for you on a story we brought to you last night about a potential end run outside Washington for congressional investigators to access the president`s taxes.  Today, the state senate in New York passed a bill that would authorize the state to release to Congress Donald Trump`s state tax returns, if they are requested by Congress for a legitimate legislative purpose.  That passed today in the Senate, it will now go to the New York assembly.  Enough Democrats have pledged to support it to get the thing passed once it comes up. 

This is a fight not in Washington, this is an Albany fight, but it could have a huge Washington impact. 

So, keep your eyes on this one.  We`ll be right back. 


MADDOW:  That does it for us tonight.  We will see you tomorrow. 

Now it`s time for "THE LAST WORD" with the great Lawrence O`Donnell. 

Good evening, Lawrence. 

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