michael barbaro

From The New York Times, I’m Michael Barbaro. This is “The Daily.” Today: In the weeks since the release of the Mueller report, the Democratic Party has been struggling with how to proceed. Now, divisions are emerging as a group of House members are pushing their leaders to open impeachment proceedings, saying the current strategy is not working. It’s Wednesday, May 22.

nicholas fandos

Hey, guys.

michael barbaro

Hey.

nicholas fandos

Sorry I’m late.

michael barbaro

Did you run over — did you run from the Capitol?

nicholas fandos

I raced over from the Capitol, where House Democrats were figuring out what the hell to do next.

michael barbaro

Nick Fandos covers Congress for The Times. So, Nick, tell us about the situation around Don McGahn up until Monday night.

nicholas fandos

So after the Mueller report was released more than a month ago, the House Judiciary Committee quickly identified Don McGahn, the former White House counsel, as perhaps the most important fact witness for their investigation into obstruction of justice.

archived recording McGahn sat for more than 30 hours of interviews with Special Counsel Robert Mueller. Democrats say he’s a key witness on obstruction.

nicholas fandos

McGahn had provided hours and hours of testimony about important episodes in which the president tried to undercut or thwart the special counsel’s investigators, including trying to have Mr. Mueller himself removed from the probe. So Democrats initially write to Mr. McGahn and a number of other witnesses asking for him to voluntarily provide documents and testimony to the committee. He says no. His lawyer says, we’re not going to come in voluntarily.

archived recording House Democrats are throwing down another gauntlet tonight in the increasingly bitter battle over the Mueller report. Their would-be point man for impeachment, Judiciary Committee chairman Jerry Nadler, has subpoenaed a key White House insider.

nicholas fandos

So the committee authorizes and then issues a subpoena for him to produce relevant documents that he had handed over to the special counsel and to come in this Tuesday and testify before live television cameras in the House Judiciary Committee hearing room. So that’s essentially where we were on Monday, wondering, is Don McGahn going to show up? But, by the early afternoon, we start to get wind that he’s not going to show up, under order from the White House not to appear.

archived recording President Trump escalated his stonewalling of Congress today, directing former White House counsel Don McGahn to defy a congressional subpoena and skip a House Judiciary hearing scheduled for tomorrow.

michael barbaro

So the White House has said, don’t go.

nicholas fandos

Right. So the White House comes armed with a Justice Department Office of Legal Counsel memo that says the president’s closest advisers are immune — absolutely immune — from congressional subpoenas and don’t have to appear for testimony.

archived recording (donald trump) These aren’t, like, impartial people. The Democrats are trying to win 2020. They’re not going to win with the people that I see, and they’re not going to win against me. The only way they can maybe luck out — and I don’t think that’s going to happen, it might make it even the opposite, that’s what a lot of people are saying — the only way they can luck out is by constantly going after me on nonsense.

nicholas fandos

Now, that left McGahn himself with a choice. He’s no longer an employee of the White House. He’s a lawyer back in private practice at the firm where he used to work. And while he can use that as a shield to protect himself from the committee, he himself has to make a choice whether or not to go. And it’s a difficult one, because he is basically deciding between being held in contempt of Congress, which, even in this hyper-partisan era, is a black stain, but, on the other side, he doesn’t want to run afoul of President Trump, not only because Mr. McGahn continues to move in Republican circles, but the firm he works for does quite a bit of business with Republicans. And if the president were to, say, blackball them, it could have pretty grave ramifications. So his lawyer, by late Monday night, says, I’m sorry, Chairman Nadler, but my client is not going to be showing up on Tuesday morning.

michael barbaro

Basically, he is going to follow the White House’s instructions not to testify.

nicholas fandos

That’s correct. McGahn says no.

michael barbaro

So I have to assume that the Democrats are furious, because this just keeps happening. They cannot get anyone in the president’s orbit to testify.

nicholas fandos

Door after door after door has been slammed in their face. So they’ve already gone through this whole back and forth with Attorney General Bill Barr, who ultimately refused to come in and give testimony. He then refused to hand over material that they had subpoenaed — some of the underlying documents of the Mueller report — and instructed President Trump to claim executive privilege over it. You have the case of Bob Mueller. They’re trying to call in the special counsel himself to testify and have been yet to be able to agree to a date for that to happen. And one that, as of Monday, had still been open, was Don McGahn, their potential star witness in an obstruction case. And so Monday night, as they’re getting ready for a hearing on Tuesday where they know that this guy is likely not to show up, they’re just fuming.

michael barbaro

So what did they actually do?

nicholas fandos

Speaker Pelosi, with her caucus chattering about yet another defied subpoena, walks into a series of meetings with her leadership team — with party leaders, chairmen, the kind of senior figures of her party that, as they say, are the kind of steering committee of the Democratic caucus in the House. Now, remember that Pelosi herself has been one of the kind of leading critics within the Democrats of impeachment. She said Trump isn’t worth it, and it’s too divisive for the country. So Pelosi begins to talk about her frustrations that the war between the legislative and the executive branch is overshadowing House Democrats’ legislative agenda. You know, they’ve been passing big Democratic priority items — health care bills to shore up the Affordable Care Act, they passed last week the Equality Act.

michael barbaro

It’s funny, as you said that, I just realized I didn’t know that something called the Equality Act was passed.

nicholas fandos

Yeah, Trump is sucking all of the oxygen out of the room, and it’s a problem. And she’s essentially throwing it out there to the group to discuss and lamenting it. And that’s when Jamie Raskin, a second-term congressman from suburban D.C. on the Maryland side — he’s got a crazy head of hair, he’s a constitutional law professor — he jumps in and says, Madame Speaker, I actually have a suggestion on this point. And Raskin essentially makes a pitch that’s on the minds of a number of Judiciary Committee members — several of them are sitting there with him. And he says, I think that the time has come, and we ought to consider opening a formal impeachment inquiry. You say you’re concerned about this fight overtaking the rest of our work. This will allow us to centralize all of the fights over subpoenas and documents. It may give us better standing in the courts to get information and help judges expediate our cases. And you can point to this thing when people ask you questions and say, hey, it’s ongoing. We await their recommendation. And keep going about your work.

michael barbaro

What does he mean by centralize it? What’s the argument?

nicholas fandos

So right now, you have roughly five different House committees that are asking the White House and the Trump businesses and individuals for information that are potentially relevant to this impeachment question. And he’s basically saying, hey, we’re all getting shut down. And we’re being told by the White House that we don’t have a legitimate reason for doing this, and we’re just kind of going on a fishing expedition. So, hey, if we open an impeachment inquiry, we can say, we do have a legitimate purpose. This is a foundational purpose outlined in the Constitution, and we need that information. And it would make the Judiciary Committee a kind of clearinghouse for those five committees looking for financial information on the president, looking for testimony or grand jury information about obstruction of justice or Russian election interference. It would, in his view, strengthen the Democrats’ hand in this fight against the White House.

michael barbaro

And what is Pelosi’s reaction in this room to this pitch for opening up impeachment hearings?

nicholas fandos

She essentially says, we need to stay the course. We’ve put in place a strategy. We’re going to issue subpoenas. We’re going to conduct our investigations. We will hold witnesses in contempt if they defy those subpoenas, and we’ll go to court to enforce things. And we think it’s starting to work.

michael barbaro

But how can she argue that that’s working when she just learned that yet another person around the president has thumbed his nose at a subpoena?

nicholas fandos

Well, just an hour or two before, a federal district judge here in Washington had ruled in a largely unrelated case that a House Democratic subpoena for Trump financial records was legitimate. And, importantly, the judge rejected an argument that the Trump administration and the president’s lawyers have been making to almost every request — that the requests are not legitimate and exceed Congress’s oversight authority. The judge said, no, it’s not up to the courts to decide that. And it’s not up to you to decide that. Congress has its investigative prerogative, and no one ought to second-guess that. So Pelosi says, look, the courts, as we anticipated, are siding in our favor. And they’re going to. This process may be slow, but, in any case, the American people are not on board with impeachment yet. And we have time to let this play out. There’s more road to run, and we can see once we get farther down that road if an impeachment inquiry is warranted. Right now, it’s not. Around the same time, elsewhere on Capitol Hill, Jerry Nadler, the chairman of the Judiciary Committee, is convening the members of the House Judiciary Committee to talk about this same problem.

michael barbaro

This is truly an action-packed Monday night in Congress.

nicholas fandos

It is. And you’ve got to remember, it’s all building up to this Tuesday morning hearing. And what the Democrats need to know is how far are we going to go on Tuesday morning? How aggressive are we going to be? This is another escalation from the executive branch. What do we want to do in response? So Nadler’s hearing from member after member that we’ve got to up the ante here. This is getting ridiculous. We’re running out of choices. An impeachment inquiry seems to be one of the few options that we have left. And they talk through it as a group, and Nadler is not closed-minded to the idea. So they wrap up, and Jerry Nadler walks back over to the Capitol and goes in to meet with Nancy Pelosi and with, this time, a small inner circle of the most senior leaders of the House. He presents, again, as Jamie Raskin had earlier, this idea about the advantages of opening an impeachment inquiry at this point. And, again, Pelosi says, essentially, stay the course. And so what they end up discussing or are left to discuss is what other options short of impeachment are still left unused? The issuance of additional subpoenas, moving more quickly on contempt citations, even using potentially legislative priorities of the president or Congress’s power of the purse as leverage to try and get compliance in subpoenas.

michael barbaro

So everything short of impeachment that could possibly unlock some of these documents and witnesses that House Democrats can’t get their hands on.

nicholas fandos

That’s right. So the meeting wraps up, and Nadler quickly convenes another call of his Judiciary Committee members to give them a verdict, and essentially communicates that they will up pressure, that he will issue a pretty stark threat to McGahn and to others who may contemplate not complying with the committee. But he’s going to hold off for now on calling for impeachment.

michael barbaro

Nick, you’re now describing two cases in a single night where House Democrats are going to Speaker Pelosi and saying, we want your approval to do something that it feels like they could very much do on their own, which is begin impeachment.

nicholas fandos

Technically, they probably could. But what you’ve got to remember is that the House Democratic caucus is highly centralized around Nancy Pelosi. The power of chairmen, the appointment of chairmen — there are votes for some of those kind of things, but the real power derives from Pelosi. And she can take it away from them, she can block them. She can more or less order them to do one thing or another. Now, she often doesn’t get involved in the work of the committees, but with a question this significant, basically it’s Nancy Pelosi that is going to make the decision whether or not they go down the road to impeachment.

michael barbaro

And so what is the response to this escalated pressure but not impeachment plan?

nicholas fandos

So, look, I mean, it’s complicated. The members of the Judiciary Committee who are ready to go forward with this are certainly facing right now a certain measure of disappointment. But they all know that this is not a good situation for them to be in. There’s a drawback to each potential option they have here. And so there was — I don’t think a real expectation that impeachment was going to start by the end of the week. But it’s about things potentially shading in that direction. That being said, though, the party as a whole is wrestling with the best way to go forward. I think there really is agreement among Democrats about what the problem is and that there is, as they see it, a threat here. It’s a question of tactics. And those who are starting to argue for impeachment are probably still the minority. On the speaker’s side, you have a number of moderates who are from districts that Democrats won back from Republicans last year, whose voters don’t seem to care a whole lot about this issue. And you have older party stalwarts too who, just looking across the country, think that this is a dangerous situation for Democrats to be in.

michael barbaro

We’ll be right back. So, Nick, take us through this Judiciary Committee hearing on Tuesday morning where McGahn is supposed to show up, because he’s been subpoenaed, but he’s also been instructed by the president to ignore that subpoena. So what actually happens?

nicholas fandos

Tuesday morning, Jerry Nadler walks into the wood-paneled Judiciary Committee hearing room.

archived recording (jerry nadler) Judiciary Committee will come to order.

nicholas fandos

He’s looking out at an empty chair. Don McGahn’s name is on the placard right in front of it.

archived recording (jerry nadler) We welcome everyone to today’s hearing on oversight of the report by Special Counsel Robert Mueller III, former White House counsel Donald McGahn II.

nicholas fandos

Essentially, what we had was, instead of riveting or detailed testimony, is Nadler, the top Democrat, and Doug Collins, the top Republican, verbally jousting.

archived recording (jerry nadler) When this committee issues a subpoena, even to a senior presidential adviser, the witness must show up. Our subpoenas are not optional.

nicholas fandos

And Nadler says, speaking to Don McGahn.

archived recording (jerry nadler) If he does not immediately correct his mistake, this committee will have no choice but to enforce the subpoena against him.

nicholas fandos

He says to the Trump administration, I know what you’re doing. You’re trying to shut down this investigation. You’re trying to prevent us from being able to fully air the contents of this report. And I’m going to do everything in my power not to let you get away with it.

archived recording (jerry nadler) We will hold this president accountable, one way or the other.

nicholas fandos

Then he defers to Doug Collins, who immediately lambastes not McGahn or the Trump administration, but Nadler.

archived recording (doug collins) Thank you, Mr. Chairman. Thank you for all that have gathered here again. Here we go again.

nicholas fandos

Accuses him of putting on a show, of courting a confrontation, saying he doesn’t really want the testimony. He’s just trying to get a conflict.

archived recording (doug collins) I guess at the end of the day, we can’t find something that the Mueller report lets them hang their I-word, impeachment, on, which they can’t even agree on, because the president is continuing to do his job. And we’re here again with the circus in full force.

michael barbaro

I mean, watching it, it feels like this moment reveals how the tools that Nadler and his committee have and what they’ve been deprived of — because Speaker Pelosi won’t give it to them — are pretty insufficient to the moment.

nicholas fandos

I think that is why Democrats are so frustrated. They keep going through the motions of these hearings. They keep checking the boxes that they know they’ll need when they get to court, and they’re not getting much for it. A month has passed since the Mueller Report came out, and there has not been meaningful testimony in that room or documents produced. The idea was that a 448-page report from the special counsel is dense, and most Americans don’t have time to pay attention. But if you air all of this on live television, if you saturate the airwaves with it and put Don McGahn up there in the flesh or Bob Mueller in the flesh, maybe that could change minds. And this is what Pelosi has in mind in her long-term strategy and why she feels they’re not ready for impeachment, because Trump shut that down, and the public has not been moved. And I think that Democrats as a whole — part of their desperate searching for a way forward is a recognition that the interest of voters all over the country, the kind of people that they need to hold the House and to win back the presidency, is waning on this stuff and that the window may have already begun to close on the ability to change those people’s minds.

michael barbaro

It feels like, in many ways, the Democrats are walking away from a post-Mueller report congressional oversight strategy that’s aggressive and designed to move public opinion.

nicholas fandos

What Democrats would tell you is they’re not walking away from it at all, that the Trump administration has tried to pull it off the table. And Pelosi would say, well, it’s just going to take us longer to get this information. We’ll prevail in court. We’ll get this information. Maybe it takes months or a year, but these kind of cases are slow, they’re complex. And if the evidence is there, whenever we get it, maybe we can convince the American people of it then. But it’s not there now.

michael barbaro

I have to say, it definitely feels like the president’s approach here is very much working. He avoids these embarrassing testimonies of his White House counsel, of others around him, without much cost, and with the knowledge that impeachment, the next logical step that would dislodge all these pieces of information and witnesses, that that is a very distant possibility. We know that, because Pelosi has said so.

nicholas fandos

It does feel like it’s working. I mean, looked at another way, Trump essentially has said to House Democrats, put up or shut up. Impeach me or move on. I’m not going to cooperate with endless investigations that relitigate the past if you’re not going to go all the way. And if you do want to impeach, I welcome the fight. And what it has exposed along the way, at least so far, is that if you have a president who does not mind bending or disregarding the rules that typically govern the relationship between these two branches of government, if you have a president who does not mind his attorney general or his former White House counsel being held in contempt of Congress, if you have a president who doesn’t mind losing in court, then, for a while at least, he’s not going to pay any real costs for it.

michael barbaro

Obstruction works.

nicholas fandos

I don’t think the White House would put it that way, but, in essence, yes.

michael barbaro

Nick, thank you very much.

nicholas fandos

Thank you for having me.

michael barbaro

On Tuesday afternoon, the House Judiciary Committee issued two more subpoenas, to the president’s former spokeswoman, Hope Hicks, and to Don McGahn’s former chief of staff, Annie Donaldson, who took detailed notes about many of his encounters with the president. The subpoenas demand that both testify before the committee in June. Later today, House Speaker Nancy Pelosi will hold a special meeting with all House Democrats to update them on the state of the congressional investigations. Here’s what else you need to know today. The Times reports that Venezuela’s opposition leader, Juan Guaidó, who, weeks ago, demanded the removal of the country’s president, Nicolás Maduro, may now enter negotiations with him. Such negotiations represent a turning point for Guaidó, whose momentum has quickly dissipated after a failed coup, and amid signs that Maduro’s hold on power is as strong as ever. And, in a surprise move, British Prime Minister Theresa May has raised the possibility of holding a second referendum on Brexit that could eventually overturn the decision to leave the European Union.

archived recording (theresa may) I do not believe this is a route that we should take, because I think we should be implementing the result of the first referendum, not asking the British people to vote in a second one. But I recognize the genuine and sincere strength of feeling across the House on this important issue.

michael barbaro