Last night. He went off. The jackson five theyre calling it, five touchdown passes. Hes a sports changer. He will become now the new yardstick for a professional quarterback. As a steelers fan, eddie is very, very excited. Well show some Lamar Jackson later in the show, but we have to begin with the court ruling against the argument the president is using to stonewall the impeachment investigation. A federal court judge has rejected the white house claim of absolute immunity ruling that former White House Counsel Don Mcgahn must testify in the impeachment inquiry. The House Judiciary Committee subpoenaed mcgahn earlier this year for testimony on possible obstruction of justice in the Mueller Investigation. When the white house blocked his appearance, the committee sued and yesterday a federal judge sided with congress writing in her opinion this, quote, stated simply, the primary takeaway from the past 250 years of reported American History is that president s are not kings. This means that they do not have subjects bound by loyalty or blood whose destiny they are entitled to control. That rule by judge jackson in a federal court. Official tells nbc news the Justice Department will seek a stay to stop the ruling from taking effect immediately. The white house in a statement said this decision contradicts longstanding legal press dens dent established by administrations by both political parties. Will appeal and are confident that the principle advanced by the administration will be vindicated while the ruling only compels mcgahns testimony, the Trump Administration has used the now rejected absolute immunity claim to defy congressional subpoenas for Vice President pence, secretary of state mike pompeo, and acting chief of staff Mick Mulvaney. Former National Security adviser john bolton has not been subpoenaed but people familiar with his views are now telling the Washington Post he would testify if cleared by a federal court. Danny, let me start with you just on the nuts and bolts of this, what it means exactly. What judge jackson effectively said is don mcgahn has to go testify before the House Judiciary Committee, forget the immunity claim. But once hes in the chair, he can still claim executive privilege. I do have that right . Thats right. On a case by case or question by question basis. What this ruling holds, it is a significant opinion, but its not a surprise because the same court decided essentially exactly the exact same issue back in 2007. That case involving Harriet Meyers at the time did not make it all the way to the end of appeals, it was resolved otherwise. But theres nothing about this opinion thats that shocking because everything that the court holds or that compels the testimony or shoots down the kpl absolute privilege argument is based on case law. The administration is based on their own legal opinions, which have no Binding Legal precedent at all. In a sense, the winner in this case was never going to be in doubt and if it goes up on appeal the result will be the same. The net takeaway is there is no absolute immunity for highranking executive aides. They have to show up and comply. Then they may have executive privilege claims. But you cant ignore a congressional subpoena. Thats the big takeaway. Lets bring in yamiche and nbc news correspondent covering National Security and intelligence ken dilanian. Mike, we should point out, were talking about don mcgahn because weve had so many names come through in the last several months. Don mcgahn was the former white House Counsel that left last fall. Were talking here about the Mueller Investigation which, in this case, is separate from the ukrainian investigation. But there may be some implications for the ukrainian investigation if it sets a precedent that allows someone like john bolton to go testify. Clearly. But in this sea of subpoenas, danny, that have been issued, many people who have been issued a subpoena have just totally ignore the subpoena . How does that happen . If i get a subpoena, eddie gets a subpoena, we have to respond to it. Theyre playing a game of chicken. What were finding out is that the congress doesnt have a very good enforcement mechanism. So someone who received a congressional subpoena, and if they have the chutzpah, the amazing thing is once you get a new congress in, that subpoena disappears into the either disappears into the ether. Thats what the operation admin is doing. Theyre saying if i hold out as long as i can, the need for the subpoena may dissipate. Thats what happened with the meyers s p subpoena. It never made it through the court of appeals. It was resolved in another way and you had this freestanding Court Opinion for over a decade that left us wondering where exactly the law is on this issue. In the Mueller Report, ken dilanian, we know that don mcgahn testified for about 30 hours in front of the special counsels office. We know that he testified that President Trump asked him to fire Robert Mueller at one point in 2017. How significant is this ruling to that case . Well, look, i dont actually think that this ruling is going to affect how congress deals with airing that matter before the public because its going to be appealed, its going to drag out. And, look, theyre going to take a vote before thanksgiving on the ukraine matter. Theyre moving ahead. So congressman schiff keeps using this term ropeadope. He says im not going to be dragged into a long court fight hoping we get the testimony of these people. None of less, because of what danny said this is a hugely important decision that will last long after the Trump Administration is gone. Since 1971, the executive branch has claimed this right of testimonial immunity saying that congress has no right to call close president ial aides to testify. And what this judge said was that doesnt exist. That is not a thing. And so so, you know, as you said, mcgahn will, of course, even once this say peeled and goes all the way through and assuming that this ruling holds, mcgahn will then claim executive privilege on these because he was advising the president about how to respond and how to deal with the Mueller Investigation in his capacity as white House Counsel. And executive privilege arguably does protect some Sensitive Conversations with the president. So we may never see mcgahns testimony. But nonetheless, this is an incredible important ruling because especially in light of the recent speech that the attorney general made arguing essentially for unchecked president ial power and that these these many investigations by Congress Amount to harassment. Now, thats a sort of a distorted view of an argument that the executive branch has been making for a long time. And what this judge said is absolutely not, congressional investigations are enshrined in the constitution and they have a right to call aides to come and comply with subpoenas. Its a separation of powers argument is what judge jackson made yesterday in court, eddie. I want to under line what ken just said. Oftentimes we confuse two things. Theres the bad actor thats donald trump, and then there are the arguments surrounding donald trump around an imperial presidency. And then theres some folks like bill barr who is defending this radical understanding of executive, of executive power, and then theres folks defending trump and the way in which those two things converge. What we saw yesterday is a clear distinction. Judge jackson invoked federalist 51 which was all about the separation of powers, right . So we have in some ways a clear annunciation that this idea of unlimited executive power is just simply unconstitutional. It just has no merit. So that argument now is in full view as opposed to just simply being something driving behind the scenes the way in which people have been defending donald trump. The headline from judge jackson yesterday was president s are not kings. Thats the case she was making yesterday. It was classic federalist paper. This is a public civics class. I have a question for the lawyer types around the table. Say people ultimately testify, who gets to decide whether executive privilege is claimed . If john bolton testifies, can the white house instruct him to assert executive privilege . Does i ha does he have the right to say i choose to answer this question . They can instruct him and it would go immediately to the courts and that creates a problem. Obviously an individual can say im not going to comply with that order. That, again, would go to the courts. This is why these legal issues have been left so unresolved for so long, because in many cases Congress Says whats the point in the battle . Lets try to negotiate Something Else so that he that we get something today as opposed to maybe something in the future. And just one thing to build on what eddie said, its so interesting that the administration argued separation of powers means that we as the executive are untouchable. The court said no, no, youve got it exactly wrong. Its the opposite. Separation of powers means that the different branches act as a check on each other and it is exactly our job as a judiciary to check you, the executive branch. Yamiche, as i pointed out, don mcgahn testified to Robert Mueller that President Trump asked him to go fire Robert Mueller, fire the special counsel and he refused to so. President trump has denied that in an interview since then. What is the white house reaction to this . Do they show any concern about this or they think this is just another step along this path of impeachment the democrats are trying to pursue . The white house is obviously concerned about this. Don mcgahn is someone who was at the center of the white house and understood what was going on with the president , understood some of the orders that he was giving. But i think whats even more interesting or more concerning than don mcgahns testimony since democrats really do want to focus so narrowly on this ukraine issue is what that will mean for the people that have been named by all the witnesses that came forward in these impeachment hearings. There was secretary pompeo, Vice President pence, rick perry, all of these people that are not testifying as people under them like alexander vindman, Lieutenant Colonel vindman, hes someone working at the white house and decided to show up. But there are these higher up officials who understand what the president s thinking who dont want to come to congress. I think the white house and those people might somehow be compelled to be part of this impeachment inquiry. So, ken, lets talk about potential implications for the ukraine conversation. This, again, were talking about testimony for don mcgahn before the House Judiciary Committee. But what about for the House Intel Committee and a witness like john bolton, someone whos been sort of flirting with the idea of speaking publicly in one form or another, whether thats a book or testimony, and the impeachment inquiry remains to be seen. Did this set some kind of a precedent in that conversation . Well, it certainly does. To yamiches point, it absolutely does. The judge even mentioned that National Security does not create testimony testimonial immunity either. However, it would allow bolton to claim executive privilege. But you can argue a lot of whats covered in this ukraine matter does not implicate u. S. National security. Democrats would say its a criminal scheme. In the famous nixon sproocase, argued to give up the tapes because it doesnt trip a valid investigation. That has got to be a concern here. John bolton, Mick Mulvaney, mike pompeo, all of these people who have resisted efforts to get them to talk about ukraine. That said, theres a long road of litigation here and democrats are on a much different timetable. Realistically, will the courts decide this on the timetable the democrats need to get an Impeachment Vote and to get this information before the public, that seems unlikely. But it may affect future generations. This is a really important precedent being set by this ruling. Theres legal timeline, appeals, stays, and then the political timeline. Adam schiff signaling yesterday to his members, we want to get this moving, get something done and get a vote sometime before christmas. Just as a practical matter, how long do this play out, this mcgahn question only . We have a stay right now. How long do this go on . Were only at the district court, which is the lowest trial court. From there they can appeal right to the d. C. Circuit and there to the Supreme Court. Theyre at the very beginning of this road so it could take a long time. In important issues like this, they will often expedite matters on appeal, but they still need to brief the issues. And the core look at this. We just had over a hundred page opinion issued by the district court. These kinds of things take time. So thats why Congress Knows that discretion may be the better part of valor. Get what they can today, immediately through negotiation and only press forward if the other side refused and stone walls completely. Thats how we get existing case law and future precedent. This will not be tied up, the mcgahn issue, before christmas when adam schiff wants a vote on impeachment . Oh, it will be tied up but not in the way youre saying. It will be tied up in the courts. Danny sa v, thanks so much. We talk about crime in progress, inside the steele dossier and the infusion of donald trump. Well see you in a bit, ken. Meanwhile, were weighing in on the firing of Richard Spencer following a controversial war crimes case. Speaking to reporters yesterday, secretary esper explained he was, quote, flabbergasted to learn that spence her tried to make a secret deal with the white house concerning Embattled Navy s. E. A. L. Eddie gallagher. Secretary esper said he demanded spencers resignation after learning he approached the white house about an arrangement to let gallagher retire as a navy s. E. A. L. If the president stayed out of the case. Esper also said monday President Trump gave him a direct order to drop disciplinary action against gallagher. In his first tv interview since being fired, spencer told cbs he spoke with white House CounselPat Cipollone about the proposed arrangement on the november 15th. He says cipollone called back the same day to decline the offer saying the president would be involved. Spencer acknowledged not telling esser about that proposal. I will take the bad on me for not letting him know i did that. But he was completely informed as to this because his chief of staff was briefed on it. A spokesperson for the pentagon disputed spencers statement telling the Washington Post no one on espers staff was aware of spencers pro posed deal. In that came deal, he also argued he was trying to head off an order from the president which he said he could not in good conscience obey . What i do stand for for the u. S. Navy some of thats a prime tenant. This erodes that. Whats wrong with following a lawful order from the commander and chief . Nothing, everyone should follow a lawful order, thats good order and discipline. I could not, in my conscience, do this. Speaking to reporters yesterday, donald trump defended his involvement in the war crimes case. I have to protect my war fighters. Ive been gotten a lot of people, a lot of war fighters and people in the military have thanked us very much. With Eddie Gallagher, you know that story very well. They wanted to take his pin away, i said, no, youre not going to take it away. He was a great fighter. He was one of the ultimate fighters. Tough guy. These are not weak people. These are tough people. And were going to protect our war fighters. I dont think he really understands the full definition of a war fighter. A war fighter say profession of arms. And a profession of arms has standards that they have to be held to and they hold themselves to. Richard, ill read some of the reactions. Senator jack reed the top democrat on Armed Services said this is an outrageous, irresponsible interference by President Trump in the military justice system. He went on and explained why he believes that. Just your reaction to how this has all played out. Theres no winners here. Spencers position was ridiculous. He was going to basically argue for a sham or almost show trial kind of thing with the outcome guaranteed, so that wasnt an answer. I understand why he got canned. But the president s position is unsupportable. And the sad thing, willie, its not a one off. The military is not the only institution hes gone after. Hes gone after the foreign service, we saw that the last weeks. Hes gone after the against community. Hes gone after the federal reserve. Hes gone after, you know, National Security council. What hes basically doing is institution after institution he is going against the norms, the culture, the idea of professionalism. The idea of independence. So we thought the military was somehow off limits, its sad, not just because th