President these days . As the the 11th hour gets under way on a friday night. Well, good evening once again from our nbc news headquarters here in new york. Day 967 of the Trump Administration. And just tonight, theres a new problem with the way House Democrats are going after and trying to use what are normally secret grand jury materials from the mueller investigation. The democrats argue they need them for an impeachment inquiry. The Justice Department, though, is pushing back, saying the democrats havent made it at all clear that this is an impeachment inquiry. This question is now before a federal judge. And in court papers, trumps doj specifically mentions the messaging by the democrats has been all over the place. Specifically they say, quote, the speaker of the house has been emphatic that the investigation is not a true impeachment proceeding. They add the committees own description of its investigation makes clear that it is too far removed from any potential judicial proceeding. The filing even cites news media reports on the democrats conflicting descriptions of just what they are doing here. It includes two stories from andrew dez dareio, who joins us in just a moment. In fact we, at this humble broadcast, have noted this same thing earlier this week, and we aired the following as proof that no two democrats are saying the same thing on impeachment. For anyone that was confused, we are in the midst of an investigation. We are Holding Hearings for the purpose of investigating the possibility of voting articles of impeachment against the president. I think chairman nadler has described the proceedings well. What were doing tomorrow is adopting procedures enabling us to do it more effectively. So its a bit technical inside baseball maybe. Essentially the impeachment inquiry has already begun. People can call this whatever they want to call it. I dont want to get caught in semantics. Do you support moving forward with articles of impeachment against the president . I think we should move forward on things leading up to that. The only vote that is ultimately going to matter is whether we vote to impeach him. Todays move by the Justice Department comes one day after the House Judiciary Committee voted to ramp up, as you heard chairman nadler allude to, its investigation of donald trump involving more hearings, more aggressive tactics when it comes to handling witnesses. Tonight, jerry nadler spoke out about the latest effort to thwart the investigation. Weve been very clear for the last several months in court filings, in public statements, and in proceedings in the committee that we are, in fact, conducting an investigation, preparing to decide whether to recommend articles of impeachment to the house. This is another in and if proceedings in the stance of the Trump Administration trying to cover up and hide from congress and from the American People in this case from congress because the American People wouldnt see the grand jury information all kinds of information. Meanwhile, the i word, impeachment, appears to be very much on the president s mind of late. Just this morning he asked, quote, how do you impeach a president who has helped create perhaps the greatest economy in the history of our country, done more than any president in first 2 1 2 years despite phony witch hunt led against him. You dont impeach president s for doing a good, great job. It came up last night when he spoke to a gathering of House Democrats at a gathering in baltimore. I told nancy pelosi, you have to do something other than try and impeach somebody that didnt do anything wrong. You have to. I said its hard to impeach somebody who didnt do anything wrong. The Mueller Report is out. Theres no collusion after 2 1 2 years. The president also got a big assist today from his loyal House Minority leader, kevin mccarthy, who criticized democrats for their handling of the investigation of this president. The leadership doesnt even know what the committees doing let alone the conference itself. They cant determine whether theyre working on impeachment or not. The democrats are making it an issue. And i think its the wrong issue for them to talk about. As all this unfolds, the Washington Post is saying the house exattorney Jeff Sessions to the hill to testify before them. The Mueller Report detailed how trump had pummeled sessions and tried to pressure him to reverse his recusal from the russia matter. According to the post, sessions lawyer says the only way his clients going to testify is under subpoena. The Judiciary Committee also scheduled to go to Court Next Month to try to force former White House Counsel Don Mcgahn to come before them at a hearing. And former Trump Campaign manager Corey Lewandowski is scheduled to give public testimony before that same committee on september 17th to answer questions about possible obstruction of justice. All this leading us to our leadoff discussion on a friday night. For that, we welcome annie karni, White House Reporter with the new york times. Jonathan allen, Nbc News National Political reporter. And andrew dez dareio, congressional reporter for politico, returning veterans all. Andrew, because your name was invoked, id like to begin with you. What does this filing what does this dustup with justice mean for those House Democrats . Right. So this is exactly what House Democrats have told me all week that they feared, the idea that essentially the inconsistent impeachment messaging could undermine their central claim to the grand jury information that was gathered as part of the mueller investigation. What the white house and the Justice Department have been able to do as a result of this filing is to take advantage of the fact that House Democrats have not, you know, identified a unified front on this issue, saying, no, they arent engaged in a formal impeachment inquiry. Therefore, they do not have a right to this mueller grand jury information. Earlier this the week it was more of a political misfire. Now it has the potential to become a tactical misfire in that it could actually hurt them in court. Annie, loved reading your contributions by the way on the live blog last night during the debate. Really enjoyed it around here. On tonights topic, the president seems to think that impeachment is a clear and present danger. He does, and just to be clear, in his speech in baltimore last night, he touched on impeachment. He touched on about everything he ever talks about. He gave a 68minute rambling speech that was sort of supposed to be counterprogramming to the democratic debate that was going on at the exact same time. So i dont think it stood out in the vast array of topics he likes to touch on. It was almost a laugh line for him. But we saw the tweets this morning saying you cant impeach a president whos doing a great job. One thing that struck me is impeachment didnt come up once at the debate last night among the president ial candidates. When being out front on impeachment used to be a real way to stand out in that field. There was no discussion of it in the debate where a lot of people tried to target trump instead of targeting each other. That stood out. But, again, this confusion on what the House Democrats are actually doing, are they conducting an impeachment inquiry, or are they conducting a probe to figure out whether they will impeach him does seem to be standing exactly in their way. And what surprises me is they know the Justice Department is going to take every chance they can to block handing them over any grand jury information anything. Thats what this administrations position has been on everything. Did anyone there not foresee that they would use this messaging issue to block this . And, john, what andrews reporting gets to, of course, is that impeachment is a term of art. It is a legal trigger. In other words, yes, we will break the seal on this confidential grand jury material if you are speaking with the authority of the house of representatives and youre going to impeach this guy. John, what has been behind the muddled messaging on this topic . Jerry nadler again tonight, as he did in midsummer, appeared on cnn, then came to this building to appear on this broadcast, on this network tonight to say, in effect, oh, were so impeachy, you wouldnt believe it. Yeah, impeachy as though it were a flavor that you could draw from. If jerry nadler were doing that, it would be the impeachiest. I think whats behind it is Nancy Pelosis desire to keep control of the house of representatives in the next congress. Theres an electoral push there, an electoral desire. She wants to make sure shes not losing house members. She doesnt want to force tough votes on her members. For many of them, it would be difficult to have a vote on impeachment. It would basically pit the liberal base in their districts against more moderate swing voters that they need to win. So i think thats what weve been seeing for months and months and months. Now, as a practical matter, you know, this question of impeachment and the courts and whether or not democrats are moving forward, the courts have ruled on this in the past in terms of grand jury testimony. Going back to the nixon period and watergate, the houses power to impeach and its power to investigate toward impeachment is something that is absolutely recognized by the courts as a reason to go and unseal that grand jury for the congress to go look at it. If that was to be overturned, that would be a reversal of what the Court Precedent has been before. Ive talked to a number of lawyers about this, folks who have gone back in the Justice Department as far as the johnson administration, so predating that nixon era. That doesnt mean the court wouldnt change its mind based on what its seeing today, but its no wonder, as annie said, that the Justice Department under trump is making this argument. And who knows how far along it goes in the court . Maybe some of the justices the president has appointed to the Supreme Court would end up having a different view than the court has in the past. But that impeachment power and the ability to investigate is one that is recognized, and the idea that you would have to impeach the president before you could investigate whether to impeach him or have the tools to investigate is probably at least a legally tenuous one. So, andrew, the democrats have to hope that same holding applies to them. Thats exactly right. I think what this reflects is the competing political priorities within the House Democratic caucus right now. Speaker pelosi has weve talked about before, brian, she really has to balance two sides of her caucus, one, the more progressive flank that wants to have a more aggressive posture toward the president and wants to make it seem like they are on a path to impeachment. The second flank is the more moderate flank of the democratic party, the more vulnerable members in 2020 whom nancy pelosi needs to ensure that they win their reelections because many of their victories in 2018 were key to democrats winning back control of the house. So this is super important to her, and those moderate members do not want to embrace impeachment for many reasons, number one being its probably not popular their districts, and, b, they have republicanleaning districts. John, youre just back from houston. You were there to cover last nights debate. Consensus was the biggest moment kind of backfired a bit on former secretary castro, who went after joe biden, it appeared to all of us, on memory. It appeared to all of us it was something he had in his back pocket and ready to go. Before we talk about it, heres both men reacting to that today. Your campaign has called what secretary castro said to you last night as a low blow, a cheap shot. He said it wasnt personal. How do you view what he said to you in your exchange . I dont view it as anything. I think hes got his facts wrong. Were up there to debate, and thats what i was doing. I pointed out that Vice President bidens plan to leave out 10 million people. I think thats significant, and, you know, so i would point that out again. John allen, question to you. Was real damage done last night and or is this just something for us, for the chattering classes to chatter about . It will be interesting to see, brian. I think most voters probably arent into the weeds of the policy, and certainly dont probably dont care a whole lot about the personality pieces of this. But there are important dynamics going on here about the differences between these Health Care Plans, and i think there are some things that the voters care about in terms of, you know, which candidates are attacking, which ones might be trying to get in cheap shots, and also whether the Vice President , you know, is having some of the difficulties that some of his rivals are suggesting. You know, i watched it happen live. I went back over the transcripts. It looked like these two were talking past each other a little bit. The point that castro makes about the Vice PresidentS Health Care plan, that it would require some people to buy in, and therefore there would be fewer people insured under his plan is an accurate distinction between the biden plan and the castro plan, and the biden plan and many of the other plans. And bidens point that some of the other Health Care Plans would be extremely costly because they would cover everybody is also a salient point. I think we ought to wait and see what voters reactions are to this before we judge whos going to be hurt by it and who might be helped. If youre Julian Castro and polling around 2 , 3 , the likelihood this is going to be devastating to you behind sucking away a little of what you have seems pretty small compared to the possibility you might bring in some attention, bring in some money and attract people to your campaign. Annie karni, you mentioned the president s 68minute speech in baltimore last night. At the end of this broadcast, we have as best we could a compilation of the greatest hits contained therein. We heard the usual attacks on the usual suspects among the democrats. But, annie, when you talk to people in that west wing, anyone connected to the campaign, when theyre being honest, hes got to have an opponent at some point. Is there one they fear more . I mean it hasnt changed along with his status. Biden is still among the people i talk to that are connected to the campaign, seen as the most difficult challenge for them to take on. It would be the candidate who is the hardest to make the socialist argument against, and they think that is a good and winning message for them. Its a candidate who could eat at trumps numbers with white, workingclass voters in the midwest and rust belt, in states that he has to win and that he won in 2016. That being said, they still feel pretty confident about him. If theyre being honest looking at the field, they think Elizabeth Warren is the strongest natural talent on that stage, but they think that she that biden, because he can appeal to some of trumps voters, would be the toughest matchup head to head. Thank you to the three of you for helping along our conversation at the end of another long week. To annie karni, john allen, andrew desiderio, we greatly appreciate it. Coming up for us as we continue on this friday night, the mystery surrounding the case of Andrew Mccabe, former number two the at the fbi. Will he or wont he be indicted . And later, the president s search for a Fourth National security adviser as the job is vacant again. Where does that leave us in terms of north korea, china, russia, iran, the taliban for starters as the 11th hour is just Getting Started on this friday night. Hey. You must be stevens phone. Now you can know whos on your network and control who shouldnt be, only with xfinity xfi. Simple. Easy. Awesome. Former fbi Deputy DirectorAndrew Mccabe wants to know if hes going to be indicted. And he wants the Justice Department in turn to show its cards. We learned yesterday it seemed the government would pursue criminal charges. Mccabe is accused to lying to internal investigators. Its the kind of thing that would typically be handled administratively, but in this case a grand jury was reconvened, leading most to believe an indictment was coming. But that didnt happen. In a letter to the doj, mccabes own attorneys write, quote, we heard rumors from reporters starting this morning that the grand jury considering charges against mr. Mccabe had declined to vote an indictment. We believe that if the grand jury has, in fact, voted and here they use a legal term well explain in a minute not a true bill, the justice manual compels you not to resubmit the case to the same or a different grand jury. As the wall street journal headline puts it tonight, its a sign that the case may be in jeopardy. Former u. S. Attorney harry litman, a frequent guest of ours, offers this context, quote, a grand jurys refusal to return an indictment is something that happens maybe once every five years in a given office. If it occurred here, given the magnitude, visibility of the mcc