Elie Honig Answers Legal Questions in "Cross Exam"
MARQUARDT: The president continues to dig in, insisting that he was not going to fire the special counsel despite what the former White House counsel, Don McGahn, had told Robert Mueller. President Trump tweeting that he was never going to fire Bob Mueller, falsely he's saying that he was never going to fire him, and then that the former White House counsel had a better chance of being fired instead. Now, this comes after the president invoked executive privilege over the entirety of the Mueller report, setting up a constitutional showdown between President Trump and Congress. So, that brings me to our weekly segment, "Cross Exam" with CNN legal analyst and former federal and state prosecutor, Elie Honig. He's here to answer your questions about legal issues. Elie, we have one viewer asking, now that especially McGahn is out of the White House, how can President Trump prevent him from testifying?</s>ELIE HONIG, CNN LEGAL ANALYST: Hey Alex. So first of all, I think it's been made clear, Donald Trump is terrified of what Don McGahn has to say. Don McGahn is going to be a key witness on obstruction of justice and just a reminder, he's the person who Trump according to the Mueller report, Trump asked McGahn to have Bob Mueller fired and then later asked McGahn to lie about it. So, how is -- this weekend by the way, we learned that Trump has asked McGahn to declare that Trump did not obstruct justice and McGahn said no thanks so, that's not a good sign for Trump either. How can Trump stop him? He's invoked the executive privilege. Executive privilege is essentially the notion that certain conversations between the president and his key advisers while in office are privileged. They're confidential, they should not be spoken about. And so even if they happened in the past, even though McGahn's a private citizen now, the president is trying to invoke executive privilege to essentially shut him up. Now, I don't think it will work for three reasons. First of all, the president has already waived executive privilege. He's already given it away. McGahn has already spoken to Robert Mueller. Second of all, it does not apply to conversations that are arguably criminal in nature. If they're talking about obstruction of justice, that's going to be criminal. And the third reason is, the leading case that we have on executive privilege is the Richard Nixon case from 1974, which says executive privilege exists, but it is meant to protect national security and military secrets. That would not apply here. So I don't think ultimately the president will be able to silence Don McGahn.</s>MARQUARDT: The other big question about who might show up in front of Congress is of course Bob Mueller. He would be the biggest price certainly for Democrats. There had been some talk of him appearing on May 15th. We now know that that's not going to happen. A date is still up in the air. So, another viewer is asking, do you think we'll see Mueller testify? Is there anyway that President Trump can prevent that?</s>HONIG: I do think we'll see it. Trump has been a little bit all over the map on this. He went from I have no problem to he should not testify to I'll leave it up to I think the quote was our very great attorney general. I think a little wink, wink there -- hey, very great attorney general, you know what to do. But look, there's no legal basis to really prevent Robert Mueller from testifying. All they could really do is say, well, he's still technically a DOJ employee, at least for the next couple of weeks and we forbid you. But DOJ employees are made to testify in front of Congress regularly. So that's not really a legal basis to do it. And when he does testify, boy, watch that, I mean, right? He's going to be talking about -- I think the big questions are going to be, where did you come out on obstruction? He didn't come out on obstruction, but do you want to give us an opinion now that everyone's criticizing you for not doing it? And also, we know there's this simmering battle between, growing battle, between Mueller and Barr. And we know that Mueller has criticized the way that Barr characterized his report so, that will be front and center.</s>MARQUARDT: And specifically on the obstruction issue.</s>HONIG: Exactly.</s>MARQUARDT: What a circus that's going to be. Elie, we've got another viewer question who is asking, why can't the courts make an exemption and fast track all of these cases relating to Congress and the president?</s>HONIG: I think they need to. I think Congress will be really smart because if they don't do something, this is -- all of these disputes that we're going do see breaking out about congressional subpoenas that the executive branch is shutting down, they're going to take months, maybe years to play out. The Eric Holder contempt dispute took years -- I think it took up to seven years. So, that would be ridiculous. There's two ways I think that Congress can try to speed things up. One, you can ask the court to appoint what's called a special master, that means one specific judge is designated probably in Washington, D.C. to hear all of these cases. That judge then can develop expertise, can make sure the rulings are consistent and can do things more quickly. The second way is there is a way to go directly to the Supreme Court, skip the lower levels and go directly to the Supreme Court. It's called Rule XI in the Supreme Court rules. It's very rarely used outside of wartime. But one situation where it was used was in the Richard Nixon case, so there is a precedent.</s>MARQUARDT: President Trump facing a lot from Democrats on all fronts this week, so we always end with a question, what are you going to be asking this week?</s>HONIG: So, a couple of big things. First of all, will Barr permit Mueller to testify? I really don't think it's up to Barr, but that's what we've been told. So, when will we see Mueller testify? Second of all, will the House take action to compel Barr's testimony? Remember, they've taken action on the unredacted Mueller report, but there was still that day a couple of weeks ago when Barr was supposed to show up, he never did. Is the House just going to take that or are they going to take action? And third of all, is the House going to take action against Secretary Mnuchin on the IRS, on the tax returns, which he has also refused. We just have battles going on on every different front here. It's going to be an action-packed couple of weeks. We're really seeing the collision of two of the branches of government.</s>MARQUARDT: And you got to imagine that President Trump is going to come out swinging tomorrow morning.</s>HONIG: Bet on it.</s>MARQUARDT: Elie Honig, thanks very much.</s>HONIG: Thanks Alex.</s>MARQUARDT: All right, an American airlines pilot is in jail tonight after he was arrested right before taking off. Authorities say that he killed a Kentucky couple and their neighbor back in 2015. The couple's son joins me live, next.