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House Judiciary holds 'empty chair' hearing after Trump blocks McGahn's testimony

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By Rebecca Shabad  with NBC News Politics
Image: Jerry Nadler
House Judiciary Committee Chairman Jerrold Nadler presides over a mark-up hearing in the Rayburn House Office Building on May 8, 2019.   -   Copyright  Chip Somodevilla Getty Images

WASHINGTON — The House Judiciary Committee is holding a hearing as planned Tuesday — but the witness chair reserved for former White House counsel Don McGahn is empty.

In his opening remarks, House Judiciary Chairman Jerrold Nadler, D-N.Y., excoriated President Donald Trump for blocking McGahn's testimony as part of their investigation.

"This conduct is not remotely acceptable," the New York Democrat said.

"Mr. McGahn did not appear today because the president prevented it, just as the [resident has said that he would 'fight all subpoenas' issued by Congress as part of his broader efforts to cover up his misconduct," he added.

An attorney for McGahn, William Burck, confirmed in a letter to Nadler Monday that his client would not appear for his scheduled hearing, citing both the Justice Department's legal opinion that McGahn cannot be compelled by subpoena to testify and Trump's "unambiguously" clear directive that McGahn defy Congress.

"Under these circumstances, and also conscious of the duties he, as an attorney, owes to his former client, Mr. McGahn must decline to appear at the hearing tomorrow," Burck wrote.

Nadler subpoenaed McGahn in April for his testimony and documents related to special counsel Robert Mueller's probe — but last week, the White House directed McGahn not to comply with the document request, indicating it considers the documents privileged.

Nadler said McGahn could be held in contempt of Congress if he doesn't appear.

"We have subpoenaed McGahn and we're expecting him to show up on the 21st, and if he doesn't, he will be subject to contempt," Nadler told reporters last week.

Several Democrats on the Judiciary Committee pressed House Speaker Nancy Pelosi, D-Calif., Monday evening during a leadership meeting on Capitol Hill to move forward with an impeachment inquiry against Trump if McGahn failed to appear at the planned hearing, reviving a debate that has divided the caucus. Pelosi and other members of the Democratic leadership have urged caution, even as calls to begin proceedings seem to growing among rank-and-file members.

House Majority Whip James Clyburn, D-S.C., told reporters Tuesday outside of a closed-door caucus meeting: "Let's just keep grinding it out. We'll win it. There's no need to do anything that might turn out to be stupid."

Heading into the same meeting, however, House Budget Committee Chairman John Yarmuth, D-Ky., said, "There's a growing understanding that the impeachment polices is inevitable — not when, if."

The redacted version of the Mueller report released last month detailed how McGahn received at least two phone calls from Trump in which the president "directed him to call" then-Deputy Attorney General Rod Rosenstein to have Mueller "removed."The president has since denied that he ordered McGahn to have Mueller fired.