Mike was out with his dog. It was a January night. He was on the C&O Canal in Washington DC. I've been there. It's like you're in the city, but it feels like you're in the woods. On one side of you is the Potomac River. On the other side there's this pretty old canal, which was frozen over that night. He gets around three miles out in his jog and stops to stretch. His dog, Looly, is off leash. And so I remember throwing a stick down near the water, just seeing if she'd go after it. And I started stretching. And I'm getting my calves. And I'm looking toward the Potomac, so I'm not really paying attention to her. I turned around. Couldn't have been more than 30, 40 seconds. And she's in the middle of the canal, probably 30, 35 feet out there. She's standing on the ice, you mean? She's standing on the ice, and she's sniffing around. And I go, Looly, Looly, get back here. And she puts her head up. And it couldn't have been more than three seconds later I just heard this sploosh. And she goes through. And I'm freaking out. [LAUGHING] And I all of a sudden, OK, OK, she'll get out of this. She's a dog, they can contort out of anything. And she started trying to get her paws up on the ice. And they just kept slipping off. And she was kicking it like crazy from behind. And a good minute goes by. And now I'm sort of trying to coax her out gently, like Looly, come on. Come on, baby. Come on, girl. Come on. And a minute goes by. And I'm starting to think, OK, this is not good. And then two minutes go by. And she's starting to whimper, these little-- [WHIMPERING] And I'm going, oh, man. And I'm looking around. There's nobody around. It's pitch dark. I only remember even two people on the trail running that I even saw. Today's show is about how do you choose what to do. How do you decide your move in a daunting situation where stakes are high? Like Mike, he's got no rope. His dog is too far out to use a branch or something. There's no time to get help. So what's he do? I literally thought about some Discovery Channel thing I'd watched once. And the guy was showing you, if you never want to fall through ice, how to distribute your body weight, if you put this much here and this much here. You mean you spread your body out, like you're lying on the ice? Is that how? Right. Right. I put my arms out and my legs, like I'm almost splayed. And I'm slowly moving across it. And you're on your stomach? I'm on my back. I'm on my back. He thinks, OK, worst case scenario, if the ice breaks-- well, he had actually jumped into the canal once. And he's 6' 4". The water only came up to his chest. So again, worst case, he could still grab the dog and walk out. We're talking the canal here. We're not talking the Colorado River. And it was the classic miscalculation because I started to move out to her-- and I wasn't that far from her. I can't remember, maybe 10, 15 feet. And she's looking at me. And she's in kind of a little ice hole. And she's trying to get toward me. And in my head, I just had this sort of weird thought that I hadn't thought of before. My dog is about 65 pounds. I'm about 205 pounds, 210 at that point. What if the chip-- boosh, I go right through. I fell through the ice myself. And the shocking thing was, I'm tasting sulfur. I'm tasting the sediment of the thing. And I can't stand. Mike was a sportswriter for The Washington Post when all this happened years ago. And he wrote a really beautiful account of what came next for the newspaper. And as part of that, he researched-- and yeah, the center of the C&O Canal does get much deeper than 6' 4". So he's in the water. He's only about five feet away from his dog. He wrote that plunging into the icy water, the moment that happened, the water shocked him like a dental drill hitting an exposed nerve. That's what it felt like. Boom, it was freezing. And then one of the things that's very arresting about reading your account of this is just how fast things go south for you. It's like you're trying to pull yourself up on the ice. And then right within two minutes, you can't even feel your hands. And your lower extremities are beginning to feel numb. The dog is in even worse shape than you. Yeah. She's just looking toward me for help. But every time I try to push myself up on the ice, it cracks a little. I can't get on a solid piece. And I'm starting to get cuts on my wrists as I'm going up on the ice. And I'm probably panicking at that point a little too because I don't have much time. These things happen quickly. He tried over and over to lurch himself up under the ice. But every time he did, it would break underneath him, and he'd be back in the water. He made it to his dog Looly. She put her paws on his back to hold herself up. It wasn't clear what to do. He thought about the stories you always hear, about people who die in the wilderness hiking or whatever. There's a cameraman from The Washington Post newsroom who he'd known named John. He was a kayaker, biggest, strongest guy I ever saw in the newsroom. He died in a kayak accident because the water pinned him under in West Virginia somewhere. And we had this big funeral for him. And I just thought of all those stories. And I had this really selfish, vain moment where I thought, I'm not dying in the Kodiak region. I'm not dying in the Gallatin or the Madison in Montana. I'm friggin' 15 minutes from a Ralph Lauren store and a Five Guys. Georgetown's down the street. My main thing was I didn't have a lot of time. I didn't know how much time I was in there, but literally, my legs were starting to freeze up. And so at that point, the only thing I could think of was, I can't get up here on my own. And she looks worse off than me. And so I took my right arm and put it under her like a big fishing hook. And then with all of his strength, he heaved Looly up onto the ice. She scampered to the bank, shook herself off, ran down the trail, then realized he wasn't with her, and came back. Now she kept a safe distance on the shore. He thought to himself, who's going to find his dog when he's gone? Who's going to take care of her? It was quiet. He could hear cars in the distance. This moment, he wrote about it. And I asked him to read it for us. "I had been in the freezing water for about three minutes, I figured. I half remembered reading an article that said hypothermia could set in between four and seven minutes. I drew in deep breaths and paused maybe 10 seconds. I figured I had one minute, maybe two with physical exertion left. I felt nothing in my hands and arms, which just slid off the ice each time I tried to pull myself up. I wanted to believe there was an internal survival mechanism that would kick in, an uber human force that would enable me to rescue myself. But losing muscular function prevents those surreal endings. I began to consider my options and arrived at a plan I should have thought of before I went in after her." The plan? He called for help, loud as he could. Screamed, and waited for a while. Nothing. "Suddenly I didn't feel cold or frozen. And that, I would learn later, meant I was heading into stage two of hypothermia. I remember leaning my elbows on the ice for balance and looking at Looly pacing along the bank." And then a guy showed up, a law student who'd been out for a jog. He sees Mike. And his opening line is, hey, so what are you doing in the ice? The way he gets Mike out is that he wades into the cold water, breaking the ice as he walks forward, his feet solidly on the ground, never getting in too deep. And then Mike breaks the ice and kind of lurches towards him. So we're probably about 15 feet from each other. And I just kept lunging and lunging. And I got a couple of feet more. And all of a sudden, I could feel my feet touch the bottom. And it was at that moment, I was like, oh, my god, I'm freezing, but I'm going to get out of here. The student's name is Jason Coates, who's still in regular touch today over a decade later. Over that time, Mike's thought a lot about that night in the canal when he nearly died. In hindsight, do you think you made the wrong calculation and the wrong choice trying to save your dog? I made the wrong calculation when I took her leash off along a frozen canal. I know, but the real choice that endangered your life was to decide to go rescue her. In retrospect, do you think, well, that was just the wrong choice? I should not have tried to rescue her. No. I don't think I made the wrong choice. Because-- Wow. --a life without her-- the next 10 years wouldn't have been a life worth living. No. Come on. Really? I mean that sincerely. You almost died. You're just lucky that somebody was passing by. It doesn't matter. That dog was everything to me. Now, you're married now. Yeah. When you've told your wife this story, does she agree with that assessment, do you think, that you should have gone in? Like is this an example to her of something about your judgment? [LAUGHING] Oh, she has 10 other examples of bad judgment. Yeah, yeah, yeah. Yeah, there's definitely, as my wife says, Señor Drama. OK, Señor Drama, take it easy. And so, yeah, I definitely lead with my heart. Well, today on our radio show, we have stories like this one of people in difficult situations trying, basically, to scramble their way up onto the ice and having to invent how to do it, trying one thing after another. That kind of battle, it brings out who you really are. From WBEZ Chicago, it's This American Life. I'm Ira Glass. Stay with us. Act One, New Sheriffs in Town. So the House of Representatives, of course, is where the Democrats are now in the majority. And they are flexing their muscles. Take the Michael Cohen hearing that just happened. If Republicans are still in charge of the House, do you think that could have ever happened? We're in for lots more hearings like that. And if you believe the news, the Mueller report about what the president did and did not do is apparently maybe close to being done. When that comes out, it'll probably mean hearings, about whether it's going to be released to the public, about whatever it is that it says. And a lot of that is probably going to happen in the House Judiciary Committee. Now, that's a different committee from the one that did the Cohen hearings. Our producer Zoe Chace spent weeks with the Judiciary Committee as they prepared for their very first oversight hearing. It happened a few weeks ago. And she watched them during this first hearing, trying to exercise the new power that they got when they took the majority, the power to drag in whoever they want and grill them with questions before the cameras. As we hear, it was not a cakewalk. The Democrats had to fight for every step, adjust tactics, try this and that. Here's Zoe. The House Judiciary Committee has its own hearing room-- long gold drapes, rich blue carpet. And the way the room is set up, everywhere you look is a reminder of exactly who's in power and who is out. The C-Span cameras are set up stage left so the Congress people and the majority are shot at the best angle. They just look better on TV. The minority staffers have to squeeze awkwardly behind the cameras just to get up to their members on the dais. It's not dignified. The majority has a much bigger staff. It controls the budget. Even the portraits on the wall of the past chairmen that look down on everything, even those are arranged so that the majority's portrait gets the benefit of that better camera angle. You know who knows every inch of this room, including even the parts behind the scenes that the mortals never see? Jerry Nadler. There's a door to the right, to the right of the committee room doors. Nadler is the new chairman of the House Judiciary Committee. You walk in that door, that's the minority staff room. And you'll see a narrow corridor, two very small bathrooms, an office, a little space for a printer or for a microwave. A printer or a microwave, that really sums up the choices the minority gets. It's where Nadler's been for the last eight years, but no longer. Now walk in on the other side of the committee room, and you won't see that little thing. You see a suite of eight, or nine, or 10 offices. A suite-- nice, big offices with couches and extra chairs for big staff meetings. The point is, the switch is always extreme. Right now, it's an especially big deal. The House leadership has made clear they're going to push back against President Trump. They're passing bills. They're running oversight hearings and investigations. Nadler's committee, the Judiciary Committee, is looking for the answer to the very slow motion movie we've been watching since President Trump took office. Did the president abuse his power? Did the president obstruct justice? Hanging over that question, for Nadler, is the possibility of impeachment, because impeachment proceedings, if they ever happened, would start in the Judiciary Committee. But for now, it's just hearings, hearings for days, hearings as far as the eye can see. And for every hearing that makes the news that rises like a bubble to the surface where we can see it, there is this churn underneath of meetings and pre-meetings and strategy sessions. That's the work I'm here to see. This really doesn't-- the real reason-- Nadler and his staff are gathered in his newly giant office, strategizing around their first oversight hearing. He's editing a letter half out loud. His typical pose, bottom drawer of his desk pulled out, his right foot up on it, and leaning way too far back, like he's going to tip over. He's making notes, debating with his staff. Well, I don't know that they're bound by it. Right. Nadler's like their constitutional law professor. He is actually a constitutional lawyer. Nadler's 71 years old, a liberal congressman from New York, represents primarily the West Side of Manhattan, spends a lot of weekends with a megaphone hollering about civil rights, spends his weekdays with piles of paper. Where's the stuff about Mueller? This is back in January. Nadler and his staff want acting Attorney General Matthew Whitaker to appear before the Judiciary Committee. This letter is negotiating a time and sending him topic areas they want to cover-- the southern border, the Affordable Care Act, and primarily questions about you, sir, and your highly unusual, brief tenure as attorney general. Whitaker is important, even though he's a temporary villain. He's a plot point in the story Nadler and the House Democrats want to tell. Or he might be. That's why they need to ask him a bunch of questions in a hearing under oath. We all suspect he was put there for one reason and one reason only, to interfere with the Mueller investigation. Sessions-- Former Attorney General Jeff Sessions, Whitaker replaced him. Sessions recused himself and wouldn't protect the president against the Mueller investigation. Is fired because he wouldn't protect the president against the Mueller investigation. Whitaker, who's written nasty things about the Mueller investigation, is hired with no visible qualifications. [INAUDIBLE] obviously for the purpose of protecting the president from the Mueller investigation. Whatever is obvious to Nadler, if he wants the public to believe it, he's got to show it in a hearing. His committee needs to ask pointed questions and make sure Whitaker answers them. That's the letter full of topics that Nadler's working on. At this point, he may not answer the questions. And we can't tolerate that. That is correct. OK, that's what I'll say. That voice in the background is Aaron, Nadler's deputy chief counsel. Aaron's one of the two people on Nadler's core staff who's allowed, sometimes, to speak into a microphone. He believes really hard in his job. Instead of saying the country, he'll say the republic. Now one question we should discuss is whether we should prepare a subpoena for Whitaker, even though we hopefully would never have to use it. We should certainly prepare it. My only question is, does that look belligerent, like we're doing something? That's the concern. Nadler and his staff are considering deploying the biggest weapon they have early in the game, the subpoena. You'll hear a lot about the subpoena in this story and, I believe, in the coming months. A subpoena forces you to show up to a congressional hearing. A subpoena can also force you to answer questions, unless you plead the fifth, obviously. Back when the Democrats were in the minority, they didn't have the power to subpoena anybody. It killed them the last two years, not being able to force Trump officials to come in and answer for the stuff they were doing. Now they have subpoena power. And they have two years of unanswered questions. We have to reestablish proper oversight, not because we don't like this president-- though, I don't-- not because I think he's a terrible president-- though, I do-- not because I think we'll find all kinds of things-- though, we may-- but because it is our job to do that. Whitaker is coming in voluntarily. Nadler doesn't need the subpoena for that anymore, but he does want to use it to combat this maddening thing that's been going on over the last two years the Democrats were powerless to stop. People from the Trump administration would come in and refuse to answer questions. And every administration does that, but there's been a twist on it. We saw it, for example, with the guy Whitaker replaced, Attorney General Sessions. A year ago, he went before a congressional committee and showcased this innovative way of not answering a question. Here's Sessions. This is from a New York Times video montage. Senator Heinrich, I'm not able to share with this committee private communications I may have-- Because you're invoking executive privilege. I'm not able to invoke executive privilege. That's the president's prerogative. Has the president invoked executive privilege in the case of your testimony here today? He has not. Then what is the basis of your refusal to answer these questions? I am protecting the right of the president to assert it if he chooses. Sessions drove the Democrats crazy because he kept talking in terms of future executive privilege. The president might invoke it sometime, hypothetically, potentially, and I have to protect that. He kept claiming this even after he was given months to go to the president and ask, over which communications do you want to invoke executive privilege? This potential executive privilege was like a back door Sessions kept slipping out of. Nadler spent the last few months trying to nail that door shut. He sent a list of questions to Whitaker in advance. Are these subject to executive privilege? Go to the president, find that out, get back to us. Anything the president doesn't claim is fair game for us to ask and get answers to. And if you don't answer those questions, we'll subpoena the answers out of you. Weeks passed. Whitaker didn't get back to Nadler, who feels like, OK, if you try to stonewall, we'll subpoena your answers mid-hearing. But to get a subpoena for a hearing, first, Nadler is having a hearing about a subpoena. This is Congress, after all. The Judiciary Committee will please come to order, a quorum being present without objection. The chair has authorized to declare a recess at any time. Nadler is sitting in the chairman's seat with the gavel, opening a meeting about the subpoena. It's the day before the big Whittaker hearing. This meeting is focused on just the subpoena. It's called a markup, basically a debate among the committee members. And it's teeny, tiny-- no audience, very few reporters. Not even all the committee members are here. I called C-Span and asked if they were recording it. They were like, what is that? I now call up the chair's resolution, authorizing the issuance of a subpoena to acting Attorney General Matthew G. Whitaker to secure his appearance and testimony at the hearing of the committee regarding oversight of the US Department of Justice. I move that the committee adopt the resolution. So this hearing is about the subpoena, but it's also a way for Democrats to show off how transparent they're going to be as they run this committee. Back when Nadler was in the minority, it frustrated him that the Democrats wouldn't get a chance to weigh in on a subpoena like this. There weren't committee votes, markups where Democrats got to go on the record and vote no when they didn't like what the Republicans were doing. Today, Nadler and the Democrats could just go ahead and authorize a subpoena without this hearing, but they're letting the Republicans weigh in. And they're feeling a little holier than thou about it. Also, Nadler genuinely believes in proper parliamentary procedure, not just the technicalities of it, but the idea of it, that it's a way to keep everyone honest. The chairman begins by recognizing himself for an opening statement, because that's the procedure. Not a showboat. Whatever's under-understated is how Nadler presents himself. My staff and I can not have been more transparent about our goals here. We explained the possibility of this subpoena to Mr. Whitaker months ago. We provided him with the questions in advance weeks ago. We consulted with ranking member Collins and provided him with a copy of this subpoena days ago so that we could schedule this markup if necessary. In fact, we are only voting on this resolution because the ranking member asked us for an up or down vote on the matter, a courtesy we were not afforded in the last Congress when Democrats were in the minority. The hearing is filled with digs like that, back and forth. Well, back when you guys didn't follow the rules, back when your president was the one being secretive. This is the way it's going to be for two years. And these are the people who are going to be doing it. This is the cast for the new season. Let's get to know them. Ranking Republican Doug Collins from Georgia, charismatic talker, Air Force Reserve, Iraq vet. He steers things away from Whitaker immediately and does a classic, what about Obama and his attorney general, Eric Holder? And isn't your subpoena here a double standard? A subpoena should not be used to supplement where the committee is merely worried that a witness might not testify or might not answer questions to the extent of the committee's liking. If that was the standard for a subpoena, many on our side, especially when Attorney General Holder sat at that table and offered, on the record, the executive privilege, which he could not claim. Let's be honest about this. There's arguing back and forth about whether waving a subpoena around is too rude for someone coming in voluntarily, and what's the precedent. Here's Nadler sparring with Jim Jordan, Republican from Ohio, who loves a fight. Big defender of the president. The issue is, if he refuses to answer legitimate questions. That is why we want the subpoena. How do you know that until he comes tomorrow? And he said he's coming. Sir, I'm speaking. We don't know that. He hasn't told us what he will do. We asked him. He refuses to say-- Mr. Chairman, that's actually not accurate. He has told you what he's going to do. He said he's going to be sitting at that table tomorrow morning at 10 o'clock. No, he hasn't told us about answering questions. Finally, after arguing against the subpoena for a while, the Republicans changed tack and offered an amendment to it. Thank you, Mr. Chairman. I have an amendment at the desk. You have an amendment at the desk? The clerk reads the amendment. Beginning on page one, after "acting Attorney General Matthew G. Whitaker," and before "to secure his appearance," insert the following-- "and Deputy Attorney General Rod Rosenstein." Here we go. If you're getting a subpoena anyway, get one for Rod Rosenstein. Rod Rosenstein, deputy attorney general. Lots of Republicans can't stand him and think he's out to get the president. So their amendment is basically, you Democrats want the guy you don't trust at the Justice Department to testify. Well, then we want the guy we don't trust to come in at the same time. The argument that follows is so small sized, but they all throw in so hard, which is normal here. Just stay with it for a second. The Democrats' response is led by David Cicilline from Rhode Island. I've come to think of him as Nadler's pinch hitter. Thank you, Mr. Chairman. I would argue that this amendment goes beyond the scope of the resolution before us. The Democrats knew this amendment was coming. Nadler's team already set up Cicilline with what he needs to knock it down. His addition to this resolution is not germane. It expands the scope of this for the individual charged with the oversight of the Department of Justice. And therefore, I ask that you rule it out of order. "Germane" is a legal term. And once it's released in here, it's like a swarm of bees. Republican member Biggs argues back. Because under the rules of any parliamentary body, this group determines what's germane. This group determines what's germane. We're going to vote on germane, this in just a second. Another Republican, Louie Gohmert from East Texas, he jumps in. Like not only is Rod Rosenstein germane-- It is extremely germane. --can't be germaner. It's as germane as it gets. So let's be fair. In any event, the Democrats have the votes to do what they want. Nadler rules the amendment not germane. The Republicans appeal. Democrats immediately table the appeal-- swat it down, in other words. They finally vote on the resolution to authorize the actual subpoena. And it is authorized, obviously, by a party line vote of Democrats. This entire show, the whole hour of debate, it was a fait accompli from the beginning. But the minority got what the minority gets, a chance to object on the record. It ain't much, but it's all there is. Everyone knows that. And yet, at the very end of the hearing, Republican Louie Gohmert, knowing the Democrats are feeling so very pleased with themselves for letting the minority speak, Gohmert gets in one last graciously worded dig at the majority. He's like, you played your part a little sloppy. You didn't even make it look like you were listening to us. I rise to commend the chairman on the way in which he ruled on the germaneness issue of-- we know that to rule before giving this side a chance to respond on a germaneness objection would be a sign of partisan railroading. And whoever it is that typed up your answer and had it instantaneously at the very moment we finished our argument in front of you so you could read it so fast we couldn't even see it-- they typed it, got it to you so you could read your ruling the moment we finished stating our position. Will the gentleman-- I commend the-- I thank the gentleman. Everyone laughed. They went on to consider a bipartisan bill, which they passed out of committee. The Democrats felt great about how this markup went. They authorized a subpoena, meaning now they had the power to use a subpoena on the day of the hearing to compel answers, if they want to, just to have it on hand, like in case of emergency, break glass, get answers. We get backstage, as it were, back to the vast suite of the majority's offices behind the hearing room. And I find Aaron, who's full of his particular brand of patriotic bonhomie. So who do you think won? The American people, I'd say. No. [LAUGHING] Many members had sort of a moment where they pulled me aside and said, oh, we're going to win a vote today, because it's been a while. It's our first game time, like regular season, vote. As the day ends and we head into Whitaker oversight hearing eve, everything seems set. Nadler staff is feeling ready, like they had a great dress rehearsal and the play is also going to be great. The props are all in place. Everyone knows their lines. Every box has been checked off. I go downstairs to the Rayburn Cafeteria, stare at my phone, like everyone does. Suddenly news breaks, and it's big. I look up from my phone to CNN, which is playing everywhere. The Whitaker hearing that is supposed to happen in just hours, the hearing the Democrats have been rehearsing for, planning for, might not happen now. Whitaker apparently heard about the vote they just took on the subpoena. And now he's saying he's not going to come tomorrow if there's a subpoena threat. In other words, this new tool the Democrats can wield, now that they're in the majority, the main tool they want to use to get the answers they've been waiting for, the DOJ is saying, go ahead and try it. See what you get. If Whitaker doesn't show up like he's threatening, a subpoena can force him to appear, but it would take a while. I run back upstairs. People are gathered around the TV in the office, watching the breaking news. Acting attorney general to discuss his communications with the president. So that's a [INAUDIBLE]--- Oh, my god. Nadler's staff is in Aaron's office with the door closed. They're all on speakerphone with Nadler. And I sit outside watching MSNBC for what feels like hours, but I think is like 45 minutes. Finally, they come get me. And Aaron and another staffer, Danny, show me what they've all been looking at. It's a five-page letter they just now received from the DOJ, telling them Whitaker won't come if there's a chance the Democrats will use their subpoena at the hearing tomorrow. To be clear, it's a PDF, but it sounds like it's from the 19th century. So the department says, "Given the concerns expressed above, we seek a written assurance from your office that the committee will not issue a subpoena to the acting attorney general on or before February 8." Oh, "We request the benefit of your reply by 6:00 PM today." So the threshold question is-- So formal. Yeah. The threshold question is, do we respond to this at all? This is a last minute threat. It's out of the box. It's irregular. Attempting to dictate terms from the executive branch to the legislative branch on how to conduct its oversight of the executive branch. They're indignant and a little shaken, I'd say. They're like, wait, did we mess this up? Is Whitaker seriously not coming? What do we do now? F this guy. They're legitimately freaked out because they really, really want Whitaker to come in. Nadler's the new leader. All his members might be upset. They stuck their necks out and supported his subpoena move, but they really want to have a hearing with the cabinet official, to be the first committee in the new Democrat-controlled House to show off a tough oversight agenda. Aaron and Danny walk me through their various options for a response, from hard line to pushover. People are running around, researching ways to beef up their response to the letter. Nadler's decision is, just reiterate what they said before as though it's not exactly what they said before. Basically, as Aaron puts it-- Dear Matthew Whitaker, if you show up on time prepared to answer our questions, there is no need for us to issue a subpoena. Love, Jerry Nadler. So then Aaron and another staffer call the DOJ. I'm not allowed to record. They start out by saying, I've got good news for you. And the news is not good. They say, well, the gist is, if he shows up on time and answers questions, we won't have to issue a subpoena. It seems to somehow pass muster with whoever's on the other side. And they talk about logistics, what elevator Whitaker is going to use, how he's going to get into the hearing room and stuff. The way they talk is like they're releasing a bull into a ring, how to keep everyone safe before we let this angry, frightened creature in front of 30 matadors. Things are calm for about a half an hour. Then Aaron's cell phone rings on his watch, and he curses and runs out of the room. It's the DOJ. They want a stronger assurance. They want a promise-- no subpoena tomorrow, or Whitaker won't come. It's 10 to 6:00. 6:00 is the deadline. This time, the team gathers deeper into their catacombs of offices. I can't even hear them arguing, they're so cocooned away from me. And when they come out, I can't get a straight answer out of Danny or Aaron. He asked for a guarantee. You didn't give him a guarantee, or did you? We said that there's no need for a subpoena. But did you guarantee him that you wouldn't issue a subpoena? Yeah. There's no need to issue a subpoena because he's agreed to come in tomorrow morning and answer the questions. OK. So what if he doesn't answer one of the questions, and you want him to answer it? We'll deal with it as we move forward. But isn't that when you would issue a subpoena? If, in fact, we were going to issue a subpoena. Oh, my god. They're being so cagey, so parsey, I can't quite tell what's up. Did they cave, and they don't want to admit it? Later that night, the ranking Republican on the Judiciary Committee, Doug Collins, gets on Twitter to reveal Nadler caved. Nadler's team protests that word, "caved," vehemently. The way they put it is, they decided getting Whitaker in the room was the most important thing. "Caved" is definitely the word Collins would use. And he posted a screenshot of a letter from Nadler to the DOJ, a letter that Nadler's team hadn't made public, a letter they also hadn't told me about. It promises the DOJ no subpoena tomorrow. Collins is all, got you, Nadler. "Looks like @repjerrynadler forgot to include his most recent letter to acting AG Whitaker, confirming there would be no subpoena tomorrow. Here it is." Collins, as ranking Republican on the Judiciary Committee, should have been CC'd on this letter. Nadler's team says they did. Collins says they did not. He got it elsewhere. So much for proper procedure. Congressional hearings can be confusing because there's so many different things at once. They can be investigations to find out facts you didn't know. They can trap people into making false statements on the record, also cable TV performances to raise representatives' national profile or send a message to their constituents. This hearing is going to be all those things. But also, the Democrats want to show the public what they think is going on, which in terms of Whitaker is, they think he's a hatchet man, that he was put in place to kill or screw up the Mueller investigation. Nadler believes that's why Trump picked him. And picking Whitaker was just one of any number of times he believes the president may have obstructed justice. We have to lay out a story for the American people. We have to find out what was going on and then lay that out to the American people. And that's our job. Also, separate from Whitaker's appointment, they're really mad about a whole bunch of Trump, DOJ-related matters. And they want to get answers about those too. So it's going to be a long day. Right before it starts, Aaron and Nadler review his script and his questions. And the central question that we should talk about right now is not actually the questions, but what happens when we're in the moment where he refuses to answer. All right. [INAUDIBLE] OK, let's talk through it. I like the way you set up yes or no, Mr. Whitaker? Yes or no, Mr. Whitaker? Hit him again and again with that. About an hour later, the hearing's getting underway. We're in the room with the portraits looking down from the walls. Whitaker shows up right on time. Ranking Republican member Doug Collins speaks directly to him in his opening statement. Mr. Whitaker, this is your life. Like the old TV show, they just want a piece of you. And with that, Mr. Chairman, pursuant calls for Rule 16. I do now move to adjourn. Nobody asked me, but I think we shouldn't be having this hearing. All in favor of the motion to adjourn, say aye. Aye. Oppose, nay. No. The no's have it. Collins calls for a roll call vote. Roll call. Everyone's vote on adjournment is painstakingly read out loud. That's four minutes less hearing, classic minority party stalling tactic. Also literally, Collins doesn't think we should be having this hearing. Whitaker opening statement, Nadler moves to questions. Right off the bat, Nadler's tactic of yes or no, Mr. Whitaker, gets mixed results. Well, it's our understanding that at least one briefing occurred in December before your decision not to recuse yourself on December 19 and Christmas Day. Is that correct? What's the basis for that question, sir? Yes or no? Is it correct? I mean, I-- It is our understanding that at least one briefing occurred between your decision not to recuse yourself on December 19 and six days later, Christmas Day. Is that correct? Simple enough question, yes or no? Mr. Chairman, again, what is the basis for your question? You're saying that it is your-- Sir, I'm asking the questions. I only have five minutes, so please answer, yes or no. No, Mr. Chairman. I'm going to-- you were asking me a question, it is your understanding-- can you tell me where you get the basis? No, I'm not going to tell you that. I'm don't have time to get into that. I'm just asking you if that's correct or not. Is it correct? Were you briefed in that time period between December 19 and Christmas Day? Simple question, yes or no? Congressman, if every member here today asked questions based on their mere speculation-- All right, never mind. At any point-- You don't have an an actual basis for your questions. Yes or no. Whitaker plods slowly through every answer, taking time to pull his tiny glasses on and off his face and regularly declining to answer. Congressman, thank you for that question. Congressman, I know this is an important issue to you. And then even when he does answer, the answers are swaddled in weird, half non-answers. Mr. Chairman, as I said earlier today in my opening remarks, I do not intend today to talk about my private conversations with the President of the United States. But to answer your question, I have not talked to the President of the United States about the special counsel's investigation. So the answer is no, thank you. To any other White House official? The effect of this is that it's really hard to tell what really went on while Whitaker was AG, which part matters, and importantly, who's being unreasonable-- Democrats for yelling yes or no at him, or Whittaker for being obstinate? Does he know stuff and he's hiding it? Does he not know stuff, and they're berating him? I truly cannot tell. The hearing protocol is Democrat gets five minutes, Republican gets five minutes. And it's whiplash every time they switch because they're trying to tell entirely different stories with their questions. When it's ranking Republican Doug Collins' turn at bat, he brings up Roger Stone's recent arrest. Are you familiar, from public boards or otherwise, that a CNN reporter was camped out outside of Stone's house when the FBI arrested him? I am aware of that. And it was deeply concerning to me as to how CNN found out about that. Well, I'm glad we're going down that road, Mr. Attorney General, because this is a-- Collins uses the rest of his time to reiterate his suspicions about goings on inside the FBI and Department of Justice. That's what a lot of the last two years of Republican-led hearings have been about. They've been pushing a story that biased officials inside the FBI have been trying to take down the president ever since he took office. And there's a bogus theory that says Stone's arrest is part of that. They may believe all this. Nadler says it's a Republican strategy to discredit these investigations. So when any reports do come out, half the country won't believe them. Whitaker is so adept at deflecting the Democrats' questions that the only time I feel like I really understand what the Democrats are getting at is when they perform these little monologues, reciting a list of facts that are already out there. David Cicilline, Rhode Island, Nadler's pinch hitter, used some of his time to read a list like that to Whitaker. You then went on to describe the Mueller appointment of a special counsel as ridiculous and a little fishy, that Mueller investigating Trump's finances would be going too far, that there is no criminal obstruction of justice charge to be had against President Trump, that there was no collusion with the Russians in the Trump campaign, that any candidate would have taken the same meaning as Donald Trump Jr. with the Russian lawyer, and finally that a replacement for Sessions could reduce Mueller's budget so low that his investigation grinds to almost a halt. You said all those things, and they're all in print. The American people wonder just how is it that Mr. Whitaker becomes the acting attorney general of the United States in violation of existing statutes. Was he put there for a particular purpose? That wasn't a question, it's a statement. I yield back-- I've observed that. The time of the gentleman has expired. The speeches are helpful in understanding why they brought Whitaker here. But when they ask questions, it gets muddled again. It seems as though there's a place they're trying to get to, but also like they might never get there. They'll do a series of questions that are endless, tiny variations on the same question that don't end in a conclusion. Here's Democrat Ted Deutch trying to ask about every single way there could've been communication between Whitaker and the White House about the Mueller investigation. Did you do anything to make sure that the White House might have learned some of what you learned in those briefings? Could it be that someone else on your staff might have spoken to someone at the White House, since you told us you didn't? Congressman, I'm not aware of that happening. Who else-- how many people were in those briefings with you when you're briefed about the Mueller investigation? Congressman, I'm not going to go into specifics of the briefing, but it was a very limited group. There was only one member of my staff who was present with me. Shortly after this back and forth with Congressman Deutch, there was a break. I marched backstage to Aaron's office. He looked surprised to see me. Hi. OK, do you guys have a card to play here with this like, "did you tell anybody" thing that Deutch was harping on? Yes. I mean, it's not a card to play so much as we have reason to believe that his testimony is not accurate, based on information both publicly reported and delivered to us by people who work in and around the Department of Justice. So it seems like they know something, and they're trying to catch him making a false statement. That shoe never drops the whole six hours. There is no gotcha moment-- we know what you did last summer, Mr. Whitaker. Instead, the dramatic moment that ends up on the news after the Whitaker hearing has nothing to do with the questions Nadler was asking. It was this. Have you ever been asked to approve any request or action to be taken by the special counsel? Mr. Chairman, I see that your five minutes is up. And so-- This indecorous response that scandalized the room-- if you heard about the hearing, that's probably all you heard. Jerry Nadler responded how Jerry Nadler would, laughed it off and moved on. In the coming months, we're going to get to know the different styles of these House committee chairs-- Nadler in judiciary, Adam Schiff in the Intelligence Committee, Elijah Cummings in oversight. He ran the Michael Cohen hearing. Cummings is a master of ceremonies-type preacher almost. He knows how to reach an audience and hold it. Nadler, in his hearing with Whitaker, was dealt a very different witness. But also, he's a very different chairman. After spending weeks watching him gear up for and then run this hearing, I think it's fair to say he's not so into the theater part of the hearing. He's got a law library in his head. He's practical. He's unflappable. He's trying to get to the bottom of something here. He's not so focused on the audience experience of it, their takeaway. Here's the truth. I didn't understand-- I didn't know what I was supposed to get at the end of that hearing. I didn't know what I was supposed to think, as an American who's been waiting. Well, we weren't doing the hearing in order to get people to think something. That may be true of future hearings. The function of this hearing was to assure ourselves, and by extension the American people, to determine whether the Mueller investigation was being hamstrung or going on. That was the purpose. OK. So by that measure, how did Nadler and his committee do? They got six hours of statements on the record that people are now poring over. The New York Times and The Wall Street Journal both published stories saying, according to their reporting, Whitaker lied during his testimony. Whitaker's now agreed to come back to the Judiciary Committee to, quote, "clarify his testimony." So that record will continue to grow. Building a record matters. Getting clear answers from the administration about the last two years matters. But at some point, the overall story and the audience's understanding of what Congress is doing here could become the biggest thing. When it was clear a few months ago that Nadler was going to be chair of judiciary, right after the midterms, he was asked about impeachment hearings a lot. They could tear the country apart, he said. That's because impeachment depends on the court of public opinion. Do enough people see the same events in the same way? Can you imagine? We are a really long way from that. Zoe Chace, who's one of the producers of our show. Coming up, something seriously you do not expect when you're expecting. That's in a minute from Chicago Public Radio when our program continues. It's This American Life. I'm Ira Glass. Today's program, scrambling to get off the ice. We have stories of people in difficult situations who are trying to move. They're trying to fix things. And for a while, anyway, they are running in place, just attempting one tactic after another, hoping something is going to work. We've arrived at Act Two of our program. Act Two, Going Under. So this next story is about somebody who had a lot of options for fixing the problem that she faced. And I don't think it's an exaggeration to say she tried them all. Her name is Jessica Hopper. She's a music journalist who used to help us here with the music on our show. And the story is about her and a doctor, and sexual misconduct. In other words, content that might not be right for everybody. And before we start, I will point out that the doctor in the story denies any wrongdoing and has steadfastly denied it from the start. In fact, when this got before a judge, the judge ruled that there was not enough proof to meet the standard necessary to establish misconduct on the doctor's part, though he said he found Jessica's testimony to be, quote, "emotional and believable." He found her credible. Here's Jessica. On March 1, 2012, I was in the hospital delivering my son. And an anesthesiologist repeatedly groped me while administering my epidural. I've told the story of what he did to me again and again, dozens of times over the last seven years to the hospital, the police, the detectives, my attorney, the state medical licensing investigator, my victim advocate, a judge, a reporter, another detective, and eventually people close to me. The story's only become more precise in order to preempt the questions I know will come. I can speak it all in an unbroken monologue. I start with how this was my second son, why we chose this neighborhood hospital. I offer my state of mind as my husband drove me there, how alert and aware I was. I recount how the anesthesiologist asked my husband and my doula to leave the room, how he had me take my gown down over my pregnant belly, how his process was methodical, but entirely different than the epidural I got with my first son. I trace on my body how the doctor ran an injection line, a thin plastic tube, from a spot on my back and inexplicably taped it right between my breasts. I pinpoint that moment as when I know something was off, how I read his name tag and took note of his name, where he stood, where the light was in the room, approximately what time of day. I detail how he put his hands on my breasts, cupped and held them. I describe the touch as sexual and not clinical. I describe how he was silent when I asked, what are you doing? And how he did it again. It did not stop until I said, what the [BLEEP] are you doing? I explain how he did not look at me and just left the room, how I told my husband immediately after he came back in the room. About an hour and a half later, within a minute or two of delivering my son, I told the entire room what the doctor had done to me. But how I told them came out sarcastic and nervous, almost like a joke, saying that I was so happy to have an epidural that I almost didn't mind that the doctor had felt me up. I knew they heard me because the neonatal nurses weighing my son froze, and one locked eyes with me. My midwife told me, don't say that. That didn't happen. Don't say that. This is the part in the story where my monologue changes. It becomes a litany of who I told and how, how I set a reminder alarm on my phone. And at least once a week during my children's nap time, I would call the hospital to try to tell someone what happened, to try to navigate to the right voicemail, the hospital administrators, HR, the receptionist, the patient advocate. I called for weeks until someone took down my account. I soon got a letter from the hospital, telling me that they'd looked into it and that my account was unsubstantiated. I filed a complaint online with the state medical licensing board. I just wanted to stop this from happening to anyone else. I filed a police report. A few weeks later, I did several long interviews with a nice detective. His concern and care felt meaningful after months of being told that no one believed me. A few weeks later, a new detective was assigned to my case. And I started over, retelling the story several times over the course of a year. The new detective would periodically update me with progress on my case. They were dramatic stories, made him and the other cop sound like cowboys. He told me they had gone to the hospital to interview the doctor, and they'd been blocked by hospital staff. He told me when they went back with a warrant, the doctor had fled the country. He told me that they put out an international APB on him and had tracked him. He told me that they had gone to the doctor's suburban mansion and arrested him at dawn on Christmas morning, and now the doctor was scared. I had started to doubt what the detective was telling me. A few months later, the detective had me meet him in person at the shopping center by the county courthouse. He sat me down at a glass table across from a Sephora and told me that the state's attorney was declining to take the case or even bring charges because he said, she said cases were impossible to prosecute. He urged me to give up on the case and go on with my life. He said that the doctor was probably scared enough that he had stopped. Sitting there in the mall with the detective after 18 months of wild stories and no charges, I had the sinking feeling that this was a performance of some sort-- telling me that justice had been exhausted and hoping I would believe it so he could close up my case file and call it a day. I realized I needed to switch tactics. I left the meeting and called a lawyer friend who referred me to an attorney who was willing to help me bring a civil case pro bono. After a few months, this lawyer laid out some options for me, but then he followed that with exactly what the detective had said. It was my word against the doctor. And with cases like this, good outcomes were rare, that he had seen victims come out the other side destroyed. I knew that was true, and I trusted what he was telling me. I felt like unless I had video of this happening, I wouldn't be believed. But I wanted the doctor to face consequences. What the doctor had done had filled me with fear and anxiety. I was anxious about being touched. As a result, I hadn't seen a doctor or dentist in years since delivering my son. What this doctor did in this setting that's supposed to be safe, where I was at my most vulnerable, in labor-- after that, how could I trust anyone? I didn't feel safe. I had nightmares. And I felt shame, not for what the doctor had done, but that maybe I could have done something differently, so others would have taken this more seriously. My attorney said he would pursue the case if I wanted, but he suggested I move on and focus on the good things in my life, my family, my career. He assured me that if anyone else ever came forward, that my civil complaint would be there to bolster their account. On Valentine's Day 2015, feeling deeply discouraged, I told my lawyer to drop my case. I didn't talk about it or tell friends or family because I just wanted this all to go away. I tried to forget, but I couldn't. In December 2017, I was at home and folding laundry when I got a call from an investigator with the state licensing board. She said she was new to the position and was just following up on her predecessor's open cases, and would I be willing to talk to her? It'd been five years. I was ambivalent and cynical. She asked me to sign a release so she could get my medical records. I didn't bother. I felt like there was no use in going through this again, and it was painful to pretend otherwise. She called again a few weeks later and asked me if I would tell her my story. Over the course of an hour, I did, but I was certain there was no use telling the story again. I no longer believed anyone could help me or stop him. In February 2018, the investigator called me and told me that there was a development in my case. Another victim had come forward with an almost identical claim. A prosecutor she worked with said if I signed consent forms to release my medical records, they could file an emergency suspension of the doctor's license that would stop him from practicing. I said yes. He asked me if I would be willing to testify against the doctor. I said yes. Finally, I was being believed because there were two of us. I got off the phone and involuntary screamed over and over before collapsing on the floor, sobbing. I was furious there were now two of us. I was elated there were now two of us. We were not in this alone. What I'd learned about the woman who'd come forward was that she was undocumented, a single mom. She did not speak much English, and she was testifying. I felt overcome with love and gratitude for her, this brave woman I didn't know, this woman who is taking a risk coming forward. The state medical licensing board was moving for the suspension of the doctor's license. I met with two prosecutors to prepare to testify. They only had a few days. During this, I found out that the detectives initially assigned to my case, including the detective who had told me he'd arrested the doctor, the detective who had met me at the mall, he had never made any notes during the nearly two years he'd been on my case, not once in all the times he had interviewed me. He never interviewed or arrested the doctor. He never brought my case to the state's attorney. He just sat on it. I found out that my initial complaint to the licensing board had been dismissed without investigation because I had misspelled the doctor's last name. The first time the state regulators became aware of my case was in the summer of 2015, after I had dropped it. Everything I had done, all the so-called right steps to pursue, had amounted to nothing. The cogs had never caught. The licensing board prosecutors apologized profusely, continually. They said they could have tried to prosecute the doctor years ago. The hearing happened last June. The doctor testified he was not guilty and brought a naked mannequin to the hearing room for purposes of demonstration. The midwife testified too, admitted to saying in the delivery room, don't say that, though she denied ever saying to me, that didn't happen. The other women, the one who came forward, she testified all morning. And I testified after her. We did not meet. I had to ID the doctor who victimized me. He was sitting behind me. I couldn't miss him. The doctor's defense attorneys tried to suggest this was all a ploy cooked up by my husband, that I had claimed being assaulted in order to try to get a settlement from the hospital. The doctor's defense attorney asked me why, if this was so devastating, why hadn't I told people? Why hadn't I gotten help? I tried to explain that I just wanted this to go away. What I didn't understand well enough to explain at the time was that I didn't want to deal with anyone's reactions. I didn't want to wonder if another person believed me. I didn't want anyone to feel sorry for me. They asked me about timelines. They tried to trip me up. It didn't work. The prosecutors told me I'd done well. I left the hearing exhausted, but I felt so light. I felt like I was going to float away. I felt like there was nothing I couldn't do. I felt like Wonder Woman, like when she lifts a car with a single hand. I thought about the other woman. I wondered how she felt. I wondered if she felt the same. Jessica Hopper. The doctor in her story, his medical license was suspended with an indefinite suspension for a minimum of three years. And he was fined $15,000 for what he did to the other woman. He was not disciplined for anything relating to Jessica because there wasn't enough proof for her claims. We approached him for comment, and his lawyer sent us a one-sentence statement denying any wrongdoing and pointing out that the doctor is in the process of appealing his suspension. We also reached out to the detective who Jessica says met with her at the mall and the head of investigations above him. Neither responded. Our program was produced today by Robin Semien. The people who put our show together today includes Elna Baker, Zoe Chace, Aviva DeKornfeld, Neil Drumming, Hilary Elkins, Jarrett Floyd, Damien Graef, Seth Lind, Stowe Nelson, Catherine Raimondo, Ben Phelan, Nadia Reiman, Christopher Swetala, Matt Tierney, Nancy Updike, Julie Whitaker, and Diane Wu. Our managing editor is David Kestenbaum. Special thanks today to Jessica Andrews, John Bies at American Oversight, Kate Brannan, Barrie Hardymon, Steve Licktieg, Kelefa Sanneh, Ben Terris, Andy Wright, and Mark Rozell. Our website, thisamericanlife.org, where you can listen to our archive of over 600 episodes for absolutely free. Or download our shows, using This American Life app. This American Life is delivered to public radio stations by PRX, the Public Radio Exchange. Thanks as always to our program's co-founder, Mr. Torey Malatia. You know, he and his friends have always had suspicions about how I got to host this show. We all suspect he was put there for one reason and one reason only, to interfere with the Mueller investigation. I will neither confirm nor deny. I'm Ira Glass. Back next week with more stories of This American Life.