good morning, everyone. i am poppy harlow. >> i am john berman. thank you for joining us. this morning the fate of the president's most controversial acts is very much in question and the truth of one of his controversial statements is beyond question, really. later today three federal judges will hear arguments on the telephone on whether to reinstate the travel bans on seven muslim nations. this comes as the president says the media does not report terror attacks, which is not true. the president's nominee for education secretary, and vice president pence is expected to break the tie when the senate votes later today. a lot going on. good morning, joe. >> reporter: good morning, poppy. the president's false assu

assuretions throwing a wrench before us out on the west coast. that's the issue over the immediate fate on the president's order on immigration. three federal judges from the ninth circle court of appeals will hear arguments from the justice department and attorney generals from two states. >> i am in this for the long hal. i believe strongly and my legal team believes strongly the executive order is unlawful and unconstitutionnal. >> the president stoking fears, saying courts must act fast. the justice department urging

the court to reinstate the ban. >> he has broad discretion to do what is in the nation's best interest to protect the people and we feel confident. >> the president add phaupbishing the media. >> it's gotten to a point where it's not even being reported, and in many cases, the very dishonest press doesn't want to report it and they have their reasons and you understand that. >> reporter: hours later the white house released a list of 78 attacks the media ignored and many were covered by cnn and other media organizations. during the visit to the u.s. central command on monday, the president once again touting his election victory. >> we had a wonderful election, didn't we.

>> reporter: in an interview with fox news mr. trump opens up on his relationship with the former president obama. >> i can feel it. >> reporter: reflecting on the heated campaign and the historic moment the two men rode together to the u.s. capitol. >> we said horrible things about each other and then we hop into the car and drive down pennsylvania avenue together, and we don't even talk about it. politics is amazing. >> reporter: what is happening here at the white house, the president is expected to meet within the hour with members of the national sheriff's association, and some of the members will be people who very much support the president's policies on immigration. back to you. >> thank you so much and we will keep our eye on the white house because we are expecting those pictures soon. but for the meantime, let's talk

about the ban. laura, first to you, the mechanics of this hearing today, explain how it's going to work on the phone and who the three federal judges are and when we expect to get their ruling. >> we have two judges appointed by democratic presidents, the first judge, william camby, an appointee of president jimmy carter, and the second judge is michelle freeman, appointed by president obama, and then judge clifton, an appointee of george w. bush. they will get 30 minutes to argue their case by phone. >> jeffrey, other than the fact that i think a lot of america would be surprised that this is something done over the phone, and this is inevitably going to go to the supreme court, and one of the key questions is standing. does the state of washington and

the state of minnesota, do they have the right to bring this case? i think many would argue they need to argue irreparable harm to the state. how do they do that? >> it's an incredibly difficult case in many ways. it's always dangerous for so-called experts like me to predict, and this is more difficult than usual because you have so many moving parts and standing is one of them because states usually don't have standings to challenge the federal government, however there's an important precedent very recently when the state of texas and other states sued to stop president obama's immigration executive orders, and they were granted and they won and they stopped that executive order. i expect you will be hearing that if the standing issue is raised. >> the administration is arguing the president has wide latitude on issues of national security and immigration. for the judges to rule against the administration, they have to

decide what? >> they have to decide that that authority has limits, and the limits are imposed by statutes and the constitution. it's important to remember this is not just a constitutional case. the 1965 immigration law, which is really the most important immigration law in the history of the country said you can't discriminate against people coming into the country on the basis of national origin. that remains the law of the land. an executive order cannot trump a statute. this case could be decided on a statute without having to reach the constitutional issue. >> the interesting part of that is the fact that as many have been debating, does a family from yemen who never set foot in the united states have a right to any protection under the u.s. constitution, and what jeffrey is saying is that might not mattma

matter. >> that's the tricky issue. and as the attorney general explained, they are talking about citizens of washington and minnesota. their case is at the heart are people like medical students and facult faculty, and they are worried about losing revenue from those types. >> it could be the decisive step in the supreme court. >> that's what is so interesting, usually the supreme court is the last word, but as here as everybody knows, we only have eight members of the supreme court, and four democratic appointees and four republican appointees, and one side will win and the supreme court splits, 4-4, the ninth circuit becomes the law of the land. we are getting ahead of

ourselves a little bit. >> we have a big phone call first tonight. >> it's very weird that they are doing this by phone. it's not unprecedented -- >> and live streaming it. >> live streaming -- >> that's fascinating. >> so that's good. this is a big deal. i think they could have gotten plane tickets to get to sacramento or san francisco where they usually argue these cases, but they are doing it over the phone. >> let's hope they use landlines. >> thank you for being with us. that's the battle over executive action. what about the battle over facts? the president is now accusing the media of not reporting terror attacks, which is not true, but take a look. >> all over europe it's happening. it's gotten to a point where it's not even being reported, and in many cases the very, very dishonest press doesn't want to report it. they have their reasons, and you understand that.

>> after that, the white house released a list of 78 attacks that it claims were, quote, under reported. now for the truth, cnn, and many other news networks as well were on the ground covering those attacks, and just a few of them, nice, and orlando, and here in new york city not long ago. all of these attacks are on the list, and it was released yesterday from the white house. and with us assistant editor from the "washington post," and a national reporter for real clear politics. where do you think the president is getting that information? >> the president has a way, poppy, of saying -- he said this throughout the campaign and said it throughout the transition, he says it now, that i am hearing things, or people are saying and then doesn't back that up by

explaining the news source he gets it from or the internal source he gets it from or the data set he gets it from, and so he gives himself just enough room to say that, yeah, this is a conversation that is floating out there. i don't want to speculate on what is going on in his mind, but as you guys pointed out, all these terrorists attacks, orlando, pwrusels, paris, and just saying we think the press could cover these in a different way, and when the president says these attacks aren't being reported, it's feeding a narrative during the campaign, but it's simply not accurate. >> we are criticized for over reporting terrorists attacks and focusing on them too much. first you have to report what the president says and whether it's true, and in this case it's

not, and then you have to get to the why, why might he be saying this. what do you think? >> the former white house communications director tweeted a theory of her own about 30 minutes ago, and she knows how this game works in the white house, and the democratic white house, and the white house nevertheless, and her theory is the white house knew that we in the media would need to refute this claim, that these reports were obviously out there and it was easy to disprove, and by doing so we would revisit the terrorists attacks and the trump administration could use this as a tactic to remind americans of the terror threat out there. that's one theory out there, and as david said it's impossible to know at this stage what donald trump was saying when he said that and what the white house was saying, and it could be a useful tool to remind americans there have been dozens of attacks over the years and maybe they forgot about those. >> that's an interesting point.

david, to build on that, do you believe there's merit to the argument that perhaps democrats in fighting this travel ban so much could look weak to some and could look like they are not, instead, proposing an alternative? >> yeah, that's possible down the road. i don't think democrats are in danger just yet, but they are pushing back and not letting the trump administration enact these orders without any resistance from the democratic or ant anti-trump side, if you will, and as we get toward the 2018 mid-term elections, it could give republican candidates a campaign issue. if you look at the cnn orc poll from the other day, almost 9 in 10 trump supporters liked the muslim ban, almost 9 in 10 who

opposed trump did not like the muslim ban, and both sides are playing to their base. >> on a much different note, if you will bear with us, and we just got photos that are extraordinary. the former president of the united states -- that's not him. that's richard branson. there is former president, barack obama, learning how to kite surf. these two guys are having a blast. apparently the president went thereafter he went to palm springs. and there's richard kite surfing, and you will see the former president trying it, and i don't know if there's deeper meaning -- >> didn't branson say the president won? maybe he let the president win in their kite surfing competition? >> i think any of us could agree a two-term president deserves a little break after he is finished with the taxing job,

and george bush had painting as his thing. >> he said i could not surf for eight years and endanger himself, so now he gets to hang loose. >> good balance. >> guys, thank you very much. straight ahead for us, it's the democrats' hail mary. there chance to stop many any of the president's nominees. they have been fighting all night. and not the only battle on the hill. senator marco rubio telling cnn he has a new warning if there is any attempt to try and end the sanctions on russia, straight ahead.

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and that's democratic senator, and he has been up all night in the senate and they are trying to tank the nomination of betsy devos to be education secretary. as of now we believe the vote in the senate is split 50/50. >> if it is, indeed that, the vice president, mike pence, would have to cast a tie-breaking vote, something never before seen in history for a cabinet pick. but one democrat on cnn last night said there may be another republican defector willing to vote against devos in a few hours and that will completely change the game. we will see. >> reporter: that would certainly change the game and that optimism was expressed by the senator from michigan, and she said maybe we will be able to find another republican to sink devos's confirmation, but the reality at this moment at

this time they still have not found another republican to come around and break ranks, meaning this is headed towards betsy devos being confirmed as the education secretary, and democrats are taking one by one launching broad attacks against betsy devos. the reality is setting in a bit because we are hearing from some democrats saying the writing is on the wall, and they have not picked up additional republican support, as something we heard murphy say today on "new day." >> republicans are reluctant to break with donald trump the first few weeks, and they have not been able to challenge him on this reckless and illegal muslim ban and not willing to challenge him on nominees that they know in their heart of hearts are not qualified and they are trying to co-opt him to

get their agenda done, and repeal obamacare and they don't want to risk upsetting him to get their right-wing economic agenda through later in the year. >> reporter: the vote will happen around noon today, and the republican leadership are confident devos will be confirmed and go through, and they do need the support of vice president, mike pence, who will be headed to capitol hill to cast a tie-breaking vote. this is a first, guys. never before has the vice president casts the deciding vote on a cabinet nominee. >> you will want to watch cnn when that happens. >> we will have it here. the president is facing new pressure this morning from the senate on russia and that coming from within his own party. marco rubio issuing somewhat of a threat. and we have the scoop from capitol hill. what did he tell you? >> reporter: there is a real

flash point between republicans and capitol hill and the administration, and the republicans want to take a firmer line on russia and putin than, say, president trump does, and donald trump seems to equate what vladimir putin has done in russia with what united states has done in the military operations overseas. marco rubio who is a member of the senate foreign relations committee supports stiffer sanctions on russia and is warning donald trump and the white house if they were to roll back the sanctions if russia does not pull out of ukraine, they may rollover the white house. >> there's a real threat of lifting sanctions, minus putin meeting the conditions, and we would be able to pass that in the senate with a veto-proof majority. >> the question is when does that happen? right now the republican leadership in the house and

senate have not scheduled the votes on any legislation, and i am told one reason why is they want to continue the investigations happening behind the scenes with the intelligence committee looking through the russia hacking allegations and allegations of russia manipulating the united states elections, and those happening in a classified setting and i am told they are trying to move rather quickly so we will see if they move quickly a sanctions as well. >> thank you. also this, making headlines. president trump says he may not, actually, tax companies to pay for the mexican border wall. he said this in his interview with fox's bill o'reilly. this is a big change. we go to our business chief correspondent. >> you have figured out what kind of tariff you will levy on

mexico to pay for the wall? >> we might not have to do that. they want to negotiate a deal and i want to negotiate a deal and we will see what happens, but we can always do a tariff or tax if necessary, and we will do that if necessary. >> if necessary we will do that. there's a lot of parsing of what he meant and whether he will stick to that, quite frankly. how he will impose a tax on mexico to pay for the wall or impose tariffs for jobs shipped overseas. >> is that an about-face to you? >> i am not going to hold him literally to those words right now, and i will tell you why? wall street has not. they pressed the pause button on tis, and they are looking at immigration stuff, and the wall stuff and tariff stuff and they said that's taking away from the policies, and you have goldman sachs putting out a statement

saying the trump rally may have peaked. >> what are the markets today? >> a little higher right now. above 20,000, but frankly i will watch gm. they just posted their best years of car sales ever, 10 million cars. and gm workers are getting a $12 million profit sharing, and that's a big gm story, and that's interesting in the world of the president criticizing for their overseas expansion and the like. >> it's also interesting how the tariff tax flip-flop, and it's hard to know. he said every variation of it over time. yes, he will issue a tariff -- >> he has been using those words in my view, it is almost interchangeably, and a border tax is different than a tariff. >> if there is any tariff or tax, it's not mexico paying for

the wall. remember that. >> all right, remember that. still to come, president trump's travel ban face a big test today as attorneys general come up. the future of your health care with bernie sanders and ted cruz, a heated debate no doubt tonight at 9:00 p.m. eastern, right here. >> maybe they can do something for my throat to give me my throat back. dr. cruz. this is my retirement. retiring retired tires. and i never get tired of it. are you entirely prepared to retire? plan your never tiring retiring retired tires retirement with e*trade.

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welcome back, everyone. john berman, here. >> i am poppy harlow. in just a few hours, a major showdown over president trump's travel ban. three judges today set to rule on if the ban should be suspended or take effect again. >> attorneys general filed a brief saying they agree with washington state and minnesota, and virginia's mark herring joins us, and thank you for being with us. >> thank you for having me. >> so the white house says this is a matter of national security, and the administration argues the law gives the president wide latitude to deal with immigration and to deal with issues of national security, and u.s. code 1182 from 1952 says he can if he

likes, issue, impose bans on anything he may think is an issue. how do you get past that? >> the president does have a lot of latitude and deference, but it's not absolute. there are limitations. just because president trump invokes national security doesn't mean you throw the constitution out the window. when we were in court in the virginia case last friday, the judge we had there recognized the very same thing, that those powers are not absolute, and the constitution is still in play and courts can review that. >> the constitution is in play and the argument you and the other states are making, the constitution apply to those who are not u.s. citizens, and how are you going to battle that? >> well, there are a lot of folks who are impacted and one of the things that our brief focus is on is the real harm

happening in the states as a result of the executive order. we have got students who were here and can't travel abroad for fear their visas will be cancelled. we had one student from george mason university was traveling overseas and got trapped and was in turkey for almost a week until she got back, and there are businesses that have employees that are unable to travel. it has real harm and real impact in states, and thousands and thousands of people are impacted by this. >> what about the people, though, who have never been in the united states, whether it be refugees or people seeking visas? now the administration in their brief said maybe they are willing to split the different, maybe come a little closer to where you are, and maybe the students here, maybe there would not be restrictions on them.

>> the administration's position is shifting all over the map. one minute implies to lawful permanent residents and sraesa holders and student and workers, and then it's maybe maybe not lawful permanent residents, and it's constantly shifting. i think that points to the real chaotic and haste leeway this was put together and implemented. it was real chaos when it went into affect. i was at dulles airport when this went into effect and it was complete chaos. i remember a woman grabbing me by the coat begging and pleading for help because they had her 5-year-old son, and this

restraining order should be lifted in order to unleash that chaos all over again, and the good news there's a calm to this. >> this is an interview from a student who was almost banned from attending her graduation, and tell us about her, and how washington state is making the argument that this does irreparable harm to the state itself. individuals who are american citizens would have standing in the courts, no question. it's a more dicey argument to make that the state has standing because the state itself has been harmed. >> well, the student is a 23-year-old student at george mason university. she a delightful accomplished young woman and she was the one that was traveling overseas to visit family and could not get back in and was stranded. it was so nice to be able to welcome her back, and say welcome back, and glad you are back at school, but it was

heartbreaking to hear that while she had planned on getting a master's degree in this country after what happened to her, she may not get it here now because of the experience she had. i think it's also important to recognize that she sees the goodness in americans that came out to support her and welcome her back. so i think that's the example of the kind of harm that we are seeing, and it's not just on individuals and families being separated, but there's real economic harm being done all across the country, including here in virginia. we have got students who are planning on attending and are withdrawing their phreuapplicat. the governor, i heard him say the other day, there were a couple businesses planning site businesses and are now canceling those. and there are employees and students and scholars who were planning on going to conferences to present their work and that has been canceled. if students from those countries

are unable to attend universities here and the researchers are losing their grants and there's real concrete tangible harm to the states, and that's one of the main points we are making in the brief and why we are fighting so hard as well as all the harm it causes families from being separated from one another. >> we will see if those three judges agree with you. those arguments come tonight and we could get a decision tomorrow night over in the morning, and thank you so much for being with us. >> thank you for having me. still to come for us, fighting in eastern ukraine. was russia involved? president trump not so sure. internet dial up sound hi, i'm the internet. you've got mail! what did you think i'd look like? i'm wire-y. uh, i love stuff. give me more stuff. (singing) we're no strangers to love i love that! hey, i know a bunch of people who'd like that. who's that? the internet loves what you're doing.

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not so sure rain showera has -- russia has anything to do with separatist fighting right now in eastern ukraine. here's how he put it. >> within 24 hours you are on the phone with the russian

leader, and the pro-russian forces step up the violence in ukraine. did you take that as an insult? >> no, i didn't because we don't know exactly what that is. they are pro forces, are they uncontrollable or controlled, and we will find out. >> we don't know if they are controlled or uncontrolled. joining us from moscow cnn international correspondent, ivan watson. that's what we heard from russia, these are not our guys. >> reporter: that's right. the state department in the past published satellite imagery of what they say are heavy weapons crossing the russian border into eastern ukraine to support the separatist there, and i myself have reported on russian citizens, and russia makes no

secret about the fact that at the very least it sympathizes with the separatists but insists it's not sending its own troops across the border although some russian soldiers have been captured in eastern ukraine, and at that time moscow said they had taken a wrong turn and accidentally ended up there, and the statement by the u.s. government will be of concern of the government in ukraine who is looking for help for the rain shower -- russian those. >> they are trying to, quote, restore peace along the border, and does he have a full understanding of where the conflict is taking place, and it's not along the border but in

eastern ukraine and crimea? >> reporter: we are getting mixed messages from the trump administration. it's clear that president trump is going out of his way to avoid offending or angering on the russia and ukrainian issue, but his new ambassador to the united nations, nikki haley, she came out last week last week condemning russia and saying sanctions will not be lifted until she describes what is the occupation and russian invasion of crimea that has been annexed to russia, and there's mixed information coming out of the trump administration as to what is going to be the trump policy towards this conflict. >> a lot to discuss with us now,

retired lieutenant general, mark kurtling. the fact that he says we don't know what these pro russian forces are doing, or if they are really backed by russia? >> when i heard that interview, poppy, i about fell out of the chair. there are reams of intelligence data showing this fight is going on for over a year, and russia is supporting it not only with troops on the ground and across the border, and there have been radar tracks of russian artillery firing across the russian border into ukraine, and there are vehicles moving back and forth across the border and there are photographs of that, and the intelligence community knows, and the president will go to the european command, and he will be showed all the data we

have. >> he may have seen that data already, but the choice of language he used is something very specific on the diplomatic community, and speaking of language, the supreme leader of iran issued a statement about the president, you know, poking fun at the president in a way, and a harsh, if you want to interpret it that way. he said we thank the new guy in the white house to divulge the true face of the united states, and the question is when does it go from that to something that is dangerous? >> i think you have seen that. that has happened over decades where the supreme leader will say something about our president that is not very complimentary. no big surprise there. anytime you open up other countries to say these kinds of things for either good or bad purposes, it's not a very good issue. that's what mr. trump has been doing by saying some of the statements.

it gives more fodder for these kinds of dictators, in this case, the supreme leader, to say things kinds of things and you have to be careful with the political language. >> and we have a raid in yemen, one u.s. navy s.e.a.l. was killed in that, and it was an intelligence gathering mission, and the mission from the white house was also in addition to getting intelligence was also to try and kill the leader of al qaeda in the arabian peninsula, and not the sole mission but part of it. the fact is that it was not known is not odd, but what do you make of that information it was trying to get the head of al qaeda? >> this was a high-risk mission. they were going for kill/capture, and it was made known as they sent the team in. if you have any experience, you can see the size of the force

that went in was certainly a high-risk mission, and it was more than just capturing a big player, and you determine patterns of life and movement and that's what they were doing with him, and this should have been a big target, and should they announced the name? no. but there's a reflection -- >> now, he is tempting the united states in the audio message. >> he's who you want to go after. >> yes. foreign policy and cabinet confirmations probably not on former president obama's mind. that's next. ing new has arrived. ♪

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work hard, then play hard. that appears to be president obama's new mantra as he is out of the oval office. ♪ >> so apparently that means work hard for eight years as president and go kite surfing with richard branson on a private island. that was the president of the united states. there's richard branson. pretty remarkable video. alison kosik joins us. not every day you see a former president kite surfing. >> not every day. when you see this, it really

makes you realize he was able to leave those political tensions of washington behind and say hello, paradise. not such a hard move to make when you're invited to sir richard branson's private island in the virgin islands. you are looking at the video there. we just learned out of this visit on a blog branson wrote about saying at the end of january, president obama arrived. this is after he went to palm springs after president trump was inaugurated. he arrived telling him a story that just before he took office, he was surfing in hawaii and made a dangerous -- and had a dangerous wave and, obviously, almost got into trouble. his security detail says, mr. president, that's going to be the last time for the next eight years you're going to surf. during his time in office, president obama didn't get a chance to go out and do these extreme water sports let alone surfing. now that he's had the chance he was invited by branson to his private island and they had a friendly wager. president obama wanting to take

up kite surfing and branson wanted to take up something called foil boarding which is what you saw him kind of above the wave there. they figured at the end of his trip they'd see who could go the farthest. guess who won? >> i think, you know, sir branson might have given the president the pass and let the president win? >> it looks like president obama went farther than branson on their new extreme water sport activity. >> the first lady was getting down, too. >> she's not in this video. doesn't mean that she didn't get into it. >> we might have some photos. >> i have to say. that's a first world problem if you're choosing between kite surfing and foil boarding, whatever it is. >> foil boarding. it's when you are above the water kind of on this hydrofoil below the water so the board can leave the surface of the water. in my opinion, foil pooboarding like surfing on steroids. kite boarding. >> you know what he's not thinking about there?

the debt ceiling, budgets. he's not thinking about anything other than kite surfing. alison kosik, thank you. the next hour of "newsroom" begins after a quick break. the people in here. do h their training is developed by the same company who designed, engineered, and built the cars. they've got the parts, tools, and know-how to help keep your ford running strong. 35,000 specialists all across america. no one knows your ford better than ford. and ford service. right now, get the works! a synthetic blend oil change, tire rotation, brake inspection and more -- for $29.95 or less. to explore their family history with myheritage.com now we'll see what happens. these are my great grandparents. and ten thousand relatives i didn't know existed. i've never gotten really this far. myheritage.com sign up for free today. i'm all-business when i, travel... even when i travel...

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good morning. i'm john berman. >> i'm poppy harlow. 10:00 a.m. eastern. the president facing critical tests in both policy and personnel. later today, three federal judges will hear arguments on whether or not to reinstate the travel ban on individuals from seven muslim majority countries. today's hearing to be conducted a little oddly over the phone may well set the same for a fight at the supreme court level. president trump again lashing out at the media falsely claiming the media did not report on a number of