tv CNN Tonight With Don Lemon CNN February 9, 2017 8:00pm-9:01pm PST
[ bleep ]. [ bleep ] [ bleep ] [ bleep ]. >> [ bleep ] [ bleep ] [ bleep ]. >> tits [ bleep ] [ bleep ] [ bleep ] mother [ bleep ] oh, my god. our breck news on cnn, a huge setback for the trump white house, president losing a major decision tonight hon on his travel ban but that's not the end of it.
"cnn tonight," i'm don lemon. federal appeals court rules 3-0 against the trump administration. people from seven banned countries can now travel to the u.s. despite the executive order last month. fight likely to go to the supreme court. president tweeting see you in court, security of the nation is at stake.
plus kellyanne conway is counseled for what she said was free commercial for ivanka trump's brand. and twitter attacks on richard blumenthal and john mccain. is white house running wild or is there a method to the madness? we'll discuss all of this. pamela brown, mark preston. laura coates. alan dershowitz, f. michael higgin both am at university of baltimore
and constitutional attorn attorney paige potaaid joins as well. super uber panel. you've been digging into the court documents. complete repudiation of the travel ban. >> it certainly is. big blow to the trump administration and three judges repudiated the travel ban saying
in 29-page opinion that the government failed to provide enough evidence to support why this travel ban was necessary for national security, the urgency of national security as we've heard from the government and president trump specifically saying this is about national security. that's why we had to roll this out quickly. talked about the fact the government failed to show why the seven countries listed in the travel ban pose such a threat. and at one point the court says does give deference to political branchs. executive and legislative, with national security and immigration, it had every right to review the case. during the oral arguments justice department argued should be matter left up to the president because it has to do with national security. and also interesting, court also said a more narrow version of the travel ban that doj gave as
compromise option only to apply to people who have never stepped foot in the u.s. could be prommic problematic as well, important to know if they want to rewrite it. one step in long legal battle. >> mark you're in washington. lots of sources. it's fair to say a major setback for president trump and his administration. what is your reaction? >> politically a terrible week and day for donald trump. we have to note that a lot of this is forced errors on his part and his administration's part. didn't have arguments together coherently. we know the travel ban was haphazardly rolled out. right people not clued into it and written in way that clearly was able to be successfully challenged and coming on a lot of other things the trump administration is dealing with including as we've seen over the
past 24 hours where donald trump is talking about his daughter's clothing line and attacking a retailer on government account. not a good week or day for the trump administration. >> and no surprise, president wasted no time responding. >> it's a political decision and going to see them in court and look forward to it. >> you believe the judges -- >> we have a situation where the security of our country is at stake and very serious situation so we look forward as i just said to seeing them in court. >> he also tweeted see you in court, the security of our nation is at stake. in all caps. what do you think david? >> he's been making that argument and court said today, 3-0, including one judge appointed by george w. bush, no
liberal, that court unanimously ruled that the administration failed to produce the evidence that was persuasive on that point, on the national security point. there was nothing that the court could give deference to. that's been a major short kming all along. and from political standpoint, the court said look, we're worried what is behind this ban. sounds like it might be religious discrimination against muslims. where did they get it from? not from what the administration was saying but donald trump saying all through the campaign he wanted the ban and rudy giuliani just recently said rudy how do i get this done? went to work. here's the executive order. and court drew from that the inference this was intentional. to go back to mark's point, some of the downfall here is rooted
in things that went on in the administration and things failed to do. >> another error from rudy giuliani, he had one in the campaign as well. alan to you, talking about whether it's political or not. trump claims the decision is political but have to point out unanimous decision, from three judges, carter, bush and obama appointee. is this ruling based on politics do you think? >> i don't think so. i don't think it's a particularly strong ruling. court went out of its way to get to the merits and presented a relatively weak argument on the merits but trump administration has been outlawyered in every court and done a terrible job presenting their case legally. now they have several options. appeal to the supreme court, probably the stay will be denied. go to end bank and probably denied. best option is either to
withdraw this flawed executive order and substitute a new one worked on by new attorney general to satisfy constitutional muster. >> or leave it. >> bring in a new one and start in a different circuit. if affirmed by 4-4, it's more likely a victory. but i don't think going to do this. have not been subtle or sophisticated and trump's ego is going to get this the way. >> that's been an issue all along. so far been able to get away with it. lot of folks to get in here. play what happened when the justice department's lawyer argued trump has the authority to make this order. >> are you arguing that the president's decision in that regard is unreviewable? >> the -- yes. what we're -- there are obviously constitutional limitations but we're discussing
the risk assessment. >> in this, that was one of the main arguments in trump's decision about immigration when motivated about national security concerns unreviewable. read part of the ruling. national defense cannot be deemed end in itself justifying any exercise of legislative power designed to promote such a goal. would indeed be ironic if in the name of national defense would sanction the subversion of one of those liberties which makes defense of the nation worthwhile. what does that mean? >> from oral arguments, judge friedman. one of the longest pauses i've seen when the government finally said yes. at least two judges with arguments, three at end, really bothered by that question that the administration said no, it's not reviewable.
the administration here had to prove that national security concerns justified reinstating this executive order and they weren't able to. even in footnote, said didn't submit classified information, even try there. one of the substantive parts. dating back to the oral arguments. >> paige, what do you think? how does it set up the appeal. >> it's difficult to know what the trump administration is going to do at this point. there must be tension between the white house and department of justice because the department of justice was not prepared to make their best argument at ninth circuit. question you just played, i can't believe the lawyer not prepared to answer that question, didn't have something out of the box to explain why this particular order was not few reviewable, and judges didn't want to hear that.
single most important thing about the order, unanimous panel of circuit court judges saying we can review what a president does in the area of immigration even if the claimed reason for the action is based on national security. that's incredibly important concept. so i think by taking up to ninth circuit too early without a full record developed in the district court, not only lose and not accomplish what they wanted but shot themselves in the foot. now the states washington and minnesota have a road map, how to go back, make the constitutional arguments even more solid and continue up through the courts. >> here's what the governor jay inslee told cnn earlier. >> saw say tweet see you in court. we saw him in court and got beat. and robust well-considered
decisions. four judges made them. two appointed by republican president. this is checks and balances in operation. the president needs to understand that the constitution rules supreme. >> michael, is he right? >> i think the governor is absolutely right. and as most speakers have said, it was bad day for the president but good day for america, for independent judiciary, for the proper balance between security and liberty and most importantly, a good day for nonpartisan interpretation of the constitution. let me tell you what i mean by that, you had a very diverse ninth circuit panel, i clerked on the ninth circuit, know it well, it's big, diverse and leans to the left. this panel, you had a carter appointee, a george w. bush appointee and obama appointee. they all unanimously agreed, rejected the arguments of the federal government, all three arguments rejected.
and that coupled with judge robart, a george w. bush appointee, two judges democrat, two judges republican, shows nonpartisanship and that's good for the constitution. >> laura many called this a ban on muslim refugees even though the white house insists focus on seven countries pose the greatest risk for terrorism. >> the states offered records of numerous statements by the president about intent to impose a muslim plan and claim that suggests that the executive order as intended to be that ban. >> not only was the president's action reviewable by the court but for things like discrimination. trying to assess whether or not you can look behind the intent of a statute or order.
courts often do this. legislative history is often a guide and candidate trump's speech could be -- pretext for discrimination and would violate the established writ clause. trying to establish at this time. one of the major hurdles, i think they covered successfully, was that you can review an order. and precedent. cases back to japanese intern mts camps and denying passports to communists. long history of checks and balances placed on the president of the united states and his orders. this is no different. but let's not get too cocky too fast, this is victory but if the supreme court decides to take this case, ultimately deciding on the constitutionality, standing could be revisited and
just because the ninth circuit found it, doesn't guarantee the supreme court will find it. still have to be patient and guard our emotions with this issue. >> breaking news i need to report. white house says that president trump spoke at length with china's president tonight agreeing to honor the one china policy at request of president xi, described as extremely cordial, first time two spoken since trump took office. mark and david? >> big foreign policy news given the fact that donald trump had actually spoke wen taiwan and one china policy david can speak to in more detail because been in administrations that have to adhere to it. idea that united states recognizes china as one china and not two governs.
taiwan being rival government. still diplomatic relationships between the u.s. and taiwan but a level of respect that u.s. afforded china that china has been concerned about. >> big deal. after the election spoke with the leader of taiwan and china didn't like it. >> this is a victory for the new secretary of state rex tillerson. background is president and donald trump had a call and chinese president congratulated mr. trump and haven't spoken since in large measure apparently because trump was holding out taiwan and one china questions as negotiating emplpl to get the chinese to do other things. back off in exchange for concessions on trade but xi and
chinese said not going to talk to mr. trump until he publicly backs off or gives us assurances he's not going to abandon the one china policy. then we'll start talking to him. rex tillerson went to the white house today to make that argument, been reported during the day, make the argument we need to talk to xi, can't let this languish, got to affirmatively embrace the one china policy. that's what tillerson got the president to do and got the relationship back on track to the extent of telephone calls with each other. that's good news i think for the relationship because tensions have been rising rapidly. >> talking more about the breaking news and ninth circuit court of appeals withholding the ban. ban, team pramporary restraininr
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federal appeals court in unanimous decision refusing to reinstate the president as travel ban. president vowing to see you in court. back with my panel now. pamela back to you. now that the ninth circuit court has ruled, what happens next? >> couple of things could happen. as we know the department of justice is looking at opinion
released by the ninth circuit court and trying to figure out what the next step is. appeal to enbank, essentially ask judges of the ninth circuit to review the case or appeal to the supreme court. as you know, eight justices in the supreme court because scalia's seat hasn't been filled. if 4-4 split there, what the ninth circuit court ruled today would stand. so number of options. as we discussed, the administration could go back to the drawing board with the executive order and rework it or start new. a number of things could happen from here. but as you heard president trump say today, insinuated, legal battle will continue and see you in court. >> jim acosta caught up with kellyanne conway. listen. >> he sees it as what he's
always seen it as, statute provides president trump with great latitude and authority to protect the nation's national security. not argued on the merits and now we'll have the opportunity to do that. look forward to prevailing. tweet was perfect, see you in court. >> the president made it clear he's going to fight this. do you see them taking this to the supreme court and how quickly could it happen? >> going to have to make a decision. they could try as pamela said, try to get a larger panel of judges at ninth circuit to look at this. hope that a larger panel might decide differently. if they do, true. go to the supreme court. justice anthony kennedy has jurisdiction over the ninth circuit so he could refer to his colleagues and look at it quickly. but remember no court has yet
ruled whether this is constitutional or not. nobody said yes it's legal or not. still at preliminary juncture right now. >> paige? >> i'm shaking my head. thought it was too early for the government to take to the ninth circuit, way too early for the supreme court. would be very surprised if the supreme court accepted the case at this point because as we pointed out lrkalready, don't h a decision on the merits. all temporary relief, tro, preliminary injunction, the last thing supreme court wants to do is review that type of order. let it go back to the district court, have the arguments. if in the meantime the white house wants to draft a better, constitutional order, let them do that. way too early. >> the trump administration has a real dilemma. they have a winning argument on the merits ultimately. this court's decision this is
muslim ban will never stand. the supreme court will not give weight to the fact that the president during his campaign talked about a muslim ban or rudy giuliani did, not going to fly in the supreme court. standing argument probably won't fly. it's most extreme standing argument i've ever seen made. argument that because you exempt religious minorities establishes a religion is absurd. war rfgy interact 1934 applied tonal jews because victim of nazi -- that was constitutional. they have a hard case but going to take months and if president really believes security of the country is at stake, has to do something now. can't wait. >> got it. laura why do you disagree? >> first amendment, establishing clause as you well know, says that united states is
denominationally neutral. don't prefer or advocate for a particular religion and there's a clause in the order that says will give -- >> that's the right thing to do. >> that in itself may multiple religions but don't prefer one in the constitution. so would be issue. >> you prefer victims, persecuted people. >> going to finish my point. preference is supreme court would prefer that any executive order comply with the constitution as do i. the idea that would be absurd the most egregious case of standing issues ever seen is misleading given the fact last year a texas district court presumed standing in the dreamers case andal at disadvantage figuring out if supreme court would have agreed there was standing. only 4-4.
didn't get -- >> different case. >> david. >> i think alan dershowitz has a compelling point. president has said it's urgent we have more control over the borders, national security threats. so alan's point about what he's calling for, revoke and replace. similar to what they've been talking about on obamacare. republicans. but know the president wants to challenge it in court so alan's argument, many of us feel president won't use those grounds. but president could do what he's saying, go to court on this executive order. in the meantime what we're calling for was a pause in order to re-examine our policies with regard to the vetting processes so use the next few weeks while the court is haggling over this,
work with democrats to come up with new executive order, that's a long-term, no not a pause and answer for the long-term. >> you realize you're talking about the trump administration right? >> pass muster. >> you're absolutely right the president has the prerogative to decide national security but not without checks and balances and could be perhaps compelling argument in favor why we can't return to the pretravel ban vetting procedures but the responsibility of the court is not pull those justifications out of the air, you must present them. >> but new order could put in -- >> that's true. you could do that. >> that's what alan is arguing. >> you do but that did not happen. that's why to accuse the court of having bad decision would be premature given that the justice department failed to make those
arguments and raise those things. >> michael, do you want to add to this? >> absolutely. i think what the court has said is president has great discretion, particularly in national security area, and when congress authorizes the president to act, the courts will give even more deference. that said the courts will make the final determination. there were many cases cited by the ninth circuit that talked about how even if it's national security, the court will have the final determination on interpreting the constitution. so it doesn't matter that the president says this is about national security and congress has authorized it, the court will make that determination. and they made it very clear that if there is discrimination going on, the court will say that is a violation of the constitution. >> that's going to be the last word for now. you'll be back. see you later on.
hundreds showed up for this rally. more angry protesters outside. tell us what went on there. >> 1,000 people inside, according to the police 1,000 people who couldn't get in. crowd was angry, it was raucous, trying to send a message to the congressman, i'm going to stop talking here so you can feel what it was like inside that auditorium. >> there was no possible way i was ever going to vote for hillary clinton. no way. >> do your job, do your job, do your job, do your job, do your job. >> reporter: had to talk over all of that to answer questions. what is this? indivisible movement. started as downloadable spreadsheet cooked up by congressional staffers in december, seen grassroots groups
pop up across the country. thousands of them according to people who made the spreadsheet, goal shut down the town halls and take message and anger about the trump administration to the front door steps of these congress people -- >> is it obamacare? what is going on? >> reporter: generally it's not obamacare. what we saw in this particular meeting. has been other places. >> losing health care correct? >> reporter: some of it just angry is the overriding sentiment. not happy with the executive actions from the trump administration and want chaffetz to investigate trump. that's what we heard here. varies according to district. >> interesting, thanks.
back to the panel. grassroots groups coming together. saw that happening day after this president was elected and continue to see it going on. reminiscent of the tea party. what should folks in washington be looking for? should they be concerned about this? >> if you're republican no doubt. go back eight or nine years ago with barack obama trying to get the health care bill through and democrats went home that summer and couldn't show up at town halls. very similar to what we saw right there. proved to be effective for republicans and those against obamacare, having said that, able to get it through but electoral consequences for that. jason chaffetz showing that
picture was good indication of what we're going to see across the country. part of this organized by groups opposed to the republican repeal and replace call. part of this is very grassroots driven through facebook and community organizers. so i think what we see right here is certainly the lack of civility and anger that we saw in the republican side that generated so many electoral wins, now seeing on the democratic and liberal side. >> thanks for responding. keep an eye on that and that plays into this too, upset what is happening in washington, according to kyung lah with the trump administration. one of the people he's nominated. person for supreme court justice is judge gorsuch, the president denied in meeting with him and gorsuch and richard blumenthal, denying account of the conversation with a judge.
listen to what blumenthal said. >> i said to judge gorsuch that i find these attacks on the judiciary absolutely abhorrent and unacceptable. and i asked him to express his criticism. and to condemn these kinds of public attacks on independent judiciary, at that point after back and forth he did say that he found them to be disheartening and demoralizing. >> that was last night to anderson and confirmed by fellow senators from both parties and by ron -- the spokesman appointed by the white house to handle the nomination. the president is going against the message sent by his own team handling his supreme court nominee. >> contra dicting what we heard from capitol hill about the
conversation with judge gorsuch. what is interesting is sean spicer was trying to thread this needle saying misrepresentation because judge gorsuch was speak generally. disheartening and -- >> let's play it. >> the judge was very clear that he was not commenting on any specific matter. there's a big difference between commenting on specific comments that have been made and tweets and his general philosophy about the judiciary and his respect for fellow judges. >> what does that mean pamela? >> he's saying look he wasn't talking specific to trump's tweets. judge who halted his ban was so-called judge or hearings in the ninth circuit disgraceful,
that in general if anyone says things against the judiciary, as attack on all judges. threading the needle. you've heard from the other senators they want judge gorsuch to come out and publicly condemn donald trump about the comments he made. that hasn't happened. tried to ask questions about it on capitol hill and he wouldn't answer questions. his confirmation hearing is weeks away and senators will press him. puts judge gorsuch in awkward position i don't believe we've ever seen before. >> ask you does the- and saying that senator blumenthal who never fought in vietnam -- he had major lie, now misrepresents what judge gorsuch told him.
does this tweet and what sean spicer said make sense? >> no. sean spicer, i think rightly said he was trying to thread the needle. some won't thread. in this case the think the president -- given the fact his own representative had corroborated exactly what he said, and the other senator corroborated it, you would think the white house instead of putting credibility on the line yet once again and have it shot down once again, take larger side and praise gorsuch for independence of thought, saying exactly what he wants on the court. this is not only going to play into his hearings but we've had a lot of evidence in the last 24 hours this is helping his
ultimate confirmation because it's giving proof to the fact he is more independent minded person. why doesn't the president just celebrate that? >> that's a good question, david. news keeps coming. we'll continue right after this. . so start your search with our teams of specialists at cancer treatment centers of america. the evolution of cancer care is here. learn more at cancercenter.com/experts
things ivanka trump's brand. discuss with david gergen and larry noble, general council for the campaign legal center. good evening to you mr. noble. thanks for joining us. david welcome back. play what kellyanne conway said on fox news this morning that's causing such a stir when she was asked about ivanka trump and her clothing line. >> guy buy ivanka's stuff. i hate shopping but going to get some myself. it's wonderful line, i love it. give a free commercial here. go buy it everybody, you can find it online. >> your reaction? >> mr. noble can speak more eloquently about the ethics laws and rules but seems clearly over the line. white house official is not supposed to be hawking
merchandise for somebody. long established. what is striking don is go back to the town hall of jason chaffetz that you just reported on. crying in for him to go back and investigate the trump administration as we heard. earlier today, just what he did. announced he was going to have hearings with the house oversight committee. he's chairman and rising republican star and going to investigate this question, referred to ethics investigation about ivanka trump. that's a big break for republican from republican nangs bill crystal has been pointing out. >> former white house officials say that kellyanne conway's endorsement on tv of the ivanka trump brand breaks rules governing the employees. is that correct and what should
be done? >> it is correct. as david said, the rules prohibit a government employee from promoting private product using government time and resources and official status. no question that's what she did. said giving a free commercial to ivanka trump and said go out and buy it, in the white house when she said it and appearing on behalf of the white house. that's clearcut violation. what should be done? normally the boss in the situation should decide what disciplinary action should be taken, letter to reprimand to losing job. all we know from sean spicer is she was counseled. nobody knows what that means. and chaffetz sent a letter
saying should be investigated. showing the republicans are getting nervous that the trump white house is not in control of the ethics issues. >> play this first and you can respond. kellyanne conway responded. >> i'm not going to comment on that narmartha, nothing more toy about it. >> the letter from chaffetz and cummings in the house to the kboft ethics board. they say consider that potentially a serious violation of the government ethics code. we're reviewing that internally. i'm just really happy. i spent a lot of time with the president of the united states this afternoon and he supports me 100%. >> you spoke about that matter and he is not -- doesn't have intention to suspend you? >> spoke about a range of matters and he supports me 100%. it was heartening moment.
all i can say to america's women, at some point in your life you ought to have a boss that treated me the way the president of the united states treated me today. >> david. >> i think i admire people who are loyal to employees under the fire. good for the president to defend her. i don't know what they mean by counseled. but there's a larger pattern that is importantment not only did kellyanne conway go out to hawk the products but president sent out tweets about how badly ivanka was treated by nordstrom's and information about melania the first lady looking for marketing opportunities in lawsuit. may into the be illegal but tacky. just haven't had a situation i
can ever remember in which remembers of the president's family are -- immediate family, such an honor to be in the white house, privilege to be in the white house. we all look to them to be models of behavior, and taking advantage of these years commercially just seems to be -- it's a strange path to take. >> larry, in reference to kellyanne conway, just to be specific, did she break any ethics rule here? >> yes. i think she did. broke the ethics rule and most experts have said that. fact that the white house has at least felt the need to quote counsel here says that. but i agree with david. bigger picture here. goes back to the beginning when the president was asked to dive divest himself of business interests and said could
separate shichl and not manage them and ivanka trump said wouldn't manage her business but especially with the tweet against nordstrom's not mentally divested. so when business deal doesn't work out way they want for her company, he immediately attacks nordstrom's. what is the message? any business doing business with trump company has to worry about whether or not it doesn't work out, going to be attacked on twitter? this is really a bad message. and really does go back to the initial question, he should have divested himself of the interests, separated himself from it. having not done that, he's showing that his promise to stay out of it means nothing because he's getting involved even on relatively small matters, about whether or not nordstrom's continues to carry her brand. also turning it into attack on
himself and his policies. sean spicer said it was attack on his family and >> that was not performing well. we warned the american people and informed them about this and the administration and yet here we are. thank you, gentlemen. we appreciate it. >> thank you. it's an important question you ask, but one i think with a simple answer. we have this need to peek over our neighbor's fence. and once we do, we see wonder waiting. every step you take, narrows the influence of narrow minds.
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it has been a day of breaking news and here to discuss all of it, cnn political strategist and cnn commentator andre bauer and ceo of the global magazine, ozzy. let's talk about this trump administration dealt a blow from the ninth circuit. what's your reaction? >> they were off base in their ruling, but that being said, president trump me ins to look at the best way forward for me. the best way is to either reissue the order or let it play out on the merits. he should be talking about his tax reform package. we don't want another blow with four liberal justices. don't appeal and that is the best move. >> do you agree?
>> the number one job is to keep the country safe. 90% turn over and they are about like the 2008 baltimore colts. they go without a win all year long. >> carlos watson, this is a stunning defeat for the president. what stood out to you? >> even the republican appointed judge pointed and also strongly sided with it and didn't want to get to the heart of several issues because they said it was so clear and sent to back to the trial court. >> maria? >> what was so clear is the courts dealt president trump what he needed the most which was a huge crash course in civics. that means he needs to understand that there are three equal branches of government. when you have your team tell an appeals court that whatever the president does is unreviewable, that does not underscore that you understand how this
constitutional democracy works and the court underscored that today. >> i did a story with an ethics expert with kellyanne conway and if she broke an ethics rule telling people to buy ivanka trump's stuff. what do you think? what is going on. this has been a week for kellyanne conway. >> chase even said this is irresponsible and unacceptable. he was fine with president trump defending his daughter. great. that's okay. when an adviser does it, they are subject to conflict of interest rules. >> with the video, he is giving a town hall in salt lake city and a big crowd showed up. 1,000 people outside that couldn't get in. they are upset about the trump administration and the affordable care academy being repeal and replaced and the ivanka trump thing. is this something republicans
should be concerned with and the trump administration like the tea party? >> i think very much so. a lot of of this got accelerated by a viral video with former democratic congressman and said the single most effective way to move a point of view is to attend the town halls. following the women's march and all of this, you will see more of it throughout the country. it was interesting to see the reaction. you notice he didn't look to defend the president on why saudi arabia and pakistan were not among the bans. he said the woman had a terrific question and i'm not sure where to go with it. this will be tough. >> as a republican and a trump supporter accident a er supporter, are you concerned? >> i'm always concerned about anybody. president trump is just getting start and delivering on a lot of his promises. they will be happy with a lot of picks he makes. >> i have to go. we'll be right back.
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our breaking news this hour, a huge set back for the white house. a federal appeals court rules president trump's travel ban will remain blocked. that's not the end of it. i'm don lemon. the fight likely to go all the way to the supreme court. president trump tweeting see you in court. the security of our nation is at stake. the ruling tonight is unanimous. the judges saying rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at