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Legal View with Ashleigh Banfield

Trump Calls For "Extreme Vetting" Of Immigrants; Trump Gives Speech Outlining Plan To Defeat ISIS. Aired 12:30-1p ET

Aired August 16, 2016 - 12:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ASHLEIGH BANFIELD, CNN HOST: Often she doesn't get as big of headlines because that usually not as bombastic or comment, you know, the trails when stages (ph) but that is a big issue and I'm wondering if you think that Donald Trump will be able to mine very eloquently the issues of what's happening with ObamaCare when it comes to Hillary Clinton?

[12:30:19] ERROL LOUIS, CNN POLITICAL ANALYST: I doubt it because what we've heard from him on the campaign trail from -- for over a year now has been repeal and replace. This is what everyone had said. This is the catechism that the Republican candidate also saying from. It doesn't make that much sense, it needs what you just described, it needs a detailed analysis of what has gone wrong, what that means and what the path forward will be. One more vote to repeal and replace is not going to do anything and I think people understand that by now.

BANFIELD: All right, Errol Louis, (inaudible) I appreciate it. Excuse me. I don't know if you can tell, I can barely speak today. But you're doing a great job of it for me, so thank you to all three of you. I appreciate it.

Coming up next, Donald Trump's plan for what he calls extreme vetting of immigrants and cooperating with Russia in the fight against ISIS. Is this going to work and will it pass the voters' test? We're going to talk about that in a moment.

(COMMERCIAL BREAK)

[12:35:35] BANFIELD: You've heard about Donald Trump's plan to temporarily ban Muslims from entering the United States, then now he is using two words to lay it out, extreme vetting. It was a key point in his big speech yesterday laying out this plan to fight ISIS or as he puts it, his plan to make America safe again. Have a listen.

(BEGIN VIDEO CLIP)

DONALD TRUMP, (R) PRESIDENTIAL NOMINEE: The time is overdue to develop a new screening test for the threats we face today. I call it extreme vetting. I call it extreme, extreme vetting. Those who do not believe in our constitution or who support bigotry and hatred will not be admitted for immigration into our country.

(END VIDEO CLIP)

BANFIELD: Joining me now, Ali Velshi, the global affairs economic analyst on our panel, Trump Campaign Senior Advisor, Kellyanne Conway and CNN Military Analyst General Mark Hurtling. Ali, I'm going to start with you since you're Canadian. I'm going to ask you, are you now or have you ever been a member of the communist party?

ALI VELSHI, GLOBAL AFFAIRS AND ECONOMIC ANALYST: Yeah, this ideological vetting is problematic because it doesn't work. People learn, everybody who wants to get into any country, learns very well from their lawyers or from whoever is informing them about the things that you're supposed to say and the things you're not supposed to say. So I think the idea that you ask people whether they support the Constitution, that makes a lot of sense.

It's pretty hard ideologically, we have bigots in this country and they're actually Americans, we have homophobes in this country and they're Americans.

BANFIELD: We have terrorist to murder people in this country.

VELSHI: Right, so it becomes -- by definition what he's doing is creating a situation where if you can't prove the positive then people don't come into the country. It's not a remarkable circumstance, it can't be done, it's a talking point, it's not an effective strategy.

BANFIELD: So Kellyanne, how do you combat that because that does sounds sort of anti-American, doesn't it, to say I'm going to ask you all about your belief. But on top of that it also sounds just kind of cookie. I mean, it's like that SNL skit where it was like the candy gram at the door and she wouldn't believe it until she finally opened the door.

KELLYANNE CONWAY, TRUMP CAMPAIGN SENIOR ADVISOR: Well Ashleigh, I'm with the 81 percent of Americans who feel less safe now than I did seven years ago. And so I don't -- I really don't want to just boil this down to caricature on a comedy show. It's a very serious topic and Mr. Trump covered a lot of ground yesterday in 45 minutes.

BANFIELD: But doesn't it sound silly to ask somebody, are you dangerous?

CONWAY: That is -- that wouldn't be one of the questions. When he says extreme vetting, he's talking about these countries where they're known for exporting terrorists, and we also know in this country, we don't have a very good vetting process and screening process in place. That's undeniable when you see things like San Bernardino, when the FBI falls down with the job of the lone wolf terrorist who killed 49 innocent Americans at a night club in Orlando. The idea and the key identifies the problem much like the way many Americans do --

BANFIELD: How do you vet that New Yorker who did that killing?

CONWAY: I'm sorry?

BANFIELD: That the killer in Orlando is a New Yorker, how would you vet someone who's already here, who just -- is in his basement, you know, looking at the internet? CONWAY: Well, that's different than what's he's talking about. I'm saying that people feel less safe now, because everything from coming in on a K1 -- fiance visa which lots of people didn't know existed and shooting up your co-workers in San Bernardino or the FBI falling down on the job with a lone wolf domestic terrorist in Orlando just looking the other way. I think many Americans are tired of just looking the other way when we see evidence.

But Trump covered many things yesterday. He also talked about how -- you have -- since 2002 ISIS and it's -- and the groups that proceeded had killed 33,000 people. But 80 percent of that has happened since the 2013 birth and growth of ISIS.

And so it's created a vacuum in these countries like Libya, Iraq, Egypt, Syria and Americans agree with that. And I think this new, you know, him laying out a pretty specific solution-centric plan on combatting the war on terror -- on prosecuting the war on terror frankly, combat terrorism. If somebody is going to resonate with many Americans frankly put national security at the top of many polls including CNN.

BANFIELD: So I want to talk about national security when it comes to NATO, and General Hurtling maybe you can jump in on this if you would. Donald Trump originally had said that he thought NATO was somewhat obsolete, said that too many people aren't paying their way for their fair share. And then it seems that though that was seem like they walked that back saying that he now plans to work very closely with NATO. Do you think the American voter understand the intricacies of NATO or these moving messages? Will really be a wash? Does it matter what we ultimately outline as our strategy with NATO?

[12:40:01] GEN. MARK HURTLING, CNN MILITARY ANALYST: Well, having spent 12 years of my career in Europe, Ashleigh, and no I don't want to speak for the American people in terms of understanding or not understanding NATO. It is challenging to understand the full implications of the things NATO does, but how they have been helping on the terrorism fight for the last 16 years when they first declared Article 5 after the terrorists hit the towers on 9/11. They have been in fact in the fight countering terrorism alongside U.S. soldiers. In fact, we're a third of the force in Afghanistan fighting terrorism.

So I just have never really understood what Mr. Trump is saying on NATO, when he condemned them a few weeks ago. And then right after saying he was going to be friends with Russia included NATO -- maybe NATO is not so bad because he implied they took his suggestion in changing their counter terrorism actions was just ridiculous to me. But it also I'm sure that it made several NATO countries, the 26 European NATO countries out of the 28 countries trying to scratch their heads, figure out what the heck he was saying because he's now supportive of NATO. But right before that, he'd said Russia was now his new best friend.

I'm confused and even going into the fact about vetting, it wasn't a good speech yesterday. There was no outline of specifics, as a military guy, I'm looking for that to say how do I execute my plan. And I think you could debate any area of vetting, NATO, Russia, fight against ISIS. The other interesting piece was the seven point plan that -- or six point plan Mr. Trump put out yesterday in terms of fighting, I'd love to debate him on that because President Obama has a seven point plan in terms of his lines of effort against ISIS and he's been executing it very well over the last two years.

(CROSSTALK)

BANFIELD: Well, one of those things you mentioned, Russia has become a more complex story. Each of the campaigns is accusing the other of being too cozy with Russia, and yet last night Donald Trump said he believes that we could find common ground with Russia. And in fact the Russians are now saying as well that they are working closely with the Americans in terms of how to deal with Syria. Is or is not Russia a bad word when it comes to this campaign?

VELSHI: Well, look, there's -- the truth lies in the middle here. Without Russia, we wouldn't have had the Iran deal. And some people say we shouldn't have had the Iran deal, but we wouldn't have done that without Russia. There are lots of places where Russia is the key influencer and they key power in the discussion.

So, the idea that we've got to have relationship with Russia to this day, our military has high level relations with Russia so that if someone were to accidentally do something -- this goes back to the Cold War days, some senior military man, maybe somebody like the general could make a phone call to someone and said sort of stand down, we'll handle this. We don't have that kind of sophisticated relationship for instance with China, certainly don't have it with Korea and other places or Iran or Syria.

So we can't decide that Russia is the enemy on all fronts. We do have to decide that in certain areas, particularly our NATO alliance, Russia is a remarkable threat and it is expansionist. It is sophisticated, you're going to have to look that Russia is neither your closest ally or your friend nor is it your greatest enemy, it's somewhere in the middle.

BANFIELD: And diplomacy is complex.

CONWAY: And the one thing we know about Russia is Hillary's famous Russian reset did not work. It was not effective. And I just want to go back to some of the general said --

BANFIELD: Do it quickly, I've got some very --

CONWAY: Oh sure. Now, on behalf of the campaign, the idea that Americans saying that President Obama's seven point plan against ISIS is going well is just not true. You have Hillary Clinton referring to them as "Determined enemies" two weeks ago in her speech. A lot of Americans look at them as savage murderers not our determined enemies. You have a president who said they're on the run, we've contain them with the J.V., right before they struck again in Europe.

So, my job is public opinion and many people in the public Ashleigh feel like this is a growing threat. And I think in the polling, when you look at get out of the horse race for a second, and look at how people feel ISIS affects their own lives. I'm stunned how many Americans say that they are fearful of these random attacks continuing abroad and in our soil.

BANFIELD: I think it is a great point -- I mean people are concerned, they're very worry. This is an absolute enemy no matter how you slice it. It's just a plan on how to, you know, eliminate it that seems to be tricky.

Thank you to all three of you. Ali Velshi, General Mark Hurtling and Kellyanne Conway. I appreciate it.

Coming up, Donald Trump and Hillary Clinton wouldn't be the only options on the ballot. Tomorrow night, you can get to know the Green Party candidates as well. Jill stein and her running mate as well are going to be here at the town hall 9:00 p.m. Eastern only on CNN.

Coming up, some breaking news from Washington, the FBI report on Hillary Clinton's email investigation and the notes that they took when they did their interviews with her and some of those who work with her, those notes are on their way to Capitol Hill, in fact could be on their way this moment.

[12:44:54] How is that going to impact the presidential election? We've got the details ahead.

(COMMERCIAL BREAK)

BANFIELD: We're following this breaking news, just within a couple hours. Congress is expected to receive a report. It's the FBI's investigation into Hillary Clinton's private e-mail server. All of the investigative materials or at least the notations of them.

CNN's Evan Perez joins me live now with more. What's so interesting about this, Evan, is the mechanics of how the FBI did its work, did its investigation, decided not to charge, but now is handing over so much of that material. Can you sort of explain how this is happening and what it's going to look like?

EVEN PEREZ, CNN JUSTICE CORRESPONDENT: Well, I'll answer the last part of your question first. I mean, this is including the 302s, which are basically FBI agent's memos of the interviews, including the 3.5 hour interview that Hillary Clinton did with the FBI before the end of this investigation last month and it also will include this report that the FBI prepared for the Justice Department Prosecutors where they recommended no charges be brought.

[12:50:17] Of course, you remember Jim Comey, the FBI director explaining all of that during a very unusual press conference last month at the FBI head quarters Ashleigh. But getting to the first part of your question which is the unprecedented nature of this, I got to tell you, I've been doing this for a while. And, you know, that frankly it's just not done. The FBI doesn't close the investigation without charges and then send over essentially all of the investigative material to members of Congress. And especially in one that is so politically charged and so essentially a big part of what will be the 2016 presidential race. It's a very unusual situation. They're going to provide it in a classified setting. So this is going to be going over to what's known as a SCIF. And members of Congress are going to be able to go review this material and then ostensibly they're not going to be able to talk about it. So, we'll see how that goes, Ashleigh.

BANFIELD: That's the weird part, the SCIF, the Sensitive Compartmented Information Facility. The people who look at it to see it if that's so classified and then we don't get to see it. So it's all sort of this weird exercise that we've started. Our elected members are going to have a peak.

Evan Perez, great reporting, thank you for that, appreciate it.

PEREZ: Thanks.

BANFIELD: Coming up next, Donald Trump's anti-terror tactics are getting loud cheers from supporters and angry cheers from opponents. Love him or hate him, ultimately what matter is whether they strand up to the United States constitution.

So who better to ask than legal experts who know the answer, and that's next.

(COMMERCIAL BREAK)

[12:55:56] BANFIELD: We just heard some pretty good military analysis on Donald Trump's plan to defeat ISIS. But how does his plan stand up to that very strong United States constitution because there's a notion of extreme vetting. It could be seen as screening out by bigotry or hatred or hostile attitudes.

And since this is a "Legal Show", our attorneys have a few things to say about that. I want to bring in CNN Legal Analyst Danny Cevallos and Joey Jackson.

Danny, I want to begin with you, all of that sounds like, you know, like it makes the whole lot of sense. But it you're not here in this country, do you really get the protections of the constitution if you're not an American?

DANNY CEVALLOS, CNN LEGAL ANALYST: Yeah. The Supreme Court has held for, I think over 100 years that non-citizens who are geographically located abroad and seeking to come in, the same protections that applied to us as citizens and some non-citizens within the United States don't apply once you leave the United States and you're no longer a citizen.

And for that reason, you know, it's natural because we think in the United States, discrimination is bad and in many cases its illegal. But number one, the president has broad authority and can by simple proclamation prevent outside -- people seeking entry to the United States prevent them from coming in based on their potential threat to national security or its something like that.

Presidents already have this power and President Obama has already used it. So this isn't a settled area of the law, beyond that if Congress were to back this up, there would be even more of a case for the constitutionality of excluding nonresident non-citizens from entering the United States under what's been called traditionally the plenary power.

BANFIELD: So if you're trying to craft this and to say a code and practice it, it seems that to Americans to write a question, what's your religion, sir. And I wonder if that part of it, before you even get to the practice of actually asking it or doing this in customs and immigration, it's actually crafting code in the United States where the government asks you what your religion is and what your thoughts and feelings are. If that part could be considered unconstitutional?

JOEY JACKSON, CNN LEGAL ANALYST: Well, I believe it's highly problematic and let's start here. The fact is before we start professing to have others agree with our constitution and say, "If you don't agree with it, you can't be here," we should start enacting the measures of our constitutions that represent Americans and what we're about.

And when we look at that, we have a first amendment that speaks to the issue of religious freedom. We don't have a government that dictates what religion we should practice, what religion we shouldn't practice, whether we go to Mosque or some other institution to present it to profess our religions values and beliefs. So on that ground, it's a problem. Equal protection in this country is very strong. Everybody should be treated equally and fairly regardless of who you are or where you come from. And so yes, it is of course a fact, as Danny mentioned that, you know, whether you get constitutional protection largely depends upon whether you're on the borders of the United States. If you're in this country you're afforded the protection.

BANFIELD: Right. So let's be clear about that for people are watching.

JACKSON: Yes, absolutely.

BANFIELD: If you are not a resident, if you are not a citizen, you are -- let's say a tourist, if your feet are on the ground, you get the constitutional protection.

JACKSON: You get the constitutional protection. And in doing that and in talking about that, just for Congress for one moment. Yes, the president has brought authority, but all of this debate about immigration and what the immigration laws are going to be depend upon whether Congress will act. We have a Congress, we don't have in this country a king, we don't elect a monarch, we elect a president, and that president otherwise enforces the law that Congress enacts. And so I think broad immigration policy is what's important.

BANFIELD: Last quick comment.

CEVALLOS: It's a natural feeling when you think of discrimination. Discrimination should not be allowed in law enforcement based on race or religion, shouldn't be allowed in employment. But it's a mistake to think that for that same reason, excluding people who seek to enter the United States based on those same factors, it's just automatically unconstitutional. It is not and apparently it never has been. The president has some broad authority in this area and Congress arguably has even more.

BANFIELD: All right. Danny Cevallos thank you, Joey Jackson thank you as well. Appreciate it guys. And thank you everyone for putting up with me, especially with this terrible voice today. I'm so sorry. I can assure you that Brianna Keilar sounds much, much better than I do and she's subbing in for Wolf and she starts right now.

[13:00:11] BRIANNA KEILAR, CNN HOST: Hi there. I'm Brianna Keilar in for Wolf Blitzer.