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Monday Night Massacre; Trump's Administration in Chaos; Trump Fires Acting Attorney General; Washington, a Tough Place for Jared Kushner and Ivanka Trump. Aired 10-11p ET

Aired January 30, 2017 - 22:00   ET


[22:00:00] UNIDENTIFIED MALE: This is CNN breaking news.

DON LEMON, CNN HOST: Breaking news, you're fired.

This is CNN TONIGHT. I'm Don Lemon.

President Trump action about an hour ago in a statement the White House saying that "The acting attorney general Sally Yates betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States."

Again, this is breaking; this is happening just moments ago. I want to get to CNN, the White House correspondent Sara Murray. And also our justice correspondent Evan Perez, they've both been following this all day today.

Sara, the breaking news now. The administration just firing Sally Yates, the acting Attorney General, dramatic turn of events, what do you know?

SARA MURRAY, CNN POLITICAL REPORTER: Well, it is a dramatic turn of events. But not at all together a surprising one in light of Yates determination that she was not going to instruct the Department of Justice lawyers to enforce Donald Trump's travel ban.

This also comes on the heels of Sean Spicer saying earlier today, that if government employees and he was referring to a specific instance with State Department employees at that point, can't get on board, and they should essentially get out, so I don't think it's particularly surprising to see Donald Trump dismissing Yates who was an Obama appointee.

We are told by the administration official that he did not deliver that news over the phone, but rather she learned in a hand delivered letter that she was going to be dismissed.

LEMON: Evan Perez, I want to get to you now, because the acting Attorney General, his name is Dana Boente. What do you know about him?

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: Well, he's a 29-year career attorney inside the Justice Department. So he's been there just a little longer than Sally Yates who served just about 27 years, I believe. And so these are career lawyers who, apparently have come to different places in the law, Don.

He has decided that this is something he can defend. If you saw the statement that was issued by the White House he said that he is prepared to enforce the law.

I can tell you that this is something that Sally Yates struggled with all weekend long. And to give you a picture of the chaotic ways in which the Trump White House rolled out this big announcement, this executive order. They didn't tell anybody, certainly at Sally Yates' level what they were doing. She didn't get to see the order ahead of time.

And so, one of the things she struggled with is how to defend a law that she did not believe was lawful. If you see her statement that she issued earlier, I'll tell you. I'll read a little piece of it, in which, she says, "I'm responsible for ensuring that the positions we take in court remain consistent with this institution's solemn obligation to always seek justice and stand -- and stand for what is right. At present, I am not convinced that the defense of the executive order is consistent with these responsibilities, nor am I convinced that the executive order is lawful."

That's a big deal for someone who was the acting attorney general...


LEMON: Yes. And Evan, if I can just jump in, because you read that statement. I think it's important for the viewer to get the full gist of what the administration put out there.

PEREZ: Right.

LEMON: And this is what he said. You said that she didn't -- she said she didn't believe that she could enforce the law that she wasn't sure about the law.


PEREZ: About the lawfulness of the law.

LEMON: The lawfulness of the -- you're right. And then she says, "The acting Attorney General, Sally Yates," this is from the White House and Sean Spicer, "has betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. The order was approved as to - as to form, and legal -- legality by the Department of Justice, Office of Legal Counsel."

And then he says, "Ms. Yates is an Obama administration appointee who is weak on borders and very weak on illegal immigration." So, essentially some may see this as an attack of her.


PEREZ: Yes, it is an attack...

LEMON: And he could just said, we -- she's gone. PEREZ: It is an attack on her personally, correct.

LEMON: Yes, go on.

PEREZ: No, no. It is -- instead of sort of just firing her, what they've done there is sort of accused her of being weak on the law. And look, I got to tell you, inside the Justice Department, Sally Yates is being treated or being greeted as a hero for standing up for this, I know that this is something that was not very popular inside the department.

The White House is right, that they did get the advice of the Office of Legal Council, which looks at the narrow scope of the lawfulness of the president issuing this executive order.

What Sally Yates has to do, and the lawyers who have to defend this executive order, they have to look beyond that, they have to look at the other statements that administration lawyers have made, including ones suggesting that this was going to be a religious test to, you know, to determine who could benefit from coming into this country.

So, that's what she was reacting to, if you look at what she said. And Don.


PEREZ: What was important -- what's important about the appointment of Dana Boente, the U.S. attorney in eastern District of Virginia, what the Trump White House needed was a Senate confirmed U.S. attorney who could act as attorney general and who could still sign off on surveillance warrants, foreign surveillance warrants. And that's what they needed to do. And that's who they found in Dana Boente.

[22:04:59] LEMON: OK. And then speaking of Dana Boente. Dana Boente says, "I'm honored to serve President Trump in this role until Senator Sessions is confirmed."

And we'll talk about that, Evan in a second. "I will defend and enforce the laws of our country to ensure that our people and our nation are protected." And it says, Dana Boente, acting Attorney General, which is his new role now.

Speaking of that confirmation, this may hold up the confirmation, because I'm sure democrats are going to have a lot of questions and also it gives them fuel.

PEREZ: Right. Exactly. And we already know that the republicans had a very narrow majority obviously in the senate. They had enough votes to pass -- to confirm Jeff Sessions, and we expected actually, Don, we expected that Jeff Sessions is going to be the attorney general by the end of the week.

With all of this and with the fact that the Trump White House rolled out this executive order without really consulting members of Congress, I think you're going to see some uncomfortable republicans, a few of them, who are not sure what to do here. The fact that Jeff Sessions really had the support of the majority,

probably means that he will be the attorney general at the end of the week. This is just a lot of drama between obviously what we thought was going to be a smooth confirmation week for him and the next few days obviously.

LEMON: Yes. And we should not be surprised considering the last 10 days. Listen, Sara, meanwhile, the White House defended the ban, despite large protest all across the country this weekend and despite today's developments, they are sticking to their guns right now.

MURRAY: That's right. It wasn't just a lot protests across the country. It was a lot of angry democrats on the hill, but a lot of angry republicans on the hill also, exactly because of the point Evan just made, a number of key republicans, republicans in leadership and on key committees that had to deal with this, who were not informed of the executive order ahead of time.

But you can imagine they certainly got a number of phone calls over the weekend, not only from reporters, but from folks who were stuck in the chaotic travel situation, this entailed.

Now White House Press Secretary Sean Spicer defended the rollout of this today in his press briefing. Take a listen to what he said.

SEAN SPICER, UNITED STATES WHITE HOUSE PRESS SECRETARY: You don't know when the next threat's coming, you don't know when the next attack's coming, and so the best you can do is to get ahead of it, because if you wait, you're going to be reacting. And what I think I'm very - I want to be clear on this, the president is not going to wait.

He's going to make sure he does everything in his power when he can to protect the homeland and its people. That's it. And so, getting ahead of threats is the key. Not waiting until they happen, not saying, hey, once it happens, how do we react to make sure it doesn't happen again.

I think what I want to be clear about, is that since becoming president, he's continued to take steps through executive order and otherwise, to make sure that this country is as safe as it can be, and that we're ahead of every threat.

We're talking about a universe of 109 people. There were 325,000 people that came into this country over a 24 hour period from another country, 109 of them were stopped for additional screening. This is -- we've got to keep this in proportion.


MURRAY: Now, you see Spicer there essentially explaining why they believe they could not have given administration officials or members of Congress on the Hill more of a heads up that this was coming, essentially saying you have to head these threats off early, and they didn't want a rush of people coming over the border.

And now to offer a little bit of reality there, if you are a refugee, it takes you well over a year before you can go through the process of being admitted to the U.S. Visas can take weeks at a time. And so, it's worth noting that that doesn't exactly jive with reality.

And there are folks in these agencies who were charged with implementing this travel ban who weren't sure exactly sure how it would work, who didn't have the appropriate guidance which also attributed to this confusion over the weekend.

So, a lot of folks sort of saying that even if they could get behind what the policy was, the point of the policy they really couldn't get behind the way the administration rolled it out over the weekend.

LEMON: All right. Sara and Evan, thank you very much. It's going to be a very busy time for you, so stick around, don't go too far.

I want to bring in now defense attorney, Alan Dershowitz, Fareed Zakaria, the host of Fareed Zakaria GPS right here on CNN, CNN presidential historian, Timothy Naftali, CNN political commentator, Carl Bernstein, he joins us by phone.

I'm so glad that you all -- to have you all here. Alan, I'm going to start with you. Did Sally Yates need to go?

ALAN DERSHOWITZ, DEFENSE STTORNEY: Well, Sally Yates made a very serious mistake. Instead of simply limiting herself to saying that she thought it was unconstitutional or illegal, she used the following words, that she had the right to decide whether the policy choice is wise or just, and what is right. That's not her job.

Her job as attorney general is simply to determine whether the law is lawful, it's the job of the elected president to determine whether the policy choice is wise or just. Now, this is a terrible policy. I'm completely opposed to it.

But as attorney general, if she disagreed with the policy, her option was to resign. She would say, I'm not going to enforce this policy. But to disallow the entire Justice Department from defending a policy, at least parts of which are probably constitutional, parts of which are probably lawful.

[22:10:06] Instead of giving a nuance analysis to forbid the Justice Department from defending it, instead of resigning, was a serious mistake. And that mistake was only compounded by Trump's mistake in firing her.

What Trump should have done is worked around this thing, kept her on, had a special council appointed by the court or even by himself and have the -- have the administrative action defended in court.


DERSHOWITZ: So, I think we're seeing mistake after mistake after mistake here.

LEMON: Yes. Carl, I want to bring you in, because I know you know about the -- this happened during the Nixon administration, similarly, similarly I think, the person stepped down, but this time, what do you think, do you think that she needed to go? CARL BERNSTEIN, CNN POLITICAL COMMENTATOR: There's a big difference,

because the Saturday night massacre was really about firing the attorney general when Nixon was the target of an investigation and was actively obstructing justice.

I think the president is within his rights here to fire the attorney general, that he has that ability. And it's not wise that he did. But what's really happened here is, that the president and his presidency is in chaos.

And it's apparent to all but his most serious defenders and those who are his greatest defenders and advocates. But for republicans on Capitol Hill, who I'm talking to, who are doubting his abilities. Doubting even his stability under pressure, this is an extraordinary series of events.

We now have hundreds of thousands of people who have been going into the streets as a result of this. We have a former president, his predecessor who is encouraging people to go into the streets because what Trump has done here is obstructed American principles.

He hasn't obstructed justice, he's obstructed the most basic of American principles of what we stand for as a country in terms of immigration, a nation of immigrants, these are authoritarian pronouncements that he has been making for days now. And it's coming to haunt him.


LEMON: OK, Carl, stand by, because Timothy Naftali he wants to say a few words about this. Did he make this unnecessarily political by firing this person?

TIMOTHY NAFTALI, CNN PRESIDENTIAL HISTORIAN: Well, first of all, Carl is absolutely right that the circumstances are not the same as the famous Saturday night massacre, but what is the same, is the president's lack of nuance. His sent -- there was a tenure. Nixon had a tenure about the political moment in the fall of 1973, and Trump has a tenure.

This is not the time to encouraging -- to encourage fears of authoritarianism in the United States. The fact that he responds by firing the same night, just feeds the concern that many Americans have that this administration does not care about the Constitution.

There is an -- there's a real role for an independent judiciary. We saw it at this weekend. Whether or not the acting attorney general was right to engage in a policy debate, is beside the point. The issue is the president needs to restore confidence and his willingness to be disciplined and to respect the Constitution. By firing the acting attorney general tonight he didn't do that, and he didn't meet the test of leadership.

LEMON: I know you look at this on a global level, but what are your thoughts on this? ZUHDI JASSER, AMERICAN ISLAMIC FORUM FOR DEMOCRACY PRESIDENT: Well,

what's striking to me is the atmosphere of almost hysteria that the White House is creating, suggesting that it needs to do this, because you know, otherwise we're going to be facing this barrage of terror attacks, as if we are -- this is London in the blitz in World War II.

The United States has not had a huge spate of terror attacks. The last attack, Tim and I were talking about this, was by a French-Canadian against a mosque, against Muslims who are worshipping.

We are not in some kind -- you know, what was the haste to do all this? I think every -- everyone agrees, the president has the right to have his own attorney general. The attorney general, by the way, has the right to say I don't believe this order is lawful and I will not execute it and therefore resign.

But the atmosphere, you know, that we are in some kind of imminent danger, that if he had -- if he had announced this policy was being reviewed and it would take a month or two, that somehow we would be -- we would find an influx of would be terrorists coming.

This is all, you know, frankly unreal, this is not -- there's no other -- nobody else really who believes this. And so, one wonders whether this atmosphere of hysteria is being created precisely to provide the ability to act in an unimpeded unilateral way.

LEMON: Fareed, what about our systems, a system of checks and balances, has that broken down? Are we seeing that playing out now? Because it seems that maybe they want to - if you're looking at it just objectively that they want to sort of break down our system of checks and balances?

[22:15:04] JASSER: You know, the American system does not have checks and balances really within the administrative branch. People often think that, but the president, his cabinet, his national security adviser, all those people, the National Security Council, they serve at the pleasure of the president.

This is not a parliamentary system, these are not independent political actors, they serve at the pleasure of the president. The checks on the president are Congress, which is now a republican Congress. The courts and the media.

And what is interesting to watch is, when the Trump White House feels that it is being blocked by any of these institutions, there is -- they push back hard. They push back against the media very hard, there's almost a campaign to delegitimize...


LEMON: They know that's one of the only checks and balances that they have so they have to delegitimize.

JASSER: I think that's right. I think that there is conscious effort to say let's present everything is, you know, everything is fake news, nobody can be trusted. You see it now with the courts and by extension the, you know, the legal branch as it were. And with Congress we'll see. But so far, Congress has, you know, frankly rolled over.

LEMON: All right. Everyone stay with me, when we come back, more on our breaking news coverage. We'll be right back.


LEMON: We're back now with our breaking news, Monday night massacre. President Trump fires the acting attorney general for refusing to enforce his travel ban.

Back with now, Alan Dershowitz, Fareed Zarakia, Timothy Naftali, Carl Bernstein, and Jeffrey Lord, a former Reagan White House official.

[22:20:00] As a Trump supporter, I want to get your response to this. What do you make of Sally Yates and also now the new acting attorney general?

JEFFREY LORD, FORMER REAGAN WHITE HOUSE POLITICAL DIRECTOR: I think first of all, she didn't have to do it this way. I mean, the way to do this if she disagree was to go to the White House, lay out her disagreements, and if it went the other way, then say OK, if she felt that's strong then say I'm going to leave.

What she did was she went public with this, which no president in their right mind, least of all this one, who is famous for saying you're fired, is going to tolerate that, that number one. Number two, I think that he absolutely is trying to show the new boss is in town, and things are going to be different.

And I think that there's a larger issue here. I mean, we see turmoil in the State Department, and the Energy Department, and the interior department, etcetera. And I suggest I have a column tomorrow coming up long before this was written or this has happened this evening, saying that there's a culture with the civil service that's grown up over decades in which basically people feel that they run the government, and that the president of the moment is really not in charge.

LEMON: What do have to do then? You said she didn't have to do with this way, would you have her do?

LORD: Well, if she disagreed, she should have gone to the White House and sat down with Reince Priebus and the staff, at the president or the vice president and said, this is why I disagree, et cetera. But what she did was go the public route. And that's just guaranteed to get a president say...


LEMON: What she ordered her attorneys, she ordered attorneys not to fight, right? But let me ask you, because you think this was political, you think that -- you consider her to be liberal or because...

LORD: Yes, I think it's part of the culture of this.

LEMON: But she's respected by republicans. LORD: Yes. But this is where we get into the, I mean, we are on time

for tonight I'm sure, but the much larger issue of the culture of Washington and bureaucracies as you shift from...


LEMON: OK. Let me just say this. Let me just say this. This is when she was appointed, when she -- when they asked to be the assistant attorney general, deputy attorney general back in 2014. Saxby Chambliss, Senator Johnny Isakson, and also Saxby Chambliss today released the statement applauding the administration's decision to nominate Sally Yates, the U.S. Attorney General of Georgia's northern district...

LORD: Right.

LEMON: ... for the position of deputy attorney general. And then it goes on and on to laude her for how great she is, and skilled, with a strong record on public service. And it doesn't say anything about her being a liberal or -- everyone loves her. And now that she doesn't agree with...


LORD: I'm sure she is, I'm sure she is. But Don, I mean, one of the things...


LEMON: ... with the republican president all of a sudden she's not.

LORD: One of the things that I have seen in my time in government service is to be liberal small well sometimes, is the same as being a government servant. And when you hear people tonight say, this is only going to anger people, and the lawyers and the Department of Justice, well, I bet it does because they're in a political philosophy. And you hear these stories all the time from republican appointees who have gone in and had a hard time within the bureaucracy.

LEMON: Go ahead, Timothy.

NAFTALI: No, I just going to say, with all due respect, Jeffrey, the reason you have chaos to the extent you have chaos in the State Department is, Donald Trump fired the leadership of the State Department. He didn't even wait for his secretary of state to be confirmed.

Second point, don't tar the entire civil service this way, we need any...


LORD: I'm not tarring them.

NAFTALI: ... any country needs -- no, no. Any country needs a nonpartisan federal civil service... LORD: That's the key. That's the key.

NAFTALI: No, no. It seems to me that you consider see them nonpartisan when they agree with you.

LORD: No, I think it's the other way around. I think they're seen as nonpartisan if they agree with the other side, and that they do have this view...


NAFTALI: Look, there's...

LORD: ... if they -- if they, you know, are here, this president, they'll outlast this guy.

LEMON: But that was the point I was trying to make that it's not partisan, you know, she was not partisan. And everyone loved her, but now that she disagrees with a republican president, all of a sudden...


LORD: I think they're all part of the same culture.


JASSER: Look, I think there's an element of politics of course, to everything that happens in Washington, welcome to Washington. But Donald Trump claimed that he was the smartest guy in America, he was going to be able to handle this, he had run big businesses. He was this multibillionaire.

Well, guess what, stop whining if you don't know how to deal with it. Of course, if people disagree with you, they're going to play dirty. They're going to go public. They're going to use tactics, you know, understand.

You have to have strategy to counter it. As Tim points out, first of all, if you don't -- if fire everybody, you don't have anybody to implement the orders you want. They don't deputies in place in most of these departments. The place right now is in chaos. The entire federal government, the entire administration. And then they are selectively trying to enforce these very radical shifts in policy.

Guess what. It isn't working. And then they cry foul and blame the media. That's not how it works. If you -- you sold yourself, Donald Trump on competence, this has been without question, the most incompetent first 10 days of an American presidency.

LORD: Fareed, absolutely not.

JASSER: Maybe not. Andrew Johnson might be -- may tie for...


LORD: Fareed, I came earlier on CNN there was a segment in a Pennsylvania diner, and they were going around. Randi Kaye was going around asking people what they thought on this. And they were totally supportive of him.


NAFTALI: That's not a sign of competence.

LORD: And wait, wait.

LEMON: Timothy, you're talking about...

[22:24:58] LORD: Well, wait, wait. No, what I'm saying is that they have a different standard for competence than the people inside the Washington and inside the Washington beltway. They think the people inside here are - here and there - are incompetent.


JASSER: He has a bad, he has a policy that hasn't been able -- he hasn't been able to enforce because he can't get his own Justice Department to enforce it. He can't...


LORD: Because he can't get a professional. But if you get...

DERSHOWITZ: Can I get in here?

LORD: If you get -- if you get a...

LEMON: Crews, who is that?

NAFTALI: It's Alan Dershowitz.

LEMON: Go ahead, Alan.

DERSHOWITZ: See, I think Sally Yates set out to be fired, I think she was wanting to be a holdover hero, it's the easiest thing in the world when you're a person from the other party to become a hero, to become a hero to all the people like me who are opposed to this policy. But in doing that, she, I think clearly overstepped her bounds. She has no right to enforce -- to refuse to enforce the law because she disagrees with the policy. Her obligation...


LEMON: Alan, let me ask you something. Can I ask you something, Alan?

DERSHOWITZ: her obligation was to resign. Yes. Yes.

LEMON: Can I ask you something, we talked what's the definition of competence, right? Fareed seem to think that it was an incompetent rollout. There seems to be agreement among republicans and democrats that it could have been rolled out better, not that they necessarily agree with the bulk of the terms of this ban in some ways, but that it was not a professional rollout. DERSHOWITZ: No doubt about that, but that's not the job of the

attorney general. She is the chief law enforcement officer of the United States. She has a client. Her client is the government of the United States. She has an obligation to enforce the law, even if she disagrees with the policy behind it, as long as it's constitutional and lawful.

LEMON: OK, we got it.

DERSHOWITZ: And she went well beyond.

LEMON: We got it. But I don't think that was the point. You remember that...


JASSER: That's the fairy tale version of how Washington works. The reality is, Washington is a political town. All I'm saying is if you want to get your stuff through, if you want to get through the administration, through Congress, through the American public, you have to have a strategy.

You have to have backup plans, you have to expect political opposition, you have to expect career holdovers from the former administration might brought.


JASSER: None of this was taken into account. And they're surprised that they can't get anything through.

LEMON: Stand by, I want to bring in David Gergen.


BERNSTEIN: if I can...

LEMON: Hold on, Carl. Because I need to get David in, I'll get you in, Carl. But David Gergen joins us. David, you have worked for how many presidents have you worked for? And so, I want to get what you think of what just happened this evening.

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Well, I've had -- I haven't had the privilege of listening to this entire conversation, I just tuned in. But after I did have a chance to serve in four White Houses from different parties, and I must say, this brings back so many echoes of the Saturday night massacre, it is on a different level, of course.

But I think the first thing out of the box in your presidency into this kind of mess, there are a lot of reasons why, you know, I just assumed she would be fired quickly, but I never. And I don't think anybody have expected the kind of mess they've created in this rollout. And I think it's been a calamity for the United States. Both at home, and very importantly, abroad.

LEMON: How did we get into this mess, who's responsible?

GERGEN: Well, you know, I think that everything was -- I think you can explain everything in terms of American history up through the election. I think that Donald Trump run through his own campaign, he's got millions of followers still out there for him. I think Jeffrey Lord is right about that. There are a lot of people still very supportive of him going through this mess.

But I think he himself since the election has been a complete departure from any kind of president we've ever had before, and I think the people around him are not there to run the government, they're there to disrupt the government, and to bring in -- and Mr. Bannon who seems to have enormous influence these days, you know, has said made it plain he wants to bring down the pillars of government.

So, it's not entirely surprising that you would have this executive order which was rammed through without really getting the Homeland Security, the Justice Department, the Defense Department, and the Justice Department on board. And they invited this kind of dissent. It was only, I think -- I think it was night follows day that Donald Trump was going to fire her.

LEMON: The president of the United States has fired the acting attorney general. Has now appointed a new acting attorney general. His pick to be the permanent attorney general has not been confirmed by the Congress yet.

So, that's our breaking news tonight. Carl Bernstein gets the first word on the other side of the break.


LEMON: Our breaking news, Monday night massacre, President Donald Trump fires the acting attorney general for refusing to enforce his travel ban.

Back with me now, Alan Dershowitz, Fareed Zakaria, Timothy Naftali, Carl Bernstein, Jeffrey Lord, and David Gergen. So, Carl, my question to you is, what does all of this mean for the Senate confirmation of Jeff Sessions, how big of a battle is this going to be now?

BERNSTEIN: Well, I think that both republicans and democrats at this point will want to bring him back for further questioning. And that could endanger him, because I'm told that Sessions along with Bannon is the author of this policy of this executive order, along with the president, of course, but that Sessions has a real role in this.

But I think there's a bigger point to be made here, and that is, that this executive order and chaos resulted not because of an imminent national security threat, but a political statement that is with Bannon, that is what Trump, that is what Sessions intended here, with a political statement at the expense of our genuine national security, and the expense of our genuine history and democratic principles.

So, what's happening here? That yes, Trump's followers they will stay with him, certainly for a while on this, but instead of building up his credibility as president and his legitimacy, he's undermining his own legitimacy. He keeps talking about how his legitimacy is being questioned by the press or by Hillary Clinton or by some other unnamed forces.

[22:35:00] He has undermined in one week his own legitimacy, to the point where there are many republicans on Capitol Hill who questioned his competence. That is the worst thing he could have in terms of his legitimacy, and there are people who don't see him as legitimate at this this point because...


DERSHOWITZ: Can I make -- can I make a point about history for the moment. Everybody is talking about the great American history. Let's understand how bad American history is on this issue.

We had the Chinese Exclusion Act, under President Wilson we excluded people from all over the world, country by country, in the 1930s, we excluded Jews. Sure, we've gotten better over the years, but the American history is not a history of the Statue of Liberty, with it's wonderful column.

It's a history of bigotry and bias against based on countries.


DERSHOWITZ: We've done better than that, this is a terrible policy, it's part of the historical policy of America, of being racist in the way we select people for who we have been on this country.


LEMON: Timothy, go ahead.

NAFTALI: And they, and -- and...

BERNSTEIN: We have had racism, Alan, but in fact, we've overcome it.

DERSHOWITZ: That's right.

BERNSTEIN: And that's the point.

DERSHOWITZ: But don't talk about the history, though. History is a very mixed history.


BERNSTEIN: No, no. We have that history, Alan, but we have overcome it, time and again, and what has prevailed are Donald Trump's parents coming here, your grandparents, my grandparents, that what has prevailed is not what you're talking about.

LEMON: Go ahead, Tim.

DERSHOWITZ: You know, for many years that did prevail, my parents and grandparents came before that, in the 50s and 60s, we kept out communists, you know, we have a lot of work to do in overcoming our terrible history of racism, and we've done a good job in the last few years.


GERGEN: But wait.

NAFTALI: We learned a long time it will never...

LEMON: Go ahead.

DERSHOWITZ: But let's not talk about history. Let's not talk about history.

LEMON: Go ahead.

ZAKARIA: And we had slavery. I mean, this is cold comfort to say we did -- we did terrible things in the past -- so, hey, this is - this is all right.

As far as I understand, Alan, just a second, the most recent law of any import on this subject is the 1965 immigration and naturalization law which specifically prohibits the government from discriminating on the basis of national origin.

You also have the first amendment that explicitly prohibits the United States from discriminating on the basis of religion. At the very least, a federal judge believes that these were two powerful enough reasons to stay the implementation of this policy.

The fact that we have done bad things in the past does not, you know, provide a card blanch to any administration. If some administration were to say, well, we did something like this in 1820, it doesn't really mean that we have moved on.


DERSHOWITZ: You are missing -- you are missing my point.

ZAKARIA: I'm not missing your point, Alan.


ZAKARIA: The fact that we have done bad things in the past does not license to do bad things in the future.

DERSHOWITZ: I'm saying don't cite history. I'm not -- I didn't say that, and you know that. What I said is, don't cite the history. Talk about the present, talk about what we overcame, but don't rely on the American tradition of welcoming immigrants, it's a false historical argument.

NAFTALI: Ok. Fine. We were talking about whether this president is competent. And I think our Professor Dershowitz made a very interesting point. In the sense that a competent president would not sign this executive order on the same day that we were commemorating the Holocaust.

Because a competent president would understand the tension between the history of not bringing in refugees as America should have done in the 1930s, and what this particular this executive order represents.

So, a competent president who understood the policy of the moment would not have rolled it out this way. A competent president would have waited for his own attorney general to be confirmed to have a team prepared defend this. I don't think it's defensible, but just to defend this. That's what a competent president who understood how to run in large organization would have acted. That's why the issue of competence...


LEMON: What's the rush?

LORD: Well, I think -- surely from the president's point of view, this was an act of insubordination and he wasn't going to tolerate it.

LEMON: What's the rush to do the travel ban now?

LORD: I feel that this is he feels...


LEMON: Because he did it.

LORD: Right, this was a whole -- right. This with a whole string of other things he feels were campaign promises and that he wanted to demonstrate action immediately.

LEMON: He's got four years.

LORD: I understand, but he, you know, and then the four year thing is a little elusive here. Because what happens is presidents are at their most powerful if you will, in the beginning of their term, if they get it renewed, then that plays out again. But you know, it's like watching...


LEMON: Well, I'm just asking you, because I mean, listen, I'm not going to speak to his competency or not, that's not my role here, but to avoid some of the chaos and misunderstanding surrounding some of this, it would seem from in most people's view, again from even republicans in Washington that it could have been handled better, it could have waited.


LEMON: It could have crossed the piece and dotted the eyes before rolling it out. Because as they say, first impressions are very important, right?

[22:39:57] LORD: Right. I think that there's two perceptions here. There's a Washington establishment - impression - and there was an impression out there. And I would, you know, one president comes to mind and you'll be shocked, it's not Ronald Reagan, although firing the air traffic controller...


LEMON: But the Washington -- hang on, hang on...

LORD: But Andrew Jackson is often compared.

LEMON: The Washington Office of the President will not get him re- elected or garner him support? The people who are out there, that gets him re-elected.

LORD: My point is, he is sometimes compared recently to Andrew Jackson. Andrew Jackson took on the bank of the United States. In other words, the establishment of his day, and went full tilt against him. I think that's the kind of thing that you're seeing here, and that this is part of it.


LEMON: Then why is it -- why it appears...

LORD: Because he wanted -- he wanted a string of things to indicate that he was taking action on his campaign promises immediately.

LEMON: Yes. David, go ahead.

GERGEN: I just want to make up a point, so I want to -- I disagree with my good friend, Jeffrey Lord, like there are two different Americans, there's a Washington American and they have American outside Washington is very supportive of this.

You cannot look at the demonstrations that have broken out spontaneously around the country in huge numbers and say that America is happy. It is just not. Let's just acknowledge that his followers are for him and are continue to be for him, and they welcome this.

But there are millions of other Americans who they think they have the worst president on their hands in their lifetime and aren't sure what to do about it.

Let me just make one other point. I think from our point of view, yes, I think that they -- this looks like incompetence, but these are very smart people, and I think it's -- I think there's a lot of evidence they intend to have this kind of chaos, that they enjoy this, that they want to go after the press, because they like to do that, and that they basically -- he sees himself as a disrupter.

And Bannon is in there, and we know his influence is growing. And I don't know, it was an interesting point that Carl Bernstein made about Jeff Sessions joining in this. I'd like to know about that because that would, I think, affect his confirmation.

But I think they intentionally want to create this kind of chaos, this kind of anger, and this is what they think will work for them in their long term strategy to change America.

LEMON: Well, it's -- according to a report that we have, Jeff Sessions did not have any role in the rollout of this particular ban. And the point that you were making...


GERGEN: That's helpful, that's helpful, Don.

LEMON: Yes. But the point you were making, David, regarding, you know, the chaos and was this planned? Fareed Zakaria and I spoke about this earlier, and that's one of my first questions to you, correct, about that. And you said?

ZAKARIA: No. Look, I think nobody could possibly want what has happened right now. I think that it's true they want to disrupt, I think it's true they want to send a signal to the Korea bureaucracy, but you could not possibly want to have the kind of colossal chaos that you have here with your own orders not being implemented with judges staying here but throw in airports.

And David Gergen made a very important point that it's important to remember. This policy is already having massive negative repercussions around the world. Take what's happened in Iraq today, the Iraqi parliament has essentially passed a resolution saying, look, we have fought with the United States for a decade now.

Our troops are fighting ISIS every day, we have Americans assisting us in that effort, we are in effect partnering with you to destroy ISIS, and you're telling us that those Iraqis who are putting their lives on the line for an American foreign policy objective, which also serves their objectives, those people are your enemies to such an extent that they cannot even...


LORD: Well, that's what President Obama said, right? That's what President Obama said. He banned them for six months.

ZAKARIA: No, he didn't.

LORD: Well, I mean, he stopped the...


GERGEN: Yes, but Fareed...

LEMON: There's a difference. The difference is, and I have it ready for you.


LEMON: The Obama administration's travel restriction provided for extra scrutiny to people who travelled to these seven countries, Iran, Iraq, Sudan, Syria, Somalia, Libya, and Yemen, because they are hot beds for foreign fighters. It is the other way around, the administration says...


LORD: Right. But there was an Iraqi that came in here.


LORD: And they found, as the FBI later found out after he was in here...


LEMON: (Inaudible) ... from entering the U.S. just because they were citizens from these seven countries.

ZAKARIA: It is also a strange defense of Trump administration policy, Jeffrey, for you to say, we're just doing what President Obama did. Don't talk about whining.

LEMON: That's very straight. Listen, if you can't overlook this, I mean, we're 10 days into this administration, everyone, and so far this controversial ban, which is, you know, we saw protests, we saw people all over this country protesting this.

And then tonight he fires the acting -- the acting attorney general comes out and says I can't support this. He fires the acting attorney general, he's now appointed a new acting attorney general. And then the -- his permanent attorney general, his pick has not been confirmed by the Congress -- by the Congress, I mean, the Senate being part of that.

ZAKARIA: So far Donald Trump is running America the way he ran his casinos in Atlantic City.


ZAKARIA: I worry about whether the outcome will be the same.

LEMON: And also, we are hearing tonight that Donald Trump had replaced the heads of immigration and customs enforcement. We're going to bring you the latest on that when we come back with much more.

And also coming up, why Donald Trump's daughter Ivanka and her husband Jared Kushner may find Washington a tougher place than they realized.


LEMON: President Trump fires the acting attorney general for refusing to enforce his travel ban. And then he appoints another acting attorney general. And it's not even midnight here yet.

So, everybody is back with me. Also joining us now, CNN contributor Emily Jane Fox, a staff writer for Vanity Fair. Thank you for joining the panel now.

So, talk to us about where has -- we've heard so much about Jared Kushner being, you know, this important part of the administration, where has he been in all this?

EMILY JANE FOX, VANITY FAIR STAFF WRITER: He is an important part of the administration. He's been there in the West Wing. I think a lot of the trouble that Donald tends to get in. A source pointed out to me last weekend and other pointed out to me again this week, it tends to happen between sundown on Friday and sundown on Saturday. We've seen that now for both weekends where President Trump has been in office.

LEMON: Is that Alan Dershowitz?

GERGEN: He's celebrating the Jewish holiday.

LEMON: Is that -- yes.

FOX: Well, he's an observant Jew, he's an orthodox Jew who celebrates Shabbat with his sundown Friday to Sunday.

GERGEN: Come on.

[22:49:58] FOX: Sundown Saturday, it happened two weeks in a row, and sources who are close to Jared and the Trump administration have noted this fact to me. And then quickly, the administration tends to walk things back or nullify things on Sundays.

LEMON: Yes. Who's that, is that David or Alan?


GERGEN: What's that -- this is David.

LEMON: Yes. Yes, because...

GERGEN: I just -- it's an interest -- it's an interesting theory about the Shabbat, celebrating the Shabbat as an observant, too. But didn't Donald Trump sign this before sundown on Friday?

FOX: He was on -- it was at 4.42 on Friday, sundown was at 5.08. So, all of the fallout happened during Shabbat. I think this, you know...


GERGEN: But the executive order was signed before Shabbat. He was there.

FOX: For sure. It's the mess that tends to happen from the big decisions...


LEMON: And this week an all of that in between.

FOX: Exactly, yes.

DERSHOWITZ: As the only one on this panel who has ever celebrated Shabbat with Jared Kushner. He was the -- he was the president with Chabad society in Harvard when I was -- when I was the faculty adviser, I can tell you, he is a source of wisdom, and I think of trying to influence Donald Trump in the right direction.

I don't know whether the timing in the chronology works out exactly that way. But I do think that he will be a source of trying to be a check on Donald Trump.


DERSHOWITZ: Look, the real checks and balances are going to be the good republicans. I think we have to count more and more on Senator McCain and Senator Graham, and Congressman Paul Ryan. And they have the most important job in this administration.

Because as somebody said previously, President Trump is determined to eliminate the formal structure of checks and balances. And if he gets two or three nominees to the Supreme Court, we really have all the branches on the republican side.

And so, good republicans are really going to have to read President Kennedy's "Profiles in Courage," and stand up and be counted. So far, I think the senators have done a pretty good job. Paul Ryan's been a little disappointing.

LEMON: Well, I have to say I'm going to get Fareed in here, but I have to say Emily Jane Fox is reporting on the Kushner family, and Ivanka Trump has been spot on because that's your (Inaudible). So, if she says her sources are telling her that, she has some really good sources.

But go on, you want to respond to what she said?

ZAKARIA: No. I just think it's important to remember that you know, Madison said...


LEMON: Of what she said, sorry.

ZAKARIA: Yes. Madison said, if men were angels no government would be necessary. The whole point of American government is you have institutional checks and balances, you don't hope that your son in law will be a, you know, a smart moderate guy who will -- who will moderate you.

What you are looking for the institutional checks and balances, and to me, it's odd. Alan Dershowitz is right, that a few republican senators, a few republican senators have stood out, a number of them, as we all know, privately say, you know, are aghast by many of the things that are happening, but are not willing to publicly say it, and certainly the leadership, McConnell and Ryan have not done so.

And you have an administration that continues to act as though it is a small, lonely minority battling the world. You know, a raid against the forces of -- the powerful forces of Iran.

But let's remember, the Republican Party currently controls the presidency, the Senate, the House, the Supreme Court, the vast majority of state houses, and state governorships. To act like it is this, you know, embattled institution because the New York Times is reporting against it, I mean, come on, you know, they're running the country?

LEMON: Yes. Go ahead.

NAFTALI: I was just going to say that, you know, John Kennedy -- John F. Kennedy and Ted Sorenson write "Profiles in Courage" because they were not courageous against McCarthy, Joseph McCarthy.

In a sense it was a way of saying trying to find in history, people who stood up to demagogues, we didn't have a good -- the United States went through a tough time in the 1950s, because people didn't stand up to hyper nationalists.

The good news is that in the Nixon period, some great republican heroes like George Shultz and others said no to the president.


NAFTALI: And that's what -- that's the history people should be looking to now.


NAFTALI: Great Americans who said no, I will not audit these people. No, I'm not going to use the FBI illegally. No, I'm not going to prevent money from going to places that where there are demonstrations. That's the kind of leadership we need from republicans. They've got to remember that in the '70s, the best of them saved this country.

LEMON: Thank you, everyone. I appreciate it. Thank you. We'll be right back.


LEMON: The president tonight firing the acting attorney general for refusing to endorse his travel ban.

I want to get back now to Alan Dershowitz and David Gergen. So, can we -- I want to play this, can you hear me Alan? Are there?

DERSHOWITZ: Yes. I hear you fine, yes.

LEMON: OK. Sean Spicer said as much in that press conference today that if people were not on board with what this administration wanted to do that, they were free to go. Let's play that, and then we'll talk about it.


SEAN SPICER, WHITE HOUSE PRESS SECRETARY: I think that they should get with the program or they can go.


SPICER: Hold on, hold on. This is -- this is about the safety of America. And there's a reason that the majority of Americans agree with the president. It's because they understand that that's his number one priority.


LEMON: Is he right or is he too flippant or is he right on target?

DERSHOWITZ: He's dead wrong. The State Department has a process, an internal process for permitting dissent; there are whistleblower laws that said you cannot be fired as a civil servant for dissenting.

So, when he's telling these members of the State Department who are acting out of conscience that if they dare disagree with the policies, they should leave. In effect, threatening them with being fired, he's violating the spirit of the civil service laws; he's violating the spirit of dissent. And I think he's just dead wrong.

Dissent is permissible within the State Department. Where they may be right is I think Sally Yates acted ultra-virus beyond her authority, when she talked about disagreeing with the policy behind the law that's -- she should not have resigned. She should not however, have used her office to compel other Justice Department officials not to provide a defense.

So, I do not regard Sally Yates among the heroes. It's so easy when you're a democrat and you're leaving and you're a hold over to become a hero by refusing to allow the Justice Department to do this. I think that she contributed to the instability of our institutions and would have been much better advice to resign and protest, rather than to have invited firing by doing what she did instructing the Justice Department not to defend the presidential order.

LEMON: David Gergen, you seem to not -- do you agree with that.

GERGEN: I agree with point one but not point two. On the State Department, I think Alan Dershowitz is absolutely right.

That the under the law, and this law was specifically passed to allow dissent within departments, without punishment.

You know, the good organizations have boxes where you can drop suggestions; they want to hear from you in the private sector. If you're running a good corporation they want to know from you what's going right and what's going wrong. And if you're the voice of dissent, that is not the basis for saying, OK, go.

And you know, I hope that they don't, you know, sort of take names. And go after people, which is what I fear. I mean, I assume these names are circulating, it will in the hands of the political appointees within a matter of hours or days.

But let me go to this second point. I think -- I think the State Department were expressing not choose to power, I think they are expressing conscience to power. But I would argue that Sally Yates belongs in that category, too.

Because, Alan, I may be wrong about this, but I thought she also had real doubts about the law. It wasn't just the policy that she disagrees with. She understood that she's going to be part...


LEMON: That was -- that was the first part of her statement. The first part of her statement talked about her doubts about the law. And in all fairness, she sent this letter internally to people at the department and then later released it, because obviously someone would leak it or, you know, that people would find out anyway. but she did say she had problems with the law. That was the first and main part of it.


DERSHOWITZ: But parts -- but parts of the law are constitutional, parts of the law are unconstitutional. Parts violate the statute, and parts are clearly lawful.

[23:00:01] And she could have done a more nuance job of saying I will not defend the parts of the law that are unconstitutional, but I will defend those parts of the law that are constitutional and lawful but that I disagree with the policy.