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Interview with Congressman Mo Brooks of Alabama; Interview with Senator Debbie Stabenow of Michigan, Justice Department Files Brief to Restore Travel Ban; 9th Circuit Court of Appeals to Hold Hearing on Travel Ban; 127 Companies Sign Motion to Fight Trump's Ban; Democrats' All-Night Protest on Senate Floor; Al Qaeda Leader, a Target of Raid in Yemen. Aired 7-8p ET

Aired February 6, 2017 - 19:00   ET


ERIN BURNETT, CNN HOST: "OutFront" next, breaking news -- all eyes on the 9th Circuit Court of Appeals. Will the court strike down President Trump's travel ban?

Plus Trump said terror attacks aren't being reported. Is the president suggesting a cover-up? And more breaking news on Capitol Hill -- Democrats holding an all-night protest on the Senate floor, the breaking details ahead. Let's go "OutFront."

Good evening. I am Erin Burnett. And we begin "OutFront" tonight with breaking news. Justice Department's lawyers moments ago filing documents in federal court, defending the president's controversial travel ban.

The Justice Department's lawyers arguing, in part, quote, "The executive order is a lawful exercise of the president's authority over the entry of aliens into the United States and the admission of refugees." It also asserts that it is not a ban on Muslims.

And all eyes tonight are on the San Francisco 9th Circuit Court of Appeals. Three judges are holding a hearing on the travel ban.

Each side will get 30 minutes to argue its case. Now, Trump signed the executive action just 10 days ago, the ban targeting immigrants from seven mostly Muslim -- Muslim majority nations.

It was issued with little warning and frankly, not nearly enough explanation, unleashing massive confusion at airports and protests across the country. The president is now on his 17th day in office, has a full-blown legal battle on his hands already -- a battle that now, tonight is expected to go all the way to the Supreme Court.

Pamela Brown is "OutFront."

And Pamela, obviously, this is a crucial brief that we've just gotten out from the Justice Department. What else are they arguing?

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Yes, just moments ago, the Justice Department filing this brief saying that the district court's nationwide injunction was simply wrong and vastly overbroad. And it says that the president has broad discretion under both the Constitution and the law to manage immigration, particularly when it comes to national security and the refugee program, because the president has access to classified information among other reasons.

And it talks about the refugees and citizens from those countries, those seven countries listed in the travel ban, and who have never stepped foot into the United States. And the lawyers for the Department of Justice argue that they should not be afforded constitutional rights, that that's not even an issue, basically, according to this brief that was just filed.

But what's interesting here, at the end, there is sort of this carve- out (ph), the Justice Department lawyers give the 9th Circuit judges an option if they want to limit the injunction to those previously admitted immigrants who are temporarily abroad now and want to return to the United States or wish to travel and return to the U.S.

Tomorrow, we expect oral arguments in the 9th Circuit Court at 3:00 p.m. Pacific time. That will be over the phone. Each side will have 30 minutes.

But beyond this, Erin, we expect the losing side to appeal and for this to make it up to the Supreme Court.

BURNETT: Yes. All right, thank you very much. And now, let's go to Sara Sidner. She's actually outside the 9th District Courthouse in San Francisco where those hearings will be.


SIDNER: The scenes of tearful reunions from San Francisco to Washington, D.C., as people from seven predominantly Muslim countries rush back into the United States.

UNIDENTIFIED MALE: Even though my family already came here, we feel for all those who are still in limbo.


SIDNER: After being temporarily banned by Donald Trump's executive order, hundreds of visa holders are trying to legally get into the U.S. after a federal judge temporarily stopped the president's travel ban.

UNIDENTIFIED MALE: Good afternoon, everybody.

SIDNER: Washington and Minnesota sued the Department of Justice, arguing the ban discriminates on the basis of religion and harms the states irreparably. Federal Judge James Robart (ph), a George W. Bush appointee, took up the case.

JAMES ROBART, FEDERAL JUDGE, U.S. DISTRICT COURT FOR WESTERN DISTRICT OF WASHINGTON: That the state has met its burden of demonstrating that it faces immediate and irreparable injury as a result of the signing and the implementation of the executive order.

SIDNER: And with that, the travel ban came to an abrupt halt, albeit, only temporarily, as the court hears the merits of the case. President Trump quickly responding to the order in a series of tweets writing, "The opinion of this so-called judge, which essential takes law enforcement away from our country is ridiculous and will be overturned."

The Department of Justice is appealing to the 9th Circuit Court of Appeals, the DOJ asking for an emergency stay to put the ban back in place while the case goes through the court system.

RORY LITTLE, PROFESSOR, U.C. HASTINGS COLLEGE OF LAW: They make one argument that I think is quite unusual. They say that their harm -- the harm to the public, if you will, is the process of judicial review.

The harm is that the court intervened and issued a stay (ph). You don't usually see that as harm. Our constitutional process is supposed to let judicial review happen almost always.



SIDNER: But of course, you did hear that there is a much more substantive argument by the DOJ talking about the president's right to control the borders and, of course, saying that the federal judge overstepped his bounds. Everybody on pins and needles, those families of -- of people who want to come to this country from those seven nations, of course, worrying about this, watching the court, we should hear something.

There are oral arguments that are scheduled for 3:00 California time, 6:00 p.m. New York time.


BURNETT: All right (ph), thank you very much. Twenty-four hours from now, we will have a verdict. And "OutFront" now, the man at the center of this case, Washington State Solicitor General, Noah Purcell -- he argued the case in court.

And thank you very much for being with me. Let me just start with this. Of course, we're awaiting this decision from the 9th Circuit, three judges there, one appointed by Republican, two by Democratic administrations.

A lot of people, of course, Solicitor, thought we'd have a ruling immediately tonight. Now, we know oral arguments will be tomorrow at this exact hour.

Does it concern you that they're going to ask for those oral arguments?

NOAH PURCELL, SOLICITOR GENERAL, WASHINGTON STATE: No, not at all. I think they're taking this case very seriously as they should.

And it -- it's not unexpected that they would ask for an argument on a case of this importance. So we're -- we're not concerned.

We're looking forward to answering their questions.

BURNETT: And at this hour, of course, you now have 16 states, Pennsylvania and Iowa on the list. Both of those states, of course, voted for Trump.

But they have now filed a memorandum with the 9th Circuit Court in support of your effort. How did this come about?

PURCELL: Well, states often file amicus briefs in -- in support of each other when there are issues that matter to states as states. So, for example, Washington took the lead in filing amicus briefs in the United States versus Texas case.

We were defending in that case the -- the president's -- President Obama's expansion of the DACA program for immigrants. And we worked with a number of other states to file amicus briefs in that case.

And similarly here, states have come together to file an amicus brief, supporting us, arguing that we have standing to -- to bring this claim and supporting our side, which we appreciate very much.

BURNETT: All right, so the Trump administration, of course, just filed their reply to you moments ago. There are several key points.

And I wanted to ask you about a few of them. The first is this, they denied...


BURNETT: ...that this had anything to do with religion. And I just want to read for the viewers what's in their reply.

"The state first asserts that the order violates equal protection principles because it was assertedly based on animus against Muslims. That is incorrect.

The order temporarily suspends entry of aliens from seven countries previously identified by Congress and the executive branch as being associated with a heightened risk of terrorism. Now, Noah, I can tell you, at least one Muslim majority Arab country bans.

They say they do basically the same thing, their words extremely restrictive on the exact seven countries that we're talking about here -- clearly not religious in their case because it's one Muslim country to another. Does this hurt your argument that -- that this is religious?

PURCELL: No. To prove that claim, we don't have to prove that -- that every single person harmed by this order is Muslim. And we don't have to prove that, you know, some Muslims are unaffected.

The argument is that one of the motivating factors behind the order was an intent to target Islam and Muslims. And that's the standard. That's the legal standard and to favor one religion over another. And

we believe that already, at this early stage of the case, there's strong evidence to support that claim, given the president's statements, the statements of his advisers, the complete lack of any real tailoring of the order to address national security concerns, that sort of thing.

So we think we have strong evidence that it was at least, in part, motivated by a desire to target Muslims.

BURNETT: On that front, in Boston, a judge refused to extend a court order that blocked -- temporarily blocked the travel ban as -- as, of course, you're well aware. In that case, the judge wrote, in his opinion, "The rich immigrant history of the United States has long been a source of strength and pride in this country.

Conversely, the public interest and safety and security in this ever more dangerous world is strong as well." He, of course, refused to extend the temporary ban.

He sided with Trump. Does that worry you?

PURCELL: No. You know, he certainly is entitled to issue the opinion that he thought was appropriate. But we agree with Judge Robart who a very reasonable decision here in our favor.

And Judge Robart did not downplay the importance of national security and neither are we. Obviously, that's a very important interest.

It's just that this order does nothing to further, as evidenced by the declaration that was attached to our brief yesterday -- late yesterday from former heads of the CIA and State Department, saying that the order actually harms national security. If the order were really motivated by national security, one of the points that I made in the oral argument was, why didn't they figure out in advance whether to apply to lawful permanent residents that are green cardholders from these seven countries?

There's roughly half a million people from those seven countries who hold green cards and live in the U.S.


And apparently, the White House had not made up their mind before they issued the order about whether the order applied to them or not.


PURCELL: So either those half a million people are a threat or they're not. And they -- I mean, it's absurd to say that they're all a threat.

But the White House apparently initially had concluded that they were and that the order should apply to them. But then by Wednesday, they had changed their mind after going back and forth...

BURNETT: On the right cards (ph), yes (ph).

PURCELL: ...several times on that. it really seems to be a political decision more than a national security one.

BURNETT: All right, well, I appreciate your time. Thank you very much. I know you've got those arguments tomorrow.

And as we said, 24 hours from now, we may have that formal ruling from the 9th Circuit Court. Thank you.

And "OutFront" next, the breaking news, we are learning new information tonight about that high-risk raid in Yemen. We now know who the Navy SEALs were after, exactly who it was, how crucial this person was, and why he got away.

Plus more companies uniting more than 100 now -- Apple, Facebook on the list, supporting the suit against the travel ban. And we're live on Capitol Hill, where Democrats tonight vowing to protest through the night, all the way until tomorrow morning, Trump's nominee for the education secretary position.

We'll speak to one senator leading the charge and then Melissa McCarthy and Sean Spicer on when a ban is not a ban.


SEAN SPICER, PRESS SECRETARY, WHITE HOUSE: This is not a Muslim ban. It's not a travel ban.

MELISSA MCCARTHY, ACTRESS: The travel ban is not a ban, which makes it not a ban.

UNIDENTIFIED MALE: But you just called it a ban.



BURNETT: Breaking news, the two sides in the challenge to President Trump's travel ban now up against the clock. They have been given less than 24 hours to be ready for oral arguments.

They are going to begin in, well, let's see, less than 23 hours from now. They're going to each have 30 minutes to rebut -- this, coming moments after the Justice Department filed its brief to reinstate the president's executive order.

It is now, of course, in the hands of the 9th Circuit Court of Appeals. The judge's -- the court's three judges reviewing a number of documents as we speak, including a motion by some of the biggest companies in America, including Apple, Google and Facebook -- all of them opposing the president's ban.


Kyung Lah is "OutFront" live in Santa Monica, California. And Kyung, you know, what are you learning? It's not more than 100

companies, obviously, most of them a (ph) vast majority of tech companies that are joining the fight against the immigration ban.

KYUNG LAH, CNN CORRESPONDENT: What we've learned is that this is a legal brief that they have filed with this court -- a court that we spend all hour talking about, the 9th Circuit Court of Appeals. And this is a broad coalition of tech companies, many of the big ones that you named, recognizable names, among them Apple, but also, some tech start-ups.

This is a rare move. It's a rare joining move coordinated by these tech companies. And it is a symbol, a sign of the animosity between Silicon Valley to this executive order.

And it is something that sentiment has been brewing for some time ever since the executive order was put into place. What these tech companies are underscoring is that it runs counter to the culture that many of these tech companies were founded by immigrants.

They are run by immigrants, that they have to rely on immigration. Some of their best talent comes from overseas.

And also, Erin, we have seen protests on their front lawns by their own employees, urging their companies to do something more definitive. Certainly, this legal brief is that.


BURNETT: And Kyung, I mean, the companies obviously taking the side, the CEO of Uber dropped out of President Trump's Business Advisory Council last night, pushed back play out (ph) during the Super Bowl.

LAH: Yes, you could not have picked a more public venue to sort of draw that opposition between corporate America, at least here, the corporate America that is in Silicon Valley, to this executive order. And we saw it perhaps most starkly in that Airbnb commercial.

There were themes of multiculturalism, acceptance. And it certainly was also shades of it in the Google ad.

So what we are seeing is these companies based in California, a progressive state, a state that is expected to lead the opposition against the Trump administration, saying publicly to people who were watching the Super Bowl that we don't agree with this.

BURNETT: All right. Thank you, Kyung. "Outfront" now, Paul Callan, our legal analyst, David Martin, international law professor at the University of Virginia, who also served as deputy council for the Department of Homeland Security during the Obama administration, and Stephen Larson, former United States district judge. He was appointed by President George W. Bush.

So Stephen, let me start with you because I know you've been designated to serve on panels with the 9th Circuit. They have taken this on now tonight. Some had thought they could give a ruling at any point this evening.

But now, they're saying, tomorrow, 23 hours from now, they're going to take 30 minutes of oral arguments from each side.

You heard the solicitor general say, this doesn't concern him at all. What does it tell you about where their mind is right now and how easy of a decision this may be for them or not?

STEPHEN LARSON, FORMER U.S. DISTRICT COURT JUDGE: Well, I don't think it's going to be an easy decision, Erin. It's going to be a hard decision.

But it's an important one. And it recognizes the fact that we need to get a decision on this quickly.

We are moving very quickly in this matter. And to have it go from briefing today to a hearing shows how serious the court has taken this.

BURNETT: And -- and Paul, on this issue, right, as I pointed out, you have two of these judges. There's three but then (ph) we have (ph) this panel.

Two appointed by democratic presidents, Carter and Clinton, one appointed by George W. Bush. How do you suspect they will rule?

Will this then fall down those party lines or not?

PAUL CALLAN, CNN LEGAL ANALYST: Well, obviously, if it does fall down party lines they rule in favor of the state of Washington. And the ban continues to be held at least for the time being unconstitutional. But...


CALLAN: But bear in mind, this is a federal court. This is an institution in and of itself.

And I don't think party lines always dictate in these situations. I -- I think...

BURNETT: Yes (ph).

CALLAN: ...they're going to be looking carefully at the law.

BURNETT: So I want to talk to you, David, about this issue here, about whether this discriminates against Muslims or not. You heard the solicitor general said they absolutely believe it does.

And it only needs to discriminate against one or a few Muslims to have that be the point. I raise the point of -- of some Muslim majority countries who essentially ban the same seven countries from coming into their countries.

Donald Trump has talked, though, about a Muslim ban, all right, repeatedly during the campaign. Let me just give people a few examples of when he did so.


DONALD TRUMP, U.S. PRESIDENT: Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States. It's a temporary ban.

It hasn't been called for yet. Nobody's done it. This is just a suggestion until we find out what's going on.

Ideally, you won't have a ban very long. I mean, we just have to find out what's happening.


BURNETT: So those are things he said, right? But then he changed his view. He said, no, it's not about Muslims.

It's about extreme vetting. Are those things that can be used against him?

DAVID MARTIN, INTERNATIONAL LAW PROFESSOR, UNIVERSITY OF VIRGINIA: They certainly can. There's a series of Supreme Court cases that have -- have set out a road map for how one might consider a claim of discriminatory motivation.


That became important in -- in racial cases. Discriminatory effect is not enough to show a constitutional violation.

You (ph) have to show discriminatory intent. How can that be shown? Supreme Court said it's not impossible, although, it's very difficult to do so.

You can look at past statements by key players. So that's clearly relevant, the statements we saw.

You can look at whether the decision violated the normal procedural process, which would seem to suggest that there's something else going on besides normal decision-making, or it violated the normal substantive grounds for such a decision.

All those factors are at least potentially here in the preliminary filings by the plaintiffs in this case. So they have a basis, more than one would normally see in any kind of case like this for at least getting to the next stage.

And I think that's their main objective now. If in case (ph)...


BURNETT: To get to the -- to get to the Supreme Court?

MARTIN: Well, actually, I think the plaintiffs would prefer to see that the stay remains in place. It's remanded to the court for a more complete proceeding...


BURNETT: At -- at the district court...

MARTIN: ...on the facts. Yes, and the government -- I think if that happens, the government would certainly ask the Supreme Court to step in and stay it.

BURNETT: So what happens if this -- if this does end up in the Supreme Court as so many anticipate it will, Paul, because right now, you've got a possibility of a four-four split, right, because you have these (ph) seats that...

CALLAN: Well, most of the talk that we've heard on it has been...

BURNETT: Mary Carl (ph) and Neil Gorsuch seat.

CALLAN: That's right, that -- that the court might split four-four, liberals against conservatives. And that means that the ruling of the lower court would prevail.

So the state of Washington's ruling would, in theory, prevail on that scenario. But I think we're forgetting about one thing with the Supreme Court.


CALLAN: It's an institution of government. And with Trump attacking judges now as he did in this case by calling the federal judge in this case a so-called judge, you have to wonder will the Supreme Court will consider the judiciary as under attack and...


CALLAN: ...will Chief Justice Roberts (ph) sit down with those judges and say, you know something, we need a decision, not a split court here. And I think you'll see a decision from the Supreme Court.

I don't know which way it'll go.


CALLAN: But I think you will see a decision.

BURNETT: So Stephen, let me ask you about this because Paul raises this point about Trump attacking judges. And he did, right?

He sent several tweets out about this this weekend. And one of them was this, "Just cannot believe a judge would put our country in such peril.

If something happens, blame him and court system. People pouring in -- bad." When you read that as -- as a judge, what do you -- what is your reaction?

He's saying that if there's a terrorist attack, it's going to be this judge's fault?

LARSON: It's -- it's very disconcerting the way that both sides -- both political sides have basically used ad hominem attacks to, in my view, undermine the judiciary. Rule of law is very important in this country.

It's -- it's very, I think, inappropriate for the president to be talking about so-called judges when you're talking about someone like Judge Robart or any of our federal judges. It's equally improper for Democrats and those on the left to try to undermine the president's nominee for the Supreme Court by trying to say that we have a so- called president, that there's some illegitimacy about the presidency itself.

This has got to stop. It is important that we debate these issues. It is (ph) important that we let this judicial process play out.

This isn't the first time that Congress and the president and the Supreme Court have gone head-to-head. You go back to Franklin Roosevelt and the -- the court packing (ph) days, you know, Harry Truman and Youngstown steel (ph).