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A federal appeals court hears arguments on President Trump's travel ban; The battle over healthcare heating up; Senator Elizabeth Warren reprimanded for his scathing speech about President Trump's nominee for attorney general, Senator Jeff Sessions; Aired 11-12p ET

Aired February 7, 2017 - 23:00   ET



[23:00:40] DON LEMON, CNN HOST: The biggest challenge yet for an administration that's had a pretty rocky start.

This is CNN TONIGHT. I'm Don Lemon.

A federal appeals court hears arguments on President Trump's travel ban. A ruling expected any day now but no matter what, the issue likely to go all the way to the Supreme Court.

Meanwhile, the battle over healthcare heating up. We saw ted Cruz and Bernie Sanders face off in our debate tonight. But who won? And can the GOP come up with a working plan?

Lots to discuss. So let's get right to CNN's chief political correspondent Dana Bash and chief Washington correspondent Mr. Jake Tapper, act the moderators of tonight's debate. Also with me Jonathan Gruber, professor of economics at MIT who is one of the architects of the affordable care act.

It is so good to have you all on. Great and interesting debate.

Jake you first. A lot of big moments tonight. But first, let me ask you who won the debate in your estimation? Was there a winner?

JAKE TAPPER, CNN CHIEF WASHINGTON CORRESPONDENT: WELL, Don, obviously the American people won the debate. It was more than an hour-and-a- half of substantive conversations. Firm debate between two people who have very different ideologies. Excellent questions from people who depend upon Obamacare and people for whom Obamacare has been a real crush on their livelihood.

Let's play some sound from the debate.



SEN. TED CRUZ (R), PRESIDENTIAL CANDIDATE: Choosing your doctor --.

SANDERS: You have access right now. Go out and get really great health insurance program. You can't do it? Because you can't afford it. All right. That's what he say. Access to what? You want to buy one of Donald Trump's mansions, you have access to that as well. You can't afford $5 million for a house? Sorry. Access doesn't mean a damned thing. What it means is whether people can afford it, can get the healthcare that they need.

CRUZ: And they can't under Obamacare.


TAPPER: AND that was - that was just one junk of an area where they really disagree. Senator Sanders believes that healthcare is a right. Every American has right to get health insurance whether it is from government or from an employer or another means whereas Senator Cruz, he says that every American has right to access to healthcare. That was Bernie Sanders trying to drive a hole through the argument of what access really means for people who can't afford it.

LEMON: And, of course, they are talking about repealing and replacing Obamacare. Here is what they said. Listen to this.


CRUZ: So yes, should Congress move swiftly to repeal Obamacare? Absolutely. Now, nobody thinks we are done once Obamacare is repealed. Once Obamacare is repealed we need common sense reform that increases competition, that empowers patients, that gives you more choices that puts you in charge of healthcare rather than empowering government bureaucrats to get in the way. And these have been common sense ideas I would know that for six years Republicans have been proposing. And for six years, Democrats have been fighting saying no change at all to Obamacare even as people were hurting and losing coverage.


LEMON: So Dana, the question is the president has been saying now, well, maybe it will be (INAUDIBLE), maybe 2018 before they can replace it. The question is are Republicans changing their tune on repealing Obamacare now that they are seeing just how tricky it is and that they will own it?

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT: They are changing their tune in terms of the time line, no question about it, Don. The fact of the matter is that every single Republican on the campaign trail in this presidential election and also in the congressional midterms since Obamacare was enacted has said that they are going to do it the first day that they get in office.

Well, you can't do that and they know that. And they have made that clear. That it's something that has to be unwound as carefully as it was put together. And then more importantly, Republicans have to come together on what they want to replace it with.

And so, that is the reality. Even just in the difference between President Trump's comments at the beginning of his administration, two weeks ago, and now, you see that that reality is becoming very clear to him. So I think that gives you the answer right now.

LEMON: So Jonathan Gruber, one of the architects of Obamacare. There is no doubt that there needs to be some fixes. President Obama even conceded that much himself. What mistakes do you think were made and can they be fixed without throwing the baby out with the bath water?

[23:05:04] JONATHAN GRUBER, ONE OF THE ARCHITECTS OF THE AFFORDABLE CARE ACT: I absolutely think that they can. I think that if you look at what happened with Obamacare, it was an effort to try to do many, many things at once, to do them well and I think that in some areas there were problems. I think in particular area where there are some problems is that insurance companies, they were not given the protection they needed to absorb the risk they faced in this new market.

Now, partly it is Obamacare's fault but partly it is Republicans' fault. In fact, Obamacare had billions of dollars in reinsurance payments to insurance companies that were supposed to help with both the risks. Republicans denied the payments of those insurance moneys.

So once again, I think there are things we can do to fix it. But there is no need to take the law apart and start over. And that the case was simply not made tonight hasn't been made to rip it up and start over just to fix the few holes with the law.

LEMON: Here is what the president told FOX News on Sunday.


BILL O'REILLY, FOX NEWS HOST: Can Americans in 2017 expect a new healthcare plan rolled out by the Trump administration? This year.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: YES. In the process and maybe it will take until sometime into next year but we are certainly going to be in the process. Very complicated. We are going to be putting it in fairly soon. I think that yes, I would like to say by the end of the year, at least the rudiments, but we should have something within the year and the following year.


LEMON: So Jake, I mean, similar question what I asked Dana. He promised quick action or repealing a replace of Obamacare. Won't a delay disappoint his supporters and people who are hoping that it's repealed and replaced quickly?

TAPPER: Well, I don't know. I mean, I think he has wide berth when it comes to his actions among his supporters who tend to give him a lot of runway. I think, you know, what Dana said earlier is correct. I mean, this is very complicated piece of legislation. It is affecting literally tens of millions of Americans. It can't just disappear overnight. They need to figure out how to unwind it if they actually are going to unwind it. And then they need to figure out what will replace it. We heard from several people here who need the protections and need the insurance coverage that exists right now and would be left out in the cold. We heard from this woman Carol who moved from Texas to Maryland because Texas didn't expand Medicaid coverage and Maryland did. And the medicine that she has now able to get under the Medicaid expansion has changed her life. And now she is -- before she had trouble walking and talking, and now she is a substitute teacher in Salisbury, Maryland.

There's a reluctance I think it's fair to say by people who are legislators right now to do anything that would make her life worse, to take away her insurance. I don't know how you solve this problem, I'm glad it's not my job to do so. But it is complicated.

I think what President Trump said in the FOX interview was just a very honest answer, it's going to take a while to do and to figure out. To promise it is all going to be done tomorrow or next week or Labor Day, that would be irresponsible. What President Trump said makes more sense if you hold that position.

BASH: And if I may add to that. I think that one of the things that became very clear, not that we didn't know it before, but it was really illustrated tonight was the reason is so difficult to figure this out. It is not just because it's complicated, it is because these members of Congress and these two senators were cases in point, come from very different philosophical points of view.

I mean, you heard them at various points debating whether or not healthcare is a right or whether or not it is something that should be an option. And everything kind of falls in from there. And that is one of the reasons why getting healthcare to a place where it's affordable and accessible and available has been so difficult because it's very, very fundamental different approach that we see.

TAPPER: And also, if I may, Don. For every Miranda, the woman who was frustrated because the mandates on small businesses require her to stay to keep her businesses under 50 employees because she can't afford to insure all her people. There are people like Carol. And to be quite frank, a lot of the working-class voters who voted for Donald Trump would be hurt if Obamacare disappeared tomorrow. And I think that President Trump likely is aware of that and wants to make sure that however it unwinds his supporters are not hurt.

LEMON: Yes. And it is interesting to hear that the woman who talked about preexisting conditions and she had cancer. I mean, they were all really great questions.

I want to play one more, though. This is Senator Bernie Sanders's biggest points. Listen to this.


SANDERS: `If you listen carefully to what he said, if you go to the doctor tomorrow and you are diagnosed with a terrible illness, the insurance companies do not have to provide you insurance. That is what Ted said. What he also said, if you have an illness, it has to be kept. But really we're moving into an era where millions of people who develop terrible illnesses will not be able to get insurance and God only knows how many of will die.


[23:10:13] LEMON: Jonathan, I want to bring you back in and get your reaction to that.

GRUBER: Yes. I think this is a critical point which is that fundamentally, Americans like the idea of prohibiting insurers from discriminating against the sick. So allowing people who have had illnesses to obtain insurance. There is no single Republican plan out that that provides the same broad protections that Obamacare did.

Let's take one simple example. Republicans like to harp on preexisting conditions. My wife is breast cancer survivor. If she went under -- President Trump says they ban preexisting conditions. But my wife could then go to insurer and they could say, yes, we have to cover your breast cancer. It will be $100,000 a month. No Republican plan had addressed the fact that insurers can discriminate in pricing against the sick.

So once again insurers have many mechanisms. They can use to discriminate against the sick. Obamacare banned all of them. Anytime you try to ban some of them but allow others. Insurers will use those others as a way to void sick people.

LEMON: Jonathan, thank you. Jake and Dana, I really enjoyed the debate. Thank you for joining us and staying here late. We appreciate it.

When we come right back, fireworks on the Senate floor tonight, a leading senator reprimanded for criticizing President Trump's nominee for attorney general.


[23:15:26] LEMON: Now I want to turn to the fireworks on the Senate floor tonight.

Senator Elizabeth warren reprimanded for his scathing speech about President Trump's nominee for attorney general, Senator Jeff Sessions.

CNN congressional correspondent Phil Mattingly has that for us - Phil.

PHIL MATTINGLY, CNN CORRESPONDENT: Don, it's no secret that Senate Democrats have had major problems, even disdain for many of President Trump's nominees. They have been pulling every procedural lever they can to try and slow the process down. Because at this point, that's as good as they are going to do on their own. They don't have the power to stop any of these nominations.

But tonight a dramatic moment on the Senate floor. We have seen over the last couple of days and nights Democrats really kind of come to the floor and stretch out debates.

Senator Elizabeth Warren, the liberal icon, took her turn tonight attacking Senator Jeff Sessions, the nominee to be attorney general. And as such, Warren went hard after Session's 1986 failed judgeship. And as part of that, the judgeship failed in large part because allegations of racism directed at Sessions.

Warren as she was going after these issues, was quoting from the official record of that judgeship, quoting "people like the late senator Ted Kennedy and also letter sent by Coretta Scott King, the widow of Martin Luther King Jr."

But in doing so, she triggered a mostly little used Senate rule and she warned to Republicans to stop. That rule basically says senators cannot impugn the motives of other senators. The Republicans who controlled the chamber told Warren to stop. Warren continued going on. That's what Senator Mitch McConnell stepped in. He said say this.


SEN. ELIZABETH WARREN (D), MASSACHUSETTS: They are mothers, daughters, sisters, fathers, sons and brothers.



SEN. MITCH MCCONNELL (R), MAJORITY LEADER: Senator has impugned motives and conduct of our colleague from Alabama, has warned by the chair. Senator Warren quote "said Senator Sessions has used the awesome power of his office to chill free exercise of vote for black citizens. I call to the senator order under the provision of rule 19.

WARREN: Mr. President.

UNIDENTIFIED MALE: Senate from Massachusetts.

WARREN: Mr. President, I am surprised that the words of Coretta Scott King are not suitable for debate in the United States Senate. I ask leave of the Senate to continue my remarks.

UNIDENTIFIED MALE: Is there objection?


WARREN: I appeal the ruling --

UNIDENTIFIED MALE: Objection is heard. Senator will take her seat.


MATTINGLY: Now, Don, as long as Senate Republicans control the chamber there is very little recourse for Senator Warren. But she was essentially told to stop and to sit down and she was no longer allowed to speak. As you can imagine, she did not appreciate this fact and immediately took to twitter afterward laying out a string of tweets attacking Republicans, attacking Sessions and attacking the majority leader. Including this one where she said, tonight senate majority leader silenced Mrs. King's voice on the floor and millions appalled by what's happening in our country. Don, one of the issues we have seen, even though Democrats can't stop

of these nominations, it is the energy that they have seen coming from the outside, kind of buoying these efforts to do whatever they can to slow the nominations up as you have seen from the tweets from Senator Warren and from a lot of her colleagues, retweeting her, tweeting themselves. This is clearly an issue where they believe they can harness some of that energy and it is going to be very interesting to watch going forward.

Worth noting, Senator Jeff Sessions will be confirmed tomorrow evening as next attorney general of the United States. But what Democrats from this promise, can take from this dramatic moment will be interesting to see as they rally their party in the wake of the stunning November defeat and as they try to find themselves over the next couple of months - Don.

LEMON: All right. Thank you, Mr. Mattingly. I appreciate that.

I want to bring in now Senator Elizabeth Warren. She joins me now by phone.

Senator, thank you so much evening. Just to explain, again, to our viewers, you were reading a letter on the Senate floor. It is, and I have it in my hands, it is from Coretta Scott King and it was Senator to Strom Thurmond at the time and it was talking about Jeff Sessions who then was being considered as federal judge, correct? And you were just quoting from her letter.

WARREN (on the phone): That's right.

LEMON: And what happened?

WARREN: So I read the letter because Coretta Scott King in her letter discussed what Jeff Sessions had done while he was the United States attorney for Alabama. And she walks through his prosecution of civil rights workers, what it was that Jeff Sessions did to the black vote and to try to chill the black vote, to try to keep African-Americans away from the polls.

The letter is powerful. The letter is deeply moving. And the letter is important historical document. And 1986, it moved a Republican- controlled Senate to say no to confirming him as a federal judge. And yet today when I went down to the floor of the United States Senate to do what I was supposed to do, which is debate the nomination of Jeff Sessions and wanted to read her letter, I was told that I had committed a rule 19 violation by impugning Mr. Sessions.

And I just want to be clear here, telling the truth, by reading a document that had been written back in 1986 by Coretta Scott King, I was impugning miss rejection and I was the one ruled out of order. And I'm not permitted to speak on the floor of the Senate again until after the vote for Mr. Sessions.

[23:21:21] LEMON: Until after the vote for Jeff Sessions. And again, this is - they said you in violation of rule 19, of standing rules of the Senate to impugn another senator or senators, any conduct or motive unworthy of becoming a senator.

The interesting thing is that he is now being considered now for attorney general. How are you supposed to criticize him in any way? Is this, are they interpreting this in whatever way they want? Is that your argument here? Is that a selective enforcement?

WARREN: Yes. They are interpreting it, however -- let's just be clear. There have been hard words on the United States Senate through the years. But all of a sudden when I'm reading something a truthful statement from Coretta Scott King, answer is no, can't say that.

And I'm going to tell you that they can shut me up but can't change the truth. What Coretta Scott King talked about Jeff Sessions doing back in 1986 is something every American should know about. And it's something every Senate you are should think about before they vote to confirm him as attorney general of the United States.

LEMON: Do you have the letter in front of you? Can you read the passage that you were reading that I think starts with anyone who has used - it starts with dear Senator Thurmond, I write to express my sincere opposition to the confirmation of Jeff B. Sessions as a federal district court judge for the southern district of Alabama. Do you want to pick up it from there? Senator, are you there?

WARREN: Yes. You are coming and going on me here.

LEMON: I will read it. I will read it because you can't hear me.

WARREN: Please do.

LEMON: And then it says from the southern district of Alabama. My professional and personal roots in Alabama are deep and lasting. Anyone who has used the power of his office as United States attorney to intimidate and chill the free exercise of the ballot by citizens should not be elevated to our courts. And then it goes on, it I is not that much longer. But she says I do sincerely urge you to oppose the confirmation of Mr. Sessions. And it signed sincerely Coretta Scott King.

What was harmful about that? Because it says talks about voters and for his reprehensible conduct, he should not be rewarded with a federal judgeship.

WARREN: Yes. You know, that's the part that you really have to look at here. It is that we can't talk on the floor of the Senate about what Jeff Sessions did back in the 1980s, how he worked to keep blacks from having access to the ballot box. We can't talk about that as we debate his nomination to be the attorney of the United States. That's fundamentally wrong.

LEMON: It says --

WARREN: If the truth hurts, that's all the more reason to hear it. That's reason for the American people to hear it.

LEMON: The letter says Mr. Session has used the awesome of his office in a shabby attempt to intimidate and frighten elderly black voters. Do you think that this -- the language in this letter was too harsh maybe?

WARREN: Those were facts. And Coretta Scott King was witness to those facts. They weren't stories handed round. She was eyewitness to history and she is relating what happened, what Jeff Sessions did, what happened during the civil rights movement. That's what she is doing here. And I think those facts are relevant to the question of whether or not he's fit to be attorney general of the United States.

LEMON: So can I talk to you, Senator, about the climate in the Senate right now? Because you have an awesome tasks. You have awesome task that you are facing right now with confirming a lot of these nominees and appointees. You are supposed to be the folks with the level head. What the climate like now in the Senate?

[23:25:08] WARREN: Well, this is a time when we can't debate the nominees. The Republicans are determined to just cram them down our throat sideways. You tell me a time in American history after we had department of education when it was that someone who basically doesn't believe in public education would become the secretary of education and get so little support in the Senate that literally just divide that there were Democrats, Republicans, independents voting against her and they would haul the vice president of the United States over here to do a tie breaker so that she can go run the department of education.

This is a shocking moment. You just can't believe this kind of thing is going on. And the same sort of thing now with Jeff Sessions. Their argument here is you can't talk about the bad things he did. But we are going to go ahead and talk about Jeff Sessions, that's fine, if you have nice things to say. And if you have nice things to say, you are allowed to stand up and talk. But if you don't, which I didn't, then the answer is you got to sit down and close your mouth.

LEMON: What are you going to do now?

WARREN: I'm not going to the floor of the Senate to speak. I have been out there on the floor of the Senate. I literally can't be recognized on the floor of the Senate. I have become a nonperson during the discussion of Jeff Sessions.

LEMON: Are you hearing from other senators?


LEMON: What are they saying?

WARREN: And great solidarity on this. Pamela Harris, for example. She stood up because she could still get recognized after I have been gabbled down and told I have to be quiet. And she moved to let me speak on the floor of the Senate. Of course, that was denied. She appealed the ruling of the chair. And there have been several other people who stood up and talked about it.

But I have to be clear, Republicans have stood up too and they have said no, no, no. They haven't said that Jeff Sessions has a good record. They haven't defended Jeff Sessions on the facts, on the merits. They have said you are not allowed to talk about him if you're going to say something like this. And we sure don't want to hear from Coretta Scott King about what happened in the 1980s.

LEMON: Senator Warren, thank you so much. I appreciate you coming here.

WARREN: Yes. Thank you.

LEMON: And listen, we have not had a chance to hear from the senate majority Mitch McConnell. He is free to call in to come in and do an interview wherever he choices to respond, we will accept.

Again, our thanks to Senator Elizabeth Warren.

Let's discuss this now. I want to bring in Mark Preston and David Gergen for reaction.

First to you, Mark, what is going on here?

MARK PRESTON, CNN POLITICS EXECUTIVE EDITOR: You know, Don, I spent a lot time up in the United States Senate covering the chamber. Of six, seven years that I was up there, I have never seen anything like this.

Now, I have seen partisanship boil up to a point where you actually had senators really have tough moments, but certainly not in this type of case. In many ways Elizabeth Warren not being able to go to the floor anymore to talk, I don't think she has to anymore, quite frankly.

The attention and the focus on her and that letter from Coretta Scott King is certainly going to become -- more attention will be driven to it now given what has happened, Don, than had she given a speech and had just moved on. But yes tension is very, very high in the U.S. Senate.

LEMON: I was just going to say, David Gergen, if you read this letter, it's not a very flattering. As a matter of fact, let me quickly - I will read it as quickly as I can.

It says this is 1986 and this from Coretta Scott King and to Senator Strom Thurmond. It says I write to express my sincere opposition to the confirmation of Jeffrey - Jefferson B. Sessions as a federal district court judge for the southern district of Alabama. My professional and personal routes in Alabama are deep and lasting. Anyone who has used the power of his office as United States attorney to intimidate and chill the free exercise the ballot by citizens should not be elevated by our courts. Mr. Sessions has used the awesome power of his office in a shabby attempt to intimidate and frighten elderly black voters. For this reprehensible conduct, he should not be rewarded with federal judgeship. I regret that a longstanding commitment prevents me from appearing in person to testify against that - this nominee. However, I have attached a copy of my statement of closing Mr. Sessions' confirmation and I request that my statement as well as this letter be made a part of the hearing record. I do sincerely urge you to oppose the confirmation of Mr. Sessions. Sincerely, Coretta Scott King. And then the honorable judge Joseph Biden as well. The senator was a cc there.

They have done her a favor by giving her this platform, a bigger megaphone to get this out -- David.

[23:30:00] DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Absolutely powerful letter. Technically of course, Senator McConnell invoked a provision, the rule of the Senate that does apply in a technical sense but whether he was wise to do it I think is a very different matter.

LEMON: It applies even though she is reading a letter?

GERGEN: You know, the rule is strictly interpreted, says you can't impugn the motives of another senator. One time you can't do that impunity. But it's Catch-22, obviously. Because what you are saying is you can have debate about person but the negative views can't be expressed by other senators, well, that of course, is ridiculous on its face. And I think in this case because it is Coretta Scott King, because it is a powerful letter, because it touches something very deep in the American experience about racism, you know, I think that this letter is going to get far more touching if they just let her talk. And I think the idea of silencing a woman senator is also going go down badly, be appalling to a lot of people.

So, you know, I think you can make the technical argument. And of course, I think Republicans will have a chance to - they ought to come on your show and defend themselves. But I think they made a mistake, a terrible mistake, because it looks heavy-handed and it is not what they want. And I think it does underscore how the poison that's we have experienced now in this last two weeks is spreading through the Senate. It just looks very difficult to get things done here in the next few months under these kind of circumstances, you know. So offensive.

LEMON: David, does it look like as Senator Warren says that they are trying to push people through and very handedly trying to push people through? I'm paraphrasing her.

GERGEN: Well, you know, again, Don, I think there are two sides to that story. The Democrats, you know, have slowed this process down more than it's been slowed down for any other president, and sort of denying the Trump administration a chance to get some of its cabinet officers in place.

At the same time I think the Democrats have a very strong case that these judges - I mean, these nominees ought to be vetted in front of the public much more than they are. And you know, any normal person would come along and say of course Elizabeth Warren, should be able to. You know, they should have a debate and of course she should be able to read the Coretta Scott King's letter.

But I do think - listen. I think there's some legitimacy on both sides. But the bigger point is, we have -- if you can believe it, it seems even more broken down than it did in a last few months, six months, or a year ago. LEMON: Yes. Thank you, Mark. Thank you, David. I appreciate that.

We will continue following this.

And again, if Senate majority leader Mitch McConnell wants to call in or wants to respond, we will accept it. We will take it right here on this program.

When we come right back, a fiery grilling for lawyers in tonight's hearing on President Trump's travel ban. We got the latest on that.


[23:36:52] LEMON: Three federal judges grilled lawyers from the justice department and Washington state tonight on a hearing on President Trump's travel ban.

Let's discuss now. Legal analyst Laura Coats is here. Constitutional attorney Page Pate. Senior political analyst Mark Preston and senior political analyst David Gergen. They both join me again.

So let's discuss this now.

Laura, the oral argument was fascinating. What stood out to you and who do you think made the better case here?

LAURA COATES, CNN LEGAL ANALYST: What stood out to me was the fact that the court was really trying to be even-handed in their peppering of questions to both Washington State and the DOJ. But I think that the DOJ's arguments were less persuasive. And here is why.

They hung their hat and their case oftentimes on this national security carte blanche that we give to the president of the United States when it comes to national security address. But besides that, they actually have a basis as to why they thought that was the winning argument. And the court said, look, we understand that's issue and that's, you know, carte blanche you like to give. But it's got to be real. It is got to be hypothetical. If the emperor has no clothes, we are going to call you out on it.

LEMON: There was an interesting part to me where they wanted each judge asked the attorney if the president said he wanted to directly ban Muslims, would they think that was legal, correct? What was the meaning behind that?

PAGE PATE, CRIMINAL DEFENSE ATTORNEY: Well, I think the first step is you wanted government lawyers to acknowledge, at least from the judge's standpoint, that there really is a first amendment establishment clause challenge that can be made to a true Muslim ban or a true religious discrimination action in immigration. And so, the government lawyer again caught flat-footed. He really didn't have a good answer. They kept saying, well, that's not what this is. It is not -- but I think ultimately that is the best argument to find this executive order unconstitutional because that it is religious discrimination ban and it does focus on Muslims.

LEMON: Alright. I want to take a listen. This is a clip from the attorney for the Trump administration. His name is August Flentje.


AUGUST FLENTJE, TRUMP ADMINISTRATION'S ATTORNEY: The district court's decision overrides the president's national security judgment about the level of risk. And we have been talking about the level of risk that is acceptable. As soon as we are having that discussion, it should be acknowledged that if the president is the official that is charged with making those judgments. I would also like to --

JUDGE MICHELLE FRIEDLAND, NINTH CIRCUIT COURT OF APPEALS: So are we back to -- are you arguing then the president's decision in that regard is unreviewable?

FLENTJE: Yes. There are obviously constitutional limitations but we are discussing the risk assessment.


LEMON: OK. David it's pretty hard to argue that the president is in charge of keeping the country safe from terror. That's not a hard argument with that, right?

GERGEN: That's not a hard argument. What is a surprise, Don, was his answer on whether this is reviewable by the courts and he paused. We was very uncertain on what to say. That long hesitation we just heard. And then he said basically yes it is unreviewable.

I think that would catch a lot of people by surprise because, you know, laws often may be within the purview of the president's power or Congress can also be in violation of the constitution. That's what the point of the Washington and Minnesota case is that they feel it's unconstitutional.

And I'm surprised that the government's lawyer basically said it was unreviewable and then he didn't have argument to back it up and nor did he have real argument about what the threat is. Why is door going to be slammed shut this way? What is the threat from these seven countries? I thought the government's argument was surprisingly weak and you guys wonder how well organized they were in trying to prepare for this hearing.

[23:40:50] LEMON: Mark, that is I want to ask you. What's the reaction that you are hearing from politicos?

PRESTON: You know in many ways, I mean, to David's point, I think they were surprised that the government didn't go in with a more solid case, and explanation as to why the district courts should be overruled. I mean, in many ways if you listened to the oral argument today and you are tuned in, it seemed as if they were searching for explanation to try to convince the judges that the district court was in fact wrong in making that case. And that the president, in this case President Trump, has absolute authority over deciding what to do.

That didn't come across in a very confident way. And I think that folks here, the take-away was is that, you know, in the end, that the federal government needed to put the onus on the judges to say that the fact is that the district court was wrong and that they probably failed in doing so and we will probably see that in the next 24 or 36 hours when we see a ruling come out.

LEMON: You know, the judges on the ninth circuit court were very confrontational. Is it always that way? You know, what argument do you think prevail? Page, this is for you. Is it always that confrontation?

PAGE: It is. I have argued in front of federal courts of appeal, I guess, about a dozen times now. And usually, the judges will show up very well prepared. They read the briefs. They looked at the cases and they are going to test the lawyers. They are going to try to find the weak spots in your argument and they are going to go back and forth.

What I find incredibly difficult for the lawyers from their standpoint is to do this over the telephone. I mean, it is hard enough to do it in a courtroom when you have a panel of three judges firing questions at you, but I imagine it was very difficult to do it over the phone.

LEMON: I want everyone to listen. This is another clip. This is one from solicitor general of Washington State. He was asked how this order is Muslim ban if number of people from seven countries adds up to only small percentage of Muslims.


NOAH PURCELL, TRUMP ADMINISTRATION'S ATTORNEY: Your honor, the key part from this court and the Supreme Court is very clear that to prove religious discrimination we do not need to prove that this were harms only Muslims or that it harms every Muslim. We just need to prove that it was motivated in part by desire to harm Muslims and we have alleged that --.

JUDGE RICHARD CLIFTON, NINTH CIRCUIT COURT OF APPEALS: How do you infer that desire if in fact the vast majority of Muslims are unaffected.

PURCELL: In part you can infer from intent evidence. I mean, there are statements that we quoted in our complaint that were shocking evidence of intent to discriminate against Muslim. Given that we haven't had any discovery yet to find out what else might have been said in private. I mean, that the public statements from the president and his top adviser reflecting that intent are strong evident --.


LEMON: I feel like a court show now. This is all very interesting. I have no idea what is going on here. But I mean, it sounds like the president's own words about banning Muslims may come back to haunt him.

PAGE: Absolutely. And that's what I found, at least from Washington standpoint, very encouraging about this questions. These judges, even, in this stage of litigation, are willing to look into the constitutional arguments. And they wanted to see if there was enough evidence here of actual discrimination. If they were not interested in those arguments, if the constitutional review doesn't apply to the president's powers, to enforce immigration and national security, you wouldn't hear these questions.

COATS: But here is the problem and all fairness to DOJ in this particular instance. You know, they would like the court to look at four corners they kept talking about of the actual document. There is really no specific mention of the Muslim ban in the executive order. Now, we all turned it (INAUDIBLE) and kind of raise our eyebrows and say this sounds pretty textual as a basis. But the court essentially saying to them, look, if I see no intent that actually laid out here, do I really have the authority as judge to go back to candidate Trump and use his views?

What they are all getting at right now is that Giuliani's interview talking about the idea of Trump allegedly coming to him and saying I have an idea, try to make this legal for me. And that's are all trying to go back to him. And if this is in fact a pre-textual reason, we are saying national security and we really mean Muslim ban, the court wants to know.

LEMON: All right, guys. That is going to be the last word, at least in this segment. I got to - there is some breaking news tonight on story that we first brought you last week about the human cost of the president's travel ban.

Baby Fatemah Rashad, a four-month-old from Iran who need's live saving heart surgery has been admitted to hospital in Portland, Oregon. Doctors have begun a series of tests and say the early results are promising so the baby urgently needs treatment. Fatemah and her family had been barred from the U.S. under President Trump's travel ban. They received a waiver last week. Before that federal judge I Washington State issued a nationwide temporary restraining order against President Trump's travel ban. So we wish her well.

And we will be right back.


[23:49:18] LEMON: Welcome back. It is a big night of breaking news tonight at the court of appeals, especially on healthcare.

Let's discuss now. Our CNN political commentator Jen Psaki, a former communications director in the Obama White House. Alice Stewart, the former communications director for Ted Cruz. Kevin Madden, a former senior adviser to Mitt Romney.

Basically, all of you - by the way, welcome to CNN Jen.

JEN PSAKI, CNN POLITICAL COMMENTATOR: Thank you. Great to be here.

LEMON: All of you had very similar roles. So it is good to talk to you about especially what is happening with the government and at the White House. Let's why don't we start with this ban because the judges that were

tough on both sides here. And this case is particularly hard. I think they were hard on the governmental side. And that puts that lawyer in a particularly tough position.

Do you agree with that?

PSAKI: I think it was a tough day for the DOJ lawyer, but anyone who is in the business of predicting how judges will rule, I wouldn't bet on that. That's not a good business to be in to make money. You know, I think they were tough on both sides. They are trying to extract from them all the information they can about the case they are making. But the question we have at hand right now is about whether the policy, the executive will be continued. So, we will see how they rule tomorrow, I think.

[23:50:26] LEMON: Do you think the government made its case? Because I have been hearing conservatives saying they didn't seem prepared and they would just -- don't even deal with the ninth circuit. They would go immediately to the Supreme Court.

ALICE STEWART, CNN POLITICAL COMMENTATOR: Yes. But the ninth circuit are difficult one for conservatives. It is liberal -- little more leaning to liberal and has the highest overturned court that we have in the country. So that's a challenge in and of itself.

I do think the attorney for the government didn't seem as prepared as he might should have bee. But then again, this was quickly called. The bottom line is the law is on Donald Trump's side. He is the president of the United States. Article two, section two said the president is the commander in-chief of the country. And under a code 1182, he has the law on his side in regard to as the president if he sees aliens coming into this country that he deems detrimental to this country, he can by proclamation stop their entry. And he has the law on his side in order to do that. And so, the bottom line is that is going to win out in the end.

LEMON: That's a law that conservatives are stating. But then there is a law after that that says that you can't do that by based on religion or race or any other thing, you know.

So Kevin - standby, Jim.

Kevin, the lawyer for the state of Washington Noah Purcell argues that this is in fact a Muslim ban and so it violates the first amendment. The court was skeptical about that. But Purcell cite multiple quotes from President Trump himself. Could Donald Trump's words hurt his own case, do you think?

KEVIN MADDEN, CNN POLITICAL COMMENTATOR: Well, I thought that was one of the more interesting lines of questioning when they brought up his campaign surrogates or the reference to campaign advisers.

I think one of the things that the DOJ lawyer argued on pretty firm ground is the idea that what the White House counsel's final advice on this or their final guidance is more definitive. Because if you look at why their legislative decisions or executive decisions that come before the judiciary, there are often times where there is a range of advice that goes into the decisions. But ultimately the constitutionality has to be decided on what is actually in the text.

So I think trying to go after intent, I think that the judges did raise some level of skepticism there. And they also raised a level skepticism on whether or not Washington State really did have enough evidence to say that they were in some way injured by the president's decision. So Jen is right. I think it's very hard to discern or try to guess which way they will decide here.

LEMON: Yes. You think that, you know, the other side is not making their case and they can come up with a completely different decision.

For the government, the bottom line on this travel ban, those that it's necessary for national security. Do you think it would be overreached for a court to overrule a president, Jen?

PSAKI: No. It's happened before. There is ample precedent. There is a division of the justice department or I'm sorry, the judicial branch and the executive branch for a reason. I think one of the challenges you heard from the audio hearings today was that they couldn't make the case. The DOJ lawyer was not able to make the case, neither has the Trump administration been able to make the case for the national security reason why individuals coming from these seven countries pose a threat to the United States. They had a challenge defending that on the call. They had a challenge defending that in the press briefing room and I think every official had a challenge.

STEWART: I think Secretary Kelly made a compelling argument for that today when he was speaking in the committee. He actually might have been on the call today and did a good job. He made a point to stress the reason these seven countries were named part of the Obama administration because they were counties of concern and the fact their vetting processes are not proper and are not safe for our country. So that is why the seven countries were named. And I think he made a compelling case for why they were pick and why it was important to do this as he called -- continues to call a temporary pause.

PSAKI: But the United States is the one who does the vetting and does the visa ban -- that make decisions on who gets a visa or not.

MADDEN: But the DOJ was very successful in making the case when they argued this in a much more limited way about the president's authority. And I think that, if this decision or this case goes further and further all the way up to the Supreme Court, that presidential authority in laying the case down tonight I think will have served them pretty well.

[23:55:00] LEMON: I want to move on and talk about Obamacare. You guys saw the debate here on CNN TONIGHT. What are the big takeaways? I will start with you, Jen. What was your take away?

PSAKI: One, I thought it was two very interesting individuals on stage together. Stylistically, they were very different. Senator Sanders I think appealed as sort of that folksy grandpa who is at the thanksgiving table with you. Senator Cruz was a lot more of the, you know, uncle who is prepared with his talking points and his graphs in his pocket for the thanksgiving table.

I think that senator Sanders's approach is much more appealing to the American public. We saw that from the election and people want here - they want to relate to the person who is talking to them. They want to hear that they are fighting for them. And I really don't think you heard that as much from Senator Cruz.

PSAKI: You thought he was too programmed. You think the opposite of it.

STEWART: Of course. Look. I saw -- the part that I saw was with Senator Cruz was a couple of times where he was able to really communicate directly with a person. There is one woman who had cancer and she was talking about what will happen if Obamacare was taken away. Obamacare kept her alive and Ted was very compassionate with her and gave the story of his mother who had breast cancer and how her medical care -- she is doing fine now. And I think he was able to convey to her that he does understand the individual needs of people for healthcare and he is compassionate and does care and wants to make sure that whatever is repeal is replaced with something that works.

LEMON: I have got to go. Kevin you don't get to talk now, at least not now.

When we come back you will get to do that. You guys will be back for a later segment. I appreciate it.

When we come back, Kellyanne Conway's very, I guess, yes, heated interview with our very own Jake Tapper. What she said about White House attacks on the press and the massacre that never happen, the bowling green massacre.