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Court Rules against Restoring Trump's Travel Ban; President Trump Agrees to Honor "One China" Policy; Court Rules 3-0 to Keep Trump's Travel Ban on Hold; Conway Counseled for Plugging Ivanka Trump's Brand. Aired Midnight-1a ET

Aired February 10, 2017 - 00:00   ET

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


(COMMERCIAL BREAK)

[00:00:20] DON LEMON, CNN ANCHOR: Our breaking news this hour: a huge setback for the White House. A federal appeals court rules President Trump's travel ban will remain blocked. But that's not the end of it.

This is CNN TONIGHT. I'm Don Lemon.

The fight, likely to go all the way to the Supreme Court. President Trump tweeting, "See you in court, the security of our nation is at stake."

The ruling tonight -- unanimous; the judges saying quote, "Rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all."

More breaking news tonight as well, the White House says that President Trump spoke with China's President Xi Jinping tonight and agreed to honor the one-China policy.

CNN international correspondent, David McKenzie, live for us in Beijing with the very latest. David -- hello to you.

The President agreed to honor the one-China policy. That is huge news in China. And what's the reaction there?

DAVID MCKENZIE, CNN INTERNATIONAL CORRESPONDENT: Well, Don -- that is huge news. And it's sort of fundamentally seen by China as the only way that this relationship between China and the U.S. could continue.

You had a candidate Trump and President-Elect Trump at times in interviews saying well, potentially the one-China policy which effectively is that China views Taiwan as a renegade province not as a country separate to it and that has been the view of the U.S. since at least 1979 when relations normalized.

Now this means according to state media already and several Chinese experts I've spoken to just in the moments ago, Don, that the relationship can move forward and it can deal with some of those tricky negotiating points of trade and foreign policy that China and the U.S. certainly will come across without this from the Chinese perspective this concession -- well, not concession -- this move by Donald Trump to reaffirm the one-China policy, there would have been very little relationship to speak of.

As one expert quote, Don, he said, well now it means that China and the U.S. quote, "won't go to war" -- Don.

LEMON: David McKenzie in Beijing. David -- thank you.

Here to discuss all the breaking news now: CNN's Pamela Brown, Mark Preston, Ariane de Vogue, Laura Coates, David Gergen; also Alan Dershowitz, his latest book "Electile Dysfunction: A Guide for Unaroused Voters"; F. Michael Higginbotham, professor of constitutional law at the University of Baltimore and the author of "Ghosts of Jim Crow"; and constitutional attorney Paige Pate.

Ok. Welcome back everyone to a brand new hour here on CNN -- CNN TONIGHT.

Mark -- a unanimous ruling from the three-judge panel, granting everything the states argued. How much of a political setback is this for the Trump administration?

MARK PRESTON, CNN SENIOR POLITICAL ANALYST: I think it's a major political setback. It doesn't mean that they can't recover from it. And we've been talking tonight about how they could do so and how they could do so is if Donald Trump ate some crow and refiled this or rewrote a new executive order and acknowledged that the steps that they took to try to put it in place were flawed.

Now, I think that most of us on this panel would agree that Donald Trump -- his ego might be too big to allow him to do so and that might get in the way of him trying to get to what he proposes to do, and that is, obviously restrict people from coming into the United States specifically from these nations.

But to look it strictly through a political lens, this has been a terrible day for Donald Trump in his very early in his presidency; and quite frankly it's capped off what has been a really tough week for him as well.

LEMON: Yes. Michael -- Bob Ferguson is the Washington State -- the attorney general there said this at a press conference tonight. Listen.

(BEGIN VIDEO CLIP)

BOB FERGUSON, WASHINGTON STATE ATTORNEY GENERAL: We are a nation of laws. And as I've said, as we have said from day one, that those laws apply to everybody in our country. And that includes the President of the United States.

(END VIDEO CLIP)

LEMON: Michael, does this mean the constitutional checks and balances are working?

F. MICHAEL HIGGINBOTHAM, AUTHOR: I think that the court set the appropriate balance between security and liberty. If you look carefully at the decision, they said that -- I mean the arguments were made by the federal government that this is national security therefore the courts can't review it at all.

And the Ninth Circuit panel said no, that's not true. Just because it's national security doesn't mean the President's discretion is unchecked. It's the court's role to make sure that the proper balance is maintained and that the constitution is interpreted properly and the court did that today.

LEMON: Laura, here's President Trump's reaction.

(BEGIN VIDEO CLIP)

[00:05:02] DONALD TRUMP, PRESIDENT OF THE UNITED STATES: It's a political decision and we will see them in court and I look forward to doing it.

UNIDENTIFIED FEMALE: So you believe the judges made a political decision?

TRUMP: We have a situation where the security of our country is at stake. And it's a very, very serious situation. So we look forward, as I just said, to seeing them in court.

(END VIDEO CLIP)

LEMON: Do you agree it was a political decision?

LAURA COATES, CNN LEGAL ANALYST: No, I don't. You actually have four different judges. You have the lower court who is a Bush appointee. You had a Carter appointee, an Obama appointee and you had another Bush appointee who all decided this issue on nonpolitical grounds.

Remember what this is rooted in is whether or not the executive order can hold constitutional muster, ultimately. But right now we are at a very preliminary stage.

And the question was why can we not return to the status quo of the pre-travel ban vetting? It was the responsibility of the DOJ to present evidence in response to that question and all we heard was crickets. And they are paying for it now with the decision.

LEMON: Pam, it seems like the exchange was a big factor in this decision. Listen.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Are you arguing then that the President's decision in that regard is unreviewable?

UNIDENTIFIED MALE: Yes. What we -- there are obviously constitutional limitations but we're discussing the risk assessment.

(END VIDEO CLIP)

LEMON: So Pamela, in fact, the judges wrote this. "There is no precedent to support this claim of unreviewability which runs contrary to the fundamental structure of our constitutional democracy. Does this mean the White House overreached when they wrote this order?

PAMELA BROWN, CNN JUSTICE AND SUPREME COURT CORRESPONDENT: Well, basically the court said, the Ninth Circuit court said was look, we have every right to review this case just because we do give deference to the executive branch and the legislative branch when it comes to issues of national security and immigration such as this.

We still have a right here, which I think is pretty significant and as the government attorney there for the Department of Justice argued, he was trying to say that look, you don't have reviewability here because it's national security, because this deals with immigration, this should fall within the discretion of the President.

And this is also a key quote that was in that 29-page opinion. It talked about the fact that the government did not provide evidence to support why those seven countries were in the travel ban and their ties to terrorism. Why they presented a national security risk.

And it goes on to say rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all. We disagree.

So these three judges using very strong words to say yes, we do have a right to review this and our decision is to halt this ban moving forward.

LEMON: Paige -- did the White House overreach?

PAIGE PATE, CONSTITUTIONAL LAWYER: Oh, I think absolutely they overreached. And the question is now what are they going to do about it? Because they have to present the same arguments that they presented to the Ninth Circuit either back to the district court again and that court's already rejected them; or try to take them up to the United States Supreme Court. And so far, with the exception of that one federal judge in Boston, these are losing arguments.

And I think the two most important things about the order that we saw today was the court's finding on standing and the recognition that courts can and do review executive decisions on immigration even when national security is an issue.

LEMON: Ariane -- are these losing arguments on behalf of the government's lawyers?

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: Well, what's interesting to me is that what they had to do is the government had in order to justify why they needed that executive order reinstated, it had to say, look here is why. Here are the national security risks. And it didn't do so.

And the court called them out and said, look, there's no evidence here that you submitted. And you could have even done that in a classified manner and you didn't. So that was one key holding of the court asking the government look, you have to justify why this has to be reinstated and it didn't.

LEMON: Alan, I have been hearing you say all evening here on CNN that the President should possibly pull this version of the executive order, redraft it and start again?

ALAN DERSHOWITZ, DEFENSE ATTORNEY: I think that would be the right approach. I don't think he's going to do it, but he hasn't listened to lawyers right from the beginning. This case was litigated terribly.

Look, the headline could read "Precedents trump President Trump". And that's what happened here. There were precedents going the other way. It was litigated very, very poorly.

And he has the option now. He doesn't even have to pull this order. All he has to do is write a new order and a narrower one -- one that only applies to people who are outside the country who have never been inside the country. And I think that would be sustained.

Look, the argument that this is a Muslim ban because the seven countries that happen to have high risks of terrorism happen to be Muslim countries. This is Islamic terrorism that we are fighting. It's no accident. If they had added Armenia to the list would that have saved the constitutionality?

[00:10:03] This is a very deeply-flawed decision but it will buy time for the state.

The other thing this shows is we have a system of checks and balances that operates in two ways -- the judiciary checks the executive, but the states also can check the federal government.

Here we have states winning cases against the federal government. That also shows our system of checks and balances working efficiently.

LEMON: Yes.

BROWN: Could I just jump in really quickly just on the heels of what we just heard there. What was interesting in this opinion is they rejected, these three judges rejected a compromise the Department of Justice put forward saying ok, why don't we just have this travel ban for now apply to people outside of the United States who have never set foot in the U.S. because these people surely don't have constitutional protections according to the Department of Justice.

But these three judges actually rejected that flat out and they made the case in this opinion that citizens in the United States have an interest in having, perhaps, noncitizens coming to visit them.

And so basically, even if the administration wants to have a more narrow travel ban just for people outside the U.S., the three judges are saying that could still be problematic which is just interesting to note.

LEMON: David Gergen, go ahead. DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Yes, Don -- let me echo

something of what Alan said but move on from there. I think he's right about that. The President really ought to, you know, let the case go forward but minimize the impact of the case. This president didn't get elected to spend his first three or four weeks --

(CROSSTALK)

LEMON: Will his ego let him do that?

GERGEN: -- focusing on trying to get an executive order through. What he needs to do is go back to the court, don't appeal this, go back to the district court, get this (inaudible) going, get a new executive order prepared.

But in the meantime, get on and back to the issues that he got elected on that are much more important to the country and that is tax cuts, regulatory reform, infrastructure. He just had a big meeting with airline executives today. He ought to be doing more of that. Get the Obamacare thing done.

He has larger issues. You only have so much time in the White House in your first 100 days, your first year or so. You only have so many issues you can deal with. To let this issue become front and center for the next three weeks, next four weeks, next three or four months would be a tremendous mistake for his presidency and what he's trying to accomplish.

LEMON: Mark, he wanted to get the things he promised on the campaign trail done fast with these executive orders. So you know, David said, get on to the work that he promised people.

He promised a Muslim ban during the campaign. And then now he is saying, see you in court. The security of our nation is at stake. Is he going to allow this to -- is he going to do what Alan and what David suggested? Maybe redraft, maybe, you know, eat some crow and say all right. So it wasn't quite right. And then redraft another one? Will his ego let him do that?

PRESTON: You know, he might do it just despite the fact that we have been saying all night that he is not going to do it -- right. I mean that could be his way of boomeranging back on us.

But you know, to David Gergen's point. He is absolutely right about getting things done. And if you look at his first few weeks of his presidency, Donald Trump all of the problems that have arisen in his presidency have been brought on by Donald Trump himself.

It hasn't necessarily been his administration or his aides. It's Donald Trump himself and his aides having to go out and try to clean it up including his nominee for the Supreme Court, Judge Gorsuch who has to go up and answer questions that clearly he doesn't want to have to deal with, specifically during this very delicate time.

LEMON: Hey, Paige -- we have been talking about this decision but the President has been stressing that a court in Boston upheld the executive order in another local case. Does the Boston decision have any bearing on this case?

PAGE: Well it has no bearing at all on what the Ninth Circuit does. That judge is sitting in a totally different circuit and obviously a lower court judge is a district judge.

But I think there is an important point here. And I think Alan would agree with this. Neither that judge nor the Ninth Circuit has really delved into the meaty constitutional issues that need to be decided.

I'm not suggesting the administration doesn't have an argument here. They do. I do think it was poorly performed by the local -- the DOJ lawyers that handled it. But they do have an argument and it needs to be heard. But the more these courts have to deal with these temporary measures you're never going to get in to the merits of the constitutional issues.

I don't think the Ninth Circuit had to go as far as they did but by recognizing that there is a due process right for some of these folks I thought was -- you know, that is really broad. That really helps the states, and then at least addressing the establishment clause argument as well.

But we're going to need to have one court fully vet these arguments, enter a well-reasoned opinion and then have that opinion go up through the courts if the administration wants to keep challenging this stay.

LEMON: Washington's attorney general responded to the President's response about seeing them in court. Watch this.

(BEGIN VIDEO CLIP)

FERGUSON: Well, we've seen him in court twice. And we're two for two.

(END VIDEO CLIP)

[00:15:04] LEMON: Is that an end zone dance there by the legal team -- Ariane?

DE VOGUE: Well, yes, that was. And but they won tonight. And it was a big win, right?

LEMON: Yes.

COATES: If I can just say, though, this 100 day rule and trying to hastily comply with whatever artificial deadlines are imposed on a president he is learning very quickly that the legal justice system takes time. And sometimes one of the arguments that they made in front of the oral argument was that this was very hasty. And they didn't have time to get all their ducks in a row.

Well, this is the very first day of Attorney General Sessions in terms of how he's now going to have to deal with this issue. And I do hope that the President proceeds with caution in recognizing that this artificial deadline of 100 days, or the first four weeks does a disservice to the justice system. LEMON: Ariane, David -- thank you very much. The rest of the panel

-- I'll see you right after this when we will talk about possibly a conflict of interest in the White House and the breaking of an ethics rule -- the possibility of that.

We'll be right back.

(COMMERCIAL BREAK)

KATE RILEY, CNN WORLD SPORTS: I'm Kate Riley with your CNN WORLD SPORT headlines. We have solid confirmation that Barcelona will play the Copa del Rey's final against Alaves without striker Luis Suarez as things stand (ph). The one-match ban was upheld and the forward has now picked a two-match tournament ban after his sending off in the semifinal second leg and then for staying too long to leave the pitch and staying in the tunnel. Barca has confirmed they will continue to appeal.

From the pitch to St. Moritz in Switzerland for the FIS Alpine World Ski Championships where one of the biggest names in the sport is struggling to return to winning form. The American Lindsey Vonn said she may be forced to go to such extreme length (ph) to duct tape her pole to her hand in order to compete.

On Tuesday, the (inaudible) hero failed to finish after she lost grip on her pole in the Super G. The four-time world cup winner is still recovering from surgery she had on a broken arm back in November. She is still optimistic heading into the weekend's events, duct tape or not.

And someone else who should have used duct tape is the Patriots quarterback Tom Brady who is still hoping to get his hands on the jersey he wore during Sunday's Super Bowl after it went missing during post-game celebrations. He may be in luck though. A law enforcement official told TMZ Sports they were hopeful that it was packed up right after the game and headed back to Boston now.

And that is a look at all the sport headlines. I'm Kate Riley.

[00:19:37] (COMMERCIAL BREAK)

LEMON: -- appeals court in a unanimous decision refusing to reinstate President Trump's travel ban. The President vowing to fight the ruling, tweeting, "See you in court".

Back with me now: Pamela Brown, Mark Preston, Laura Coates, Alan Dershowitz, Michael Higginbotham and Paige Pate.

Mark -- to you first on this one. One more point on the Ninth Circuit's decision. Hillary Clinton tweeted this, "3-0." She is talking about the unanimous court decision. Kellyanne Conway re- tweeted that writing on top. PA -- "Pennsylvania, Wisconsin, Missouri".

Mark so -- yes, Michigan. So Mark -- what do you think? Did Hillary -- did that tweet surprise you? Did Kellyanne's response -- was that surprising to you about the electoral win?

PRESTON: Yes, I'm going to be equally critical of both of them -- very clever, very clever of them. You know, I mean at this point the election is over, you know, and they're still battling it out.

I mean the fact of the matter is, I mean Hillary Clinton at some point is going to figure out what her role is going to be the Democratic Party. And if she's going to be a leader, little tweets like that aren't going to get her there. And Kellyanne Conway is in the White House. She doesn't even have to respond to Hillary Clinton.

But I will tell you this. There was one response tonight, Don, that I think is worth noting. It was Camilla Harris, she is the new senator from California, African-American. And she just introduced her first bill today and it has to do with requiring legal aid for refugees who come here that need it that get caught up in the system.

A very symbolic thing but it will be very well played to the Democratic base. And a lot of people see her as one of the Democrats, young Democrats of the future.

LEMON: Alan, I want to ask you a technical question. This is about the travel ban case. The assistant attorney general for Washington made this point. Listen to it.

(BEGIN VIDEO CLIP)

COLLEEN MELODY, WASHINGTON STATE: Several of our claims, not all of them, but several of them involve allegations of intent. So a particular action could be against the law or totally compliant with the law depending on why it was done.

And so for our intent claims, claims where we need to show why a certain action was taken we certainly would be expecting at the district court level to be able to get evidence of, you know, whose idea was this? What were the reasons for it? What was the evidence for it? Who participated and who was providing information? Those kinds of things that help you get context about, you know, you think about any decision that someone in your life makes and you ask them what were you thinking about and why did you come to this decision.

Those are the same things that happen in the discovery process where intent is one of the elements.

(END VIDEO CLIP)

LEMON: So Alan, that seems pretty huge though. The President's team will have to answer all of these questions under oath?

DERSHOWITZ: Well, first of all, there are two issues. One -- does intent ever matter in assessing whether something is a religious discrimination? The answer to that is yes, it does.

But the evidence has to be pretty overwhelming and using a campaign promise or a conversation with Rudy Giuliani probably doesn't suffice. Second, the President is being sued as the President not as a private citizen. And there are going to be some privileges that he will be able to claim about deliberations with people who were with him. Now he won't be able to claim that as a candidate. That's interesting.

So they can probably probe him as a candidate but his answer may very well be look, what I said as a candidate was as a candidate. I'm now the President and I wanted to pass a constitutional ban and I tried my best. And this is constitutional.

So it's going to be a complicated issue on discovery.

LEMON: Michael -- same question to you.

HIGGINBOTHAM: Yes. I think intent is difficult to prove but there's a lot -- there's a lot here especially on the campaign. And it was cited by the attorneys in Washington State. They talked about, look, you know, using the words of Donald Trump during the campaign. Look he wanted a Muslim ban.

They talked about Rudy Giuliani saying that Trump came to him and asked him how can we do a constitutional ban on Muslims without expressly doing it? So there's a lot there.

And I think in terms of establishing intent, all of those circumstances go to that establishment. So they're going to be looking at what candidate Trump said as well as what President Trump has said.

DERSHOWITZ: But that's not what -- that's not what the Giuliani conversation was. It was how do we effectuate the effort against terrorism in a constitutional way? I don't think that will prove that he was trying to --

LEMON: Alan -- that is not what he said in the interview.

DERSHOWITZ: What did he say?

LEMON: He said in the interview -- he said the President came with me and he wanted to figure out how he could get the Muslim -- ban the Muslims, how he could make it work? And he said the way you make it work is you make it a ban on countries.

DERSHOWITZ: Well, first of all, I don't think he used -- you may be right. I don't think he used the word "Muslim ban" in the conversation. I think he said how do you make it work.

[00:25:01] LEMON: We'll get it. We'll get it.

DERSHOWITZ: But here you have a situation where the vast majority of countries that do have Islamic terrorism are Muslim majority countries. And how do you avoid having a ban that is designed to prevent terrorism that doesn't focus on the countries where the terrorism comes from? Do you have to add Armenia to avoid that?

PATE: Alan -- one thing you could do is not also give preference to religious minorities in those countries.

DERSHOWITZ: But that's the right thing to do.

PAGE: I think it's further evidence that this is a religious --

(CROSSTALK)

DERSHOWITZ: But that's the right thing to do. You want to give preference for people who are being persecuted and discriminated against. We have a long history of that. That helps. That doesn't hurt.

PAGE: You cannot give preference to a religion and also have this order constitutional.

DERSHOWITZ: Yes, you can. Yes, you can.

PAGE: No, you cannot use the First Amendment establishment clause.

DERSHOWITZ: In 1944 they gave preference for Jews when they were being murdered by the Nazis. That was the right thing, everybody supported it. The Supreme Court have been 9-0 in favor of it. If a particular religious group is discriminated against you can give them preference. If the Bajas are being murdered by Iran, you can give them preference. Yes.

PAGE: I completely disagree with you.

COATES: The big elephant in the room -- the elephant in the room here is, of course, that one of the justifications that President Trump used as a basis for the executive order was the 9/11 attacks. And interestingly enough the countries that the terrorists originated from are not on this list.

And remember, there is no requirement that you must impose discriminatory actions on all Muslims across the globe in order to violate discrimination laws. It --

LEMON: It just has to be one.

(CROSSTALK)

COATES: And here you have that.

DERSHOWITZ: What if he had added those -- what if he had added those countries -- Egypt and Saudi Arabia. Would that have made it better?

(CROSSTALK)

DERSHOWITZ: It would have made it worst from their point of view.

COATES: Those hypotheticals are something that the court raised. Remember you had Justice Canby -- Judge Canbys actually said, what if I had done this? These hypotheticals are all things the government had a responsibility to address and failed to do so. And that's where we are right now. I encourage the President, along with the Attorney General and his legal team, to take much more cautionary tracks this time and decide what are the hypotheticals that will actually work? But at the end of the day, the only one that works is the one that comports with the constitution.

LEMON: Ok. Here's Rudy Giuliani. Let's listen.

DERSHOWITZ: Ok.

(BEGIN VIDEO CLIP)

RUDY GIULIANI, FORMER MAYOR OF NEW YORK: When he first announced it, he said Muslim ban. He called me up and he said put a commission together, show me the right way to do it legally. What we did was we focused on, instead of religion, danger -- the areas of the world that create danger for us which is a factual basis, not a religious basis.

(END VIDEO CLIP)

LEMON: Alan.

DERSHOWITZ: That makes sense to me. That makes sense to me.

LEMON: He said a Muslim ban, how do we do it legally?

DERSHOWITZ: No, but if you put the whole thing in context, he was saying we rejected the Muslim ban. That may have been a campaign statement but we wanted to focus on the danger. If you wanted to have a Muslim ban you ban all Muslims. You ban -- you include Egypt and you include Saudi Arabia. But when you focus on the seven countries that the Obama administration focused on that just doesn't sound like a Muslim ban to me.

LEMON: But the Obama administration, Alan -- and you know that, they didn't focus on, they didn't ban anyone. They said that they needed better vetting after there were two people in Bowling Green that they --

DERSHOWITZ: But they applied a double standard to seven countries and those seven countries are Muslim countries. So that decision was made by the Obama administration.

I think this is going to survive a challenge based on establishment clause.

LEMON: Go ahead -- Laura.

COATES: The emperor has on no clothes and one of the important things to note in the legal system is that concessions although they may be painful would preserve and, you know, confirm your credibility. I think that, you know, when you have the evidence before you, which is one of the things the court has said that the state of Washington will be able to look at, the intent, I think it's very damning to the administration to have that statement by Rudy Giuliani. And remember, I've done a number of civil rights cases. It's very rare to have a smoking gun or such low-hanging fruit. And you often have to infer intent.

Here you have an explicit statement that confirms that they tried to make a -- transform an otherwise discriminatory act into a secular one about territory. And that will not bode well.

LEMON: Yes, Pamela --

DERSHOWITZ: But maybe they were trying to do was trying to turn an unconstitutional thing into a constitutional one. That is credible and that's praiseworthy. You want to turn something that would be unconstitutional into something that would be constitutional so you focus on danger and terrorism, not on religion.

LEMON: To most people especially a layperson it sounds like you are renaming it in order to make it legal. I mean that's what it sounds like to me, you know.

(CROSSTALK)

DERSHOWITZ: Let's see what the court -- let's see what the court says. Yes.

LEMON: Anyway -- Pamela, where do we go from here?

BROWN: Well, there's a couple of potential options. As we have been discussing they could go back to the drawing board with the executive order. The Department of Justice could appeal to en banc which means 11 out of the 40 judges in the Ninth Circuit would then look at this he case and review it and of course, the Department of Justice would hope for a more favorable outcome for their side.

[00:30:03] Or of course, there could be an appeal to the Supreme Court. I know there have been some analysts tonight saying that that likely won't happen. It won't go there that quickly but that is an option. They could appeal to the Supreme Court potentially. And as we know, there are eight justices on the court with the seat still empty for Justice Scalia.

And so if there was a 4-4 split, then what the Ninth Circuit ruled today, keeping that halt on this travel ban during the appeals process would remain.

DON LEMON, CNN ANCHOR: All right. Thank you, panel.

When we come right back, tonight's court decision a huge setback for the Trump White House. But what are the political costs?

(COMMERCIAL BREAK)

[00:35:00] LEMON: President Trump not one to back down, vowing to fight the court decision keeping his travel ban on hold.

I'm going to bring you now CNN political commentator Alice Stewart, a Republican strategist; political commentator Maria Cardona, a Democratic strategist; contributor Larry Noble, who is general counsel at the Campaign Legal Center and political commentator Andre Bauer, the lieutenant governor of South Carolina.

So, Alice, welcome. The Ninth Circuit opinion is stunning. A stunning decision against President Trump. He has been trying to move fast with these executive orders, kind of a shock and awe approach. Does this ruling slam on the brakes?

ALICE STEWART, CNN POLITICAL COMMENTATOR: Not in the administration's mind, whatsoever. Look, it is a huge setback. It is a blow, especially given that it was a 3-0 decision, but it's not going to setback the administration at all.

Look, in their view, the ends justify the means here. And they look at this as an interim decision applying strictly to the temporary restraining order on the executive action.

And they continue to have the mindset. They are right in this. The law is on their side. The president is the commander-in-chief of the United States and they look specifically and they repeatedly referred to U.S. code 1182 in which the president if he sees aliens coming in to this country that are detrimental to the interests of the United States the president can by proclamation suspend the entry of these aliens into this country.

They will continue to use that, but clearly based on the ruling from the judges tonight they need to provide more evidence as to why there is a threat to this country and specifically why these seven countries. And I think they will go back to the drawing board, sharpen their pencils and give a lot more explanation as to their argument.

LEMON: Andre, it was a unanimous decision against the president. He is saying see you in court. But the roll out of this executive order, even according to Trump supporters and conservatives, Republicans, they say it was chaotic. Should they start over with this?

ANDRE BAUER, CNN POLITICAL COMMENTATOR: You know, I'm not a legal guy. This court has overturned more than any other court. And so I hope it will work out.

The best news is this is what our founding fathers envisioned. It's challenging the constitution and it's how this process is supposed to work. The president, first and foremost, needs to make sure he keeps his country safe. That's his intent. It's not to pick a fight with the court system. Hopefully, they will get it worked out, where in the end protects people and we don't have people coming into this country that are going to be doing us harm. And so it also is sending a message to people that may come here and do hard, that this president is going take security of this country very, very serious.

LEMON: Maria, I have to ask you the big picture. Does this cast out the idea of a ban altogether?

MARIA CARDONA, CNN POLITICAL COMMENTATOR: Absolutely, it does. And I think the reason it does that is because what this court made very clear today is that the president can try to do something and say something based on national security and try to tell the courts that his decision is unreviewable. But that is where our constitution comes in and the separation of powers and that was made very clear today.

And I think one of the things that the court underscored is that the government did not make -- did not offer proof that what they were saying was solely based on national security and that keeping the ban in place was absolutely necessary. And, look, there is no question that this -- that a president, any president of the United States has absolute discretion and leeway to let in whoever they want and to keep out whoever they want. But guess what, that happens every single day, which is why you have the vetting processes in place.

People are denied visas. People are denied entry to this country every minute of every day. And that is not going to stop. But what the president can't do is do a blanket ban based on religion and try to make -- try to convince the courts that that's constitutional and that they can't even review it.

LEMON: Yes. Larry, can we switch gears here? Because I want to talk about the president. He has been upset because Nordstrom dropped his daughter Ivanka's products. And he tweeted this, "My daughter has been treated so unfairly by Nordstrom. She's a great person. Always pushing me to do the right thing. Terrible."

And today, his senior adviser Kellyanne Conway pitched Ivanka's products during an interview standing in front of the White House. Was that unethical? Was it illegal? What do you think?

LARRY NOBLE, GENERAL COUNSEL, CAMPAIGN LEGAL CENTER: I think what Kellyanne Conway did was illegal. I think it violated the ethics rules against a government employee is not supposed to promote a product. And she just blatantly did that.

I think what the president did was unethical. You know, not illegal. But he is exempted from these rules. But he should not be involving himself with his daughter's business. He said he was going to separate himself from his business. Ivanka Trump said she was going to separate herself from her business. They didn't divest themselves. And that's what one of the problems is.

[00:40:00] And so when she has a business deal with Nordstrom, where Nordstrom decides to drop the deal, drop the line and he attacks Nordstrom, it shows that he is so involved with the businesses. He is still so involved with the businesses that he can't separate out and he brings the government to bear on that issue. And that's really a conflict of interest and I think that is unethical.

LEMON: Alice, concerning the fallout in all of this. Why would the president even get involved? I mean, couldn't he be doing more harm than good especially if you see what happened. Kellyanne Conway has to got out and defends and then according to our guests here, to Larry, that she may have even broken a law. He believes the president acted unethically. Why even get involved? STEWART: Look, I clearly believe there are bigger fish to fry for our commander-in-chief. But at the end of the day he is a father who was defending his daughter who he feels was done wrong by a department store. And he tweeted basically in defense of his daughter.

And my understanding and I strongly believe Kellyanne Conway was part of the interview this morning was light hearted and in jest. And I think it was taken much too seriously as to what she was saying if you take it to its nth degree. But I would imagine at the White House, she is not in any trouble whatsoever. I would imagine --

LEMON: But, Alice, you are a straight shooter.

STEWART: Looking that as a strong woman supporting another strong woman --

LEMON: This is not --

STEWART: And he is giving her attaboy.

LEMON: OK. This is not a playground where, you know, someone has to defend their 12-year-old daughter and that you go, oh, go out and buy my stuff. I know you are, but what am I?

This is the highest office in the land. They have been criticized for the possibility of ethics violations, for conflict of interest. It seems to me that they just don't care and they think that they can do it anyways regardless of the rules. That they're not playing by the rules and they think that they are above reproach when it comes to these issues.

If you are the president of the United States, if you work for the president of the United States, you have to cross every "T," dot every "I" and you have to be more than careful with every single statement.

STEWART: Don, I'm not saying I think it's OK, but just saying this is my opinion of how they're looking at it. They do think it's OK. And he did feel as though he was defending his daughter who he feels was done wrong and Kellyanne was simply --

LEMON: Invite her up for tea and say, you know, I know it's hard for you, but now you are in the White House and that things were that way. And maybe you'll have to let the line go. You work very hard, but we evolve and we move on. And you are doing something that's even more important now than your clothing line.

Go ahead, Larry. What do you think of this?

NOBLE: Yes, no, I think, you know, if you look at the individual incident, yes, maybe she was joking, maybe she wasn't joking. What they don't get is he's the president of the United States. And that what he tweets, what he says, what his people say matters.

And think about a company that is trying to negotiate with a Trump enterprise somewhere. And are they going to now have to worry about whether they don't treat the Trump people the way they want to be treated that also the president is going to tweet about them, is going to go after them? This is really an abuse of power.

And this is something that was raise from the very beginning, that he should really separate himself totally from his businesses because people were concerned about this. And, frankly, I have to say that he has in three weeks, you know, gone further than I thought he would go in terms of just showing he's going to remain involved.

And even the idea that he says that -- or Spicer said that, the attack on his daughter's company and it wasn't an attack on the company. It was a business decision by Nordstrom was an attack on his policies and on his name. Where does that stop? So does that mean there's somebody, you know, doesn't rent space from a -- or lease space from a Trump building, it's going to be an attack on Trump?

This is not the way you run a country. He's the president of the United States. He is no longer responsible for those businesses and he's frankly no longer responsible for making sure his daughter's business does well.

LEMON: All right. On that note, we'll take a break and we'll be right back.

(COMMERCIAL BREAK)

[00:48:20] LEMON: Back now with Alice Stewart, Maria Cardona, Larry Noble and Andre Bauer.

I want to show you this video. It's protestors at a town hall, was held by Representative Jason Chaffetz in Salt Lake City, upset about the repeal of Obamacare and what's happening in Washington.

Listen.

(BEGIN VIDEO CLIP)

(PROTESTORS CHANTING "DO YOUR JOB")

(END VIDEO CLIP)

LEMON: So, Larry, the congressman ended the town hall an hour early. Is this the future? Has the new administration awakened grassroots anger all over this country?

NOBLE: Oh, I think it has. And I think we have seen it from day one with the marches and with people being very upset and going to town hall meetings to express their distress and their frustration with the Trump administration and what they view as Congress -- Republicans in Congress not doing anything to keep him in check or to put forward the programs that they thought were going to be put forward.

It seems like the Trump administration is really just kind of doing things very quickly, but not necessarily in an orderly fashion and not getting them what they want.

What's interesting today is that Chaffetz assigned a letter to the Office of Government Ethics on the Trump ethics issues, asking the office of government ethics to investigate the Kellyanne Conway issue. And that may have been because he is feeling pressure. He is feeling pressure from the public about trying to get some control over what's going on.

LEMON: Maria, you are nodding your head in agreement?

CARDONA: Absolutely. And I couldn't be more thrilled, because not only is this happening so much faster than even the tea party got together, but they are actually -- they are following the same plan -- blueprint if you will that the tea party used.

[00:50:08] This did not happen by accident. This happened specifically because Trump got elected with a minority of American voters and a majority of Americans do not want him to be president.

So you have things like Obamacare. You have things like what happened, what we were just talking about with Ivanka Trump. You have things that underscore the conflicts, the massive conflicts of interest that are going on with this White House and then people like Jason Chaffetz who if Hillary was there, on day one he would be calling for hearings and for investigations. And he hasn't done anything up until now. I think the reason why he did this is because he is feeling the pressure from these folks.

LEMON: Andre, you didn't agree with anything that Maria said, did you?

BAUER: No, not really. I mean, number one, the Republicans won resoundingly in the last election. She can keep beating on the Trump thing but it wasn't just...

(CROSSTALK)

CARDONA: Not resoundingly, Andre. Come on.

(CROSSTALK)

BAUER: ...you know, Republicans across this country -- yes, they did.

CARDONA: You're smarter than that.

BAUER: Wherever you're looking -- governors, senators, at any level, at every level, the Republicans won in a resounding victory. Yes, they did in the House, in the Senate. Tell me where they lost.

(CROSSTALK)

CARDONA: When you lose the popular vote by 3 million, it's not a resounding win.

(CROSSTALK)

BAUER: You can argue anyway you want, but the Democrats are not rolling numbers in any branches of government.

(CROSSTALK) LEMON: Let him speak. Let him speak. Go ahead, Andre.

BAUER: Well, they're just not growing their numbers. And so the first question I would have is are all these folks even from Jason Chaffetz's district? Or are they organized groups that come in.

But kudos to Jason for actually -- for a representative, for having a discussion and allowing people to come in and be vocal. That's part of the great part of the American system to let people hear their concerns.

But, again, to think that they're just coming out just to raise cane, I wonder where they are actually from and if they are actually, if they found a way to see if these folks are even from his district.

(CROSSTALK)

STEWART: Don, I do think it's interesting that the crowd was chanting "Do your job, do your job." And Republicans in Washington now are doing just that. They are doing exactly what they campaigned on, they are doing exactly what they promised the American people they would do. And right out of the gate issuing executive order to repeal and replace Obamacare. And I don't know what more they could be doing other than exactly what they promised.

(CROSSTALK)

CARDONA: They could be investigating an out of control White House who has done nothing but, you know, sort of thumb their nose at the majority of the American people who didn't want them there to begin with.

STEWART: Well, at the end of the day, the presidential election is run on the Electoral College and Donald Trump won on the Electoral College.

CARDONA: That is true.

STEWART: And if you want to look at the last eight years under the Obama administration, 1,000 Democrat seats were lost from here in Washington to state and local races.

So Democrats have been losing power for the last eight years and I understand where this frustration is coming from. Those pictures look very similar to 2010 when the tea party was growing in strength. And so if they continue to galvanize and engage like that, things may turn around in the mid-terms. But right now, Democrats are not in control and they are doing their job. They are doing exactly what they promised.

(CROSSTALK)

LEMON: Do you think --

CARDONA: If Trump had resounding support, he wouldn't be at 40 percent approval rating, which is the lowest of any president since polling started. Does not -- that does not bode well for him going into an administration.

LEMON: Maria, I hear you. But, I mean, he's in the White House. And you know, to Andre's point, they've the Senate and the Congress, most of the governors around the country. It's really not much that Democrats can do but protest.

CARDONA: I absolutely agree with you. And, look, I've been thinking about this for weeks after, you know, what was a soul-crushing campaign and election for most Democrats and every progressive in this country who wanted Hillary to win. There's no question about that.

But I think the one silver lining in this is that this is the kick in the butt that not just Democrats needed but I think Americans in general, who probably did not go out to vote because maybe they thought Hillary was going to win and they thought their vote wasn't going to count, which is the majority of the American people who do not want Trump in the White House.

LEMON: Alice, I have to ask you this, because you mentioned, you know, the president doing executive orders and you said that the government is doing, I mean, pretty much the only action, the only thing that's happened has been at the presidential level, at the executive level with him giving executive orders.

Not much has happened in the Congress, meaning the Senate and Congress altogether.

Do you think that these quick actions on executive orders moving too fast? Do you think it's actually hurting him in some way, because this ban was an executive order and didn't come off well?

STEWART: Look, in my view, the executive orders are simply because Donald Trump is a man of action and wants to get things done. The difference in these and what Obama has done is that Obama couldn't have gotten his executive actions and executive orders passed through Congress. He didn't have the support to.

Donald Trump could. He just didn't want to go through the process of, the lengthy process of including Congress in it because these were things that he knew he had the support to do. That's why he is --

(CROSSTALK)

LEMON: Yes. Larry, is the difference that one is a Democrat and one is a Republican?

NOBLE: Well, that's part of the difference. But I also think what we're seeing here is he campaigned on the idea that he was a businessman and he would bring order and he knew how to get things done.

[00:55:00] And yet what a lot of what the public is seeing with him coming into office is that there hasn't been order. Things seem to have been happening very quickly. They're not happening in a constructive fashion. They are getting overturned by the courts. People -- even people who support him are saying it's not clear what these executive orders mean. You see the ethics problems and it looks like he is running the country like a business, but a democracy is not a business.

And I think he's having trouble with the fact that he can't just declare what he wants to do and it magically happens. And I think that is going to cause a lot of frustration even among his supporters who expect things to get done. And I'm not sure he really thought much beyond becoming elected president.

LEMON: I've got to go. What has this been? The third week? Third year?

CARDONA: Exactly.

(LAUGHTER)

BAUER: Right.

CARDONA: And look where we are.

BAUER: And he's got confirmations left and right. He gotten us out of TPP.

LEMON: Thank you, guys. I appreciate it. Thank you.

CARDONA: 40 percent approval rating.

LEMON: We'll talk next time.

STEWART: Thanks, Don.

LEMON: See you tomorrow. Good night.

CARDONA: Thank you.

(COMMERCIAL BREAK)