Return to Transcripts main page

Wolf

Court Weighs Legality of Trump's Travel Ban; Awaiting White House Press Briefing. Aired 1:30-2p ET

Aired May 15, 2017 - 13:30   ET

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

[13:30:00] JUDGE RONALD GOULD, NINTH CIRCUIT COURT OF APPEALS: So, do those letters neutralize your assertions that the national security interests relied on are pretextual? And do they neutralize the bad faith argument? You're not just saying bad faith of the president but also bad faith of the attorney general and also bad faith of the secretary of Homeland Security.

NEIL KATYAL, ATTORNEY ACTING ON BEHALF OF HAWAII: Right. So I -- it certainly is true that those letters were written on the morning saying it would be nice to do an executive order like this and the executive order issues. I think those letters don't change the dynamics at all. Rather, the question is, as the district court found, is this executive order viewed from the standpoint of an objective observer, establishment of a disfavored religion, Islam? Even if there is some national security motivation on the part of these cabinet secretaries, that doesn't eliminate the fundamental problem, which is that this executive order was promulgated by the president and he has billed it in a certain way, the way an objective observer would view it. So imagine, just ask yourself if the president said at the time he was signing the order something like, I really hate Muslims or something like that, the fact that cabinet secretaries may have a national security justification or something that was sent to him, I don't think, would change the underlying constitutional problem. So similarly here, we think that those statements taken together, as the district court found, do so.

(CROSSTALK)

JUDGE MICHAEL HAWKINS, EIGHT CIRCUIT COURT OF APPEALS: I have a quick question on scope, if you don't mind.

I understand from the Fourth Circuit argument that the district court in Hawaii construed its injunction to also cover and prohibit the ability of the government to study the issues talking about in the context of the order to find out if there's more things that could be done in terms of vetting or procedures or transit or visa issuance, that sort of thing. Is there any justification for that part of the order, for that interpretation?

KATYAL: May I answer for about a half a minute to sum up?

HAWKINS: We're giving you extra time.

KATYAL: Thank you. Thank you very much.

I didn't really quite understand Mr. Wall's statement to the Fourth Circuit. He said --

(CROSSTALK)

HAWKINS: Take Mr. Wall at his word. He said they asked the district court -- and he can tell us -- they asked the judge in Hawaii, can we go ahead with these studies to determine if there are things that can be done. And I take it he was saying that in reaction to the judges on the Fourth Circuit panel saying why haven't you done this.

KATYAL: Exactly. So let me read to you his words in the Fourth Circuit and go through it. It gets a little technical. This is what he said, quote, "We went back to the Hawaii judge and said, look, you couldn't possibly have meant to enjoin internal government procedures to look at vetting for these six nations, and, in the face of that motion, the district judge said yes."

I don't think that's quite right. That is, they did ask to clarify the injunction, not with respect to the six countries, in studying the six countries, but just generally can they have internal consultation and the like.

(CROSSTALK)

HAWKINS: My question is broader than that.

(CROSSTALK)

HAWKINS: My question is, is there any justification for interpreting the district court's injunction to cover what I just described?

KATYAL: I think yes.

HAWKINS: Answer yes or no?

KATYAL: The answer is yes, if it comes to a worldwide study under the auspices of Section 2A of the order. The reason for that, as we pointed in and out our opposition to the district court to their clarification on page 13, this was the government's own theory. They said that the study in 2A was intrinsically linked 2C exclusion in the six countries. So if you see - if you view the 2C exclusion of the six countries as an establishment or statutory violation, then the 2A worldwide study has to fall.

But, Judge Hawkins, let me reassure you, that doesn't matter at all. That is, the government can and, indeed, has been conducting worldwide vetting, and increased studies about all of these things.

(CROSSTALK)

HAWKINS: -- recently do something along those lines with the laptops?

(CROSSTALK)

KATYAL: Absolutely. Not just laptops. Two weeks ago, they announced in the code of federal regulations an increase in vetting procedures worldwide. So the injunction doesn't ban studies at all. It only bans the specific study, which is a study designed to carry out what we view as the Muslim ban in section 2A. So the president has been conducting those studies, as every executive --

(CROSSTALK)

HAWKINS: We'll get a chance to hear from Mr. Wall.

[13:34:49] KATYAL: Great. If I could just sum up for 30 seconds or so.

In the last week, my friend, Mr. Wall, closed his argument by saying that the precedent here will transcend this case and this travel ban, and I couldn't agree more. If you rule for us, you leave intact the president's powers, including every decision every president has made in our lifetimes, and you preserve a status quo that has existed for decades. If you rule for him, you defer to the president in a way that history teaches us is very dangerous. You open the door to so much. As Justice Jackson said in the context of the First Amendment, in a religious freedom case, quote, "The First Amendment was designed to avoid these ends by avoiding these beginnings."

This very courthouse, which tried, convicted and then later exonerated Gordon Verbiagi (ph) 44 years ago stands as a physical reminder about what is at stake. Our Constitution and laws are better than this. Our founders wanted America to be a beacon on our coast, and that beacon, at the end of the day, is not the quality of our sports teams or quality of our soil. That beacon ultimately is the majestic Article III and the grand contours of the First Amendment. We ask the district court's ruling enjoining this unconstitutional and un- American executive order be affirmed.

GOULD: Thank you, Counsel.

Solicitor General Wall, you had preserved a couple of minutes but we also went over time on the appellee's argument, so we'll give you extra time if you would like it.

JEFF WALL, U.S. SOLICITOR GENERAL: Thank you, Judge Gould. I'll try not to use all of it. I have a few brief points.

The first is, I don't think Washington can be taken to resolve the standard of review in this case. I think it's Mandel. And under that --

(CROSSTALK)

JUDGE RICHARD PAEZ, NINTH CIRCUIT COURT OF APPEALS: Pretty close, though.

WALL: Well, it did it in a section called reviewability. To the extent that what Washington said, Judge Paez, was Mandel can't govern broad policy determinations. Even plaintiffs don't try to defend that reasoning, because it's inconsistent with Vialo (ph) and other cases. And that's why I don't think this court should over read it. Under that standard, I'm glad to hear Counsel say we wouldn't be up here if it weren't just the campaign statements. I'm glad to hear him say that, because those are not statements in an official capacity and they don't tell you what the official objective of government conduct is. People say things on a campaign trail and then they take an oath to uphold the Constitution, form an administration, and they consult with them on the policies they develop. We shouldn't start down the road of psychoanalyzing what people meant in the campaign trail.

And then, Judge Paez, in answer to your question, it's down to a handful of statements. The only one that directly affects this order is the one that the president said when he signed the first one, "We all know what that means." And what the president said three minutes before it signed it, in the presence of a newly sworn in secretary of defense, was, "I am signing this order because I want to increase the vetting procedures for radical Islamic terrorist groups." Three minutes later when he signs the order, he makes the six-word offhand comment. It's clear in context and I think it's at least within the presumption of regularity that we ought to afford to the head of a coordinate branch that he's talking about are terrorist groups, not all Muslims anywhere in the world. There isn't enough in this record to get you to bad faith under Dent (ph), and I think counsel wants to discount how remarkable it would be for the court on a handful of statements made by the president on both sides, right? You could look at SCR 90 where president says, "I want people to come here and love this country. Many Muslims do. Many Muslims do."

And we can go back and forth on the president's comments over time. That's just not a judicial inquiry, like what Mandel commands courts to do. And under that inquiry, there's not bad faith here.

On the statute, you know, for all the rhetoric, Judge Hawkins, the language of the statute doesn't get you where he wants to go. 1152 deals with the issuance of immigrant visas. It doesn't deal with entry and it doesn't deal with non-immigrant visas. We make nationality based distinctions in the non-immigrant visas every day. That's what the visa waiver program is. Nationals of some countries have to get a visa. Nationals of other countries don't. Olson doesn't say anything different. At most it gets you an injunction very different from this one, one that I think would be more harsh to the people that counsel purports to defend. But none of it gets you a limitation on 1182-F, which Judge Ginsburg, in footnote two of her decision, said is the president's sweeping proclamation power to suspend the entry of any class of aliens when he deems it in the nation's interest. I know counsel wants to second guess the exercise of that power here. But he's right, whatever this court says will govern presidents' exercise of that authority for years and decades to come. And no court has ever read into 1182-F, ever, the kind of limitation, whether from 1152 or other statute that counsel wants to find in it.

[13:39:48] The last thing I'll say is just the over breath of this injunction. Counsel didn't mention the internal review provisions at all. He barely mentioned Section 6. Didn't say a word about this. Sections 2A and 2B of the order say that the State Department and DHS and DNI are to look at our information-sharing agreements with other countries and determine whether we have sufficient vetting procedures in place on the basis of the information we're given and they're supposed to produce a report. That was tied to the suspension, in a sense, because the president said, "I'm not sure, I'm going to suspend, and that will free up resources to do the review."

We went back to the district court, as counsel knows, and said, look, even if you give them the suspension of entry, which is all they briefed and all that's in their complaint, it doesn't get you to the rest of Section 2 or Section 6. Surely, we can still produce the report required by Sections 2A and 2B, and the district court in the face of our motion said, I have enjoined all of Section 2 and Section 6. But I want to be clear with the court, even if we're wrong about standing and even if we're wrong on the merits, the most he ought to be able to get under decisions from this court is an injunction under 2C for Dr. El Shiek (ph) and his mother-in-law or, at most, any students whom Hawaii identifies, if you conclude that Hawaii has standing. He is conflating the nature of his legal argument with the kind of relief to which his clients are entitled on the merits. And Minehold (ph) and other cases says, no matter what the scope of his legal argument and what it would suggest about the propriety of the order, at most, his clients get an injunction that redresses their injuries. Here, that's Dr. El Shiek (ph), his mother-in-law and maybe a handful of students in 2C. Not the rest of Section 2, and nothing in Section 6. Unlike the Fourth Circuit case, he has no refugee groups he doesn't have anybody seeking refugee admission. Section 6 and the refugee text shouldn't even be on the table.

Look, I'll wrap up in the same way. Yes, we did say to the Fourth Circuit last week that the precedent set by this case for the judiciary's role in reviewing the president's national security immigration authority will long transcend this debate, this order and this constitutional moment. Counsel is right that this country is a beacon. But what makes it a beacon is the rule of law. Under the settled legal rules for constitutional and statutory interpretation and injunctive relief, what the president did here falls squarely within his constitutional and statutory authority. I know they disagree with this president and many of his policy judgements, but none of that converts this into a constitutional crisis. And we respectfully submit that this court shouldn't treat it like one. It ought to leave this debate where it belongs, in the political arena.

The United States respectfully submits that this injunction should be vacated or, at a minimum, substantially narrowed.

Thank you, Your Honors.

GOULD: Thank you, Solicitor General Wall.

And thank you Counsel Katyal.

The court appreciates the very high quality of the arguments on both sides. The court will now take a recess for -- I would say this case is submitted at this point. And the court will take a recess for 20 minutes.

WOLF BLITZER, CNN ANCHOR: So the recess has started. They heard arguments from both sides, the Ninth Circuit Court of Appeals, for more than an hour, both sides making their case as far as the president's revised version of the travel ban.

I'm Wolf Blitzer reporting. We welcome our viewers here in the United States and around the world.

There's a lot to discuss. Remember, we're also waiting, momentarily, for the White House press briefing to begin. Sean Spicer will be going to the lectern. Live pictures from the West Wing of the White House. We'll have live coverage of that. That is expected to begin momentarily.

But here to discuss what we just heard over the past hour, joining us, CNN politics reporter, Eugene Scott; CNN political analyst, Jackie Kucinich; and CNN political commentator, Errol Louis. Also joining us, CNN supreme court analyst, Joan Biskupic; CNN chief political correspondent, Dana Bash; and our legal analyst, Laura Coates.

Laura, let me start with you.

Break it down for us. Both sides' arguments. This is a critical moment as far as the constitutionality of President Trump's revised travel ban. In effect, at least temporarily, banning people from six Muslim majority countries from coming to the United States.

LAURA COATES, CNN LEGAL ANLAYST: Yes. You're seeing here the court's battling with the question we've all been battling the last several months. That is this, whether or not the president of the United States, national security interests, in his total prerogative and right to be able to make decisions based on a national security interest, how that balances against an Establishment Clause type of argument, which essentially says this. Listen, you cannot do anything to try to hinder a religion or advance a religion. It appears, from his commentary on the campaign trail and statements that he made that really rekindled, as Neil Katyal talked about, whether on the website, saying it's a Muslim ban as well, whether in commentary later on or by officials, whether the rekindling of those statements otherwise undermined any argument that removing those words or those terms in the second ban was sufficient to sanitize that actual travel ban. The courts are saying, they're begging the lawyers to say please explain to me whether we should use those previous statements against the president of the United States, whether the campaign trail is to guide us now and, most importantly, whether or not an otherwise facially neutral executive order that does not mention religion any longer, whether that was enough to sanitize his other comments. You saw the court giving back and forth, saying we're not quite sure yet.

[13:45:47] BLITZER: Joan, you listen closely to the questions raised by these three federal judges. All, by the way, nominated by former President Bill Clinton. How did you see this debate, this argument moving?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: I thought it was a very robust hearing and showed all the people watching the depth of the questions. I think it comes down to two things. One, how should they assess what President Trump was trying to do here? Has he disavowed what he said during the campaign? That was a very serious question from all three of the judges up there. The other question they had was, going forward, however they rule, how

could this affect president's power in the future? The main point you heard from the government lawyer, Jeff Wall, was this could impinge on presidents and their effort to fight terrorism in the future. But the lawyer for the challengers, Neil Katyal, said, no, this was such an unprecedented order that if you affirm the lower-court ruling, put a halt to enforcement of the executive order, you will not be doing anything different. Presidents will still have power in the future because this was so unprecedented. At this point, it's hard to know where they would go. It would be a real surprise if they fully reverse the district court order.

BLITZER: That would be another major setback, Dana Bash, for the president of the United States. Second time even his revised travel ban would go down, at least temporarily.

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT: That's right. I'm not a legal scholar, but a layman, and more of a political ear that I have. It sounded like a lot of skepticism about the notion that this was just about national security and that the campaign pledge we heard so many times during the campaign that there would be a Muslim ban did not feed into this. Heard that skepticism from several judges. One explicitly saying, you know, have you heard the president dial back on that? You know, that's where the idea that we should use the president's words now, not actions, that you can't psychoanalyze this or any president came into play with regard to the argument that the president's lawyer, acting solicitor general, used. It didn't sound like there was a whole lot of sympathy for the response and answers that the president's lawyers gave.

BLITZER: And we did hear from the president. If this court rejects his arguments, they're willing to go all the way to the United States Supreme Court, which now has nine justices on the Supreme Court.

Everyone, stand by.

I want to show our viewers once again live pictures coming in from the West Wing of the White House. We're moments away from the White House daily press briefing. It's still going on. Sean Spicer is about to step up to the lectern. We'll have live coverage of that and all the other developments after a quick break.

(COMMERCIAL BREAK)

[13:53:08] BLITZER: Just getting these images from the White House where the president greeted the visiting crown prince of the United Arab Emirates. The meeting comes ahead of the president's trip to the Middle East and Europe later this week. Saudi Arabia will be his first stop. Then he heads to Jerusalem and Bethlehem and the West Bank, the Vatican, Brussels, and then Sicily for the G-7 summit.

We're watching the press briefing room where Sean Spicer is scheduled to speak to reporters momentarily and take questions. There are plenty of questions left to answer on the firing of the FBI Director James Comey and on the search for his successor. We have seen, by the way, eight names under consideration to be the new FBI director, but remember, the search for secretary of state, we saw a list of names seemingly out of nowhere, Rex Tillerson, the former chairman, CEO of ExxonMobil, was named secretary of state. So would it be a surprise if the president goes off this menu, so to speak.

Here with us once again, Errol Louis, CNN political commentator and political anchor for "Spectrum News"; Jackie Kucinich, our CNN political analyst, Washington bureau chief for "The Daily Beast"; and CNN Politics reporter, Eugene Scott.

Jackie, we also just learned that Mitch McConnell, the Senat3e majority leader, has invited the deputy attorney general, Rod Rosenstein, to meet behind closed doors with all U.S. Senators and brief them on the enormity of what's going on.

JACKIE KUCINICH, CNN POLITICAL ANAYST: We saw last week there were so many questions from so many Senators, from both sides of the political aisle, about how this went down, and what Rod Rosenstein's role was in it. I think, hopefully, they will get their questions answered and maybe we'll get insight into that ourselves as a result of this briefing. But even though it's a closed-door meeting, we could be sure it will be a circus on Capitol Hill that day.

BLITZER: The president suggested, Errol, he could nominate as early as this week, even before he leaves on Friday for this overseas trip.

[13:55:09] ERROL LOUIS, CNN POLITICAL COMMENTATOR: That's right. He's very fond, this is like a holdover of his "Apprentice," showmanship days that he wants to make a big deal about us seeing him vet all the candidates. Very good chance he will go outside of the eight we have heard about just as you suggest.

BLITZER: You also heard, Eugene, the Senate Democratic leader say, unless there's a special prosecutor named to investigate, to take over this investigation, they are going to try to hold up whoever is nominated to be the FBI director.

EUGENE SCOTT, CNN POLITICS REPORTER: They are going to try to do that. Whether or not they will be successful, it is not likely considering the numbers. They need 51 Senators. Republicans have that. Whether or not Republicans will hold that same volume, wanting a special prosecutor in significant numbers, isn't true. We have had a few say so, but not in any sizable number yet.

BLITZER: We're waiting for Sean Spicer to come to the briefing now, Jackie. He's under e enormous pressure right now, especially given all the stories out there that his days as the press secretary could be numbered.

KUCINICH: We have seen these numbers before with Sean Spicer about his perhaps termination. That said, you're right, he has had a rough couple of days. He was gone part of last week, but that one day he was there, it didn't go well for him. And we have said this many times before, these press secretaries talk to an audience of one, and that's President Trump.

BLITZER: Fortunately, the briefing, Errol, is still going on, even though president suggested maybe it's time to just offer reporters some written answers on paper. Very quickly

LOUIS: I guess we should be grateful for that. The communications staff, as often is the case, gets blamed for what is more a substantive problem. The problems that this administration is facing is not because they are not getting the message out.

BLITZER: The briefing is about to begin.

But that's it for me. I'll be back at 5:00 p.m. eastern in "The Situation Room."

In the meantime, the news will continue right after a quick break.

(COMMERCIAL BREAK)

[14:00:13] BRIANNA KEILAR, CNN ANCHOR: Hi, there. I'm Briana Keilar.