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Supreme Court Upholds Block of Trump Asylum Ban; Trump Forcing Government Shutdown?. Aired 3-3:30p ET

Aired December 21, 2018 - 15:00   ET

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


[15:01:33]

ANNOUNCER: This is CNN breaking news.

PAMELA BROWN, CNN ANCHOR: We have breaking news out of the Supreme Court.

We have just learned the Supreme Court has ruled 5-4 to uphold a lower court ruling to block President Trump's new asylum restrictions, pending appeal.

I want to bring in CNN Supreme Court analyst Joan Biskupic.

You have Chief Justice Roberts siding with the liberals here, Joe. This is a big blow to the Trump administration.

JOAN BISKUPIC, CNN LEGAL ANALYST: It really is, Pamela.

And when you remember that, in November, it was when the Trump administration put into effect new rules for people seeking asylum. Those are people who have a fear of persecution if they return to their home countries.

And the Trump administration had said that people can't qualify or be eligible for asylum if they have crossed the southern border outside of these designated points of entry. And a lower court judge had blocked the effect of that.

And President Donald Trump tweeted about that judge, saying, oh, an Obama judge, and he suggested he would have better luck at the Supreme Court. But on the way to the Supreme Court, a U.S. Court of Appeals for the Ninth Circuit based in California had similarly endorsed blocking this new policy.

And, today, with John Roberts joining the four liberals on the court, they put out a 5-4 order that said that they agree with the lower court's blocking of this policy. Now, just so viewers know, the four dissenters were the four most conservative justices, Clarence Thomas, Samuel Alito, and the two new Trump justices, Neil Gorsuch and Brett Kavanaugh.

BROWN: So what's next here?

BISKUPIC: OK. So here's here's what's important. This was at a preliminary stage. It wasn't a ruling on the merits of

the new policy. It was a question of, can this policy take immediate effect? President Trump wanted it to take immediate effect. And lower court judges said, no, it would be likely to be found unlawful. They didn't rule that it was unlawful. They just said the chances are, this is not something that should take effect because it violates federal immigration law.

The president can't outright make this new policy, because it conflicts with prior treaties and prior immigration law. That's what the lower court judges who assessed this said. The Supreme Court did not issue a ruling. It was only an order.

But it was an order based on an appeal from the Trump administration to reverse the injunction in place, the blocking of this policy. So, now we will have further litigation on the merits of it. But I do have to say, Pamela, that the Supreme Court, when it decides whether to let some new policy take effect or to block it, considers the likelihood that the challenge will or will not succeed on the merits.

And I think this is a signal from a bare five-justice majority, with Chief Justice John Roberts joining those liberals to say this policy is likely unlawful. Again, it's just a signal at this point.

BROWN: Just a signal, but it certainly doesn't bode well for its future.

And just very quickly, before I go to the White House, we just learned today that Justice Ginsburg had these cancerous nodules removed from her lungs, and now she was part of this.

BISKUPIC: That's right. And that just points of why we care what happens to each of these justices, especially the senior justice on the liberal wing of this Supreme Court.

They obviously had voted on it before she -- you know, at a point where she could cast a vote is, and her vote was, frankly, predictable, to oppose the implementation of this policy.

[15:05:10]

But what we have learned today, Pam, is that she's had this surgery, that she apparently is doing OK, that they found some cancer, they got the cancer, they removed it, and that she's not enduring any follow-up treatment.

So, possibly everything's going to be OK for her. But, as you know, she's already survived two very serious about with cancer in 1999, colorectal cancer, and, in 2009, very serious pancreatic cancer.

So she's resilient.

BROWN: It's remarkable, though. After all of that, she was there for this.

BISKUPIC: Yes. BROWN: All right, Joan, stand by.

I want to go to chief White House correspondent Jim Acosta to see if the White House is responding to this latest news of the 5-4 decision blocking Trump's asylum ban.

As Joan noted, the president previously scolded the judge who had blocked the ban, saying, this is an Obama judge, saying -- and he thought that the Supreme Court would rule in his favor. That didn't happen.

JIM ACOSTA, CNN CHIEF WHITE HOUSE CORRESPONDENT: That didn't happen, Pam.

And you're right. I mean, this is another example of our system of checks and balances stymying the president on his immigration policies. And, here, he wanted to have these much tougher asylum restrictions, and the Supreme Court not going in his direction, at the very same time that he's trying to get wall funding for the border with Mexico and getting stymied by Democrats up on Capitol Hill, and even some Republicans who aren't willing to go along with it, the way he's trying to ram things through right before Christmas.

And so, yes, this is -- this is yet another defeat for the president on some of these hard-right immigration stances. I do think we will probably see some kind of statement coming out of the White House at some point this afternoon, Pam, because, as you know, this issue is just so near and dear to their hearts over here.

They're going to want to weigh in. The president's going to want to weigh in on all of this, but no question about it, This is definitely a defeat for a portion of the president's immigration policy.

They have been talking for a long time about cracking down on these asylum claims. They feel like many of these asylum claims are not legitimate and that the process is abused by people, as they like to characterize it, flooding across the border. People would challenge that characterization.

But, again, this is yet another defeat for the president on this issue of immigration, which, as you know, is very near and dear to his heart over here at the White House -- Pam.

BROWN: And this is just adding to the gut punches that the White House has been dealing with just in the past, what, 48 hours. You had the resignation of General Mattis, the defense secretary. You have this looming government shutdown, criticism from both sides of the aisle on the president's Syria policy, and now this.

This is not good news for the president on a day where he really should be celebrating signing this bipartisan bill on criminal justice reform.

ACOSTA: That's right. I mean, this is a chaos Christmas for this White House, Pam. And in a normal scenario, where the White House, where the president, where they're very much in control of the messaging that comes out on a daily basis, this would be criminal justice reform day over here at the White House.

We just saw an event wrap up in the Oval Office just a couple of hours ago that had the president's son-in-law, Jared Kushner, Ivanka Trump, our own Van Jones, Democratic Republican lawmakers who came together on this issue of criminal justice reform.

And that -- the coverage of that has just been overwhelmed by a crisis of the president's own making, this government shutdown that he said that he wanted 10 days ago, that he's trying to rebrand as a Democratic shutdown, and also this stunning departure of the former -- or the outgoing, I should say, secretary of defense, James Mattis.

We just saw a very stunning picture over here at the White House in the last several minutes, Pam -- you might have seen it come across our e-mail -- of the outgoing chief of staff, General Kelly, shaking hands with the outgoing secretary of defense, Jim Mattis, out there on the driveway just outside the White House a short while ago.

I mean, this is a picture of the departing stability of this administration. And it's obviously an image that's going to strike a lot of people in this town and across the country as just not a good harbinger of what's to come -- Pam.

BROWN: Certainly.

And I want to go back to Jeffrey Toobin for his legal analysis on this.

As you just heard Jim Acosta there saying, look, this is not a good harbinger for what's to come. And when you look at the court, you look at Chief Justice Roberts siding with the liberals on this issue. What is the significance of that for this and for other cases on the docket moving forward?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, I would be cautious about interpreting too much into this. This is certainly a defeat for the president. It is certainly a victory for immigration, immigration rights lawyers.

But it is also a preliminary ruling. It is not a resolution of this case. It is not a resolution of the many, many legal cases having to do with immigration that are now working their way through the courts.

[15:10:02]

But it is a sign that Chief Justice Roberts is going to see his role as the center of the court. He was -- he has very much taking the place of Anthony Kennedy, who was the center of the court.

And I would certainly expect that, as we move into these very controversial issues that will be heard in a full way, not this sort of preliminary way, Chief Justice Roberts is going to side with the conservatives a lot more than he's going to then he's going to side with the liberals.

But here, on this one question, in a preliminary way, he has put the brakes on a Trump administration initiative. And that's an embarrassment and it's a defeat for the president. There's no doubt about it.

BROWN: Right.

But, as you point out, he wasn't making a decision on the -- the justices weren't making a decision the merits of it, but it certainly doesn't bode well for the long-term impact of this, that this will actually be passed by the Supreme Court, if it inevitably goes back to it on appeal, right?

TOOBIN: Well, it is a sign. It is certainly not a good sign.

But it is not a -- not the last word, by any means. One of the things that the solicitor general's office has done, which is the Trump administration's representatives in the Supreme Court, they have been very aggressive in asking the Supreme Court to act quickly to overturn rulings that have gone against the Justice Department.

They have -- they have done lots of sort of emergency type appeals. And the Supreme Court doesn't like to be rushed. And Chief Justice Roberts in particular doesn't like to be rushed. The Supreme Court operates at a very different pace from the rest of us. They like to have full hearings on the merits. They don't care if it takes a couple of extra months.

And I think what we are seeing in this case -- we saw a little earlier, a week or two ago, in a case involving Planned Parenthood -- what the liberals and the chief justice are saying, let's slow down. Let's hear these cases on the merits. Let's, you know, full briefing, full argument, and then we will decide which way we want to go.

I don't think we have heard the last word on this case or any other immigration case. Remember, this is the -- this court, even with Anthony Kennedy, upheld version 3.0 of the travel ban last term. So, I mean, this is not a hostile court to the Trump administration. It is a more conservative court now than it was before Anthony Kennedy was replaced by Brett Kavanaugh.

But Chief Justice Roberts is going to keep things moving at the customary pace at the Supreme Court, not as fast as the Trump administration wants to go.

BROWN: All right, Jeffrey Toobin, always great, important analysis from you. Thank you so much.

TOOBIN: All right, Pam.

BROWN: And let's head over to Capitol Hill on this other breaking news we're recovering, where that last-minutes Senate vote is under way to fund the government and give Trump the $5 billion he wants for the border wall.

I want to bring in CNN senior congressional correspondent Manu Raju.

Manu, you are live on Capitol Hill following all of these developments. Both the Dems and the Republican say they don't have the votes to give the president what he wants. So what are the options here? What's next? What's plan B?

MANU RAJU, CNN SENIOR POLITICAL CORRESPONDENT: Well, Republicans are very frustrated. They had a closed-door lunch just moments ago, and I was told by multiple people who were in the meeting they're frustrated because the president has not indicated what he would sign to get out of a government shutdown.

Now, the president has said he wants his $5 billion in wall money, but it's very clear that they will not have the votes to advance that out of the Senate. There's a procedural vote on the Senate floor right now that very well could fail, and even if that procedural vote word to advance, they will not get the votes to pass it out of the United States Senate.

So, at a closed-door lunch, I'm told that Republican senators laid out various options on what -- how they can get out of a possible shutdown. But the question kept coming up, what will President Trump sign? And no one knew, not even Mitch McConnell, the Senate majority leader, who was in a meeting at the White House earlier today.

He was -- he told senators he didn't know what the president would sign. And at that White House meeting earlier, I was told by a source briefed on the meaning it did not go well because the president himself did not lay out his own plan to avoid a shutdown.

He did try to urge the Republicans to change Senate filibuster rules to make it easier to advance legislation. But Mitch McConnell shut him down, did not want to go that route. And several Republican senators flatly oppose that idea.

So, here we are, Pamela, just hours away from a government shutdown that could affect a number of federal agencies, and there's no clear consensus on how to get out of there, and frustration building among Republicans on Capitol Hill that the White House and the president are not clearly explaining to the public how to get out of this.

[15:15:00]

And one Republican senator, Bob Corker, said, this shows the government -- a government being run by tyranny, because two radio talk show hosts are driving the president's agenda -- Pam.

BROWN: Well, and it was just a couple of days ago that Senator Cornyn came out of this meeting with Vice President Pence saying he was assured that the president would sign the clean C.R.

And, as we know, Mitch McConnell probably wouldn't have taken it to the floor without having confidence the president would sign it. So, it is interesting to see how things have developed just in the last 48 hours on this front.

Manu Raju, keep us posted, as I know you will. Thank you so much.

And still ahead on this Friday, General Mattis marks the fifth Cabinet member to leave in just the past six months -- what the unprecedented level of turnover means for the Trump administration.

Plus, the president's acting attorney general ignoring the advice of ethics officials -- why he's refusing to recuse himself from overseeing the Mueller investigation.

We will be back. Stay with us.

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[15:20:14]

BROWN: Right now, on Capitol Hill, the Senate is taking a key vote on a funding bill that includes $5 billion for the president's border wall.

If it doesn't pass -- and it's not expected to pass -- a government shutdown is likely. So, in the real world, what would that look like?

I want to bring in CNN's Tom Foreman.

So, how would this affect me and you?

TOM FOREMAN, CNN CORRESPONDENT: Well, Pam, 75 percent of the government already has funding in place through the coming fall.

But in various departments and agencies, 420,000 government workers could wind up working without pay in what are called essential jobs if we have a shutdown. So let's take a look at where we would see that, huge travel time over the holidays.

So, with Homeland Security, 55,000 TSA workers will remain at their post, 55,000 Customs and Border Patrol protection agents and officers too, along with a good many others.

And transportation, you can expect that air traffic controllers, 24,000 of them, would remain on the job. So would railroad inspectors. Over at the State Department, passports would still be issued, but maybe not if you go to a passport office that's in a government complex where a lot of folks are furloughed. So in a sense, the building is shut down.

If you were coming here to D.C. to go to the Smithsonian museums, good luck. They're still going to keep normal hours through January 1. But then it's not really clear what would happen in a shutdown.

The Justice Department will remain open and operating and -- mostly. And, notably, the work of the special counsel, the Russia investigation, would continue despite a shutdown. The Agriculture Department will continue, things like food safety, inspection services, but will shut down other things like research.

The majority of the folks at NASA would be put on a leave of absence without pay. The Interior Department, the national parks are kind of a mixed bag. Some services at some parks would close, like restrooms and visitor centers. Others would probably remain open, at least for the time being. And related to that, a couple of holiday treats. Santa and his llamas

will still visit Olympic National Forest in Washington state on Christmas Eve come what may. And the Polar Express will continue to run near the Grand Canyon because it is operated by a third party, not the government.

So, not overwhelming impacts from an entire shutdown of the government, but still enough that people could see it, -- Pam.

BROWN: And, of course, it is the holidays. All right, Tom Foreman, thank you very much. We appreciate it.

Meantime, we're hearing Senate Leaders McConnell and Schumer are meeting right now Senator Corker to try to find out a way out of this shutdown, this partial shutdown.

I want to go straight to Ryan Nobles on Capitol Hill.

What are you hearing, Ryan?

RYAN NOBLES, CNN CORRESPONDENT: Well, Pam, there appears to be some movement on the Senate floor right now. We don't know exactly what these leaders are talking about right now.

But we know that Bob Corker, who is kind of a swing vote in all of this, he's a Republican from Tennessee, we should note a Republican whose term in the Senate is coming to a close here in the next week or so. He's been talking to the Senate minority leader, Chuck Schumer, and the majority leader, Mitch McConnell.

Now, earlier today, Pam, Corker told us that he was looking for some sort of an exit strategy here, something that did not involve passing the current continuing resolution in its current form. He just admitted that there's just no possible way they could get to 60 votes.

So it appears now there is some horse-trading between these leaders, with Corker involved in some capacity, to at least figure out what the next step in this process is. Do they bring the motion to proceed, which would then lead to the final vote to the floor? Do they pull this legislation back and then come up with some sort of a new amendment to it that might be palatable to Democrats, and then perhaps get more people on board to get this over the finish line?

That remains an open question. But, Pam, the way it looks right now, this continuing resolution, it looks like it's in big trouble. If it can't even get over this initial hurdle of just 50 votes, which is necessary to get to the next stage, there's, of course, no possible way that they can even get to that 60-vote threshold, because it wouldn't even come to the floor.

And one other important note, Pam. We just found out that Johnny Isakson, a senator from Georgia, will not be here. He is a Republican. He will not be here to cast a ballot because he had a previously scheduled medical procedure. He assumed, like most of us, that this would all be done, and scheduled that. So he cannot make it back. And there's still some other senators that we're waiting to return

here to the Capitol. Patty Murray from Washington is said to be on an airplane on her way back. She is a Democrat, so still a lot of moving parts involved in this process right now, Pam, in the future of this bill.

And whether or not the government will remain open past midnight is very much an open question.

BROWN: Hmm. All right. We will have to wait and see what happens. I know you will be bringing us the latest from Capitol Hill. Ryan, thank you so much.

[15:25:00]

And just days before the president's decision on troop withdrawal, CNN was on the ground in Afghanistan for an exclusive interview with Senator Lindsey Graham -- why he says pulling out of Afghanistan could lead to a second 9/11.

We will be back.

(COMMERCIAL BREAK)

BROWN: Well, it's not just Syria. The president also wants to see plans to withdraw about half of the almost 14,000 U.S. troops serving in Afghanistan.

It's something Republican Senator Lindsey Graham warns would be a catastrophic mistake. He just returned from Afghanistan.