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House And Senate Approve Deal To Avert Shutdown, Sending Bill To President Trump's Desk; White House Official: President Trump To Announce $8 Billion In Wall Funding Through Executive Action Tomorrow; Pelosi Speaks After House Vote To Avert Shutdown; White House Releases Details Of President Trump's Physical. Aired 9-10p ET

Aired February 14, 2019 - 21:00   ET


[21:00:00] ANDERSON COOPER, CNN ANCHOR, ANDERSON COOPER 360: --got 10 seconds.

CARL BERNSTEIN, INVESTIGATIVE JOURNALIST, AUTHOR, CNN POLITICAL ANALYST: I'm still working why the - the context of this is that it is impossible for, in this country today, to have a real bipartisan fact- finding investigation by the Congress of the United States such as--


BERNSTEIN: --happened in Watergate. And one of the reasons that everybody is down in the trenches in this instead of trying to find out the best obtainable version of the truth is the failure of both parties--


BERNSTEIN: --to be able to have a real investigation.

COOPER: I - I got to - I--

BERNSTEIN: So, now we need to hear from Mueller.

COOPER: --I got to go because Chris is going to punch me. Carl, thank you, happy birthday, Jeff as well.

News continues. Want to hand it over to Chris Cuomo. CUOMO PRIME TIME starts right now. So sorry. Sorry, Chris?

CHRIS CUOMO, CNN ANCHOR, CUOMO PRIME TIME: I'm going to kiss you. It's Valentine's Day. Thank you, Anderson. I am Chris Cuomo. Welcome to PRIME TIME.

Here's the big news on our watch. Congress has just gotten enough votes in the House, for the shutdown deal. Now, they should get the votes. It is supposed to be a bipartisan bill. But now, there's a new fight.

Forget about anybody coming together. Now, the battle lines are just redrawn. The President is still going to declare a national emergency to solve his manufactured crisis. Two questions. Can he? Should he?

Democrats are vowing to fight him every step of the way in Congress and the courts. We have both parties on this fight for and against.

Might they be unified in the effort to stop a President from clearly running around Congress? Will this declaration set a terrible precedent for future administrations? Will it backfire politically? Questions for a great debate.

Happy Valentine's, my friends. Remember, it's all for the love. Let's get after it.




CUOMO: All right, we can now officially report the vote has passed. There will not be a shutdown. Now, we should be celebrating, right, because you got to take progress where you find it.

You had the two parties come together, they hammered out a deal, nobody was really happy, but they got it done. They did what was better for the country. However, that's been overshadowed by somebody who decisively refuses to surrender the Me to the We.

The President says, "No, no, got to keep the promise. I will declare a national emergency and that will allow me to build more bollard fencing." Now, that will probably be announced tomorrow when the President signs this bill that they just passed.

But, what promise is he going to keep? He already broke the core promise to you that Mexico would pay for it. So, you have the can he do it and should he do it. Now, let's deal with that.

Democrats like Steve Cohen say they are going to try to stop him. The House Judiciary Committee Member joins us now. Congressman, welcome to PRIME TIME. I should say congratulations on doing your job. It's nice to see you guys--


CUOMO: --come together and make something happen for the rest of us. But now, you're presented with a new challenge. Do you believe that legally you could stop this President?

COHEN: We definitely can. One way is legislatively. And Representative Castro of Texas has introduced, and I'm a co-sponsor, a joint resolution to - to - to put the - the national emergency off, and to say that it's not - not proper. And Congress can do that through Joint Resolution.

It can also be challenged in court. And I feel sure that there's going to be lots of challenges, and they could come from several different areas. This is clearly a violation of the separation of powers.

Article 1 says that Congress is supposed to appropriate the funds. The President's supposed to administer, that's Article 2, and he's not supposed to take these funds just because he loses a fight, and finds a way--

CUOMO: So, the sourcing of the--

COHEN: --to claim victory.

CUOMO: --money, you believe, is your strong point. I have new reporting for you to add to your thought process, OK?


CUOMO: A White House official says that President Trump, tomorrow, is it - expected to announce Executive Action, now, that could be a national emergency, it could not be, it could be something else, and that he's going to draw on a variety of Administration funding sources to help finance construction of the wall somewhere in the area of $8 billion.

No specificity on where, no specificity on whether the action would be a national emergency or just an Executive Order. Does that change your calculus?

COHEN: Well, a little bit.

And I know there are a lot of Republicans that think this was a mistake, you know, though - this President condemned Obama for it for breathing, and he condemned me for actions he took that he claimed were over the power of the Executive that were - he shouldn't have done overreach.

This is the biggest overreach in history. And a lot of Republicans don't like it, and they think it could hurt them politically. So, he might--

CUOMO: But how can he not?

COHEN: --try to find another way.

CUOMO: I mean if he does Executive Action, you know, then you're in the DACA situation. And then, you're - each one, you're going to see litigated.

If he does it, as a national emergency, under the '76 Act that has to be a dangerous precedent because what's the chance the next Democratic President doesn't use exactly that Act to declare global warming a national emergency?

[21:05:00] COHEN: Well - exactly. It plays for both parties. And we - we've fought the Revolutionary War not to have King George or a successor. And this is - this is the actions of a king.

And no matter which route he takes, it'll be challenged in the courts because it's a - it's a violation of the separation of powers, and it's usurping the powers of Congress. He went through this charade now for two months with the 35-day

shutdown, and - and we haven't had a - we don't have a national emergency. That's just not true. There is no national emergency.

Border immigration or - is down to its 40-year low. There's not a problem with drugs coming in through this border where they want to build this wall. Drugs come in through ports of entry.

And as the El Chapo trial showed clearly, he used submarines. He used trucks. He used cars. He used tunnels. He never went through Texas. That's not where the drugs come from. This is a false narrative.

It's a political issue for the President, and this is on his - his ego and his political capital, and he wants his base to say that they have "Finished the wall." They haven't even started the wall. I'm surprised he can put two Ls in it and spell it right.

CUOMO: So, ad hominem attacks aside. In terms of what happens next, if he declares a national emergency, then you have this joint resolution path, and certainly, he's got a better chance legally there because the '76 Act is very open-ended.

It's never been successfully challenged. I don't think it's ever been challenged in terms of any declaration of a national emergency. If he goes straight Executive Order, then it's a little bit more dicey. Do you have the option of a joint resolution no matter which path he takes?

COHEN: No, I think the joint resolution is only on the national emergency.

CUOMO: Yes, me too.

COHEN: But - but the national emergency, there's never been a President who's gone so far, just unquestionably not a national emergency that this has been - there's - there's nothing happened to urgent.

This is - the national emergency is supposed to be for disaster or a military situation that threatens the country's security.

CUOMO: Right.

COHEN: It's not for a political whim of the President. And no President's ever used it in the way that this President has, so that's the reason it'll be challenged because this is just going beyond anything that anybody ever thought about doing.

CUOMO: Now, where do you get the confidence? I get the precedent rule. I remember.

I'm old enough to remember Congressman, when Mitch McConnell said to Harry Reid, "You better not blow up this filibuster rule for these - for these nominations. It's going to come back to haunt you." And, of course, it did. But even though a lot of Republicans remember that, remember the power of precedents, say they don't like this, have asked the President not to do it, do you really think they would vote against him?

COHEN: Well, there's enough Democrats to vote against him in the House.

CUOMO: Right.

COHEN: Question is in the Senate.

CUOMO: Right.

COHEN: And I think Cornyn's already come out against it.

And, of course, John Cornyn is in Texas where they want to take people's property, which you get - he can't do that. They tried. Harry Truman tried it in the Steel Nationalization, and you cannot take, according to Supreme Court rule, people's private property, even if it's a "National emergency."

And most of that property's owned by private individuals. It's not just going to be Cornyn. There will be other Senators on the Republican side that see it as an abrogation of Congressional authority.

Mitch McConnell, he - he - he totally was just fell down on the deal. He threw in the towel. He's up for election in 2020. And I think he's concerned about Amy McGrath.

CUOMO: How fast do you think action happens if indeed tomorrow the President declares a national emergency? And what happens if he doesn't, if it's just an Executive Order?

COHEN: Well if he declares a national emergency, we've got our bill. It will have to wait until we come back from recess, which is about nine days before it can be introduced, and then referred to a Committee or state.

I think it goes to the Committee and then it goes to the floor, and there's a certain time limit, and it's pretty quick. There might be court action immediately.

I think there'll be a - a restraining order asked for immediately by different groups. And I think - I think I read that the Justice Department gave an opinion that they thought a restraining order would be ordered, and it would be temporarily restrained.

Trump's thinking he can win on appeal because he's named some of these Appeals Judges. And I guess he hopes it gets to the Supreme Court and he thinks that he'll have the appointments of Kavanaugh and others and be able to win. But I think Justice Roberts will not go for it.

CUOMO: The latest reporting from our White House team is that he's going to do both. He's going to declare a national emergency, and he's going to take additional Executive Action. He's probably trying to get the biggest pocketbook he can together.

COHEN: Well he might want as much as $20 billion. We need monies for so many things in this country, for education, for healthcare, research on diseases.

You know, he talked about cancer research for children, and talked about a measly $500 million in his State of the Union, and he wants to put $20 billion into a useless wall that won't do anything for this country at - at all.

I mean he has his priorities missing. Children's cancer research should come first. This wall should come way down the line.

CUOMO: Well--

COHEN: It shouldn't even come.

CUOMO: --I hear you on priority. I've never understood the Democrat position that walls are immoral or that they're useless, and they won't help.

I mean the people who are in charge of keeping us safe, as you well know, Congressman, you're known for doing your homework, they say that physical barriers would help. They don't make it--

COHEN: They--

CUOMO: --their number-one priority.

They don't say they want it as much as the President does, and they list of other things that he often ignores. But you can have both. You can do money for physical barriers and still have - maintain other priorities.

[21:10:00] COHEN: And we've approved money for physical barriers in the past.

CUOMO: Yes, you have.

COHEN: And there are different kind of barriers. There're pedestrian barriers. There are vehicular barriers. There are - there are - there - there's certain amount of wall. But, mostly, it's in the urban areas like in San Diego and El Paso, and mostly it's fencing.

Texas has the Rio Grande River. That's a pretty good barrier.

CUOMO: Right.

COHEN: And that - that's a different situation, and the - in this private property owners. So, it's a different situation in Texas.

You know, it's interesting. President Bush never thought about putting a wall up in Texas. He never thought about more fencing in Texas. But he put fencing in New Mexico, in Arizona and California. So, I think you're going to see a lot of pushback in Texas, and understandably so. CUOMO: And he did think about using the declaration of a national emergency to justify getting people working on Corrina - Katrina fixes to work for a lower level of pay. But he withdrew it before it could be officially tested, so we don't have any precedent out of that situation even though we were heading toward it.

Congressman Cohen, thank you very much. Please keep us in the loop of what you're going to do, based on what the President does tomorrow. Thank you for coming.

COHEN: Chris, always good to be with you.

CUOMO: Pleasure is mine. I know it's a busy night. Thank you for making time.

All right, so, now look, the Congressman's right. There are Republicans who aren't happy about this. They believe it will come back to haunt them.

But Congressman Matt Gaetz from Florida ain't one of them. He's thrilled. We're going to bring him in. Why he thinks this is a good move. Why he thinks it works not just for now but for his Party later, next.








CUOMO: Hey, look, in the relative world that we're living in with all this division, on Valentine's Day, no less, we should be celebrating that Left and Right came together, and did something reasonable.

Not every - nobody's happy with the deal entirely. But at least there's no shutdown, and at least the business of government will continue.

However, now we got a new problem. Republicans are even bracing for what's going to happen tomorrow. The President is expected to declare a national emergency and take other Executive Action.

Certain Republican lawmakers don't like this. They're big on separation of powers. They didn't like it when Obama did it. They're worried about precedent going forward.

Congressman Matt Gaetz now says it's a great thing to do. Welcome back to PRIME TIME. MATT GAETZ, (R) U.S. REPRESENTATIVE FOR FLORIDA'S 1ST CONGRESSIONAL DISTRICT, BUDGET COMMITTEE, ARMED SERVICES COMMITTEE, JUDICIARY COMMITTEE: Good to be here, and happy Valentine's Day for everyone, sad enough to be watching you and me in the 9 o'clock Eastern hour tonight.

CUOMO: What is more romantic than this? So, you had been against - you were concerned about this. That's a fair word. About a month ago, you were concerned, Congressman, that you don't know that this is the right way to go.

Now you love it. Why?

GAETZ: I think that there are different authorities that can be utilized, and I've been educated on them. Specifically, Section 284 of Title 10 does not require the declaration of a national emergency.

It simply requires the designation of the U.S.-Mexico border as a critical drug trafficking corridor, which obviously it is. And then the President can unlock between $2.5 billion and a $3 billion to be able to do Border wall construction.

[21:15:00] Additionally, there's about five - well $500 million to $600 million in Treasury forfeitures that the President has broad discretion to be able to use. These are people who did not claim their tax - their tax returns, their - their refunds, and so he can use that money.

And then, there's also north of $3 billion in Military Construction money that the President can use. So again, you can get pretty close to $8 billion without declaring a national emergency but just by taking--

CUOMO: But they say he is going to.

GAETZ: --Executive Action. Well the - I mean you - that's what your reporting indicates.

And, certainly, in my discussion with the President earlier today, he was willing to do anything it took to secure the Border. But when you look at the specific authorities and how these funds were intended to be used, I mean, obviously, if we build a wall it's going to help with drug interdiction.

And so, utilizing drug interdiction funds for that purpose leads me with less concern than just a blanket declaration that would allow the robbing of resources from anywhere.

CUOMO: So, you still believe the President should be wary of declaring a national emergency because of what it would certainly mean for you guys going forward?

GAETZ: Yes. Any President should look at Executive Action as a last resort. And I mean, you know, heck, Chris, we've been through a shutdown. We've been through a Conference Committee. Every negotiating tool that can be has been deployed. I think that the - the missed story in the bill that I just voted for, and that we just passed, is that the President was able to get, you know, north of $20 billion for Border security without having to concede any form of amnesty.

I thought certainly that Democrats wouldn't agree to any deal that didn't include a path to at least legal status for DACA recipients and TPS recipients. But it turns out that - that was not something that - that the President had to give on.

So, in many ways, he's getting a lot of what he wants, and he'll get the rest of it tomorrow.

CUOMO: It's hard to call it a win though because what they did was keep their word that they would just stick with this appropriation measure, and not make it about anything else, and he did not keep his word, because now it's not just about this deal. He's going to do something anyway.

And all those categories of pockets, you know, they come with strings attached, Congressman. You have to make legal showings. You're going to wind up diverting assets not with the forfeiture, essentially, but that could be appropriated for other things and now it can.

With the Military Construction, you're going to have to make a show when you're going to take away from projects that were already seen as valuable. If he does it by--


CUOMO: --national emergency, he's going to pick and choose winners among communities that have been ravaged by storms. There's going to be political costs and strings attached. You worried about that?

GAETZ: You know, no - unequivocally, when you move resources from one pot of money to the - to the other, it is zero-sum by nature.

I think that that's why the work going on at the White House, you know, the last few days, and I know that's going on right now is so important to make sure that we don't deprive some critical mission in the military or some critical other element of government, its resources to complete the mission.

But when it comes specifically to the 284 authorities in Title 10, those are drug interdiction resources.

And one thing that we continue to hear from Border Patrol agents, it's something you echoed to my friend, Mr. Cohen, just moments ago, is that if we - if we build a wall, it will help the people that are trying to secure our Border, and it just may make some of the other challenges that we have with drug interdiction a lot easier to solve by creating a choke point that gives us an opportunity to stop - stop drugs from coming in the country.

CUOMO: The problem you'll have there is that DHS says themselves in their assessment that the bulk, is their word, of drugs that they stop come through the ports of entry, not on foot traffic.

GAETZ: Well - yes, but that's one of the reasons why the bill we just passed was worthy of voting for. I mean, yes, there's a lot I didn't like about it, obviously. But beefing up our security at ports of entry absolutely helps.

CUOMO: Sure.

GAETZ: The other thing is that you can't look in the - in - in the mirror and convince yourself it's a window. Sure, right now, ports of entry are the major area where we interdict drugs.

But if we beef up the ports of entry then, of course, cartels won't just give up. They'll seek other routes that may not go through those very ports. And that is why we've got to have a more comprehensive--

CUOMO: But they've always had the opportunity to go on foot across--

GAETZ: --security pressure.

CUOMO: --and they've never made it a--

GAETZ: And they--

CUOMO: --main priority because it wasn't efficient for them.

GAETZ: No, they - they--

CUOMO: And you will have to say that.

GAETZ: They do.

CUOMO: You will have to make it a mirror.

GAETZ: Yes, no, it's not true that they don't go through those--

CUOMO: Because you're going to have to look at it--

GAETZ: --those more wilderness areas. They absolutely utilize, you know, human mules to cross in those spaces.

CUOMO: But not in the kinds of numbers, the quantity and the quality of drugs, by the way, to the extent that that's relevant. They put their more expensive packages in more likely and more effective and efficient ways through. I mean people just do it (ph)--

GAETZ: That's what the data says today.

CUOMO: --what I've known for years by watching the El Chapo trial.

GAETZ: Right--

CUOMO: All I'm saying is this, Congressman. You're saying that the President is going to say that, "Hey, some of the money I can use is because this is a big-time drug corridor." It isn't. And you're saying, "Well, but it may be in the future because-- GAETZ: No, no, no, it is a big-time--

CUOMO: --the ports of entry is so secure."

GAETZ: No - no, look, the U.S.-Mexico border is a major drug trafficking corridor. You talk to the folks in the Coast Guard, you talk to the folks in Homeland Security, they will all confirm that the drugs are grown largely in Peru, and in other parts of--


GAETZ: --in Colombia, Venezuela. They are then put on boats in the Eastern--

CUOMO: Yes. But they don't say the fence stops it.

GAETZ: --Pacific. They ran - they land in - in Honduras and Guatemala, and then they're trafficked over the Border. And I think that having a physical barrier there in addition to the technology, the drones, the ports of entry enhancements that we voted for today--

CUOMO: Right.

GAETZ: --I think all of that makes us safer. And we--

CUOMO: But you already do have physical barriers in many of these places. You could use more.

GAETZ: Right. Yes, no--

CUOMO: But this is about how much and where, not just--

GAETZ: Yes, and I--

CUOMO: --like there's none.

GAETZ: --my expect - my expectation is that the $1.3 billion and change that we approved tonight will be enhanced by about an additional $6.5 billion.

[21:20:00] The lion - the - the - the majority - not the majority but the plurality of that will likely come from Military Construction dollars, and you'll see drug interdiction dollars and - and Treasury forfeitures kind of round-out the major contributions to that fund.

And at the end of the day, look, you and I both know the country doesn't want to go through another shutdown, and I think that the country does want the Border secure.

So, this could, you know, despite the fact this has been painful, and it's showed some of the worst elements of Washington, we may end up getting a government that's open, and working and at the same time more Border security than we've ever had in a generation.

And we'll be able to do it without a lick of amnesty, which is really one of the big wins the President had in this negotiation-- CUOMO: Well, I don't know why it's a win for him--

GAETZ: --having to concede no amnesty.

CUOMO: --because he, back in the day, who knows where he is now that, you know, he's got Hannity and Coulter and all these people in his head full time, but rent-free, by the way. But, he used to say--

GAETZ: Wow, throwing - throwing shade at Hannity.

CUOMO: --I want to be sympathetic.

No, I like, look, Sean Hannity's been a friend to me, and he's incredibly persuasive and powerful. I would argue he was without question the most powerful person in the media because what he says, the President does, not vice-versa.

GAETZ: Oh, sure, well, yes, I mean--

CUOMO: What Hannity says, the President--

GAETZ: --he's a transformational figure--

CUOMO: --does.

GAETZ: --in the media.


GAETZ: I mean Hannity is unlike anyone else in the media now.

CUOMO: We've never seen that before. What he says, the President--

GAETZ: It's not that clear.

CUOMO: --does.

GAETZ: No, I have - I have - I have been bearing (ph) witness to interactions where they have exchanges and robust discussions, and they bounce ideas off of each other.

I think it's good that we have a President that bounces ideas off of a lot of different people. He's not just stuck in the cocoon of the West Wing. And he - he seeks advice from all over the country. I think it - it - it--

CUOMO: Look, I mean we could go on all night--

GAETZ: --helps better assistance (ph).

CUOMO: --as a statement against interest of how crazy it is that with all the expertise the President is privy to, that he chooses someone like me to listen to about major policy matters is something that I could really scrutinize all night.

GAETZ: Well, I reject the premise that Hannity is someone like you. CUOMO: But I don't want to waste our time.

GAETZ: You're very different.

CUOMO: Yes, we - we are different. But when it comes to what either of us knows about national policy, and how to lead, and how to govern, we're both at zero. That's why we're on TV and not in elected office.

GAETZ: You sound like you're for it (ph).

CUOMO: And he knows it. He'd be in public service if he thought he could do it better than everybody else. He likes this life, and he's loving his access, good for him. But this is the last question on this.

They're going to contest this. And I don't think you're going to have to support it just once. I think you're going to have to support this a bunch of times, because what's going to happen is this money is going to start coming from other mouths.

And you're going to have to start saying, "It's OK," and it may wind up coming out of the mouths of your constituents because you've been beaten up by storms--

GAETZ: I do--

CUOMO: --and then--


CUOMO: --we make choices that those projects will have to wait and that's going to be coming on you.

GAETZ: Well, yes, the President just released half a billion dollars for Michael storm's for debris removal, so he's doing his part. But I - I think that you don't want to view the national emergency as one myopic moment.

For the reasons you mentioned, and the challenges that are anticipated, it's very possible that tomorrow the President will access the authorities that I think are most defensible. And then in weeks or months, he could trigger the release of additional dollars because we couldn't spend $5.5 billion right now all at once.

CUOMO: We couldn't spend $1.5 billion.

GAETZ: Well so, if you unlock - if you unlock a few billion at a time with a series of Executive Actions, then I think you have a very rapid pace of construction that's manageable. And at the same time, you don't have litigation about one thing that could potentially impair--

CUOMO: Well you will have litigation because--

GAETZ: --other thousands (ph) so--

CUOMO: --you'll still have a President-- GAETZ: Right, right, but--

CUOMO: --going around Congress and appropriating money--

GAETZ: --we, look--

CUOMO: --which the Constitution says he should not do.

GAETZ: No, not - not appropriating money if it's already been authorized and appropriated for these purposes--

CUOMO: But not for - but it's not, yes--

GAETZ: --in the House of (ph) discretion.

CUOMO: --and that's the argument he'll have to make.

GAETZ: Well that's a - that's a question court--

CUOMO: Right.

GAETZ: --a court will have to address.


GAETZ: But he's going to start with the authorities that are most defensible, and I think that will build momentum for the wall that he has promised.

CUOMO: All right, Matt Gaetz, it's a busy night, thank you for taking the time to make the case. I appreciate it.

GAETZ: Thank you. Happy Valentine's Day again.

CUOMO: You as well.

All right, so look, that's where the politics is on this. This is why people are against. This is why they're saying they're for.

Now, the law will have a role here more than ordinary in politics. There is an act of Congress if he declares a national emergency. And there's other statutory language as well, but it's not the end of the fact analysis.

I have it all laid out for you, next.








CUOMO: All right, we're having to figure some stuff out on the fly here, and that's good. It's good for you, and it's challenge for us. The President, we're told, is doing it. He's going to declare a national emergency to get his wall that puts us in some uncharted legal and political territory.

Can he do this? All right, there's two ways to look at it. Hold the prompter because I have this other law. You just heard Matt Gaetz from Florida give us something that I would suspect is something he heard from the White House, which is that 10 U.S. Code 284 allows the President to do this.

Now, we've looked at this before. This is about support for counterdrug activities and activities to counter transnational organized crime. Here's what it means.

There's a list of things that the Secretary of Defense can ask for to aid in fighting the drug war, OK? That's where this law comes from. And among that are things that you can maintain and repair with extra money, you can preserve the potential utility going forward of something.

The only one that would really apply to building a wall would be the upgrading of equipment. But there's a catch. There are two catches. The first one is that it has to be a compatibility thing. It deals with technology.

Almost all of these are about technology and maintenance of equipment that allows the Secretary of Defense to use other avenues of the government which, of course, always costs money, right, because it's labor, to help upgrade technology, and keep technology and equipment ready to be used.

That's what it's about. It's not about construction. It's not about a wall. So that's going to be one legal challenge.

The second will be that DHS says that the bulk of the drug interdiction is done at the ports of entry. So then, how can you argue that you need to use these extra methods because it's so important what's happening on foot when that's not what DHS says, so it's going to be complicated.

All right, so now we have the other legal avenue, the National Emergencies Act of 1976. The good news for the President is there are no parameters on what counts as an emergency. They defined it only as something special and extraordinary.

Now, you could argue the wall is neither an emergency nor extraordinary and special, because we already have it, and it's not something we need in this instant in a way that will stop a crisis in this instant. That'll be an argument, OK?

And there is however, at the end of the day, authority for the move, and every President since the passage of the Act has declared at least one, and none has ever been challenged in court, but that's about to change.

Section 5 of the law says Congress can shut this down. How? Democrats, as you were hearing from Congressman Cohen, if you were watching earlier, they can pass a joint resolution.

The Senate has to conduct a floor vote within 15 days. It's in the statute, so McConnell can't does - do what he does so well for the President, which is, you know, keep things from happening. 51 Republicans would need to back up the President. Take a listen to this.


SEN. SUSAN MARGARET COLLINS (R), MAINE: I continue to believe that this is not what the National Emergencies Act was intended to be used for.

MIKE ROUNDS, (R) JUNIOR UNITED STATES SENATOR, SOUTH DAKOTA, FORMER GOVERNOR OF SOUTH DAKOTA: The concern that we've got is, is that we now have set new precedent.


CUOMO: Well, you're going to do that. So, the question is what kind of precedent do you want to set with your President? Are you actually going to stand up against him, something that very few in your Party have done at all, let alone consistently? That's the big question about the political stop here.

[21:30:00] The President's grip on the party, no matter how GOPers grouse, it's hard to see McConnell doing anything to stop this and get the votes for it. So, what's going to happen?

Well the other way to challenge this is to sue.


NANCY PELOSI, SPEAKER OF THE UNITED STATES HOUSE OF REPRESENTATIVES: We will review our options. We'll be prepared to respond appropriately to it.


CUOMO: All right, what does that mean? Democrats can't just sue because they don't agree with the Executive Branch. They have to show what's called standing. That means that you have been arguably aggrieved by the action that was taken.

And as a little bit of precedent for that, in 2015, when the Republican-led House was allowed to sue over Obamacare, and the alleged spending of public money, not authorized by Congress, see that would be their standing. Constitution says, "We have to appropriate the money, not him." All right, then, there are state attorneys general from the travel ban to DACA, you've seen courts willing to let them take on the President's policies. The most obvious contenders there would be the Border states, the Southern border, obviously.

Right now, California is actively engaged in a fight against the wall, but Ninth Circuit that everybody says is so Lefty, right, the Ninth Circuit just rejected California's efforts to block work on fencing near San Diego. So, that's not a great precedent.

My best sense is the biggest problem for the President will remain the people who own the land along the Border. Remember, much of the Border land that we're talking about here, especially in Texas, belongs to private citizens.

CBP admits it'll likely need to use eminent domain to get that land. It ain't that easy. DOJ is staffing up with lawyers, quote, with experience in litigation in land condemnation cases, cases are, if anything, long.

And the Trump Administration knows this. During the last shutdown, the Administration was in court trying to get just five acres. Case has been going on for more than a decade.

Now, let's say he gets through that, he gets the eminent domain, if he does, then using tax dollars is going to be a big part of this. All that legal challenges, that all comes out of your pocket.

So, the next thing is going to be pushback/lawsuits from the communities he might hurt by pulling money from the wall - for the wall, from projects that they need like Puerto Rico, right?

Storm-ravaged folks in Florida, Texas, elsewhere, they could argue, "You're hurting us. There was money that was appropriated for us that we're using to fix what we need, and now you're taking it away."

In the end, there is a law that allows POTUS power he seeks. Legally, he's going to have a delay, OK?

Politically, he may set a precedent that is almost certain to haunt his Party in the future because any President would now have a basis of saying, "Well he did it. I declare global warming a national emergency. I declare poverty a national emergency. And now, I'm going to go looking at purse pockets, and I'm going to take money away that Congress has appropriated for other things and use it on this."

It's not what the Constitution wanted the Executive to do, all right? But that's what this President is doing even though he's been warned of this. Why? "Surrender the Me to the We," "No way," he says, "I've got to keep this Congress - this - I've got to keep this promise, no matter what it means to Congress."

So, that's where we are, and we're going to learn more tomorrow. Now, look, you can say, it is fair to say, I don't want to be unfair about it, there are Members of the Republican Party who say, "No way, we have to make this not happen. It's too - it's - it's too dangerous." What will really happen? What will it mean for Democrats and Republicans? It's a great debate to have, and we're going to have it next.








CUOMO: All right, so now what? Speaker of the House, Nancy Pelosi is expected to come out in just moments, and address the signing and passage of this bill by the House. What will happen in the Congress? And then, really, this is about what will happen tomorrow.

[21:35:00] This should be a moment of celebration. It was ugly how we got here. But you would have to say that this was a bipartisan bill. In the House, you saw Left and Right come together and do something that was arguably reasonable.

I know there's nobody watching me right now, who's completely happy with what was done. But I would hope that all of you would say, "Well, at least something got done. At least they're not going to punish us again," punish all of you if you are affected by the services, and the government that gets shut down.

We saw the effect of it. So, at least, you'd be able to say, "At least, it's still open. At least, they're still doing their job." But now, with what's going on with the President tomorrow, there's a whole new problem. So, when Pelosi comes, we're going to take it.

Right now, let's debate what tomorrow may mean, Jennifer Granholm, Rick Santorum.




CUOMO: Without getting too deep in the weeds, there's one obvious proposition that we're dealing with here. And I ask both of you some - some patience. If Pelosi comes out, let me get to her right away, so we don't miss the opportunity.

But Rick, the big problem is precedent, right? It's one thing if he uses 284, and he wants to say, "This is a drug issue, and here's how I make my case." That's one thing. Declaring a national emergency is something very different, and really likely comes back to haunt, does it not?

RICHARD JOHN SANTORUM, POLITICIAN, ATTORNEY, AUTHOR, CNN POLITICAL COMMENTATOR, REPUBLICAN PARTY MEMBER, FORMER UNITED STATES SENATOR FROM PENNSYLVANIA: Well, as you know, I mean national emergencies, I think there's 50 some active right now every President (ph)--

CUOMO: None like this.

SANTORUM: --every President has used it to one degree or another. And I, look, I agree. Look, one of the things that I - even when I was running for President, what I said was that, you know, the President has become too powerful, and - and - and the Congress has - has abdicated their responsibility, particularly, when it comes to controlling spending.

And so, I actually have serious concerns about the President doing a national emergency declaration. And I am actually pleased that Members of both Republicans and Democrats are - are - are speaking out about it.

Democrats are uniformly doing because they hate Trump, and they're opposing everything. I just hope they remember the reasons that they're opposing Trump in doing this could be the reasons that they oppose a Democratic President for doing - for trying to do something, as you mentioned--

CUOMO: Right. But tit for tat--

SANTORUM: --on climate change.

CUOMO: --tit for tat has gotten us nowhere. Here's Nancy Pelosi--

SANTORUM: But I'm just saying I think it's good that the Congress is fighting back, and I think hopefully that will curb the President's appetite to use this.

CUOMO: All right, let's see what they say.


PELOSI: --passed the House of Representatives and - and the Senate. And now, it'll go over to the Senate to be signed by the Vice President of the United States or his designee. But I'm - it's my honor to sign this as Speaker of the House, where I signed it, and all of our (ph) conferees, they did a spectacular job. And so--


PELOSI: Mr. Corey (ph), Ms. Lowey that they did (ph), And Chair of the Appropriations Committee, Nita Lowey.


PELOSI: And the Chair of the Home - Homeland Security Sub - Subcommittee of Appropriations, Lucille Roybal-Allard, Henry - Henry Cuellar - Henry?

CUELLAR: Yes, right here.

PELOSI: --Henry Cuellar from Texas of Rio Grande - Rio Grande Valley. Pete Aguilar from California for - Members of - all Members of the Committee, Barbara Lee--

CUELLAR: Barbara Lee right here (ph).

PELOSI: The leadership member of the conferees, David. I'm not sure David is--


CUOMO: I'm - I'm happy that they're happy they got something done. But I want to hear what she says she's going to do if - if the President takes this step tomorrow.

What we're expecting, Jennifer, is Pelosi to say what she said before, which is, "Hey, we're going to do this too as soon as we can," which goes to Rick's point, you know, tit gets you tat.

And you could very easily see the next Democratic President say, "Guess what I'm declaring a national emergency? Global warming."

JENNIFER GRANHOLM, (D) FORMER MICHIGAN GOVERNOR, CNN SENIOR POLITICAL COMMENTATOR: Of course. Yes, no, I've heard, actually some Democrats saying, "Hey, you know what? This opens the door for us in the next go-around." So, maybe we shouldn't be so opposed to it.

I, however, do not think it is a good precedent.

And I don't think - and I was interested to see what Congressman Gaetz said, right, before we came on, because the suggestion that he's making is that perhaps the President doesn't go that far, and instead, moves the - this money around, as you were just describing.

And that's a - that's a different kettle of fish. He's not going to get as much money. And, by the way, let's just remind ourselves that this whole thing is about circumventing Congress to begin with. But these more fluid pots of money doesn't buy him as much trouble as actually declaring a--

CUOMO: Depends on the pot.

GRANHOLM: --national emergency when there is no national emergency.

CUOMO: Right, depends on the pot. National emergency gives him more legal authority but more political jeopardy in terms of what pots he looks into.

SANTORUM: Well there's--

GRANHOLM: Yes, I mean and - and more political--

SANTORUM: --yes-- CUOMO: Because he would wind up taking from projects--

GRANHOLM: --jeopardy--

CUOMO: --around the country that were meant for people--


CUOMO: --who were hit by disasters. This would be different. But Rick, someone like you should have the same argument no matter what he does, which is we do not like the Executive going around Congress.

SANTORUM: No, look, I - I'm - I - I've repeatedly expressed my concern about the President using this emergency like declaration. He does have some flexibility with some pots of money, as you mentioned.

But - but some of the pots of money, at least that I heard the Congressman talking about, are - are pots of money that need to get - need - need to have Congress sign off on - on - on this reallocation of resources.

[21:40:00] So, that - that's not going to happen. I mean the - the House Appropriations Committee Chairman is not going to sign off on - on moving money around that - that requires them to get to - to approve it.

So, I think it's - it's rather limited. I don't know how much it is. I'm sure that the White House has been spending the last several weeks trying to figure out, is there money that - that we can move around that we don't have to declare an emergency on, that we don't need Congressional approval on, and still gets us a reasonable amount of money.

I'm hopeful that that's what they come forward with tomorrow. But that may not be enough. And they may have to push the envelope on one - in one way or the other.

CUOMO: You know, one problem they'll have, just to make how clear--


CUOMO: --how politically optical this is, Jennifer, is one of my sources that is involved in the actual planning for this, like on the ground, like, you know, if this actually gets done, this is one of the people who would do it.


CUOMO: He said, you know, we will never build anywhere near what we still need in the next seven years, let alone during this term. So, this is about optics. This is about this President saying--

GRANHOLM: Meaning--

CUOMO: --"I got something done even though we will never get done."

GRANHOLM: All right, right, meaning that logistically you cannot expend that much money to build--

CUOMO: Right, which is why they have money in--

GRANHOLM: --a wall in the time that the President would want to claim.

CUOMO: --these pots to begin with.

GRANHOLM: Yes. But let - but be clear about this. First of all, there's $680 million from the last two years that is--


GRANHOLM: --unspent. So, where is the emergency? Number one.

Number two, if he goes to the Military Construction budgets, he has - you've got a lot of Republicans, as you were pointing out, in districts across the country that fought for that money to be put--


GRANHOLM: --for projects in their district. There's only $50 million of that Military Construction budget that is fluid that the President could yank. Yes, there's some Treasury forfeiture money that arguably he could spend.

But, as Rick points out, this stuff has already been appropriated. So, this is just another way of going around Congress and going around the U.S. Constitution.

CUOMO: Yes, that was the brilliant part of the Mexico pay part--

GRANHOLM: What he needs to do--

CUOMO: --Rick.

You know, the - the problem with jump - drop in the Mexico pay part is that you know you're guaranteed in 2020 somebody saying, "You know, he could have done this for you, fill in the blank whoever you are, wherever you are, you'll need something. Instead, he did the wall, remember that."

And, you know, depending on who you are, and who you're talking to, that could play different ways, Rick.

SANTORUM: Yes, I - I think if you look at the pots of money, what they'll - I have no doubt that they will take money in areas where, as Jennifer said, there's an unspent part of money, you talk about the wall.

But there are lots of accounts that have money sitting there that hasn't been spent for three or four or five years, and it's going to lapse, and they - and - and they can say, "No, we're going to take this," and it - and it would not have been spent otherwise.

So, I think, again, if they do a good job at this--

GRANHOLM: But you got to go back to Congress still.

SANTORUM: --they're not going to be - not going to be goring anybody with - with moving this money around.

CUOMO: Well that's the hope. But they may have to deal--


CUOMO: --with Congress on. It's going to be tough for your Party.

SANTORUM: I agree. There - there - and--

CUOMO: Is there any line--

SANTORUM: --and, by the way, I think it's good that, I'll repeat, I think it's good that the - that the Congress fights the President on their prerogative.

I'd say - I wish the Congress would actually exercise their prerogative more, not just with this President, certainly, I - I encouraged it with the last one in - in - in being much more possessive of the power they have under the Constitution.

CUOMO: I just don't think they have a spine.

GRANHOLM: There are--

CUOMO: I don't think they have a spine-line--


CUOMO: I don't think there's anything that they would--

GRANHOLM: That's exactly right.

CUOMO: --really stand up against him on, Rick, I mean--

SANTORUM: Well, the problem is you can't get cooperation.


SANTORUM: For a Congress to really assert its power, they need to work together as Republicans and Democrats. And right now, that didn't happen.

CUOMO: Jennifer?

GRANHOLM: There are 18 - there are 18 Republican Members of the Senate alone who have expressed opposition to this before, opposition to a national emergency declaration before the President declares it, 18 of them.

They are all going to be put on notice, and have to vote on this, if in fact he declares it, and it comes to the Senate for individual votes. You better believe that that is a political jeopardy for someone like the Senator in Colorado, the Susan Collins in Maine-- SANTORUM: Yes.

GRANHOLM: --people who are going to be--

SANTORUM: But having said--

GRANHOLM: --up in 2020 who have said they don't--

CUOMO: All right, let's leave it there.

SANTORUM: Well, speaking, it's just one - one thing.

GRANHOLM: --want to see this, and now we're going to be put up for it.

SANTORUM: Speaking of someone who's up in 2020, Mitch McConnell, who said he would support the President--

CUOMO: Right.

SANTORUM: --on it. So, if that's a sign--

GRANHOLM: Yes, good point, Rick.

SANTORUM: --of where Republicans are going at maybe, I mean it's the leader--


SANTORUM: --that - that may tell you something.

GRANHOLM: Invertebrates.

CUOMO: All right.

GRANHOLM: Invertebrates.

CUOMO: Thank you very much.

GRANHOLM: Just saying.

CUOMO: Rick, Jennifer, I appreciate it.

SANTORUM: Thank you.

CUOMO: All right, it took nearly a week, but guess what we now have? The President's physical results. And while we're waiting to hear what Nancy Pelosi wants to say about what the President may do, let's tell you how he's doing, and make some relative assessments, OK?

We're going to do that next with one of the fittest men I know.







CUOMO: The White House is out with details of President Trump's physical last week at Walter Reed Medical Center. And, thank God, the President is in very good health, overall.

Blood pressure, 118 over 80, very good. He's on a higher dose of a statin medication known as Crestor. His cholesterol has come down from 223 to 196. Last year, he was 239 pounds. He's now 243.

So, the good news is the President's reportedly healthy, despite terrible diet. Bad news is, he and I are both officially obese. And there's also something weird going on with his height. And I have a theory about it, all right? Here's the proof.

I am barely 6'2", although I got a little bit of a bouffant in that picture, but I'm telling you, I am barely 6'2". The President claims to be 6'3". I did not ever think that he was taller than me any of the times we've stood next to each other.

Let me bring in D. Lemon. D. Lemon, you are not a particularly tall person, so that this doesn't really affect you that way. But, as you see in those pictures, I don't know that he's 6'3".

I just know that I am not, and my theory would be the taller you are, the better it is for your body mass index, your weight to height ratio--


CUOMO: --is a function of how fat you are.

LEMON: Well, he's 6 feet 3 inches, internet inches, so that means he's exaggerating.

CUOMO: But I am technically obese--

LEMON: I love that.

[21:50:00] CUOMO: --when they do that Body Mass Index thing, so that's why I'm not quick to go at him. He should not weigh 243 pounds.

LEMON: Well, you tell me--

CUOMO: He should weigh about 220 pounds, 215 pounds.

LEMON: Can you tell the viewers what you call me all the time?

CUOMO: Rolling Thunder?

LEMON: Fat face.

CUOMO: Never.

LEMON: Oh, Chris.

CUOMO: Never.

LEMON: You're really going to--

CUOMO: Never. I was--

LEMON: --you're going to lie to the public?

CUOMO: Cake pop - cake - cake pop head.

LEMON: You're talking about my cheeks here. That's what makes me like yes (ph).

CUOMO: Yes, but you're thin. I mean your--


CUOMO: --your head is the fattest thing on.

LEMON: Listen, a lot - listen, a lot of Americans struggle with their weight. And, as you know--


LEMON: --I mean, let's be serious about this. Even I struggle with my - I can lose 10. But I mean not to the - this is--

CUOMO: All of us could lose 10.

LEMON: --this isn't - but yes 10--

CUOMO: He has a terrible diet. And it's--

LEMON: He has a terrible, terrible diet.

CUOMO: --and it's bad for people because to think that you're going to have his kind of vitals on that kind of diet is really fantasy- thinking. He's lucked out (ph).

LEMON: Let me tell you something though, and it - it may shock some people. You know, I actually think he weighs more than he says. Fine.

CUOMO: I just go with the numbers--

LEMON: A lot of people--

CUOMO: --that we have.

LEMON: Lot of people lie about their weight. I'm not going to say anything. I actually cut the guy some slack because it's a stressful job. He has a lot of Executive Time. But to go from what is a 239 to 243, that's, you know, for an older man--

CUOMO: It's nothing.

LEMON: --it's not a lot of weight to gain.

CUOMO: Nothing. 4 pounds.

LEMON: And you know what? Men with muscle mass can drop that in two weeks, probably.

CUOMO: And his cholesterol went down.

LEMON: And his cholesterol went down. So he's, listen, I'm sure they're exaggerating a little bit.

The thing that concerns me that I think he should get checked is the - the heart situation that - that - that Dr. Sanjay Gupta identified, which was not originally identified in this health report, and the American people have a right to know. Am I wrong?

CUOMO: A 100 percent. Obviously, you'd want to know something material to his duties.


CUOMO: I believe that the ultimate reckoning on what Sanjay brought out was a little bit of a fine slicing that this is something that a lot of people have. It qualifies as disease. But that word sounds a little bit worse than what his actual condition is if it's monitored.

LEMON: Yes. I should've brought up my pictures with the President because I didn't - I don't remember him being that much taller than me. I'm six feet right at--

CUOMO: What are you? Six foot, about a 160 pounds?

LEMON: I'm - I'm - no, no - oof, I wish I was a 160 pounds, Chris.

CUOMO: Really?

LEMON: Yes, it's been - ever since my mom came for Christmas, it has been downhill ever since.

CUOMO: Really? Because you don't carry that much muscle mass on you. Where's your weight coming from?

LEMON: I will tell you where the weight is, but I'll tell you--

CUOMO: See more of love's in (ph) my oatmeal.

LEMON: Yes. Hey, listen, this national emergency thing, I think is a - is dangerous.

CUOMO: And we're still hearing - our reporting is still that he's going to do it tomorrow. He's not going to find a--


CUOMO: --workaround.

LEMON: Yes. So, we're going to talk about that. We have every perceivable guest in person, an expert that--

CUOMO: Good.

LEMON: --that can talk about this. And I actually think a - if the Democrats were really smart, this is just me talking--


LEMON: --I'd say, "Go ahead, do the emergency," because you know there's going to be a Democratic President that's in office one day soon, maybe it's--

CUOMO: That's what McConnell did when Reid said he was going to, you know, take away the filibuster.

LEMON: There you go. Maybe it's 2020. Maybe it's the next time. But then, someone will come in and say--


LEMON: --I'm sick of this gun situation. And so--

CUOMO: Right.

LEMON: --it's a national emergency. I'm sick of this--

CUOMO: I know. But I don't like it. That's not what the--

LEMON: --global warming.

CUOMO: --Constitution wanted to happen.

LEMON: I'm not saying, "It's right." I'm just saying if they were smart because that would be the thing that would get folks to go, "Oh, no, don't do it."

CUOMO: It'd be nice to see somebody just do the right thing for once instead of--


CUOMO: --settling for being able to play to advantage later. I'll see you in a second.

LEMON: See you in a bit.

CUOMO: Early Valentine's Day wish, I have more to say about that with him later. So, V-Day, Valentine's Day, a day that's all about doing it for the love. Now, it will forever coincide with an event that many hope would change us, make us more compassionate, make us see a way forward. What this day means to me and why, next.








CUOMO: For the love, Valentine's Day is for the love. Forget the hallmark holiday haters. We need it. It should serve as a hallmark of the effort we need to make with one another, every year, if not, every day.

St. Valentine, beneficiary of many legends, but a few things are clear. He believed in the need for love in practice. One of the things he did was sign letters to friends, expressing appreciation for them, signed "Your Valentine." That's why we say that.

We make it about romance. It's fine. But it can be about more and should be, especially today. Our connection to one another and our passion to demonstrate the same needs reinforcing. We all know that.

The political divisiveness, the energy toward driving fear and anger toward others, it's distracting. It's draining from the love of a collective, a feeling about one another. Chocolates and candy, great, but what about compassion and collective action for the betterment of all, especially today?

You remember what happened a year ago today, right? A year ago, we witnessed 17 being shot down in Parkland, Florida, school, kids, pain and shock, frustration, all familiar.

But this Massacre would be different. The kids who survived became advocates. They stood for the fallen, and they forced us to recognize our lack of resolve. They were Valentine. They were love and action.

A year later, nothing has changed in terms of law. The opposite of love, not hate, indifference, that's the opposite, and that's what we have surrendered to. Too political, too hard, everyone cares, but no one dares. Not really!

We actually had a Member of Congress say the wall is part of the solution to gun crime. So, that's where we are. Today, of all days, remember the need to be better, for the love, for the love of the Fallen, the love of progress, the love of less violence, the love of cooperation and compassion.

We may not be a law away from stopping school shootings. But we are one moment away from taking action. You really think we can't do better, we can't identify kids, adults who are at risk, do more to control access to weapons?

Google the Columbia Protocol. Google that, Columbia Protocol, it works, brought down suicide rates in the Air Force, the only branch of service that saw reduction because of that protocol, in part.

The only failure is doing nothing. Indifference is the opposite of love. Remember that today. When we say we do things for the love, remember what it is we do and do not do.

Happy Valentine's Day. May it be good to you and may you be good to others. Thank you for watching. CNN Tonight with D. Lemon starts right now. Happy Valentine, my friend.