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Don Lemon Tonight

Immigration Showdown; Trump Blames Media; Rapport Between Previous and Present President; Home Alone; Fight Against President Trump's Travel Ban; Trump Blames the Judge and Court System; Time to Chill Out. Aired 10-11p ET

Aired February 06, 2017 - 22:00   ET

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

(JOINED IN PROGRESS)

[22:00:00] SANJAY GUPTA, CNN'S CHIEF MEDICAL CORRESPONDENT: Anderson, is that this boy will probably end up going to the U.K., and the family will try and get the operations done over there instead. He originally didn't go to the U.K., because it was easier to get into the United States, initially, but not now.

ANDERSON COOPER, CNN HOST: Now, we'll continue to follow it. Sanjay, thanks very much for the update. Time to hand it over to Don Lemon for CNN Tonight.

UNIDENTIFIED MALE: This is CNN breaking news.

DON LEMON, CNN HOST: The breaking news is an immigration showdown. The high stakes battle over President Trump's travel ban moves one step closer to the Supreme Court.

This is CNN Tonight. I'm Don Lemon.

The Trump administration arguing tonight the ban is a legal exercise of the president's authority, that's after President Trump rages against a judge who temporarily suspended his executive orders calling him a "so-called judge." And amid reports of the House in chaos, while the president today falsely accusing the press of failing to report on terror attacks.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: It's gotten to a point where it's not even being reported. And in many cases, the very, very dishonest press doesn't want to report it. They have their reasons, and you understand that.

(END VIDEO CLIP)

LEMON: Let's get right to CNN's senior White House correspondent Jim Acosta, and justice correspondent Pamela Brown. Good evening to both of you. Lots to discuss tonight. Pam, I want to start with you. Tonight, the Justice Department lawyers filed documents in federal court defending the president's controversial travel ban.

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: So the federal government argued tonight, Don, that the district judge in Washington State overstepped his bounds, they said that his halt on the travel ban was, quote, "vastly overbroad." And the lawyers from DOJ also said the president has wide discretion under the Constitution and the law to deal with immigration matters.

However, they argued if the court decided to keep the injunction to the ban, it should be limited to people who have already been in the U.S. with valid visas, not for the people from the seven countries in the travel ban who are hoping to come to the U.S. for the first time. The lawyers argue that they should not be granted constitutional protections.

The states on the other hand say the travel ban hurts their citizens, breaking up families and hurting businesses. Of course, we have the hearing tomorrow.

LEMON: Pamela, will the public be able to listen in on these hearings?

BROWN: They will. Actually, the oral arguments will be live streamed to the public on the 9th circuit web site, the 9th circuit is known to be more transparent than other circuits across the country. Circuit courts, I should say, across the country.

So, in the broader context this is unusual. And it's going to be over the phone because the ninth circuit covers most of the western states and the judges are spread out. So, each side gets 30 minutes, and then we expect a decision on whether the ban will be reinstated during the appeals process, sometime after that, Don.

LEMON: OK. To Jim Acosta now. Jim, tonight, the White House is following up on their accusations -- false accusation that the media hasn't covered major terrorist attacks? What are they saying?

JIM ACOSTA, CNN SENIOR White House CORRESPONDENT: Right. And just to catch our viewers up, earlier today, the president was down at the U.S. Central Command down in Florida and he went after the news media as he often does, and this time he said that we in the news media are downplaying terrorist attacks for reasons that he didn't explain.

He said we have our reasons and he told the audience there, and you know what they are. And I think you understand that. And we asked to White House Press Secretary Sean Spicer earlier in the day, well, where is the president getting this from, and the White House said, well, we're going to be putting out a list later on in the evening.

And they did put together a list, Don. Here it is right here. Seventy eight terrorist attacks that have occurred since 2014. The White House cautions that they believe most of these terrorist attacks did not get enough coverage in the news media.

But if you go through the list, Don, it's baffling. They mention the Paris attacks, they mention the San Bernardino California attacks. The Nice truck attacks, and so on, the Orlando nightclub attack.

And it's just sort of odd that in the midst of this list that they're saying, you know, these attacks were not covered enough. They're including attacks that we spent days on end covering. It's also worth noting they were only able to compile all this list because of the news media. Because we reported on them.

If we didn't report on them, they wouldn't have been able to go and find this list and be able to put it together. So, it's a very strange and baffling attack on the news media. But it seems to happen on almost a daily basis now where the president goes out and he delivers a speech. That goes after the news media, the only thing that seems to change is the setting where he's delivering those remarks from.

LEMON: Yes, it's -- I think it's pretty simple that maybe for some reason they want us talking about this, Jim, obviously, you know, it's sad to say, but a terrorist attack will probably likely happen sometime in the future. Those things are uncontrollable. If you talk to many experts you can't stop all of them. It's almost as if they want us talking about this, just in case, for some reason something might happen.

[22:04:57] ACOSTA: Right. But, Don, I mean, this is one -- this is one of those talking points, where all you have to do is spend a few seconds on Google, and the talking point just doesn't hold up. I mean, we, at CNN spent days on end covering many of these terrorist attacks that are listed in this list that was provided by the White House.

And we should point out journalists are putting their lives on the line every day in very dangerous parts of the world reporting on terrorism and reporting on terrorist attacks. And so, this just doesn't hold up. It feels like they were going after the news media, before they even had their facts straight.

And once again, I mean, this is a list that includes terrorist attacks that we spent a lot of time covering, and so to accuse the news media of just ignoring terrorist attacks and not explain why, it just doesn't make a whole lot of sense. And it feels like once again as you said, Don, that perhaps they're trying to wave that shining object and get the public's attention away from the things that they should be focused on.

LEMON: And in case some, let's hope it does not happen. If something does happen he'd say, see, I told you so. But I think you make a very good point. The men and women he spoke to today put their lives on the line for those terrorist attacks and there are also journalists who are on the front lines as well to bring the story to the public. Pamela Brown, do you have a response to this?

BROWN: Well, yes. I mean, I'm just talking about those terrorist attacks that Jim pointed out. I mean, I spent sleepless nights covering those stories, and was sent to Paris for one of the attacks, the Charlie Hebdo attacks.

And so, clearly, some of those don't hold merit. But on the broader context which was clear here, Don, is that the president wants the travel ban reinstated. And as he said, as per national security purposes and the administration believes these seven countries pose a national security risk, and it's made clear it wants to fill in the gaps in the vetting process.

And so, bringing up these terrorist attacks, getting this in the conversation only help support the administration's argument that this travel ban should be reinstated.

LEMON: All right. Thank you. I appreciate it. I want to bring in now CNN political analyst, Maggie Haberman, chief political analyst, Gloria Borger, and senior political analyst, David Gergen.

So, lots to discuss. I'm glad you all are here. David, let's start, what is this, 17th day in office, and he's in a full blown legal battle, the president is, possibly with the Justice Department, and also now more misleading of the American public regarding terror attacks?

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Don, it's -- the one attack we really obviously didn't cover well was the Bowling Green massacre. You know, we really had and should have had some reporters out there, Kellyanne Conway tell us a lot to the scene, hope us to understand it.

Look, I think -- I think this is one of the most outrageous claims the president has made among many. But because it really -- it really says basically, that the press is not doing its job because it has its own political agenda, it doesn't want you to know the truth about how dangerous terrorism is. It just doesn't want to be out there. It's pulling a leftist agenda on you, which is clearly not true.

And he engages in these falsehoods without producing any serious evidence, we get a list that includes San Bernardino as if the press didn't cover that sufficiently. I mean, it's just -- it's just astonishing, and it's beneath the dignity of the presidency.

And it really, I think it tears at the fabric of what holds us together as a people, when we can't trust each other, we can't trust the White House, he's telling you can't trust the press.

LEMON: Yes.

GERGEN: You know, it is, this is the way democracies become unraveled.

LEMON: Yes. Including the Pulse nightclub, the Nice attacks. And there are other attacks that just so -- just so people know, the viewer is informed. There are other attacks that happened in other countries that CNN international will cover that may not be covered on a U.S. domestic level.

(CROSSTALK)

GERGEN: It's a good point.

LEMON: And I think CNN is one of the only U.S. networks that will cover that where you can get that, you won't get that from other networks. So, if there's an attack that happens in some other part of the world, if you are tuning in, Mr. President, to CNN international, you will get those stories as well.

(CROSSTALK)

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Don.

LEMON: We don't just cover stories that happen here in the United States. But go on.

BORGER: Don, I think what also -- I think what also happened here, is you had a president who spoke and then you had a White House staff that had to be the shovel brigade and had to kind of say, well, this is what the president said.

(CROSSTALK)

LEMON: That happens every day, it seems, Gloria.

BORGER: So, well, yes, but this is -- so, we have to prove the president's premise, which is that the press doesn't cover terror attacks. Which is ridiculous on its face.

And so what they came out with was a list of terror attacks and you've gone over chapter and verse, and so I think it kind of belittles. It belittles the office he holds, it belittles the people who work for him to put out this kind of hastily compiled list, full of misspellings, by the way. And then it was meant to belittle us, honestly, but in a way, I don't think it does.

[22:10:00] LEMON: Yes.

BORGER: Because I think we're just doing our job. And we have been doing our job.

LEMON: As I watched him speak to the men and women in uniform in the CENCOM when he brought that up, it was a sigh of -- here we go again.

Maggie Haberman, you've been doing, covering a lot of this. What's going on here?

MAGGIE HABERMAN, CNN POLITICAL ANALYST: I think that -- I mean, I think Gloria is right. I think that we're never going to know whether the president was intending to say this today or not. But we have seen this lather, rinse, repeat pattern, we saw it throughout the campaign, too. He said something and then the staff has just sort of reverse engineering.

(CROSSTALK)

LEMON: And then, Sean -- pardon me for interrupting.

HABERMAN: Yes.

LEMON: But Sean Spicer shifted what the president actually said into don't cover enough. They don't get enough attention. Where the president he has explicitly said, they don't cover it, and they had their reasoning, you know the reasons why. He never said that. Sean Spicer came out and said, well, they go undercover, that we don't report on them enough. That's not what the president said.

HABERMAN: No, that's not what the president said. And the president also had an insinuation that was vague enough that people could read in what they wanted, but appeared to be suggesting that, you know, the reporters, the media have some kind of agenda behind this.

I mean, I have been covering the news for 20 years, I was down at Ground Zero for years, literally years after the attacks there, we have covered terrorist attacks. I think we get criticized for covering them too much. And that is one of the frequent criticisms you heard from people in the previous administration.

But I think that it serves the president's purpose, which is generally speaking, you have seen him sort of creating a climate -- not creating, but he's pointing to a climate of fear. And he is largely governing on the idea that if people should be afraid, and I can fix it, I will make it better.

We saw that during the campaign a lot. It worked for him during the campaign, it's certainly never going to get him to, I think a majority of support, but it might just get him enough for his base to stay where he is.

LEMON: Yes. We've been saying that a lot. But then after a while, I mean, come on, panel, doesn't it get old? Don't you -- don't you think people tire of that and they will just say, Mr. President, please, just be the president and do your job and stop pointing to the media for everything that you've done wrong or misstatements that you've made? Stop pointing to the media, it's not the media's fault every time.

BORGER: Well, you know, at a certain point in a presidency, this is way too early.

(CROSSTALK)

LEMON: The sky is falling.

BORGER: Well, this is way too early. But in a certain point in a president's tenure people start judging results, and I think, you know, if President Trump can create the jobs, he says he's going to create -- if he's going to fix health care the way he says he's going to fix health care, if he's going to fix infrastructure the way he's going to do it, if he's going to give everyone a tax cut the way he says he will, and on and on and on, build the wall, then people will judge him by his promises.

LEMON: Yes.

BORGER: And I think that's the way presidents ought to be judged.

LEMON: Yes.

BORGER: I don't think they ought to be judged by, you know, sort of who hates me, the press hates me. You know, I haven't met a president or covered a president who loves the media, OK? They all believe they're picked on unfairly by the media. That goes with the territory. But I think this defensive crouch that the president is in right now, doesn't serve him well.

LEMON: It's old. Maggie -- stand by, David. Maggie, you've been reporting on the problems at the Trump White House. And I've read a very interesting story that happened to be mentioned in. But what is going on behind the scenes, that they realized the first two weeks, no matter what they put out there, the press people, the communications folks, it didn't go so well.

HABERMAN: Look, you have a president who came into office with in his mind a mandate to shake things up. That's what his supporters wanted.

LEMON: Yes.

HABERMAN: They are essentially building the plane on takeoff, he is doing much of what he said he would do, not all of what he said he would do. And he's done something he said he wouldn't. But that is -- that is what his goal is and you make a mess, he also is coming in with people who have never been in government before.

LEMON: Yes.

HABERMAN: So you are seeing two kinds of parallel evolution. There's his own personal adaptation to the White House, which is different and more jarring than he anticipated it would be.

LEMON: Yes.

HABERMAN: And you have these different power centers that he has created in the White House. Also struggling to figure out exactly how this is going to go. I think by the end of last week, they were generally feeling better, the nomination of Gorsuch to the Supreme Court, got him some goodwill from conservatives, I think more than he's being focused on.

But, you know, this is what happened throughout the campaign too, I just I continue to feel like we are in a Groundhog down in the campaign where he, you know, he has a good day, and then something happens, and it's usually of his own volition.

LEMON: Yes.

HABERMAN: And his aides have to scramble to deal with it.

LEMON: Hold on, Gloria. I just -- this is Sean Spacer, bathrobe gate, play this.

(BEGIN VIDEO CLIP)

SEAN SPICER, UNITED STATES WHITE HOUSE PRESS SECRETARY: That story was so riddled with inaccuracies and lies. They owe the president an apology for the way that that thing was -- there were just literally blatant factual errors and it's unacceptable to see that kind of reporting or so-called reporting, that is literally the epitome of fake news. [22:15:00] UNIDENTIFIED MALE: Part of the story was the detail...

SPICER: It's just the -- I mean, you start at the top, I don't think the president owns a bathrobe, he definitely doesn't wear one.

(END VIDEO CLIP)

LEMON: Why is he so upset about a bathrobe? There are many pictures, a number of pictures of him in a bathrobe with his children, bathrobes of many different sorts.

Listen, if I owned hotels, I would probably have a bunch of bathrobes. I don't own hotels and I have taken a few bathrobes in my lifetime. My bathrobes comes from a hotel. So, why, but who cares, Maggie? Who cares?

HABERMAN: I think that the president seized on that detail, based on everything that I have heard, because I think it felt very personal to him, and you know, he's adamant that that's not true, we've heard this said throughout the day, you know, we're comfortable in our sourcing on this.

But I think that we were trying to paint sort of a panoramic view of this president.

LEMON: To humanize him.

HABERMAN: Well, we were trying to texture what was going on, and not just who's up, who's down on the staff. We're trying to explain what has happened, and that is the president here and the staff here. And that is one of many, many, many details that is of course now all we've been talking about all day.

(CROSSTALK)

BORGER: Can I just back up...

LEMON: I got to get -- I got to get to a break. You can do it on the other side.

BORGER: OK.

LEMON: But there's nothing wrong with wearing a bathrobe, that's why there...

(CROSSTALK)

HABERMAN: Many presidents.

LEMON: I'm sure Trump hotels have bathrooms in them because they are OK to wear.

HABERMAN: Many presidents have worn a bathrobe a lot.

BORGER: Many more...

HABERMAN: LBJ was famous for it.

LEMON: OK. Gloria, we'll hear what you have to say when we come back.

BORGER: OK.

LEMON: And also, David, I want your take on what this president says about his relationship with the former President Barack Obama right after this break. We'll be right back.

[22:20:00] (COMMERCIAL BREAK)

LEMON: President Trump has some interesting things to say tonight about his predecessor.

Back with me now, Maggie Haberman, Gloria Borger, and David Gergen. Gloria, you wanted to make the point regarding about how the president is adjusting to the White House.

BORGER: I want to back up the reporting of Maggie and Glenn Thrush, I don't have the bathrobe scoop. But in talking to people...

(CROSSTALK)

HABERMAN: It's all ours.

BORGER: It's all yours -- talking to people who know the president well, and who have spoken with him, I do think there has been this large period of adjustment to the White House, I'm told he's really happy, but he is there literally home alone. His wife and his son live in New York.

He is alone at night, he watches a lot of cable TV as we all know, he then tweets, and then you have the White House staff having to sort of figure out what to do with what he's tweeted the evening before or early that morning.

And I think it's a difficult process for all of them. And given the fact that the White House lines of communication have not been clear, there are ideological differences and you have a president who thrives on managing by conflict and always having a ton of activity, I think it's kind of a combustible atmosphere out there.

LEMON: Yes. Can you imagine being you know, in the house that big in the White House.

BORGER: Home alone.

LEMON: That's a big place to be alone.

HABERMAN: That's right.

LEMON: And by the way, for everyone who is asking me, you know you can take the bathrobe, it shows up on your bill, not that I've -- not that I've paid for all of them, but you know, some of them. All right. David, let's get back to serious news.

Donald Trump just spoke to Fox News about his relationship with President Obama. Listen to this.

(BEGIN VIDEO CLIP)

TRUMP: It's a very strange phenomenon, we get along. I don't know if he'll admit this, but he likes me.

BILL O'REILLY, FOX NEWS HOST: How do you know he likes you?

TRUMP: I like him. Because I can feel it. You know, that's what O do in life, it's called like, I understand.

Now, we had a rough campaign, he was fighting better for Hillary than she did. He was vicious during the campaign toward me, and I was vicious toward him. We said horrible things about each other and then we hop into the car and we drive down Pennsylvania Avenue together we don't even talk about it. Politics is amazing.

O'REILLY: What did you talk out?

TRUMP: We talked about the country, we talked about the future of the country. I asked him what do you think our biggest problem is and he told me, I can't tell you, but it's a problem, it's a military problem.

(END VIDEO CLIP)

LEMON: Yes. That was the one thing he would not share, David. What's your reaction to the whole thing.

GERGEN: Well, I think that the country should be pleased that these two gentlemen have from very different backgrounds have developed some bridges between them, so they can talk to each other. There's going to be moments -- there are going to crises in the history of this presidency, and when he may want to reach out to President Obama.

I do think you know, with all due respect to President Trump, I find that there are a number of business leaders I have the opportunity to talk to in New York. And almost to a person and they tell me, you know, I enjoy going out for lunch occasionally with Donald or going out with Donald and Melania. He can be charming, he can be funny, his company is fine.

But they will not do business with him.

BORGER: Right.

GERGEN: Because it's a nightmare. So that they have -- they have sharp disagreements about how to act with each other professionally. But beyond that, there is sort of, you know, attraction about him that people find him, you know, interesting and good company frequently.

So, I would imagine that's what's going on here with President Obama. You know, he's building bridges, he's keeping up a good relationship. But obviously and sharply disagrees with almost everything that's been done in the last two weeks. LEMON: That's a perfect segue for Maggie. Maggie, also tonight, the

president is receiving backlash for these comments he made about Vladimir Putin.

(BEGIN VIDEO CLIP)

O'REILLY: Do you respect Putin?

TRUMP: I do respect him.

O'REILLY: Do you, why?

TRUMP: Well, I respect a lot of people. But that doesn't mean I'm going to get along with him.

He's a leader of his country. I say it's better to get along with Russia than not. And if Russia helps us in the fight against ISIS, which is a major fight, and Islamic terrorism all over the world.

O'REILLY: Right.

TRUMP: Major fight, that's a good thing. Will I get along with him, I have no idea. Very possible I won't.

(CROSSTALK)

O'REILLY: But he's a killer, though. Putin is a killer.

TRUMP: We have a lot of killers. We got a lot of killers. Why you think our country is so innocent?

(END VIDEO CLIP)

LEMON: Even republicans are perplexed, and some of them condemn those comments. Why do you think the president continues to praise Putin?

HABERMAN: I think that, I know this steers a lot of intrigue for people about Trump and Russia because we've heard this throughout the campaign. If you look back at the last several years. If you go back frankly to 1990, a Playboy interview that Donald Trump gave, then as a businessman three years after putting "The Art the Deal," his first book.

[22:25:00] He has sort of consistently had words that are just purely strength/weakness. That is how he views the lens to which he views the world. And he had this history in the campaign of praising people who are typically described as strong men or dictators.

You know, he described Saddam Hussein as, you know, a bad person, but he also was really good at killing terrorists, according to Trump. In fact, Hussein was against Jihadists, but he was also considered a state sponsor of terrorism against Israel.

He said that things were better with Gadhafi in charge. You know, he had was sort of impressed with Kim Jong-un in terms of his rise to power. So this happened over and over again, and he praised the Chinese for the Tiananmen Square massacre in terms of showing strength.

(CROSSTALK)

LEMON: These are authoritarian figures.

HABERMAN: Right. And so, this is consistent and also what you have seen with him in terms of his sort of personal criticism or delegitimizing criticism of a federal judge in the last couple days. Judge Robart in his executive order decision.

Trump has consistently criticized judges, he's been involved in many, many lawsuits. I think that what you're seeing is somebody who has not necessarily -- the presidency has not changed Trump so far. It may change him at some point. But so far, we are very much seeing the same person he has been for a long time.

And I agree with David, that I think that there are a lot of people who when they see him and interact with him socially, they find him charming.

LEMON: Yes. Where the rubber meets the road, Gloria, his policy, and his performance what he gets accomplished. Let's talk about Obamacare. Here's Ted Cruz. Manu Raju caught up with Ted Cruz and that's about replacing Obamacare. Listen.

(BEGIN VIDEO CLIP)

MANU RAJU, CNN SENIOR POLITICAL REPORTER: Senator, are you concerned about Trump pushing back the Obamacare time line saying, wait until 2018 to do something?

TED CRUZ, (R) UNITED STATES SENATOR: I'm not sure he's doing that, and the president has said he is committed to repealing Obamacare, republicans in both houses have said we're committed to repelling Obamacare. And I look forward to delivering on that pass.

RAJU: You want to do it this year? Do you expect it to be done this year?

CRUZ: Absolutely.

RAJU: Would you be concerned if this time frame slipped to 2018?

CRUZ: I think we need to move as expeditiously as possible. This was a promise made to the American people. And we need to deliver on that promise.

(END VIDEO CLIP)

LEMON: So, in that interview you heard the president say, maybe 2018, right, at the earliest. So, tomorrow night, Ted Cruz is going to debate Bernie Sanders right here on CNN on this very issue. Are republicans backing off their pledge to repeal Obamacare as their first order of business, Gloria?

BORGER: Well, I'm sure the president appreciates Ted Cruz moving up the deadline for him. And as you'll recall, they weren't great friends during the campaign. And I -- no, look. I think they've got a problem, they've had a lot of time, more than six years to figure out what they want to do, when they repeal it and they haven't figured out what to replace it with, they know that they have a huge public relations problem and a huge substantive problem.

Because they don't want people to lose the benefits that they've come to like. And they also feel that the system needs to be fixed. And so, they don't want there to be this big pause where people are thrown into turmoil and chaos, because they don't know what's happening with their health care.

LEMON: Yes.

BORGER: And so, the Congress has clearly gotten to Donald Trump, i.e. Paul Ryan and said, look, we can't do this immediately, but the caucuses are worried because they understand that it will be called Trumpcare from day one, and if there are problems with it, they're going to be at the receiving end of it...

LEMON: They're stuck with it.

BORGER: ... they're trying to slow down the train a little bit. But Ted Cruz very craftily is saying, I think a promise was made, so I think we ought to figure out a way to keep it. So he can take the high road, even though he knows full well that you can't do it that quickly. I'll be very interested to hear what he has to say tomorrow night.

LEMON: Gloria gets the last word going out the door. As much as I love you friends I've to go. I love the conversation. I've got more friends I need to talk to after this. Thank you all very much. I'll see you soon.

Don't miss Senators Bernie Sanders and Ted Cruz going head to head on the future of healthcare in a live CNN debate moderated by Jake Tapper and Dana Bash, that's tomorrow night at 9. And we will be right back.

(COMMERCIAL BREAK)

[22:30:00] DON LEMON, CNN HOST: Breaking news tonight. The high stakes legal fight over President Trump's travel ban, a federal appeals court ordering both sides to present arguments in the case tomorrow afternoon.

Joining me now, defense attorney Alan Dershowitz, author of "Electile Dysfunction: A Guide for Unaroused Voters," and F. Michael Higginbotham, professor of constitutional law at the University of Baltimore and the author of "Ghost of Jim Crow."

And they're quickly becoming our go-to guys on this travel ban and what's going to happen. So, good evening to you. Michael, you first. The government filed its briefing in its case to reinstate the travel ban early this evening ahead of tomorrow's hearing. And they argued "The executive order is a lawful exercise of the

president's authority over the entry of aliens into the United States and the admission of refugees." Is that the main question at issue here, Michael?

MICHAEL HIGGINBOTHAM, UNIVERSITY OF BALTIMORE PROFESSOR: Well, I think it's one of the main questions; the government certainly has a lot of discretion in the national security area. Based on the Constitution, based on congressional authorization, the president has a great deal of latitude and leeway, but the president doesn't have unlimited discretion.

There are some limitations. And this is what the three-judge panel of the ninth circuit Court of Appeals will review tomorrow during the oral arguments is there a limitation? And candidly, this is what the courts do, certainly the State of Washington argues that it's about protecting business, it's about protecting their universities, and it's also about religion.

But this is what the courts do, they will determine -- they will interpret the Constitution, and they would determine whether or not the president has unfettered discretion or whether or not there are some limitations?

LEMON: Alan, the states who brought the case say that the president unleashed chaos with the executive order. The attorney general from Washington says, "Over 7,000 non-citizen immigrants from the affected countries reside in Washington. Those who were abroad were blocked from returning home. Husbands were separated from wives, brothers and sisters, and parents from their children."

[22:35:09] Alan, do non-citizen immigrants have constitutional rights?

ALAN DERSHOWITZ, DEFENSE ATTORNEY: Well, it depends on where they are, if they're in a country like Yemen and they've never been in the United States, and they just apply for visitors or tourist visa, no, they have no property interest or liberty interest or due process interest in coming to the country.

And the president has vast authority to keep them out. On the other hand, if they've been admitted to the country and they are attending university or coming for a hospital care. Or have other connections, working for Google, then their constitutional status is far, far stronger.

So, what I think we're going to see ultimately is the court divide. And say, as to people who have never been in the United States they have no standing. They have no cognizable interest. As to the people who are here, maybe they do, and maybe the regulation is unconstitutional.

But tomorrow, we're not going to hear much about that. Tomorrow we're going to hear about two things, should the stay remain in effect, and I think it will, because it would cause greater chaos, if it was now knocked out, and then it would have to be restored. And second, does the State of Washington have standing? Can the state

bring a lawsuit on behalf of some of its citizens, some of its companies. That's going to be where the issue is going to focus in the hour or so of oral argument that we're all able to listen and make our own judgment to that.

LEMON: Michael, let's listen. This is the White House folks. Sean Spicer took a tough stance on the case today. Listen to this.

(BEGIN VIDEO CLIP)

SEAN SPICER, UNITED STATES WHITE HOUSE PRESS SECRETARY: Clearly the law is on the president's side, the Constitution is on the president's side, he has broad discretion to do what's in the nation's best interest to protect our people, and we feel confident that we will prevail in this matter.

(END VIDEO CLIP)

LEMON: Michael, is it that clear that the law is on the president's side?

HIGGINBOTHAM: Well, I don't think it's that clear, and I think that's what the courts will decide. Certainly the president has a great deal of latitude, and there's great deference given to the executive branch in protecting national security matters. But it's not unlimited.

This is what the courts do, we have an independent judiciary that will interpret the Constitution, and that's why I think it was so problematic, what President Trump said with respect to Judge Robart. The criticism of a so-called judge or he may be causing a terrorist act.

I mean, we've had presidents criticize, you know, court decisions. Roosevelt criticizes for striking down of the new deal legislation. Many republican presidents have criticized Roe versus Wade, the abortion case. And even President Obama criticized Citizens United recently.

But don't personalize it.

LEMON: Yes.

HIGGINBOTHAM: And presidents' tweets about Judge Robart was disrespectful not only to him. But also to President George W. Bush who appointed him and to a Senate that approved him 99 to zero.

LEMON: Alan Dershowitz, was it -- should he have not said that about the judge and is Sean Spicer right? The president is going to win? Don't answer now, on the other side of the break.

DERSHOWITZ: OK.

[22:40:00] (COMMERCIAL BREAK)

LEMON: President Trump accusing the judge who blocked his immigration ban of putting the country in danger.

Back with me now, Alan Dershowitz, and Michael Higginbotham. So, Alan, let's pick up the discussion, all weekend the president lobbied criticism -- lobbed criticism, I should say, at the judge in Washington -- in the Washington case, including this tweet yesterday.

He said, "Just cannot believe a judge would put our country in such peril. If something happens, blame him and the court system. People pouring in, bad." And he also called this judge a "so-called" judge at one point. Is there a chilling effect and the president will go on the attack against a particular judge?

DERSHOWITZ: Yes, and I think it does raise questions about his commitment to the separation of powers and checks and balances. Look, judges all the time make decisions that can be seen as endangering our security, freeing people from Guantanamo, ordering people to have a fair trial.

You never know what the impact is going to be, for the president to say in advance if there's a terrorist act, blame the judge, not me. Also you ask before the break about whether or not Sean Spicer's prediction, that this is a slam dunk victory is accurate. Well, he may think it's a slam dunk.

But the Justice Department lawyers don't. In the very last sentence of the brief, they filed today, they said at the very -- at the most, the injunction should be limited to individuals who are now in the country or just left the country they are essentially beginning to hedge their bets. They're beginning to say, well, maybe we're not going to get the whole injunction thrown out. Maybe we'll settle for half a loaf.

LEMON: They're amending it, right.

DERSHOWITZ: Now I think -- they are. And I think basically there is room here for a compromise. And I would hope that the attorney general of Washington and the Justice Department could sit down and say, maybe we can split the difference here. And have the proposal, the statement that the president issued, the executive order, apply only to people who are in the country or...

(CROSSTALK)

LEMON: Didn't you say this last week, Alan?

DERSHOWITZ: He came close to that but he said that only about permanent residents.

LEMON: Didn't you say this last week, though?

DERSHOWITZ: Did I?

LEMON: That there should -- that that should be a compromise? You said you didn't think the whole thing would get through...

(CROSSTALK)

DERSHOWITZ: Yes, that's right.

LEMON: ... that it would be in some way. Yes. Can I ask you about something else?

DERSHOWITZ: Sure.

LEMON: Of something Michael said. Michael said that he mentioned, you know, the judge in him criticizing the judge. But a former Obama Justice Department tweeted this in response to President Trump's criticism of Judge Robart. "With every tweet, he's just making it harder and harder for DOJ attorneys to win in court. So keep it up I guess."

LEMON: Again, Michael mentioned this early, do you agree with that?

DERSHOWITZ: Well, yes.

(CROSSTALK)

LEMON: It's hurting the case.

DERSHOWITZ: You know, judges is reading the things and they don't like to see the judiciary attacked in this way, it's hurting the case, but I don't know whether these judges in such an important case will allow their own personal peak to influence the decision.

Look, I don't think it was a smart thing for him to do or smart thing for him to say, and I think the Justice Department is feeling his pressure.

[22:45:03] And that maybe why they're beginning to back away a little. But again, I would think that a compromise resolution would be in the national interest, and then maybe the president will go back and redo this with the help of good lawyers, with the help of national security people, we can have a win-win. Protect ourselves against terrorism without diminishing the country's standing in the world by having a proposal that looks like it might be religiously biased.

LEMON: Hey, Michael, listen. Sean Spicer also said the immigration ban had broad support among Americans, right. In the tweet today he said, any -- I mean, the president tweeted today, 'Any negative polls or fake news, just like CNN, ABC, NBC polls in the election. Sorry, people, I want border security and extreme vetting."

I want to ask you about this last part, because according to CNN, 53 percent of Americans say they oppose the immigration ban. CBS News poll, 51 percent disapproved, Gallup poll 55 percent disapproved of that. That's three recent polls, all showing that the majority of Americans oppose the ban. So, how about just public matter in this case, Michael?

HIGGINBOTHAM: Well, I think public opinion is always important. But the bottom line is, what the Constitution stands for.

LEMON: Yes. HIGGINBOTHAM: The values of the country. That's the most important thing, so it's nice to have public opinion on your side. But the most important thing is that we embrace the values that make America great. I don't believe that -- I think it's a false premise...

(CROSSTALK)

LEMON: I got to go, Michael.

HIGGINBOTHAM: ... that we have to sacrifice liberty for security. We can have both.

LEMON: Thank you, gentlemen. I appreciate it.

Coming up, the always outspoken Margaret Cho is here, she's nominated for her fifth Grammy Award. I'm going to ask her about Saturday Night Live taking aim at Press Secretary Sean Spicer.

[22:50:00] (COMMERCIAL BREAK)

LEMON: CNN's new eight-part series a history of comedy premieres this Thursday night at 10. Margaret Cho is featured along with other big names in comedy, including Judd Apatow, Sarah Silverman, CNN's Kamau Bell and George Lopez.

So, let's talk about the mashed up of pop culture and politics in America today. Actress and comedienne and fashion critic, Margaret Cho joins us right now. Margaret, so good to see you. How are you doing?

MARGARET CHO, COMEDIENNE: I'm great. Great to see you.

LEMON: Well, welcome. I want to talk to you about the CNN series. But first, the brand new president who is a reality TV show star, a celebrity businessman who campaign and governs saying basically whatever he wants to. What does this mean for comedy?

CHO: I think it's really great for comedy. I mean, fortunately, maybe not so great for the world. Great for comedy. I think that's all we have right now to hang on to. And I'm hoping that it makes it a little better, a little easier.

LEMON: Yes. A little bit of sugar helps the medicines go down so to speak?

CHO: I don't know. I don't know. I mean, it's -- yes, this would be castor oil going down. I mean, I don't understand why this is going on, or how this happened, but we're going to have to deal with it, I guess.

LEMON: Yes. Let's -- I want to talk about SNL and that fabulous Melissa McCarthy playing Sean Spicer. Watch this.

(BEGIN VIDEO CLIP)

MELISSA MCCARTHY, ACTRESS: You need some props, my words too big, I have to show you in pictures? Great. OK. Here we go. When it comes to these decisions, the Constitution gives our president lots of power. And Steve Bannon is the key adviser. OK? And our president will not be deterred.

(APPLAUSE)

In his fight against radical moose-lambs.

(END VIDEO CLIP)

LEMON: As a comedian yourself, what did you think of her performance?

CHO: I loved it. She is amazing. I just think -- what a great way to -- sort of like lampoon what's going on. But it's so funny, like, she's incredible. I love it.

LEMON: Yes. Sean Spicer who she was portraying right there was able to laugh at the sketch. However, you know, the president is not really pleased with Alec Baldwin's portrayal of him. Should he lighten up a bit?

CHO: He's got to lighten up, Alec Baldwin does a great job. I also really appreciate Darrel Hammond's impression of -- I mean, it's just that all of the Trump's that we're seeing, I think they're all amusing. I love it.

LEMON: Can we talk about Lady Gaga, though? Let's talk about her last night. Some people, you know, wanted her to be politically outspoken, she didn't really deal with that much for the halftime show. Many expected her to be overtly political, possibly give a speech denouncing Trump. What did you think of her performance?