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Don Lemon Tonight

Battle Over Trump's Travel Ban. Aired 10:45-11p ET

Aired February 07, 2017 - 22:45   ET

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

Sanders/Cruz Town Hall Airing until 10:45p ET : (JOINED IN PROGRESS)

[22:39:00] DON LEMON, CNN HOST: Thank you very much, Dana and Jake and senators. I appreciate that. An interesting debate on Obamacare, and a huge legal fight.

This is CNN Tonight. I'm Don Lemon.

A special CNN Tonight here. Our other big breaking news story, a ruling expected any day now on President Trump's travel ban but no matter what, the issue is likely to go all the way to the Supreme Court.

So let's get right now to CNN's justice correspondent Pamela Brown who joins us with the very latest. Pamela, good evening to you. What were the arguments like from both sides tonight?

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Well, Don, the Justice Department attorney really spent a lot of time on the argument that the states didn't even have the legal right to bring the lawsuit because many of the people impacted by the travel ban they've never been to the U.S. and therefore should not be constitutionally protected.

And he also made the case that the president and Congress have wide discretion to manage immigration particularly in national security matters. The states on the other hand argue this travel ban harms their citizens and violates freedom of religion in the first amendment because it discriminates against Muslims.

According to the lawyer, pointing to the solicitor general rather point to comments that Trump and his surrogates have made in the last several months including the idea of a Muslim ban. Don?

LEMON: And did you get any hit from the judges from listening as to which way they might be leaning, Pamela?

[22:50:00] BROWN: Well, it was certainly a hot bench, Don, and the fiery judges certainly put the lawyers on their heels right out of the gate. They peppered the Justice Department lawyer about his claims, so much so that at times he fumbled over some of his words. And toward the end of his argument he actually conceded he didn't think he was convincing the court. For context, two of the judges were democratically appointed, one was

republican appointed. And they also seemed skeptical at times that the state argument that the ban discriminated against Muslims with the republican appointed judge pointing out the majority of Muslims aren't even impacted by the seven country travel ban.

LEMON: Interesting. So, now, what? What happens, Pamela?

BROWN: So, a decision on whether to reinstate the ban during the appeals process is expected this week. The losing side as we know could appeal to the Supreme Court. But if it's split 4-4 at the Supreme Court, the court's decision would stand, the circuit court's decision would stand, which is why the world is watching what this appeals court does in the next few days.

LEMON: All right. Pamela Brown, thank you, Pamela. I appreciate that. I want to bring in now my experts, my legal analyst, Laura Coates, constitutional attorney, Page Pate, and senior political analyst, David Gergen.

Good evening to all of you for this special edition of CNN Tonight. Page, I want to get your take first. Who have the strong argument?

PAGE PATE, CRIMINAL DEFENSE ATTORNEY: I think the states had the stronger argument. I think it was clear that this particular lawyer from the Department of Justice was either not prepared for the questions that he got or had not really thought through what the key issues was going -- were going to be.

He was not prepared to deal, I don't think with the arguments relating to the constitutional challenge. I think he was really caught flat footed on the issue of whether or not there was even a need for the travel ban while the administration went back to reconsider the way that they were -- they were dealing with this immigration issues.

LEMON: Wow. OK. So, let's listen to a little bit of it. Because August Flentje, the government lawyer, was peppered with questions, tough questions by the three judges. Here's one exchange.

(BEGIN VIDEO CLIP)

AUGUST FLENTJE, SPECIAL COUNSEL, UNITED STATES JUSTICE DEPARTMENT: These proceedings have been moving quite fast and we're doing the best we can. I can cite a...

(CROSSTALK)

MICHELLE FRIEDLAND, JUDGE, UNITED STATES NINTH CIRCUIT COURT OF APPEALS: You're saying that the proceedings are moving fast but you appealed to us before you continued in the district court to develop the record. So, why should we be hearing this now if it sounds like you're trying to say you're going to present other evidence later?

FLENTJE: Well, I was just about to at least mention a few examples.

(END VIDEO CLIP) LEMON: Interesting. So, he had to defend an executive order that was written when the attorney general wasn't even confirmed, written with no input from the Justice Department. Did the White House hurt themselves by moving too fast to get this order signed? That's for you, Laura.

LAURA COATES, CNN LEGAL ANALYST: Well, I think they did. Because of course, you had Sally Yates just -- who was just fired a few weeks ago for having the same argument of I don't know how we're going to defend it. Not that there was an ultimate inclusion but the same argument that she had back then was this is difficult to actually be able to defend.

And you saw that today in the court. But most importantly here, what you had is the lack of preparedness in respect to one really primary issue. What was the substantive factual basis for having these seven countries named?

The government assumed they were going to be able to say our biggest gun is the national security issue here. The president has prodded do he wants national security and you had to take our word for it. And the court said to him today is it hypothetical, or is this a real life national security concern? And they did not have the evidence there to support it yet.

LEMON: It's very interesting. I also want to bring in Mark Preston, our executive editor of politics here, as well. Mark, before I get to you, I just want to bring in David Gergen. David, as you're listening to this as lay person, who do you think made a better case?

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Well, I must tell you, Don, I was at a dinner and had to rely on various excerpts and accounts since. But my impression from all of this is that the judges asked both sides very tough questions and that they -- the Washington State provided better answers.

And there is general sense I think out there in the press right now that the judges show -- two of the judges at least out of the three showed a lot of skepticism towards the government's case.

What that means if in fact that's the way it comes out -- and these are the two democratically appointed. If it comes out that this court upholds what the district court -- and then the government appeals to the Supreme Court, in order to get it turned around so that the original -- the district court temporary restraining order is dismissed.

In order to get that, they've got to get -- the government has to get five out of the eight votes at the Supreme Court. That may be an uphill battle in a court this closely divided.

And if the government loses the ban is ended while the courts then wrestle over the substance. So, this could be a long process but it also means that the government, especially the man sitting in the Oval Office is going to be pretty darned angry. LEMON: Interesting. I think that the first night that this happened,

Laura, I think you said that this is going to take a while. This was not going to end overnight or any time soon.

But let's -- I want to listen to a little bit more. Mark Preston, this is Noah Purcell, the Washington State lawyer. He opens his presentation. Watch this.

(BEGIN VIDEO CLIP)

[22:55:04] NOAH PURCELL, WASHINGTON STATE SOLICITOR GENERAL: We have always been the judicial branch's role to say what the law is and to serve as a check on abuses by the executive branch. That judicial law has never been more important in recent memory than it is today.

But the president is asking this court to abdicate that role here, to reinstate the executive order without meaningful judicial review and to throw this country back into chaos.

(END VIDEO CLIP)

LEMON: So, President Trump, Mark, has been very critical of the courts calling Judge Robart a so-called judge, so-colled judge. Essentially holding the court responsible if there is a terror attack. Is Purcell asking the courts to push back?

MARK PRESTON, CNN POLITICS EXECUTIVE EDITOR: You know, I believe so. And in many ways we've seen Donald Trump do this on multiple occasions with this one judge over a period of few days because he didn't like judicial court rulings. We also know that he has a history of attacking judges when he believes the judges are not going to rule in his favor.

And I thought it was an interesting tactic by Washington State to come out and really try to lay the groundwork that there are three equal, co-equal branches of government and it's the judiciary's role to look at these laws and interpret whether they are sustainable or not, whether they're legal or not. And that they, in many ways, have to be there in order to try to keep some kind of oversight, so to speak, of not only the executive branch but also the legislative branch as well, Don.

LEMON: All right, panel. Thank you very much. You heard, just heard now from Ted Cruz and Bernie Sanders go head to head on health care tonight. When we come right back, who won the debate and can the GOP come up with a health care plan that works?

[23:00:00] (COMMERCIAL BREAK)