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Trump's Travel Ban Faces Legal Showdown; Immigration A Key Theme in Super Bowl Ad. Tech Firms Join Fight against Travel Ban. Aired 9-9:30a ET

Aired February 06, 2017 - 09:00   ET

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

[09:00:27] POPPY HARLOW, CNN ANCHOR: Good morning, everyone. So glad you're with us. I'm Poppy Harlow.

JOHN BERMAN, CNN ANCHOR: And I'm John Berman. Thanks for joining us.

You know, this is exactly how Bill Belichick always planned it, even though it looked all but impossible about 10:00 last night. We're talking, of course, about the debut of our brand new CNN NEWSROOM right now. Also, the Patriots came from 25 points back to win the Super Bowl.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Tossed to White. He's in! Patriots win the Super Bowl! Brady has his fifth! What a comeback!

(END VIDEO CLIP)

BERMAN: So all we need now is five more rings, and we will be just like Tom Brady, also a perfect smile.

HARLOW: Can we take a moment?

BERMAN: Yes.

HARLOW: This is for you. Bought for you.

BERMAN: Oh, you got me a hat?

HARLOW: I got you a hat, a Super Bowl hat. I was very worried, very worried at 10:00 last night. This is the biggest --

BERMAN: I got your daughter a Patriots shirt. This is going to turn out OK, this show, I think.

HARLOW: Baby Sienna. This is going to be good. No, I was seriously worried. And I may have been e-mailing some management saying, I'm worried Berman is not going to smile on the new show tomorrow morning if the Pats didn't win.

BERMAN: You don't have to worry about that because they did.

HARLOW: They did, big time.

BERMAN: Also this morning, a new show down over President Trump's travel ban.

HARLOW: The fate of that ban now lies in the hands of the 9th Circuit Court of Appeals, as it weighs whether or not to keep the suspension in place. The Justice Department is facing a 6:00 p.m. deadline today to defend the ban in a battle that you can bet will almost certainly go to the Supreme Court.

All if this happens as President Trump gets ready to make his first major address to U.S. troops since his inauguration.

BERMAN: All right. We are covering this from each and every angle this morning. Let's go first to CNN's Dan Simon. He is in San Francisco outside the 9th Circuit court where this is all taking place -- Dan.

DAN SIMON, CNN CORRESPONDENT: Yes. Hi, John and Poppy. The 9th Circuit needs to decide whether or not to keep this suspension in place, and the next step in all of this is for both sides to file their legal briefs. We know that attorneys for Washington and Minnesota have already filed theirs. And the federal government has until 6:00 p.m. Eastern time to make its position known.

In addition to all this, you have a lot of other folks weighing in, including technology companies. They filed an amicus brief with the court, basically saying that this immigration order is unjust and that it would harm business. You also have, really, what's an unprecedented move with former federal government officials, ranging from John Kerry to Madeleine Albright to Susan Rice, saying they're not aware of a specific threat anywhere in the world that would justify this ban.

We're talking about a three-judge panel that will hear this case. They could have a hearing in person or it can be by video or by phone, or they could simply just rule. But most legal observers seem to think that no matter what happens here at the 9th Circuit, that this is headed to the Supreme Court -- John and Poppy.

HARLOW: Yes, no question about it. Dan Simon, thank you so much, up bright and early this morning for us there in San Francisco.

As this legal battle plays out, the Trump administration is, no question, expected to carry out a full-court press to defend the ban. Our Jessica Schneider is in Tampa. That is where the President is headed later this morning.

Good morning.

JESSICA SCHNEIDER, CNN CORRESPONDENT: Good morning, Poppy. You know that full-court press was front and center on President Trump's Twitter feed all weekend long. At times, he was defiant, arguing that his executive order was well within the bounds of the constitution. At other times, he derided that federal court judge out in Seattle that put the halt to Donald Trump's executive order.

President Trump blasted the federal judge, James Robart, calling him a, quote, "so-called judge" then blasting his order as, quote, "ridiculous." And then President Trump even went a step farther saying that if anything bad were to happen in this country, that that judge would be squarely to blame.

Of course, Democrats are pushing back on this. But one person defending the President, both for his tweets and his executive order, Vice President Mike Pence.

(BEGIN VIDEO CLIP)

MIKE PENCE, VICE PRESIDENT OF THE UNITED STATES: We're very confident the President is operating within his authority as President, both under the constitution and under clear statutory law. That's what's so frustrating about the decision.

The President of the United States has every right to criticize the other two branches of government.

(END VIDEO CLIP)

SCHNEIDER: So the administration, of course, pushing for the fact that they believe that this executive order was completely legal, but several notable names are also speaking out.

In fact, several notable names signed an order in the 9th Circuit saying that this executive order was both harmful and unnecessary. The people that signed that included secretaries or former secretaries of state John Kerry as well as Madeleine Albright as well as a list of others who also worked in President Obama's administration.

So a lot of people speaking out about it, but the administration, steadfast -- Poppy.

[09:05:12] HARLOW: Jessica, thank you very much.

BERMAN: All right. Let's discuss a little bit more. Joining us, Gloria Browne-Marshall, constitutional law professor at John Jay College of Criminal Justice; Errol Louis is a CNN political commentator and political anchor of Spectrum News; and Susan Page, Washington bureau chief for "USA Today."

Errol, first, I want to start with this tweet from over the weekend. Excuse me of losing my voice after the Patriots win last night.

HARLOW: We both are. This is going to be a good two hours.

(LAUGHTER)

BERMAN: The President tweeted this, "Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!"

This harkens back to, I think, what a lot of people think were the low points of the campaign, where then candidate Trump took on Judge Curiel. Is it different now that he's President?

ERROL LOUIS, POLITICAL ANCHOR, SPECTRUM NEWS N.Y. 1: Well, it's very different because now, he speaks with the authority of the presidency, with the authority of the executive branch. This is the executive branch attacking the judicial branch, doing it in a sort of unseemly ad hominem way, but also kind of causing confusion about how our system works.

You know, the judges are there to sort of interpret the law, to apply the law. This is somebody who is not a so-called judge, as he was dismissively referred to by the President, but this is somebody who was -- I think, his confirmation was something like 99 to zero. He's duly confirmed. He has lifetime tenure. He's served on the court, has probably handled hundreds, if not thousands, of cases.

And so it really sort of disorients the -- it sidetracks the conversation because, on the merits, the President is going to have to go in and make his case in court.

HARLOW: Right.

LOUIS: He's not going to win this on Twitter.

HARLOW: So let's talk about the argument and the merits because that's yet to be heard here. This is really just an injunction and whether or not it will be lifted.

So, Gloria, to you, this will, no doubt, go to the Supreme Court, right?

GLORIA BROWNE-MARSHALL, ASSOCIATE PROFESSOR OF CONSTITUTIONAL LAW, JOHN JAY COLLEGE OF CRIMINAL JUSTICE: Yes.

HARLOW: And I doubt we'll see the President criticizing the sitting Supreme Court justices on this one, but they have to make a decision here. And the argument from the Justice Department that I find most fascinating is, they say the courts do not have access to the classified information that the President has making this decision. How strong of an argument is that?

BROWNE-MARSHALL: Well, it's pretty strong because it's a balance of power. It's a balance of horribles. What is the horrible thing that's going to happen to those people who aren't allowed in, who have visas, who have been interpreters and therefore, their lives are in danger in Syria and other places? They've helped our troops and now, they can't get back here to safety. As opposed to, what are the dangers to the country if we allow these people in and someone does something to harm American citizens?

Unfortunately, the states can also argue, well, there's a harm to the state by not allowing these people in, commercial harm. You know, they'd harm the students --

HARLOW: Irreparable harm is the argument they've made.

BROWNE-MARSHALL: Irreparable harm, yes. So my major concern is, there is information the President receives in his briefings. However, the argument he made for a ban on Muslims was made during the campaign. HARLOW: Right.

BROWNE-MARSHALL: So candidate Trump made these arguments. And now, President Trump is following through with them, yet we are to believe that this is only based on information he has received while he's been President.

BERMAN: And those words that he made in the past due have legal impact going forward. Susan Page, it's interesting, excuse me, the President has put Republicans in a bind here. Not many are jumping to his defense.

Ben Sasse says, you know, they're judges. They're not "so-called judges."

HARLOW: Right.

BERMAN: Mitch McConnell said, you know, I think it's best not to single out judges for criticism here. The President is going to need Republican support going forward.

SUSAN PAGE, WASHINGTON BUREAU CHIEF, USA TODAY: Oh, that's for sure. And Mitch McConnell, of course, has been pretty supportive of President Trump on a variety of other fronts. But, you know, this immigration ban has been, so far, the defining decision by President Trump.

He's done other things on the Affordable Care Act and building a wall with Mexico, but this is the decision that has galvanized the opposition. It's forced congressional Democrats to take a harder line with him, and it's unnerved some of the Republicans who want to support him on some issues including tightening national security, but it's put them on hard position.

You know, you only have to look at the Super Bowl ads last night to see how a lot of corporations think Americans feel about things like bringing immigrants and welcoming them to this country.

HARLOW: Yes. We're certainly going to talk about that more on the show. Errol, to you, you know, part of the law that the courts are going to have to weigh here, of course, the discretion that is given to presidents on issues of immigration, statute 1182, but also the part of our law and the establishment clause and what it says that, you know, you cannot discriminate on whoever is coming into this country because of their nation of origin, et cetera.

When the President used, as a candidate, the words "ban" and "Muslim ban" at one time, does that have any impact on the court's decision here when they decide intent?

LOUIS: It certainly tips their hand and it makes it harder for them to make their case on more neutral grounds. I mean, they've been pretty transparent, sort of recklessly so, starting with openly saying a complete shutdown of Muslim immigration. That's what he said during the campaign. Rudy Giuliani sort of blurted out on national television the other day

that he was told to sort of find a, quote, "legal way" to implement a Muslim ban. So now, having tipped their hand, that they had an unconstitutional motive and an end goal in all of this step --

[09:10:00] HARLOW: But I just wonder, can the courts consider that in their decision? Because actually, the Boston judge said exactly that, you're expecting me -- Gloria -- to consider something that is not part of this case.

BROWNE-MARSHALL: Yes. And the Boston judge -- and that's the judge who upheld this prohibition of the Muslims coming in or people coming in from these seven Muslim countries, majority Muslim countries -- said that, yes, immigration is a great part of our nation's history; however, we have to look at what the harm could be from these immigrants entering, and the President has the power to protect American citizens even though, on its face, it looks like this is a ban against Muslims.

I want to say something very quickly to Errol's point, and that is, you can't have something neutral on its face with the intent were to discriminate. We've seen that in cases involving African-Americans. We've seen that in cases involving certain religions that people don't like as much as other religions.

So you can't, on its face, have something neutral, and yet it's actually intended to harm a particular group of people. That is unconstitutional.

BERMAN: So, Susan Page, this morning, President Trump is watching T.V. and tweeting about it, which I don't think in itself is news. But we've been talking about some polls, and let me show you where his approval rating is right now according to the latest CNN/ORC poll -- 44 percent approve, 53 percent disapprove. That is the latest poll that we have.

So what does Donald Trump say about this? "Any negative polls are fake news," he says. He then goes on to say, "I call my own shots, largely based on an accumulation of data, and everyone knows it. Some fake news media, in order to marginalize, lies!" So the President now saying that public opinion, if it's against me, it just isn't real.

PAGE: Yes. And if it's a positive approval rating, do you think he would then accept it as legitimate? Look, the President has, I think, a difficult situation. He has the lowest approval rating of any new president since we started taking polls regularly with Harry Truman.

And, you know, presidents don't live and die by the polls. Polls go up and polls go down. But this is a warning sign, I think, for the new president that he has not succeeded, if he wanted to, in reaching out to some of the people who did not vote for him and winning their support on some of these controversial issues.

He continues to hold the support, by and large, of the people who did vote for him. But, of course, he was elected not with a majority of the popular vote, so this is a political challenge for him. And I think we've seen him be pretty defiant about what other presidents have tried to do, which is to try to get more popular at the beginning when people are maybe inclined to cut you a break.

HARLOW: Hey, Errol, what did you make of the fact that, in the Super Bowl ads -- we know John was only watching the game, I was watching the ads.

(LAUGHTER)

HARLOW: In the ads, I mean, everyone from 84 Lumber to Coca-Cola, Airbnb to the NFL, inside these lines with the outline of America, took very political stances. Was this a message -- I mean, this was a message. The question is, does the President listen?

LOUIS: Right. There are multiple messages coming from the culture, if you want to call it that, whether it's commercial culture, popular culture, "Saturday Night Live." It's coming from a lot of different directions that he's got some opposition that he's going to have to deal with.

So if he doesn't want to believe the polls, if he doesn't want to believe the Super Bowl commercials, if he doesn't want to believe the crowds in the street, he's in for a real education. Because, you know, checks and balances are not just Congress and the media and the courts, you know, it's the rest of us. It's the population. It's the culture.

BERMAN: In order to move on, he needs people around him telling him the truth and telling him things that are going on out there in the country. And, of course, there's new information this morning about the inner workings of the White House as well that we'll get to in just a little bit.

Guys, thanks all so much for being with us. Really appreciate it.

HARLOW: Also, let's talk more about these companies because almost a hundred tech companies have joined this fight against the President's travel ban. Silicon Valley powerhouses, including Apple, Facebook, Microsoft, filing a court motion declaring that the President's executive order, quote, "violates immigration laws and violates the constitution." That will be up to the courts, but they are speaking with a loud voice.

Christine Romans, our chief business correspondent, is with us for more. This is a big deal, this friend of the court brief here.

CHRISTINE ROMANS, CNN CHIEF BUSINESS CORRESPONDENT: It is. It is. And these are a lot of companies. Most of them are tech companies, you're right, but there are three companies down there -- Levi Strauss, Chobani, and Kind, all three founded by immigrants. They'd made sure that they were on this motion to file a friend of the court brief here.

You look at the names, it's the biggest names in business, quite frankly. Apple, you know, its founder, you know, his dad was a Syrian immigrant. You look at Facebook, Microsoft, PayPal, Spotify, the list goes on and on.

This is what they say, "The order represents a significant departure from the principles of fairness and predictability that have governed the immigration system of the U.S. for more than 50 years, inflicting significant harm on American business, innovation, and growth." And that is key here, the word "growth" here.

Corporate America expects a pro-growth policy from President Trump. Instead, they get this immigration confusion, this immigration order here, that they say does the opposite, that it deters from growth. These are also their employees. Some of these companies say they have hundreds of employees who could, potentially, be caught up in this immigration ban. They say it's not good clarity for how America does its business.

[09:15:09] And they say their customers, too, are -- these are international companies, many of these tech companies, it hurts their customers, their employees and the predictability of doing business in the United States.

I'll say something interesting about this particular friend of the court brief. We've seen this before. The Supreme Court was considering same-sex marriage. Companies came out and with one voice supported same-sex marriage for the fairness of employees and their customers. It's relatively recent that you have companies weighing into issues like this. I think that the same-sex marriage case was the precedent here.

POPPY HARLOW, CNN ANCHOR: Christine romans, thank you so much. John, you know what's interesting about it is the fact that these companies love the tax cuts coming and love the trade policies and they don't love this. They have to walk this line with the president and meet with him at the White House.

JOHN BERMAN, CNN ANCHOR: Definitely sending two messages at once. On the one hand, you had that interview with Ford, where they were gushing over the president. You have that on the one hand and this on the other. Very different messages.

All right, still to come, President Trump sticks up for Vladimir Putin and says America is not so innocent. Backlash from both sides of the aisle.

HARLOW: Plus, an epic overtime win. Is Tom Brady the greatest quarterback of all time?

BERMAN: Yes, yes, yes.

HARLOW: The Super Bowl MVP speaks in moments. Stay with us.

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[09:20:59]

BERMAN: All right, new this morning, Russia is asking for an apology from Bill O'Reilly for saying that Vladimir Putin is a killer during his Fox interview with President Trump.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Do you respect Putin?

DONALD TRUMP, PRESIDENT OF THE UNITED STATES OF AMERICA: I do respect him.

UNIDENTIFIED MALE: Do you? Why?

PRESIDENT TRUMP: Well, I respect a lot of people, but that doesn't mean I'm going to get along with them. He's a leader of his country. I say it's better to get along with Russia than not and if Russia helps in the fight against ISIS, which is a major fight and Islamic terrorism all over the world, major fight. That's a good thing. Will I get along with him? I have no idea.

UNIDENTIFIED MALE: He's a killer, though. Putin is a killer.

PRESIDENT TRUMP: There's a lot of killers. We got a lot of killers. Why you think our country is so innocent?

(END VIDEO CLIP)

HARLOW: Not a lot of people, including Republicans jumping to the president's defense on that one. Here to discuss, Colonel Peter Mansoor, he's retired now from the U.S. Army, but was an aide to General David Petraeus. Also with us, Thomas Pickering, a former U.S. ambassador to Russia and a fellow from the Brookings Institution. Nice to have you both here, Gentlemen.

Colonel, let me begin with you. On the one hand, we all know that the president says he wants a better relationship with Russia, wants Russia to help this country fight ISIS.

But I'm just confounded at how putting the United States on equal ground when it comes to morals with Russia and Vladimir Putin helps us do that. How do you see it?

COLONEL PETER MANSOOR, U.S. ARMY (RETIRED): Well, I see it like you do. Putting the United States and Russia on the same moral plane is simply misguided. In fact, Putin regularly disappears, his political opposition, he suppressed the media in Russia and governs with the iron fist.

I know the president admires strong men and strong leaders, but this is simply going too far. He needs to stand up for America as an exceptional nation that, yes, we make mistakes, but then we correct them through our political system unlike nations like Russia.

BERMAN: And Ambassador, isn't this exactly the kind of language that Vladimir Putin wants to hear, some sort of moral equivalence on the international stage?

THOMAS PICKERING, FORMER U.S. AMBASSADOR TO RUSSIA: He does. I agree very much with Colonel Mansoor whose life and career I've always respected. The points he made are sound. We have a rule of law. Of course, we make mistakes. We make mistakes in war. We make mistakes in peace.

The value of the United States is we have standards and we try, I hope, always to recognize those mistakes and correct them rather than the other way around. Russia is a little more of an authoritarian system, if I could be diplomatic about it.

But I agree with President Trump that we do have to get along with Russia. You don't get a chance to choose your enemies on these kinds of questions. But it is in my view better to see if, in fact, you can work things out together despite the fact you have serious moral reservations about them and their actions.

HARLOW: But ambassador, what do we know about Vladimir Putin as a former KGB agent, as one who, as you noted, is alleged to have made some of his biggest political opponents disappear, allegations of poisoning, et cetera. Does he operate well under flattery, meaning do you think that the president's attempt at making Putin work with the United States is misguided, or do you think this is the right way to go about it?

PICKERING: I don't know whether he operates well under flattery. Not all leaders develop certain egos. I think it is important, however, to note that flattery is not the source of what can be done. It's the ability to understand national interest and what those are and whether with Russia we can support national interest.

Colonel Mansoor pointed out one that we do need to have -- or I guess President Trump did, we need support from friends, allies and even enemies in dealing with ISIS which is a major problem for us, a major problem for Russia.

[09:25:05]There are a number of things that we have worked with Russia on during the Putin period under the Obama administration. Certainly, we worked together on the Iran agreement. We worked together in supporting the space station. We worked together in fighting terrorism.

I wish we had more closely worked together on Syria, but we tried. It isn't a total black-and-white question. As I said, the moral standing of the people you have to work with sometimes on the other side, as difficult as it is, is something you have to look at national interest to say whether, in fact, that's something we should do.

I believe it's important to work with Russia. Russia and the United States have together a nuclear capacity that clearly could destroy the planet if it gets out of here. We don't want accident, miscalculation, misjudgment or misunderstanding driving us in that particular direction.

With Mr. Putin, you have to be tough as well as presenting him with the options you believe he should select on your diplomatic agenda as you go down this road, to settle these kinds of problems.

BERMAN: You know, Colonel, I'm wondering what the view from inside the military might be of the statements the likes of which President Trump made where he again said of the United States, you know, with you think we don't kill, seeming to judge the actions of the United States over the past.

When President Obama went on a speaking tour of the Middle East after he was elected and didn't apologize, Republicans criticized him for it, calling it an apology tour. I'm not sure what this is by those standards.

MANSOOR: If you watch the full interview, he followed up that comment with a diatribe about the Iraq war. The military is going to follow the orders of the president of the United States. They'll appreciate the fact that he's promised to make the military stronger.

But then again, there will be a settling in period, we can see with the raid in Yemen, that the decision-making process of this administration isn't yet fully formed. I would think that the military's view of the president is a do-out.

But they'll certainly respect him as leader of the United States and commander-in-chief of the armed forces until his actions prove otherwise.

HARLOW: Colonel Peter Mansoor, Ambassador Pickering, thank you both for being here.

Still to come for us, some Republican lawmakers denouncing Putin, calling him a thug and more. We will ask Republican Congressman Ted Yoho about the president's softer tone on Russia. What does he make of it next?

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