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Early Start with John Berman and Zoraida Sambolin

Judges Uphold Suspension of Trump Travel Ban; Questions for Conway; Trump Agrees to Honor "One China" Policy; Under Armour Under Scrutiny. Aired 5-5:30a ET

Aired February 10, 2017 - 05:00   ET

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

MIGUEL MARQUEZ, CNN ANCHOR: President Trump ready to fight after an appeals court ruled his travel ban must remain on hold. What's the next move for the White House? We are live in Washington, D.C.

CHRISTINE ROMANS, CNN ANCHOR: And big questions for a top Trump advisor after she peddled Ivanka Trump's clothing line on television. Could Kellyanne Conway face legal trouble?

Good morning and welcome to EARLY START, everybody this Friday morning. I'm Christine.

MARQUEZ: Nice Friday.

I'm Miguel Marquez. It is February 10th, 5:00 a.m. here on the East Coast.

First up, President Trump down, but not out in the battle over his controversial seven-nation travel ban. Unanimous ruling by a three- judge panel means citizens of seven Muslim majority countries can legally travel to the United States. The Ninth Circuit court justice determining the government relied too heavily on the use of executive power to implement the ban.

ROMANS: So, the president fired up his Twitter account moments after the decision, saying , "See you in court. The security of our nation is at stake." All in caps there.

Moments later, he spoke to reporters in the White House.

(BEGIN AUDIO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: It's a political decision and we will see them in court and I look forward to doing it.

REPORTER: So, you believe the judges made a political decision?

TRUMP: We have a situation where the security of our country is at stake. And it's a very, very serious situation. So, we look forward -- as I just said -- to seeing them in court.

UNIDENTIFIED FEMALE: Thanks, guys.

REPORTER: Do you believe this has undercut the first days of our presidency? This is such a core issue.

TRUMP: No, this is just a decision that came down, but we'll win the case.

(END AUDIO CLIP)

ROMANS: You can hear an adviser, an aide to the president trying to move the conversation along.

For the latest on the ruling and next step in the legal fight, I want to go to Washington and bring in our CNN justice correspondent Laura Jarrett who has been working around the clock, I can assure, waiting for and then analyzing this decision.

[05:00:05] Good morning, Laura.

LAURA JARRETT, CNN JUSTICE CORRESPONDENT: Good morning, Christine.

In a 29-page opinion yesterday, those three appeals court judges rejected each and every one of the arguments the Justice Department had used to try to justify a reinstatement of the travel ban. First and foremost, the judges rejected the idea that a court should even get to review the legality of the president's executive order. Saying that's just not the law.

But the judges fundamentally disagreed with the argument that the travel ban was necessary for national security because the government failed to offer any real evidence that anyone from the seven countries perpetrated an attack in the United States, Christine.

ROMANS: So, we can assume an appeal is coming. How is the Justice Department likely to proceed?

JARRETT: Well, last night, the Justice Department said that it was reviewing the opinion and that it was weighing its options, right? There was a couple of different routes it could go. It could either try to appeal to a larger panel of Ninth Circuit judges, try to see if it get a better result or it could go directly to the Supreme Court. So, we'll have to wait and see.

ROMANS: On pins and needles, frankly. Thanks so much for that, Laura Jarrett. We'll talk to you again soon bright and early this morning in Washington.

Let's go live to Atlanta now and bring in Michael Moore, former U.S. attorney for Georgia's middle district.

Where does it go from here and how long does it take? I mean, it's so interesting the timing to me because you have Judge Gorsuch who is going to have a hearing in maybe six weeks and could ultimately end up on the Supreme Court. This case could ultimately end up in the Supreme Court.

MICHAEL MOORE, FORMER U.S. ATTORNEY, MIDDLE DISTRICT OF GEORGIA: Right. That's true. I think the Justice Department will look and make a decision about whether or not they want to ask for rehearing en banc. That's in front of a larger panel of the ninth circuit or whether or not they want the case to go back to the district court so that more evidence can be gathered. And, of course, they could take the case to the Supreme Court. I would point out that I don't know that going to the Supreme Court for them is the best option, that is for the administration.

You now, the court right now is divided, it was 4-4. There is some thought that if the case is taken up this decision could very well stand. I would just note, really, I don't know it's going to be down ideological lines. Some of the cases that the state relied on, the state of Washington talked about in the brief were written by the conservative justices on the Supreme Court.

So, I just would not be surprised at all to see, in fact, if the court actually tipped in favor of the states. You can just look at the Ninth Circuit decision. I mean, it was a unanimous decision with three judges, including a George Bush appointee. So, I just don't think you can take it and analyze it like somehow this is going to go down Democratically appointed justices versus Republican appointed justice. I just don't think that's necessarily what we'll see going forward.

MARQUEZ: And that decision wasn't even a close call. It is not like a lot of discussion about the possibility on every -- on standing, reviewability, due process, religious discrimination, the balance -- the hardship for the public. Like every single part of that government lost on in a very big way. I don't understand where they go from here.

MOORE: Well, it really was a complete rebuke of the administration's actions. I think the court will say it too, look, you told us we don't have authority to review the decision. That's just not a fact. You don't get to use national security as an argument to come in and say the Constitution doesn't apply. The Constitution is not just a door mat to be thrown out in front of the Oval Office and walked on at the president's whim.

And the court was pretty clear about that. There was an interesting thing in the opinion I'm sure will start catching attention, and that is that they almost welcome a rewrite of the executive order. Here is how you do it. There are things you haven't considered. We are going back and looking at Trump's words and intent. We're going to talk about things that were said in the campaign or by advisers.

But you could come back and rewrite the order. I don't know if the president has the willingness to do that. Sometimes he says he's not going to settle cases and then settles them. He's saying here, we're going to see you in court, I don't know if he'll do that or if he'll go decide to come back and --

(CROSSTALK)

MARQUEZ: Which court is he talking about?

MOORE: Well, that's right. I mean, I don't know if he'll go back and trying to decide to rewrite the order the way that withstands constitutional scrutiny. That's the question really going forward. But I don't know that the Supreme Court, as I said, is necessarily the best option for them if they are looking at all the possibilities.

MARQUEZ: Our national security correspondent Jim Sciutto sat down with former director of the DNI, Jim Clapper. I want to listen to what he said about I guess the motive for this travel ban overall and whether it's justified. Listen.

(BEGIN VIDEO CLIP)

JIM SCIUTTO, CNN CHIEF NATIONAL SECURITY CORRESPONDENT: Does the terror threat necessitate the ban from these seven countries?

JAMES CLAPPER, FORMER DIRECTOR OF NATIONAL INTELLIGENCE: Well, I don't believe we in the IC were away of any extraordinary threats that we aren't already dealing with.

SCIUTTO: Does a ban like this in your view, does it damage U.S. image but also counterterror partnership?

CLAPPER: Yes. I do worry about those countries in question with whom we deal and who are reliable partners.

(END VIDEO CLIP)

[05:05:00] ROMANS: Michael Moore, as they consider the legality of this rule, flawed or not, at some point, is it a solution to the problem that doesn't exist and can the court weigh in on that?

MOORE: Well, the court never got to the merits of the case. I do note that they talked about things that were said and if it was a religious animus test, whether or not in fact this was a ban on Muslims. So, they're going to look at the constitutionality, and that I think really played into their decision about whether or not the government ultimately would win on the merits of the case, and whether or not they needed to somehow dissolve the stay in place with the ban.

So, yes, they look at it, but we have not had a full hearing or trial on the merits of the case. What's going to happen now if it goes back to the district court, decisions about what evidence comes in, whether or not the president may be deposed, whether or not staffers might be deposed. How do those decision come about? Will they look at e- mails?

All that could come back in the evidence of the district court case. Somebody will make a decision if the case moves forward on appeal or whether or not to go back to the Ninth Circuit or whether or not they rewrite the order. So, a lot to know in the next few weeks.

MARQUEZ: And tight timeline, with one is 90 days and there's 120 days. Michael Moore, thank you very much.

ROMANS: Nice to see you this morning.

MOORE: Right. Good to be with you. MARQUEZ: Possible legal trouble for the two top aides to the president. Kellyanne Conway for promoting Ivanka Trump's fashion line and his national security adviser for reportedly talking to the Russians about topics that were meant to be off limits.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

[05:10:33] KELLYANNE CONWAY, COUNSELOR TO THE PRESIDENT: Go buy Ivanka's stuff is what I would tell them. I'm going to go get something myself. It's a wonderful line. I own some of it. I fully -- I'm just going to give -- I'm going to give a free commercial here. Go buy it today, everybody. You can find it online.

(END VIDEO CLIP)

ROMANS: Oh, wow. That endorsement by Trump adviser Kellyanne Conway during an interview from the White House briefing room triggering both ethical and legal concerns about using her position to promote a Trump family business. Where is the separation between brand Trump and Trump White House?

Critics were quick to pounce. There's even a bipartisan call for an investigation. The top Democrat in the House Oversight Committee, Elijah Cummings, and Republican Chairman Jason Chaffetz, sending a letter to the Government Ethics Office concerning possible disciplinary action. Chaffetz calling Conway's comments wrong, over the line and unacceptable.

Asked about the uproar, Conway said this.

(BEGIN VIDEO CLIP)

CONWAY: We are aware of the letter and we are reviewing that internally. I'm just really happy that I spend an awful lot of time with the president of the United States this afternoon and that he supports me 100 percent.

(END VIDEO CLIP)

MARQUEZ: The White House press secretary says Sean Spicer says Conway has been counseled, but did not elaborate. We're also told Conway did acknowledge making a mistake. No comment so far from Ivanka Trump.

ROMANS: Let's bring in CNN politics reporter Eugene Scott and CNN senior media correspondent Brian Stelter.

Brian, tough week message-wise for this White House. The optics of standing in the White House and endorsing a family brand. It's everything that ethics experts worried about.

BRIAN STELTER, CNN SENIOR MEDIA CORRESPONDENT: And Spicer pretty much has nothing to say about it. The press secretary says she had been counseled and tried to move on. There has been a dozen different stories this White House has been tied up in knots about. This is one of them. It's one of those self inflicted wounds that any administration tries to avoid.

MARQUEZ: We want to go to Eugene Scott on the scandal of the day, it seems.

EUGENE SCOTT, CNN POLITICAL REPORTER: Yes.

MARQUEZ: "The Washington Post" breaks the news that national security adviser Michael Flynn after he said it, Sean Spicer said it and president said he never spoke to the Russian ambassador about sanctions. "Washington Post" now saying he did.

What's the significance here?

SCOTT: Well, this is part of the ongoing investigation regarding the Donald Trump campaign team and these conversations with Russia. This happened not just before Trump got into the White House. This happened ever before the election, and there was concern these conversation about sanctions could have influenced what U.S. intelligence agencies believe perhaps motivate Russia to be involved in the 2016 election.

As you know, concerns about sanctions, questions about sanctions are ongoing. And people are wondering what impact this could have. What promises were made? Of course, officials were saying none of that happened. But this is ongoing investigation.

ROMANS: Putin spokesman this morning denied that the Russian ambassador of the United States discussed this issue with the administration about sanctions with Flynn.

STELTER: I thought the most damning part of this "Washington Post" story, number one, there's nine sources that the paper is citing. CNN is not confirming this on its own, but clearly --

ROMANS: Nine separate sources who say Flynn talked to the Russian ambassador about sanctions.

STELTER: And some of these are U.S. officials who have read the transcripts. So, I think the most damning detail in the story, is this apparent transcripts of Flynn on the phone with folks in Russia. Why are there transcripts? Because the U.S. frequently eavesdrops on these calls.

The idea in "The Washington Post" story is why would Flynn not have known eavesdropping would be going on? Why is he denying or suggesting this wasn't happening? He should have known the calls would be recorded and would be transcribed.

So, I thought that was a damning part of the story. This is something Spicer will definitely be asked about later today. It will probably dominate, one of the dominant topics in the briefings.

MARQUEZ: From the political point of view, from a communications point of view, I mean, it just -- it feels like turmoil and chaos and crisis.

STELTER: Yes, I think disarray.

MARQUEZ: How are they getting their wheels at all?

ROMANS: To that point, let's look at the Jason Chaffetz, the rally or the meeting, the town hall, these town halls around the country. I mean, you can see that disarray and message and what's going on and where is the leadership? I think you can see that in some of these town halls, too.

SCOTT: Absolutely. I think many people are fed up. People who voted for Donald Trump and trusted Mike Pence, I think one of the more interesting things about this situation is Mike Pence had a reputation of cleaning things up. Mike Pence actually also repeated this untruth, this fact that it actually happened.

[05:15:02] And so, whether or not, he will be able to come forward and say I did not know what I know now, or I was just speaking on what I had available at the time. It will be interesting.

ROMANS: Brian, those pictures from Jason Chaffetz. What are constituents upset about? They're upset about everything?

STELTER: A lot of the frustration at these town halls has been about Obamacare, about what Republicans will do to change Obamacare to possibly dismantle it, to evolve it. We have seen this with several events, with several different representatives. It happened in prior weeks. It is happening again this weekend. You will covering this, Miguel, late last month.

MARQUEZ: A few weeks ago, we started doing stories like this. But on the other side, those who want Obamacare repealed. They don't care about the replacement. That -- what we saw in Utah was about the replacement. What is coming?

This White House has got to get his message straight.

STELTER: And certainly, these images. I think we're going to see this this weekend. Several CNN reporters at different congressional town hall meetings watching citizens interact with their local legislators. We're seeing the anger is palpable. You're seeing people who don't normally go to these things. In some ways, it's a reverse of Tea Party, the reverse of some of the town halls where Republicans are showing up in force with Democratic lawmakers many years ago.

Now, we're seeing it seems like Democrats coming to the Republican town halls trying to hold Congress members accountable. The images, of course, are very compelling. We are seeing some Congress members with security and things like that to manage the crowds. But it's very compelling. Another version of protest, you've got airport protests, street protests, now these town halls as well.

SCOTT: What is interesting, though, about that Utah protest is that it wasn't just Democrats and it wasn't just Obamacare. So, there are a bunch of conservatives who are concerned about whether or not Chaffetz will consistently hold the Trump administration accountable for all kind of policies. So, it wasn't just Obamacare. It wasn't just women's rights. It's justice, it's all kinds of issues.

ROMANS: And we know that he was one of the authors of the letter to the Government Ethics Office about the Kellyanne Conway QVC moment, you know, QVC moment plugging her friends --

STELTER: Bipartisan opposition to that.

ROMANS: All right, guys. Thank you.

MARQUEZ: We want an outsider. We got an outsider.

Also breaking overnight, President Trump agreeing to honor the one- China policy during the phone call with the Chinese president. The White House saying the request was made by the Chinese leader and granted by Mr. Trump last night. President Xi expressing his appreciation overnight. The president angered Beijing back in December by speaking directly to the prime minister of Taiwan.

ROMANS: Nordstrom shareholders are fine with the criticism and attacks, and all the attention that followed. The stock up nearly 7 percent over the past two days. It's a remarkable rise.

Traditional retailers, they're not rolling in cash. In general, retail sector is decent holiday shopping season, but they struggled to compete with online retailers, fast fashion chains like H&M. So, they bring in big names like Ivanka Trump and they target higher end shoppers.

If her clothing line were doing well or even showing potential, retail analysts say Nordstrom would not have dropped it. Analysts say the move may actually boost sales now because women who disagree with the Trump policy may be inspired to shop there after all the blowback that the president created by tweeting.

Nordstrom tells us this is all about business, saying we made this decision based on performance. Record highs for stocks yesterday. Up with the rising tide.

MARQUEZ: Amazing 7 percent increase.

ROMANS: Right.

MARQUEZ: A very rough night for UCLA cheerleader. She says a nasty fall during a dance routine and it gets worse.

Coy Wire has this morning's "Bleacher Report". Oh dear. We'll have that next.

(COMMERCIAL BREAK)

[05:22:58] ROMANS: Business, politics, sports, it's all one big, big, huge bowl of spaghetti.

Athletic apparel giant Under Armour releasing a statement after backlash to the CEO's comments supporting President Trump.

MARQUEZ: Coy Wire has more in this morning's "Bleacher Report".

Good morning, Coy.

COY WIRE, CNN SPORTS CORRESPONDENT: Good morning, Christine. Who doesn't love pasta in the morning? Spaghetti it is.

MARQUEZ: Pasta!

WIRE: A day after star Steph Curry, one of Under Armour's highest profile spokesmen publicly disagreed with the company's CEO on whether or not Donald Trump is an asset to the United States.

Under Armour went in to full damage control, trying to distance the company's brand from the CEO's politics. They said, "We engage in policy, not politics. We have teammates from different religions, races, nationalities, genders and sexual orientations, different ages, life experiences and opinions. This is the core of our company."

Now, "The Rock" Dwayne Johnson who's partnered with Under Armour let his feelings about the CEO Plank be known, posting, "His words were divisive and lacking in perspective. Debate is healthy. But in a time of widespread disagreement, so is loyalty. I feel an obligation to stand with this diverse team."

The New York Knicks doubling down after kicking out former star Charles Oakley from Madison Square Garden Wednesday night. They said Oakley's telling of the incident is, quote, "pure fiction" and that he used abuse of behavior toward arena employees. TNT's Charles Barkley who played against Oakley back in the day says nobody is a winner in this situation.

(BEGIN VIDEO CLIP)

CHARLES BARKLEY, FORMER NBA ALL-STAR: This was a black eye for the entire sport, plain and simple. Like I said, everybody looked bad. The Knicks were wrong. Charles Oakley was wrong. But the bottom line is this hurts our product. This was a bad night for the NBA.

(END VIDEO CLIP)

WIRE: Let's go to college hoops. A tobacco road thriller. Duke and North Carolina separated by ten miles, the rivalry could not have been closer coming into last night's game. Listen to this, a series was tied at 48 wins apiece and both teams have scored exactly 7,347 points.

[05:25:02] Are you kidding me?

Grayson Allen was the difference maker for Dukes. Seven three pointers for the kid, most of them coming at key moments in the game. He finished with 25 points overall. Blue Devils win 86-78.

Scary moment during UCLA and Oregon game. A cheerleader falls off the top of the pyramid and crashes to the floor. Then while being carried off the court, that wasn't all. The guy carrying her falls and trips on a mat. She falls again. But, guys, the good news is she seems to be okay. Her fall may have

raised the team up. Number 10 UCLA was down 19 points at one point in this game. But they went on a 30-11 run after her fall. They upset number 5, Oregon, 82-79.

MARQUEZ: Man, that is so painful.

WIRE: Hurts twice as much, Miguel.

MARQUEZ: I'm glad she's all right. That's terrible to watch.

ROMANS: All right, thanks. Thanks, Coy.

WIRE: You're welcome.

MARQUEZ: Now, a federal appeals panel rejecting the Trump administration argument that executive action is enough to impose the travel ban. More on the ruling and reaction coming right up.

(COMMERCIAL BREAK)