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New Day

Court Maintains Suspension of President Trump's Travel Ban; New England Patriots Win Super Bowl; Legal Battle Over Trump's Travel Ban; Mullen: Bannon Does Not Belong On National Security Council. Aired 8- 8:30a ET

Aired February 06, 2017 - 08:00   ET

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

[08:00:00] CHRIS CUOMO, CNN ANCHOR: She was good. The commercials were good, but it was a football game.

ALISYN CAMEROTA, CNN ANCHOR: We have a lot to talk about.

CUOMO: Good morning. Welcome to your NEW DAY. It's Monday, February 6th, now 8:00 in the east.

And let's begin with the legal battle over President Trump controversial travel ban. A federal appeals court refusing to reinstate the order after it was blocked by a lower court on Friday. So now the Justice Department has 10 hours to put in its supporting brief and the legal arguments are going to continue.

CAMEROTA: President Trump on Twitter going after the federal judge who temporarily halted his ban, suggesting that Americans should blame him if something bad were to happen. The president also making news in a Super Bowl sit-down interview. We are day 18 of the Trump presidency. Let's begin our coverage with CNN's Jessica Schneider. She is live in Tampa, Florida, with the latest. Good morning, Jessica.

JESSICA SCHNEIDER, CNN CORRESPONDENT: Good morning, Alisyn. The president very vocal this weekend. He was on television, he was on Twitter. But of course his social media feed taking direct and controversial aim at the federal judge who halted his executive order.

(BEGIN VIDEOTAPE)

SCHNEIDER: President Trump launching attacks against the judge who temporarily halted his travel ban, accusing Judge James Robart of opening the country to potential terrorists, even suggesting America should blame the judge and court system if something happens. All this after calling Robart, a Bush appointee, a "so-called judge" when the ruling was handed down on Friday.

MIKE PENCE, VICE PRESIDENT OF THE UNITED STATES: The president of the United States has every right to criticize the other two branches of government.

SCHNEIDER: Vice President Pence defending the president's tirade against the judiciary and saying the White House believes Robart's ruling will be overturned. PENCE: We're very confident the president is operating within its

authority as president.

SCHNEIDER: This intensifying legal battle comes as president Trump faces criticism for comments he made in a Super Bowl interview, equating the American government's actions with Russian President Putin's regime.

BILL O'REILLY, FOX NEWS HOST: Do you respect Putin?

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

O'REILLY: Do you? Why?

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

O'REILLY: Putin is a killer.

TRUMP: We've got a lot of killers. You think our country is so innocent?

SCHNEIDER: That remark provoking sharp rebuke from members of the president's own party.

SEN. MITCH MCCONNELL (R-KY), MINORITY LEADER: Putin is a former KGB agent. He's a thug. I don't think there's any equivalency between the way the Russians conduct themselves and the way the United States does.

SEN. BEN SASSE (R), NEBRASKA: There is no moral equivalency between the United States of America, the greatest freedom loving nation in the history of the world, and the murderous thugs that are in Putin's defense of his cronyism.

SCHNEIDER: President Trump also announcing that Vice President Pence will head a commission to investigate voter irregularities but providing no proof that millions voted illegally despite repeated claims.

TRUMP: We can be babies. You take a look at the registration, you have illegals, you have dead people. It's a really bad situation. It's really bad.

SCHNEIDER: And the president acknowledging that the timetable to replace Obamacare could take longer than promised.

TRUMP: I would like to say by the end of the year at least the rudiments, but we should have something within the year and the following year.

(END VIDEOTAPE)

SCHNEIDER: And President Trump spending the weekend right here in Florida at his estate at Mar-a-Lago. He did wake up there this morning. But he will make his way later this morning here to Tampa to MacDill Air Force Base. At that point he'll attend a special briefing at Central Command. He'll also have lunch with some of the service members and then he will be making remarks to the coalition reps as well as U.S. commanders. Chris?

CUOMO: All right, thank you very much, appreciate the reporting.

So lawyers from Washington state and Minnesota argue that reinstating President Trump's travel ban would, quote, "unleash chaos again." They filed new briefs a few hours ago with the federal appeals court. That means the DOJ, the Justice Department, has about 10 hours to put in their own supporting briefs. Then we'll find out if there's going to be a hearing.

CNN's Dan Simon live outside the ninth circuit in San Francisco. You are in the right place because that's where any hearing will be held.

DAN SIMON, CNN CORRESPONDENT: That's right, Chris. The 9th circuit has to decide whether or not the suspension will remain in place, and the next step in all this is for both sides to file their legal briefs. We know that attorneys for Washington and Minnesota have already filed theirs. The federal government has until 6:00 p.m. eastern time to make its position known.

You have a lot people weighing in on this issue. You have tech companies, about 100 of them, they filed an amicus brief basically saying this ban will harm business, that it's unfair to immigrants and their families. You also have a declaration from many former federal government officials ranging from John Kerry to Madeleine Albright to Susan Rice saying they're not aware of a specific threat in the world that would justify this kind of ban.

You're talking about a three-judge panel. They will have to decide whether or not they will have a hearing. If there is a hearing, it could be in person or by video or it could be by phone, or they could simply rule. We don't know what they're going to do.

[08:05:08] But ultimately most legal observers think that after this court hears this ban that this will then go to the Supreme Court. We'll have to see what happens. Alisyn, let's send it back to you.

CAMEROTA: Yes, we will, Dan, thank you for that background. How will this legal battle play out and how could the Supreme Court vacancy affect this case? Let's discuss it with Andre Segura, a staff attorney at the ACLU, and Dan Stein, the president of Federation for American Immigration Reform, a nonprofit that favor restricting current immigration quotas. Gentlemen, thank you very much for being here. Dan, I want to start with you. You like and support the president's travel ban. You think he'll be victorious. Why?

DAN STEIN, PRESIDENT, FEDERATION FOR AMERICAN IMMIGRATION REFORM: Well, as a constitutional matter, the president enjoys very high deference. This is the zenith of his powers, as Jonathan Turley has said over and over again. Remember, the commander-in-chief is responsible for public safety and national security. And historically the idea an Article Three judge sitting in Seattle has the ability to second-guess national security judgments or whether there are terrorists who may be infiltrating the refugee flow, arguing equal protection grounds, which is so absurd, the analogy would be for a federal judge to enjoin the bombing of say ISIS and Syria unless the government bombed Israel out of fundamental fairness under equal protection at the same time. This is simply outside the competence of the judiciary to be second-guessing the president's judgment on a vital area to protect the American people and our public safety. And the same thing is true of this three-judge panel.

CAMEROTA: Let me get Andre in here. He disagrees. You heard the argument. This is about national security and that, pardon the pun, trumps everything.

ANDRE SEGURA, ACLU STAFF ATTORNEY: I think what we have to remember is when anyone says "second-guess," what we should be doing is second- guessing the president when he attempts to institute a preference for certain religions or to disfavor certain religions. The president's authority over immigration is not unchecked. That is a myth. The judicial branch serves as a check particularly when there is overreach. The president does not have authority to, for example, create a national religion. And the easiest way to do that is to prevent immigrants of certain faiths from entering this country.

CAMEROTA: Hold on one second, Andre. I want to stick with you, because according to the Immigration and Nationality Act of 1952, I'll read an excerpt of it, "Whenever the president finds that the entry of any aliens, of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation for such a period as he shall deem necessary suspend the entry of all aliens." There you go.

SEGURA: And that is not without check. There are immigration laws that have been passed after that, after that particular statute was passed, that prevents discrimination, for example, on national origin. So we have to be careful about individuals who come out and say the president should receive absolute authority over all of this.

CAMEROTA: And I happen to have an excerpt of one of those pieces of legislation that has come out afterwards. And I want to pose this to you, Dan. Here is a portion of the 1965 Immigration Act. "No person should receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of a person's race, sex, nationality, place of birth, or place of residence." How is the travel ban not a violation of that, Dan?

STEIN: That's not intended to actually influence the selection criteria that Congress passes or the broad authority the president has to determine refugee admissions. That's about preventing discrimination arbitrarily in processing applications as a ministerial matter. That's a complete corruption of the idea, because in the end, look, refugee policy is about protecting people on the basis of, among other things, religious persecution. So you have to make distinctions on the basis of religion. Obama was not admitting people from Syria as refugees for most of his administration, only in the last two terms. All of a sudden the ACLU is claiming it's an establishment of religion to say that you want to give some preference to Christians in the Middle East because they've been discriminated against by a prior administration. That is the most ridiculous thing anybody has ever heard.

CAMEROTA: Go ahead, Andre.

SEGURA: What's ridiculous is not listening to the president's words and intent and effect of this order. This is disfavoring people of the Muslim faith and placing a preference over other individuals. This is fundamental --

STEIN: This is neutral. There's nothing about this order that singles out Muslims. To call it a Muslim ban --

SEGURA: The president's words matter. You have to look at the intent behind --

CAMEROTA: Hold on, Dan.

STEIN: You're playing into ISIS' hands when you call it a Muslim ban. It's not a Muslim ban. Why are you playing into ISIS' hands?

CAMEROTA: Because that's what -- hold on, Dan. Let's be honest about this, Dan. This is originally what the president said he would do. This is what Rudy Giuliani said he was tasked with doing, coming up with something that this would be a Muslim ban. There is a reason that people think this is a Muslim ban.

STEIN: Judge Robart was looking at the facial terms of the executive order. It doesn't say anything about a Muslim ban. The judge did not even give Washington state what it was asking for. He gave it far more than what it was asking for. This entire ban was nothing like Washington state ever dreamed of.

[08:10:05] And the ACLU wasn't anywhere to be found when President Obama was letting in hundreds of thousands of aliens without any legal authority, putting them in our schools, hospitals, housing. They don't seem to think the civil rights of Americans matter in controlling immigration. And these Silicon Valley outfits, they are not affected in any substantial way by the president's temporary suspension to improve vetting from countries that are failed states and cannot identifying the identity of the people we are admitting. This is important prudential executive authority and it need not be tampered with by the judiciary.

CAMEROTA: Go ahead, Andre. You've heard that there's no language about this being a particularly Muslim ban in the executive order.

SEGURA: Sure. I would say first, as a lawyer when you engage in that rhetoric, you know you have a losing argument. So when you have to resort to such fear tactics about immigrants coming in and overcrowding, you know you're losing the argument here. But the president's words matter. He was very clear. He wants to institute a Muslim ban. And this is his way through this advisers, we heard from Rudy Giuliani recently, this is the way --

CAMEROTA: But you also hear from his advisers right now saying, look, there are all sorts of Muslim majority countries that are not included in this. These are just the terror-prone countries already identified by President Obama.

SEGURA: This goes directly to another point. There is a complete mismatch with this executive order and what it purports to do, which is keep Americans safe. This is a very limited subset of countries, does not include several other countries who would potentially be on a terror-related list.

CAMEROTA: Very quickly, Andre, what's going to happen here? Is this going to go to the Supreme Court?

SEGURA: I think it will get to the Supreme Court quickly. We don't know how quickly the ninth circuit will act.

CAMEROTA: Dan, what's going to happen? Do you think it will go to the Supreme Court? And given their four-four split, what happens?

STEIN: There's no question the president has to win. It's terrifying, this whole order. The president can't protect public safety and national security, absolutely he's going to win.

CAMEROTA: OK, Dan, Andre, thank you very much for the debate. Chris?

CUOMO: All right, the New England Patriots pulling off a wild and historic win to become Super Bowl champs. Tom Brady is the first quarterback to win five Super Bowls. Let's bring in Coy Wire live in Houston with the highlights in this morning's Bleacher Report. Coy, you played for the falcons. I hate the Patriots. I'm a Jet fan. But at the end of the day, can you argue anymore that Brady ain't the best, that the Patriots ain't the best?

COY WIRE, CNN CORRESPONDENT: Chris, you know I'm playing with the Bills for six years, having to play against Tom Brady's Patriots twice a year, every year. I already knew he was the greatest of all time. I had no doubts saying it before this game, and now you cannot dispute it, refute, or doubt it any longer. What he was going through, having the deflate-gate suspension, missed the first four games of the season. Let's watch how he came back.

They were down 21-3 at half-time, Chris. And then here is the drive. Down 28-20 in the fourth quarter, about 2:00 to go. Julian Edelman will be the spark that lit the fire for the Patriots and stuck the dagger in the hearts of Falcons fans everywhere. Look at this catch. We're watching this in slow-mo. But can you imagine this catch? Unbelievable. His teammates can't believe it. The Patriots would go on to score, but they would need to go for two to get a chance here. Tom terrific clicking it to Danny Amendola who bowls in across the line, and so we go to the first ever over time in Super Bowl history.

And you can feel as soon as those Pats won that coin toss, you just knew how it was going to play out. James White punches it in. The greatest comeback in Super Bowl history, down by 25 points at one point in this game, no team had ever come back from down by 10 in Super Bowl history. After the game, Brady was overcome with emotion. Here's Brady letting that emotion out. I caught up with Roger Goodell, Robert Kraft, and Gronk to talk about Tom Brady on the field after the game. (BEGIN VIDEOTAPE)

TOM BRADY, NEW ENGLAND PATRIOTS QUARTERBACK: Thank you to all our fans, everyone back in Boston, New England, we love you. You've been with us all year. We're bringing this sucker home!

ROGER GOODELL, NFL COMMISSIONER: It's the biggest stage, and he always steps up on the biggest stage and plays unbelievable. He did it again tonight. To bring that team back, it's just unbelievable.

ROBERT KRAFT, PATRIOTS OWNER: I think what happened to Tommy the first four games engaged fans even more because they know we weren't treated fairly. And now we had a chance to go through the year, and I think results speak for themselves.

UNIDENTIFIED MALE: Brady is the best ever, and Belichick is, too.

(END VIDEOTAPE)

WIRE: How did they pull off this comeback? I talked to a Patriots coach after the game and they said that Bill Belichick looked every person in the eye when they were down 21-3 and said 21 points is not enough for them to beat us. They rallied behind that. Oh, and also, they won because of Tom Brady, greatest of all time.

CAMEROTA: That's a good message. You know what, 21 points ain't enough to beat us.

CUOMO: And 25, 28-3 they were down. Went into the half-time, they got Gaga-ed and they still came out.

CAMEROTA: All right, President Trump expressing confidence that the travel ban will be restored. So we're going to ask one of his top advisers why they're so confident. That's next.

(COMMERCIAL BREAK)

CHRIS CUOMO, CNN ANCHOR: Will the president beat the legal system and get his ban back? Does he really think the United States is morally equivalent to Russia? And are they retooling their strategy in the White House as reports suggest?

We've got lots of questions and we have a man who can answer them all, deputy assistant to president Trump, author of "Defeating Jihad, The Winnable War," Sebastian Gorka. Good to have you on NEW DAY, sir.

SEBASTIAN GORKA, DEPUTY ASSISTANT TO PRESIDENT TRUMP: Thank you for having me, Chris.

CUOMO: What's your take on what happens in the courts?

GORKA: I think it's very clear if you look at the statements that came out of the federal court in Boston about how this is a completely legal measure. If you look at the original act from the 1950s and the more recent one that gave the president the exclusive right to determine if there are national security concerns with immigrants coming into this country, it's a slam dunk. He's completely within his mandate. There is a problem with these seven nations and I expect the courts to decide in favor of the White House.

CAMEROTA: Do you believe you may get a situation in part, but that the part of the ban that deals with either a selective potential religious test or how you compromise the rights of visa holders and maybe even citizens of the United States abroad, that that may be struck down?

[08:20:05]GORKA: I'm not going to predict what's going to happen in the future. I have full confidence that the executive order as written will stand and will be implemented as it's meant to be implemented. It's really very important for your viewers to understand there is no religious test.

This isn't about a religion or Islam at all. This is about nations where Jihadis are most active, specifically the Islamic State, ISIS or al Qaeda. It's about the national security of all Americans, has nothing to do with which God you pray to -- Chris.

CUOMO: But you had a judge see exactly those kinds of implications in the drawing of his district court order stopping the ban. There is language in the executive order that goes to a case-by-case basis to deal with religious minorities, maybe the Yazidis or as cultural minorities, or Christians, and all of the countries picked are Muslim majority. As we all know, the president has said he wanted a Muslim ban. What do you make of those factors?

GORKA: Exactly what I said previously. Another judge completely dismissed all of those accusations. If it were about religion, Chris, then it wouldn't have these seven nations on there. If it were about Islam and why isn't Indonesia there, the largest Muslim nation in the world?

Why isn't Egypt on the list, the largest Arab nation in the world? It's about the threat to America. It's about people being mowed down in Nice, about people being killed in mass numbers in Paris and Brussels and Istanbul.

We just don't want that to happen here on our shores. That's why we did what we did. Again, this is where ISIS is established, Iraq, Syria, this is where al Qaeda is most active, Yemen, Somalia, nothing to do with religion. It's about threat assessment and preventing the types of attacks we saw in Europe happening here in the United States.

CUOMO: Why did the president say he wanted a Muslim ban?

GORKA: You're not going to catch me out by repeating accusations that are fallacious.

CUOMO: It's not an accusation, it's what the president said when he was running.

GORKA: It's about national security, Chris. That simple.

CUOMO: I understand. An accusation means that I'm coming with something from an outside source. This is what the president said. Rudy Giuliani said he was tasked with finding a legal mechanism to put into effect a Muslim ban. I'm not making this up. He said it.

GORKA: Just read the executive order. It has nothing to do with religion.

CUOMO: Right, but the intent of the order is going to wind up becoming part and parcel of the litigation. I'm sure you understand that. And you said, these countries have nothing to do with that, to your own point, if the objective here is to stop the places where the threat comes from, why aren't any of the countries that had ownership on some level of what happened here on 9/11 included?

GORKA: Well, because terrorism is not an issue that stands still. These are not threat groups carved in time. The Islamic State did not create their new caliphate in Saudi Arabia, they didn't create the caliphate outside the countries that we've listed. This is really important.

We are 16 years down the line. It's not about what happened 15 years ago. It's about where Baghdadi is creating his new proto empire and where that threat is going to go next when we hit harder in places like Mosul.

It's about trying to prevent what's going to happen next and about what the bad guys are doing right now, not about history 16 years ago.

CUOMO: What threat assessment tells you that refugees are whom you should target right now? And what do you make of all the intel people who have come out, former chairman Joints Chief of staff, Mullin this morning, Hayden, the head of the NSA saying that this actually helps propagate the ISIS motives to get more people in their ranks, that hurts our spies, hurts our connections around the world?

GORKA: Well, look, I can't talk about classified threat assessments. I can talk about what we know in open source. Your viewers should check it out. There's an ISIS magazine called "Dabiq." They have said in English on numerous occasions, we will destroy you the infidel. We will destroy your countries by inserting our operatives into the refugee streams. They've written it, Chris.

And what happened, we've seen it happen in Europe. At least one of the attackers in Europe was on a false Syrian passport that had acquired refugee status in the E.U. This isn't hyperbole, it isn't theory. It has happened. We don't want it to happen here.

CUOMO: Right. It hasn't happened here. As you know, refugee --

GORKA: We want to prevent it.

CUOMO: -- most exhaustive.

GORKA: That's not true. It's the slowest. Not the most exhaustive. My parents were refugees. When they escaped the dictatorship in the 1950s, they went through exhaustive counterintelligence interrogation. We don't do that. [08:25:00]Some visa applicants, Chris, you need to check this out, have an interview that last 60 seconds. That's ridiculous. That's why the president is doing this. We have to secure our country --

CUOMO: I haven't heard that sourced by any of the people who are involved with refugee vetting.

GORKA: Check it out.

CUOMO: It's the only vetting for American entry that deals with multiple layers of U.N. involvement. They first designate who is even applicable. Then you have many different layers of the vetting on the U.S. side.

GORKA: I'm talking about immigrants. I'm not just talking about refugees, but it is not --

CUOMO: I was talking about refugees. Why are you targeting them when that's the most exhaustive assessment that we have for entry into this country?

GORKA: It's not the slowest, but it's not advocate. It's simply not adequate. There have been attacks by people here on refugee status. This is not about theory. It's about stopping the next Boston bombing, Chris. You've got to agree with that, right. We don't want another Boston bombing, right?

CUOMO: Yes, of course. Nobody is going to tell you they want another Boston bombing.

GORKA: Then we have to improve the system. We have to improve the system.

CUOMO: I understand that. But instead of being playful with what people want and don't want, then improve the system. This would have been better met if you had come out with new procedures as Obama did when the Iraqis slipped through. They changed the vetting and put it in place. You did it in reverse. You put in a ban, have no extreme vetting, all you have is a slogan.

GORKA: Isn't it interesting when he did it, nobody had a problem. He didn't tell the press in 2011 when he brought his ban in.

CUOMO: It wasn't a ban.

GORKA: When he put a temporary moratorium on people coming here --

CUOMO: It wasn't a moratorium. It slowed the process down.

GORKA: Can I finish?

CUOMO: Yes. I just want you to be accurate. Go ahead, sir.

GORKA: Can I finish? There was no problem. Not you. None of your colleagues had an issue with it. Isn't it interesting when we have a Republican president, suddenly it's an issue. That's double standard. CUOMO: It would be if it were apples to apples and it isn't. Let me ask you something else. The president in the interview with Bill O'Reilly seemed to create moral equivalence between the United States and Russia when O'Reilly said why do you respect Putin, why do you like him? He's a killer, that was Bill O'Reilly's word. The president said, we've got lots of killers here, too. Do you think the two countries are morally equivalent?

GORKA: No two countries are morally equivalent. That would be an asinine statement. I think he's simply doing something that's very fair. Every community, every society has its problems. If you deny that, then you're living in some kind of Alice in Wonderland. I think that's what the president is trying to say. Again the media is trying to spin it into a story. There's no story there, Chris.

CUOMO: You don't think that it's newsworthy that when confronted with the problems of Vladimir Putin as a moral agent in this society, the answer of the president of the United States was to point out his country's perceived failing? You see that as spin?

GORKA: Yes, I do. I think the issue is he was being very fair. Every society, every community, every nation, even America, the greatest nation on God's earth has its problems, has its issues. That's a really honest call and I commend the president for it.

CUOMO: Your own party, the Republican Party is calling out the president for apparently sheltering Vladimir Putin and Russia for moral and objective responsibility for actions it has done. This seemed to be another example of that, Mr. Gorka. You didn't see it that way?

GORKA: No. Because I listen to what everything the president says. I don't take a tiny sound bite and try to create a story out of it. That's really reprehensible from the point of view of your journalism. I look at the statements he made in his press conference a couple weeks ago where he was very blunt about the problems with Vladimir Putin and Russia and our relations with it.

He said, look, I'd like to be friends with this guy, but if I can't be, so be it. That is what the president believes. One two-second sound bite, let's not create fake news out of two-second sound bites, Chris. It's just not worthy of you.

CUOMO: They are his words. You are also accusing your fellow Republicans of, I guess, what -- what's the analogy of fake for them. That they're just lying about the president, taking what he said out of context because they want to attack their own? Follow through your logic on that.

GORKA: Not at all. Not at all. I'm trying to say that if you want to judge a president, you look at everything he says. Would you like to be judged on something you said for two seconds? Not fair. You take a man in context. You take a leader in context. Otherwise, you're being biased. That's the bottom line.

CUOMO: Mr. Gorka, appreciate your take. Always welcome on NEW DAY. GORKA: Thank you for having me.

CUOMO: Alisyn.

CAMEROTA: Some Republican leaders trying to distance themselves from President Trump's soft stance on Russia and tough stance on a federal judge. Next, Ana Navarro and Jeffrey Lord give us their predictions. That's what is next.

(COMMERCIAL BREAK)