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GOP Senators Silence Elizabeth Warren During Debate; Appeals Court Weighs Trump's Travel Ban. Aired 6-6:30a ET

Aired February 08, 2017 - 06:00   ET

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

(BEGIN VIDEOTAPE)

SEN. ELIZABETH WARREN (D), MASSACHUSETTS: Senator Sessions has displayed open hostility to the rights of all Americans.

[05:58:42] UNIDENTIFIED MALE: The senator will take her seat.

SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER: The senator has impugned the motives and conduct of our colleague from Alabama.

WARREN (via phone): They can shut me off, but they can't change the truth.

UNIDENTIFIED MALE: The vice president had to be pulled in to overcome the Democrats' historic and partisan log jam.

UNIDENTIFIED FEMALE: Three federal judges on the 9th Circuit expected to rule on President Trump's refugee and travel ban.

JUDGE MICHELLE FRIEDLAND, 9th Circuit Court OF APPEALS: Are you arguing, then, that the president's decision in that regard is unreviewable?

UNIDENTIFIED MALE: Yes. We just need to prove that it was motivated in part by a desire to harm Muslims.

UNIDENTIFIED MALE: Either you have it and it's presented in the record or you don't.

JAKE TAPPER, CNN ANCHOR: Is CNN fake news?

KELLYANNE CONWAY, COUNSELOR TO DONALD TRUMP: No, I don't think CNN is fake news.

(END VIDEOTAPE)

ANNOUNCER: This is NEW DAY with Chris Cuomo and Alisyn Camerota.

CHRIS CUOMO, CNN ANCHOR: All right. We want to welcome our viewers in the United States and around the world. This is your NEW DAY. It's Wednesday, February 8, 6 a.m. here in New York.

Up first, Elizabeth Warren, U.S. senator, gets silenced on the Senate floor, Republicans invoking a seldom-used rule against impugning the character of a fellow senator during a contentious debate over Jeff Sessions's nomination for attorney general.

ALISYN CAMEROTA, CNN ANCHOR: So the Massachusetts attorney general was cut off as she read a letter written decades ago by Martin Luther King's widow and as questioning Jeff Sessions's civil rights record.

This comes as President Trump blasts Democrats for obstruction, with only a handful of his nominees confirmed nearly three weeks into the Trump presidency.

We have it all covered for you. Let's begin with CNN's Sunlen Serfaty. She's live on Capitol Hill, where at this hour Democrats continue to hold the Senate floor. What's the latest, Sunlen?

SUNLEN SERFATY, CNN CORRESPONDENT: That's great, Alisyn. Democrats held the floor open all throughout the night, and they continue to at this moment down on the Senate floor railing against Senator Sessions to be the next attorney general. But it was really that moment, that remarkable clash between Senator Elizabeth Warren and Senate Majority Leader Mitch McConnell, which really signifies how toxic, how hostile the tone has become up here on Capitol Hill as they painstakingly work through some of Donald Trump's cabinet nominees.

(BEGIN VIDEOTAPE)

MCCONNELL: The senator's impugned the motives and conduct of our colleague from Alabama.

SERFATY (voice-over): A stunning moment on the Senate floor.

WARREN: I am surprised that the words of Coretta Scott King are not suitable for debate in the United States Senate.

SERFATY: Democratic Senator Elizabeth Warren formally silenced by her Republican colleagues.

UNIDENTIFIED MALE: The senator will take her seat.

SERFATY: The incredibly rare dressing down stemming from this statement.

WARREN: Mr. Sessions has used the awesome power of his office to chill the free exercise of the vote by black citizens.

SERFATY: Warren quoting a scathing 1986 letter from Martin Luther King Jr.'s widow, opposing Senator Jeff Sessions's failed nomination to a federal judgeship, to explain why she is against Sessions's current bid to be attorney general.

UNIDENTIFIED MALE: The senator is reminded that it is a violation of Rule 19 of the standing rules of the Senate to impute to another senator or senators any conduct or motive unworthy or becoming a senator.

SERFATY: Republicans arguing Warren violated Senate rules by demeaning a sitting senator.

UNIDENTIFIED MALE: You stated that a sitting senator is a disgrace to the Department of Justice.

MCCONNELL: She was warned. She was given an explanation. Nevertheless, she persisted.

SERFATY: At issue, whether quoting Coretta Scott King should be exempted from the rules.

WARREN: I appeal the ruling of the chair.

UNIDENTIFIED MALE: But the Senate voted strictly down party lines to reprimand Warren, prohibiting her from speaking on the floor for the remainder of the Sessions debate.

WARREN (via phone): The truth hurts, but that's all the more reason to hear it.

SERFATY: Refusing to be silenced, Warren taking to social media, continuing to read Scott King's letter on Facebook Live and calling into CNN.

WARREN: They can shut me up, but they can't change the truth.

(END VIDEOTAPE)

SERFATY: Now, despite all these fireworks last night onto the Senate floor, Senator Sessions, by the end of the day, most likely will be confirmed to go on as the next attorney general to be sworn in, likely at some point later today. This as Becky DeVos last night was confirmed by the Senate, sworn in by Vice President Mike Pence. Of course, Chris and Alisyn, the White House saying, though, they want the Senate to quicken the pace of his nominees.

CUOMO: All right, Sunlen. Thank you very much. Let's discuss.

We have CNN political analyst David Gregory; CNN political analyst and "Washington Post" reporter Abby Phillip; and CNN political commentator and senior columnist for "The Daily Beast," Matt Lewis.

All right. What rule are we talking about here? Rule 19. Here's what it is. The Senate's Rule 19: "Senators are not allowed to quote directly or indirectly, by any form of words, impute to another senator or to other senators any conduct or motive unworthy or unbecoming a senator." OK?

CAMEROTA: That clears it up.

CUOMO: Well, you know, basically, here's the -- here's the irony: is that this rule was designed to inculcate a sense of decency in political discourse.

CAMEROTA: Which the Senate is known for more than the House.

CUOMO: Right. But it's just been blown out of the water by the current toxic environment.

Matt Lewis, you have that paradox between what was supposed to be and what is wrapped in the irony that the words of Coretta Scott King are not worthy of debate on the Senate floor. Because that's what she did. She quoted the letter. Is this the right call?

MATT LEWIS, CNN POLITICAL COMMENTATOR: Well, look, I think that -- that Senator Mitch McConnell knows, you know, Senate rules probably better than anybody. And I would say by the letter of the rule, Elizabeth Warren was violating that. It's put in place to have decorum.

CUOMO: It guaranteed that Elizabeth Warren would get blown up with attention, as would the words of Coretta Scott King and this decision.

LEWIS: Yes, I agree. I think as a public relations mistake. I mean, this is the kind of thing that would have worked a generation ago, maybe, before 24/7 cable news. In this case, I think what Mitch McConnell did was make sure that vastly more people will be aware of what Elizabeth Warren wants them to know.

CAMEROTA: But David Gregory, is a 30-year-old letter relevant to a confirmation hearing today for Jeff Sessions?

[06:05:06] DAVID GREGORY, CNN POLITICAL ANALYST: Well, that's a separate debate, and I think that goes into a different column than debating the rules themselves. I mean, she's rehashing a part of a debate about how Sessions was denied by the Senate a chance to become a federal judge. And there's been arguments on both sides of that as to whether that's fair.

What's clear is that Democrats have dug in and are -- are mounting a resistance to Sessions. Will he be someone who protects immigrants in this country? Will he protect civil rights? Will he stand up to President Trump?

I mean, you see now Democrats fighting where they can: manipulating the Senate rules where they can to try to slow things down. They're not going to prevail in the end. This is the kind of thing that makes people discuss it with Washington on both sides. Certainly, the Republicans have said things on the state of Florida that seem to be against the spirit of this very rule that was invoked.

But nevertheless, what McConnell achieves, at least in the short-term, is to shut this part of the debate down and get closer to the confirmation, which is what the White House wants.

CAMEROTA: Right? So then Elizabeth Warren took to Facebook, where she then read the letter and had a much larger audience than she ever would have if they had just allowed her to continue reading this where C-SPAN and a few people, you know, insomniacs would have seen it. And so, I mean, how do you see what transpired there on the Senate floor last night?

ABBY PHILLIP, CNN POLITICAL ANALYST: It's fascinating to see the Democratic Party try to find their sea legs here. And this is a party that's looking for their moments. They're looking for opportunities to catch the attention of the American public and to fire up their base. And I think last night was really an essential example of how they can

do that. I mean, the amount of attention that Elizabeth Warren got for being shut down on the Senate floor, it's become a hashtag. It's become T-shirts. It's become a rallying cry. And for a party that needs a new leader, and Elizabeth Warren is among the people vying to be that person, this was really a picture perfect moment for her.

Where they take it from here is -- remains to be seen. I mean, I think Jeff Sessions is going to be confirmed by the end of the day. I don't think that any -- that even reading the letter would have changed any minds. But it did, I think, really fire up the Democratic base that's looking for a cause and looking for a leader and has elevated Elizabeth Warren's position within her own party a little bit.

CUOMO: I'm surprised, David Gregory, that we haven't seen more Democrats start reading the letter, you know, and get this cascade of people being silenced by Mitch McConnell. I mean, that would be, you know, it's a much more political effect than anything else.

But to Abby's point, what is the modus operandi of the Democrats going forward? This idea that they're searching for a base, they're searching for a message. They're searching to reconnect. Is obstruction like we're seeing here and on some of these other votes that they're promising to delay enough?

GREGORY: Well, it's not enough to achieve what they're after. They're trying to block Sessions. The answer is no.

But if they're trying to mount a real resistance that pleases the progressive base of the Democratic Party, then I think perhaps yes. You know, I remember a couple of years ago, speaking -- I know we'll get to the issue of health care. You know, when Ted Cruz was mounting a government shutdown, trying to repeal Obamacare, he did not have support among Republicans to do that.

But he had support among kind of a rock-rib base of the Republican Party, the Tea Party wing. Well, now you're seeing this on the left.

Weeks ago, I said they were abandoning the idea of working with Trump. Now they're full on into resistance. Even where it gets them negative publicity. In this case, I think it's going to be good publicity for them to kind of drive that progressive base and oppose Trump everywhere in order to prevail perhaps somewhere or at least stand on principle. They're playing a longer game now, and they're trying to use the Senate as ground zero to do it.

CAMEROTA: But Matt, you know, obviously, President Trump has had a fraction of his nominees confirmed, compared to where President Obama or George W. Bush were at this point, but there's two different narratives. There's two different versions of what went wrong here. One is, the Democrats are dug in or obstructionists. The other, according to the Democrats, is that these nominees didn't provide, in a timely fashion, the background material that the Democrats wanted. So which one is it? LEWIS: Well, it's both and it's in the eye of the beholder and -- but

I would say this. I think that there's the notion that Democrats can replicate the Tea Party strategy of obstruction and get away with it and end up, you know, 8 years from now with the presidency and the Supreme Court and the Senate, I think is a dubious one.

And part of the problem that Democrats have is they are -- you know, the Tea Party movement, as I will admit, is an anti-intellectual movement. It's much harder for a Democratic Party where everybody listens to NPR to be that.

The Democratic Party is the party of big government. But if they start sort of making it look like government can't get things done, it cuts against their brand.

CAMEROTA: Good point, panel. Thank you very much. Stick around.

CUOMO: All right. Let's move now to the other big story of the morning, the president's controversial travel ban. What's going to happen in the 9th Circuit Appellate Court?

The judges seem to be focusing on whether the president's immigration order is a Muslim ban and whether or not the state of Washington has standing, which means they are the right party to bring this case at this moment.

CNN senior Washington correspondent Joe Johns is live at the White House with more. These judges put council on both sides to the task in this hearing.

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: That's absolutely right, Chris. Tough questions, extremely tough questions for both sides from that three-judge panel on the 9th Circuit Court of Appeals. And a decision could come as early as today on whether to lift the nationwide hold on President Trump's controversial travel ban.

(BEGIN VIDEOTAPE)

JOHNS (voice-over): Three federal judges of the 9th Circuit Court of Appeals grilling lawyers from the Justice Department and Washington state in a hearing by phone Tuesday night. Both sides fighting back skepticism from the court.

JUDGE RICHARD CLIFTON, 9th Circuit Court OF APPEALS (via phone): Either you have the evidence presented in the record or you don't.

JOHNS: The Justice Department attorney, August Flentje, arguing President Trump has the legal authority to impose a travel ban without court review, citing national security.

JUDGE MICHELLE FRIEDLAND, 9th Circuit Court OF APPEALS (via phone): Are you arguing then that the president's decision, in that regard, is unreviewable?

AUGUST FLENTJE, JUSTICE DEPARTMENT ATTORNEY (via phone): The -- yes.

JOHNS: Judge William Canby pushing back on Flentje's logic.

JUDGE WILLIAM CANBY, 9th Circuit Court OF APPEALS (via phone): Could the president simply say in the order, "We're not going to let any Muslims in"?

FLENTJE: That's not what the order does here.

CANBY: Could he do that? Could he do that?

FLENTJE: That's not what the order does.

CANBY: Would anybody be able to challenge that?

FLENTJE: That's not what the order does here.

JOHNS: Flentje acknowledging his argument might not be working.

FLENTJE: I'm not sure I'm convincing the court.

JOHNS: Judge Richard Clinton questioning Washington state's claim it shows a direct intent to discriminate against Muslims.

CLIFTON: I have trouble understanding why we're supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected as residents of those nations.

NOAH PURCELL, WASHINGTON STATE ATTORNEY GENERAL: Your honor, the case law for this court and Supreme Court is very clear, that we do not need to prove religious discrimination, we do not need to prove that this order harms only Muslims or that it harms every Muslim. We just need to prove that it was motivated, in part, by a desire to harm Muslims.

CLINTON: Do I have to believe everything you allege and say, "Well, that must be right?" That's not the standard.

JOHNS: President Trump continues defending his hastily-implemented ban.

DONALD TRUMP (R), PRESIDENT OF THE UNITED STATES: Some things are law, and I'm all in favor of that. And some things are common sense. This is common sense.

JOHNS: While the president's new homeland security secretary told a House committee he regrets how the presidential order was rolled out.

GENERAL JOHN KELLY (RET.), HOMELAND SECURITY SECRETARY: I should have delayed it a bit so that I could talk to members of Congress. Particularly the leadership of committees like this to prepare them for what was coming.

(END VIDEOTAPE)

JOHNS: Needless to say the White House was very closely watching developments out on the West Coast, especially if the full appellate court decides to hear it eventually. One way or the other, this case is likely to end up here in Washington at the United States Supreme Court -- Alisyn.

CAMEROTA: OK, Joe. Thank you very much.

So today the world awaits that ruling from the 9th Circuit Court. Did the judges give any clues about how they will rule? We'll ask our legal experts, next.

(COMMERCIAL BREAK)

[06:17:50] CUOMO: The 9th Circuit hearing really laid bare problems on both sides of this ban. Three federal judges had tough judges for the lawyer challenging and defending the president's order. Could the panel reinstate just parts of the ban?

We have the right minds to be put to these questions this morning. We have professor emeritis at Harvard University Alan Dershowitz; and senior -- CNN senior legal analyst and former federal prosecutor, award-winning writer Jeffrey Toobin. I can't pump that enough.

All right. So first, let's remind people who these judges are, counselors. Just so people understand. Right? You've got Canby, Clifton and Friedland. Two of them were put there by Democrats. One by a Republican. All of them have written a lot and made decisions. Nobody's controversial in that regard here.

Alan Dershowitz, let's start with you. What did you hear that confirmed suspicions and that may be a surprise?

ALAN DERSHOWITZ, PROFESSOR EMERITIS, HARVARD LAW: I thought that it confirmed my suspicion that the court is not immediately going to undo the injunction of the federal judge, because it would create chaos.

Once the United States government communicated to homeland security, and to the airports, "Let them in," they're not going to now say, "Stop them again. Maybe we'll let them in, in a week when we decide the case on the merits." So I think that the state, Washington state is going to win the first battles. They're going to win the battle to allow the state to continue. They're going to probably win the battle if the state goes up to the Supreme Court, because I don't think the Supreme Court is going to create chaos, as well.

But I think that the Trump administration may very well ultimately win on the merits, at least as it relates to people who have been in the country, family in Yemen who wants to be -- they've never been here. I think they lack standing.

The question that they put was a very good one. What if all the Muslims were banned? That would be such a fundamental violation of rights. But I don't think this makes an Establishment Clause argument. I want to give you an example. 1944, Congress passed the War Rescue Act. It was designed specifically to rescue Jews and Jews explicitly from the Holocaust. That certainly wasn't an establishment. Because that was the problem.

And the problem here is Islamic terrorism. So you focus on seven countries that were focused on previously by the Obama administration. And you say, "We'll make an exception for minority religions." Those minority religions include Sunnis, Shia in some countries, Kurds, Bayhs (ph).

[06:20:17] So I think the argument that this is an Establishment Clause violation will not ultimately prevail in the Supreme Court, but I think that the state of Washington judge is going to win up to now.

Which leads to the question, should the Trump administration withdraw this, go back to the drawing board, and write a constitutional order that would pass muster?

CUOMO: All right. Let's...

JEFFREY TOOBIN, CNN SENIOR POLITICAL ANALYST: But they're never going to do that. The Trump administration is not in the business of saying, "Oh, we were wrong. Let's start over." I mean, you know, I...

CUOMO: Oh, you want some independent thinking from your branches, too? Right? Let's see if the Justice Department has a different reckoning. But you're right; they are flying without a leader right now. And Sessions is getting beaten up in his confirmation hearing.

Let's play some sound from yesterday may shed some light on further discussion. Here's what one of the back and forths were about banning Muslims.

(BEGIN VIDEO CLIP)

CANBY (via phone): Could the president simply say in the order, "We're not going to let any Muslims in."

FLENTJE (via phone): That's not what the order does here.

CANBY: Could he do that? Could he do that?

FLENTJE: That's not what the order does?

CANBY: Would anybody be able to challenge them?

FLENTJE: That's not what the order does here.

CLIFTON (via phone): Well, we'd like to get to an answer to that question. That speaks back to the standing issue. If the order said Muslims could not be admitted, would anybody have standing to challenge that?

(END VIDEO CLIP)

CUOMO: Now, this is very interesting, and maybe it's just the legal mind. But what I was hearing here was you would think that it was almost a rhetorical question. Can he ban all Muslims? Probably not.

But the judges wanted to get to whether or not the state would recognize a limitation on this power because a big part of their cases on national security, the president has plenary authority, they kept saying, he can't be checked.

TOOBIN: And -- and I think that's why this case was so hard. I mean, Alan has a firm prediction on how it's going to come out. I don't. I think there are really good arguments on both sides here. And I think a real problem that the state of Washington has in this case is the national security argument. Because these judges are sitting there in their chambers.

How are they supposed to evaluate what the threat of radical Islamic terrorism is in this country? How did they know what the intelligence shows, what the -- what the, you know, NSA intercepts show. They are not qualified to make this judgment.

We give that power in this country to the president of the United States and also, the risk of interrogating the president about his decision-making power, process is something that courts have very much shied away from. And I think they're going to be reluctant to...

CUOMO: Look, I think -- Professor, let's end on this. It seems that, as we've seen on the political side, we may be seeing on the legal side that the president is going to to get his own way. It's seen that the judges were motivated by what they had heard about the motivations on behalf of the president for doing this. And it wasn't about intelligence. It was about his feelings about Muslims during the campaign.

Ultimately, what is the most likely outcome when they render a hearing today, tomorrow, whatever? When they render a verdict?

DERSHOWITZ: I think -- I think the most likely outcome is that the stay will continue. The courts will consider what the president said and what Rudy Giuliani said, but in the end, I think they'll look at the text of the statute itself.

And I agree with Jeffrey. This is a closed question. You could teach a whole seminar at Harvard Law School about all the issues raised in this case. But I am fairly confident that the stay, at least a substantial part of the stay, will continue. And I'm less confident about the ultimate result.

But I think the Trump administration has at least a significant chance of ultimately prevailing, if they have the patience to take this to the very end.

TOOBIN: But we'll get a decision very soon today, tomorrow, certainly by the end of the week.

CUOMO: On the preliminary issue.

TOOBIN: I got that prediction.

CUOMO: Alisyn.

CAMEROTA: Thanks, guys.

All right. Senators Bernie Sanders and Ted Cruz laying out two very different visions for the future of health care in a CNN primetime debate. What do they think is next for Obamacare? That's ahead.

(COMMERCIAL BREAK)

[06:28:20] CAMEROTA: Former presidential candidates Ted Cruz and Bernie Sanders debating the future of Obamacare in a primetime CNN town hall event. Mr. Cruz wants every bit of it repealed while Mr. Sanders wants to guarantee health care for all. So how did that go?

CNN's Suzanne Malveaux is live in Washington to tell us. What were their points, Suzanne?

SUZANNE MALVEAUX, CNN CORRESPONDENT: Good morning, Alisyn.

Well, as you can imagine, this was no ordinary town hall with so much at stake for Americans. The sparring in primetime over Obamacare at times contentious, emotional, occasionally personal, Senator Cruz saying that President Obama lied to Americans about what they were getting, while Senator Sanders defending the impact of this law for some 20 million Americans.

(BEGIN VIDEO CLIP)

SEN. TED CRUZ (R), TEXAS: It was built on an edifice of lies.

MALVEAUX (voice-over): Senators Bernie Sanders and Ted Cruz facing off over President Trump's promise to repeal and replace Obamacare.

CRUZ: Should Congress move swiftly to repeal Obamacare? Absolutely.

SEN. BERNIE SANDERS (I), VERMONT: The absolute repeal of Obamacare without improvements in it. Without a plan to make it better, would be an absolute disaster.

MALVEAUX: The two senators laying out sharply contrasting views of health care in America.

CRUZ: What is a right is access to health care. What is a right is choosing your own doctor.

SANDERS: Go out and get a really great health insurance program. Oh, you can't do it, because you can't afford it. All right. That's what he's saying. Access to what? You want to buy one of Donald Trump's mansions? You have access to do that, as well. Oh, you can't afford $5 million per house? Sorry. Access doesn't mean a thing.

MALVEAUX: The duo finding common ground on problems in American health care.

CRUZ: You know who's making out like gangbusters? The insurance companies and those in government whose solution is let's have even more government control. This thing isn't working.

SANDERS: I find myself in agreement with Ted. He's right.

MALVEAUX: But disagreeing on solutions.