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New Day

Senator Elizabeth Warren Reprimanded on Senate Floor; Ninth Circuit Court Hears Arguments on Stay of President Trump's Travel Ban; Interview with Representative Jim Himes; Cruz and Sanders Face Off on Obamacare. Aired 8-8:30a ET

Aired February 08, 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] SEAN SPICER, WHITE HOUSE PRESS SECRETARY: The vice president had to be called in to overcome the Democrats' historic partisan logjam.

UNIDENTIFIED MALE: The ninth circuit here really laid bare problems on both sides of this ban.

UNIDENTIFIED FEMALE: Are you arguing then that the president's decision in that regard is unreviewable?

UNIDENTIFIED MALE: Yes.

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

UNIDENTIFIED MALE: You either have it presented in the record or you don't.

UNIDENTIFIED MALE: Is CNN fake news?

UNIDENTIFIED FEMALE: No, I don't think CNN is fake news.

(END VIDEO CLIP)

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

CHRIS CUOMO, CNN ANCHOR: Good morning. Welcome to your new day. Elizabeth Warren, senator from Massachusetts, gets some beating on the Senate floor from a seldom-used rule against impugning the character of a fellow senator, rule 19 it's called. And it happened during a contentious debate over the attorney general nominee Jeff Sessions.

ALISYN CAMEROTA, CNN ANCHOR: Senator Warren was cut off as she read a letter written decades ago by Martin Luther King's widow. This comes as President Trump blasts Democrats for obstruction. There's only a handful of nominees confirmed with nearly three weeks into the Trump presidency. We have it all covered for you. Let's begin with CNN's Sunlen Serfaty. She is live on Capitol Hill where at this hour, Democrats, are the still holding the Senate floor, Sunlen?

SUNLEN SERFATY, CNN CORRESPONDENT: They are indeed, Alisyn. It was an all-night talk-a-thon. And it continues at this moment on the Senate floor, Democrats blasting Senator Sessions for attorney general. But it was really this remarkable moment, a very controversial moment between Senator Elizabeth Warren and Senate Majority leader Mitch McConnell which signifies the hostile tone as the Senate works to confirm Donald Trump's cabinet.

(BEGIN VIDEOTAPE)

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

SERFATY: A stunning moment on the Senate floor.

SEN. ELIZABETH WARREN (D), MASSACHUSETTS: 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 rather 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 Junior's widow opposing Senator Jeff Sessions's failed nomination to a federal judgment to explain why she is against Sessions current bid to be attorney general.

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

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

UNIDENTIFIED MALE: 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.

SERFATY: 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: The truth hurts, and 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: And despite all these fireworks, the outcome of Senator Session's confirmation is not in question. He will face a full Senate vote later tonight and will be confirmed as the next attorney general. And last night Betsy DeVos confirmed as Donald Trump's education secretary with that historic tie-breaking vote by Vice President Pence.

Meantime, President Trump getting a little impatient at the pace of all of this, calling Democrats out overnight for slow walking many of these nominees. Trump calling it, Alisyn, a disgrace.

CAMEROTA: OK, Sunlen, thank you for all of that background.

Now to the legal battle over President Trump's travel ban. A federal appeals court hearing oral arguments last evening, the judges focused on the limits of executive authority in cases of national security. CNN senior Washington correspondent Joe Johns is live at the White House with more. What's the latest, Joe?

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: Good morning, Alisyn. Here at the White House they are closely watching this case. A decision could come today. It could come tomorrow with the immediate fate of the president's travel ban hanging in the balance.

(BEGIN VIDEOTAPE)

JOHNS: Three federal judges of the ninth 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, NINTH CIRCUIT COURT: Either you have the evidence presented in the record or you don't.

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

[08:05:09] JUDGE MICHELLE FRIEDLAND, NINTH CIRCUIT COURT: Are you arguing then that the president's decision in that regard is unreviewable?

AUGUST FLENTJE, JUSTICE DEPARTMENT ATTORNEY: The -- yes.

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

JUDGE WILLIAM CANBY, NINTH CIRCUIT COURT: 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? 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 Clifton questioning Washington state's claim shows a direct intent to discriminate against Muslims.

CLIFTON: I have a hard time 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, ATTORNEY: Your honor, the case law from this court and the Supreme Court is very clear that to prove religious discrimination, we do not need to prove it harms only Muslims or that it harms every Muslim. We just need to prove it was motivated in part by a desire to harm Muslims.

CLIFTON: 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.

GEN. JOHN KELLY, DHS SECRETARY: I should have delayed it just 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: And not surprisingly, President Trump keeping up the drumbeat on Twitter. His tweet this morning, "If the U.S. does not win this case, as it so obviously should, we can never have the security and safety to which we are entitled." Chris and Alisyn?

CUOMO: All right, Joe, thank you very much. For more analysis on the legal battle over the president's travel ban, let's bring in staff attorney at ACLU, Andre Segura, and Dan Stein, the president of Federation for American Immigration Reform. It's a nonprofit that favors restricting current immigration quotas. Gentlemen, thank you.

First, Dan, let's start with a general proposition, because it did seem to play into the reckoning of the appellate judges of what are the motivations. You heard the judges bring that up a couple different ways. And now, in context, the latest tweet from the president. Do you have any concern about the president questioning the outcome of the ninth circuit as a play of politics?

DAN STEIN, PRESIDENT, FEDERATION FOR AMERICAN IMMIGRATION REFORM: Remember, Donald Trump is not an attorney, so he's not an officer of the court. He's entitled to express his opinion about whether he thinks judges are impartial or doing their job or properly looking at the issue from all sides. Ad whether that's actually a good strategy is, of course, another matter.

And as someone like myself being an officer of the court, criticizing or attacking the professionalism of judges is not a good litigation strategy.

CUOMO: OK.

STEIN: Nevertheless, you have to take a look at the fact that the judges spent a lot of time on the procedural matters of standing and whether or not this is something reviewable at all by the court. And if you actually listen to the questioning, you'd have to say Judge Clifton, that's the Republican appointee, is probably going to want to overturn it, and obviously Freeland is going to want to up hold it. And again, this is speculative and its dangerous. But the carter appointee looked like he would probably want to curtail or dial back it because it's overbroad.

CUOMO: Let's leave the speculation alone then, because we're not mind readers here. But Andre, the reason I'm asking this question as an introduction here is, yes, he's not an officer of the court, but he is president of the United States. And the judges are spending time on what the president's inclinations are by doing this. And that's why they spent a lot of time asking the Department of Justice counsel about something that's not in this order. The order does not say "Muslim" anywhere, but they kept asking, could he ban all Muslims? Who could stop him? Is there a check on what you say is plenary or complete authority on matters of national security? They didn't want to answer it because it's not in their order. Eventually they had to said, yes, someone could question him. What do you make of that?

ANDRE SEGURA, STAFF ATTORNEY, ACLU: Absolutely. I think the president's words matter. I think that's what the judges were after. They were questioning whether they can incorporate the intent and motivations that came all the way through the president's campaign for president and even until now, expressing a preference for Christians over Muslims, which is expressly prohibited.

[08:10:00] So I think the federal government had a very difficult time twisting themselves into knots to get out of the question of whether the president's authority here is unreviewable. And ultimately they said no, there are actually constitutional limitations.

CUOMO: Interesting, Mr. Stein, to your point about what their inclinations might be, I thought there was a little bit of a suggestion that this may be Solomonic, they may split the baby here, they may split the executive order. Why? Because they levied the same charge on both sides, which was no proof. They came at the DOJ saying where is your threat assessment, by the way? Where's the there there? But then they went at the Washington state and said where is your proof that it's a ban of Muslims or Muslims would be hurt?

STEIN: Keep in mind Washington state is having to defend an injunction that's far broader than they actually asked for. If you listen to Purcell's argument, he's the solicitor general for the state, the establishment clause claim he's making is so broad that he's trying to throw into question the whole refugee act of 1980 and the idea that in refugee admissions we can discriminate to protect particular religious minorities as a matter of international law and refugee protection because he's saying any effort to actually discriminate based on religion would be an establishment clause violation. Chris, that is a ludicrous proposition. Whether it's protecting Jews from the former Soviet Union or Kurds or Yazidi, the whole point of the refugee act is to distinguish in many cases by religious minority --

CUOMO: Right, but it's to protect, not to exclude from protection, which is what you're doing now.

STEIN: To argue this is an establishment clause violation is clearly way off the wall. There's nothing about the president's executive order that clearly singles out Muslims. And Judge Canby, he made this abundantly clear. You cannot make the case that this is a Muslim ban. And repeatedly over and over, the people making this argument are playing into the hands of ISIS at the expense of the president's really important need.

CUOMO: Both sides make the charge that the executive order is playing into ISIS' hands. But to Dan's point, let me get you to respond to this. The solicitor general made the point that the case law shows they don't have to prove it is a ban of all Muslims, they just have to prove it is in part motivated by an intention to ban Muslims and they're pointing to the president's own words and the actions of Rudy Giuliani. What do you make of that? Is that compelling? Because the judge said, so it's an allegation? You don't have anything better than that?

SEGURA: I think it's difficult to predict obviously from the judges' questions. They like to beat up on both sides. That's the point of these arguments. But I think the case law is very clear that if there is the intent and motivation to preference a religion or disfavor a religion, the entire order can be struck down. And simply because this discriminates only against a portion doesn't mean that it's anymore lawful. Discrimination that's not perfect is also unlawful.

CUOMO: Dan Stein, a night that should have been spent binge watching some terrible television was once again wasted for me Googling ninth circuit case law. And they have a lot of developed law on what abuse of discretion, which is the standard of review at play here for a TRO means. Do you believe this injunction by the district court was beyond the pale of any kind of reasonable action by the district court?

STEIN: Chris, it was obviously overbroad. It was not supported by any cogent analysis about Washington state's likelihood to succeed on the merits, which is important here, because the claims they're making are outlandish. Basically they're saying anybody in Washington state who wants to have somebody come into the country to either visit or speak at a university or pay tuition should have standing to challenge the president's denial of a visa. Our immigration control apparatus cannot function that way. Courts historically have always stayed out of these political questions, whether it's going to war, national security, border control, border security. The president may get all kinds of advice from the State Department. He's got lots of people who might disagree with him on policy, but as a constitutional and legal matter, this is committed to the president's discretion.

CUOMO: Fairness, quick, Andre, let's get out of this.

SEGURA: This is not entirely committed to the president's discretion. Courts have increasingly been willing to look beyond purported reasons of national security. That is not a blank check for the president to do what he would like in terms of immigration. And Washington state has a significant interest in protecting its residents in its interests.

CUOMO: Segura and Stein, there may be a lot more litigation to come on this. Let's see what the ninth circuit says. Gentlemen, thank you. Alisyn?

CAMEROTA: Senator Elizabeth Warren silenced. Did she go too far in her criticism of attorney general nominee Jeff Sessions? We ask one of her Democratic colleagues on the Hill next.

(COMMERCIAL BREAK)

[09:18:06] CAMEROTA: Another all-nighter in the Senate. Democrats continue to hold the floor. At this hour you're looking live, and they are holding it against President Trump's Cabinet nominees.

Last night Senator Elizabeth Warren was dressed down by Republicans because of her resistance to the AG nominee, Jeff Sessions. Watch this.

(BEGIN VIDEO CLIP)

SEN. ELIZABETH WARREN (D), MASSACHUSETTS: This is what it said. They are mothers, daughters, sisters, fathers, sons and brothers.

SEN. MITCH MCCONNELL (R), MAJORITY LEADER: Mr. President --

WARREN: They are --

MCCONNELL: Mr. President.

UNIDENTIFIED MALE: Majority leader.

MCCONNELL: The senator has impugned the motives and conduct of our colleague from Alabama as warned by the chair. Senator Warren, quote -- said Senator Sessions has used the awesome power of his office to chill the free exercise of the vote by black citizens. I call the senator to order under the provision of Rule 19.

(END VIDEO CLIP) CAMEROTA: All right. Joining us to discuss this is Democratic congressman Jim Himes.

Good morning, Congressman.

REP. JIM HIMES (D), CONNECTICUT: Good morning, Alisyn.

CAMEROTA: Was Senator Warren out of bounds to read a letter from Coretta Scott King in 1986 in trying to block Jeff Sessions to attorney general?

HIMES: I mean, can you imagine she's reading a letter by Coretta Scott King, the widow of Martin Luther King? She's not screaming, she's not having a temper tantrum. She's reading a historical document. And for reasons completely beyond my understanding, Mitch McConnell decides to -- in a country that cherishes free speech and open and aggressive debates, decides to shut her down.

I mean, I've got to tell you, Alisyn, if nothing else -- and I can't tell you that I understand all the ins and outs of the arcane and delicate rules of the United States Senate. I am, after all in the House of Representatives. But as a political matter, if Mitch McConnell wanted to further activate an already activated Democratic activist wing, boy, did he ever do that last night.

CAMEROTA: Well, and in fact she then took to Facebook and had something like two million views which she would never have had if she had just been on C-SPAN. So that's the upside for you guys, the Democrats, obviously.

[08:20:06] But, I mean, what Mitch McConnell said was that she was impugning the character of Jeff Sessions. And should he be held responsible for things that he said -- might have said 30 years ago?

HIMES: Well, the whole point of a confirmation process, and you've watched a lot of these, Alisyn, is to go back into historical record to see what people have said and done and what other people have said about what they've said and done. So no, of course not. The whole confirmation process, and they'll do this with Judge Gorsuch as well, is to go back to college, to go back decades ago, and see, you know, what the historical record says about this individual who is being offered a profoundly important post.

And look, I mean, at the end of the day, you know, if the Trump administration and the Republicans in the last year have been characterized by one thing, it's been freight train politics. You know, Mitch McConnell led the charge to deny a Supreme Court seat without any historical precedent and without any basis in the Constitution, to deny Barack Obama the right, the constitutional right to put forward a Supreme Court nominee, a travesty against the Constitution.

The president is down there writing executive orders that have caused judges all over this country to stand up and say oh, no, you won't, and yet Mitch McConnell's delicate sensibilities are offended by the reading of a letter by Coretta Scott King? I mean, come on. CAMEROTA: But is that what you guys are doing now? Are you taking a

page from their obstructionism and now that's how you're going to handle the proceedings in Washington?

HIMES: Absolutely not. Right. So look at where the Democrats in the Senate have really stood up. They didn't really make too much noise on any of the other confirmations. They stood up against Betsy DeVos. Right? They did that yesterday. They did that last night. Betsy DeVos who in her testimony showed that she didn't begin to understand the first thing about federal education law and yet she's being offered the secretary of Education. They raised hell on that one.

I would suggest to you that that was pointed and that that was -- that that was justified. But, you know, Mattis, other nominations have been --

CAMEROTA: Yes.

HIMES: Have not been obstructed.

CAMEROTA: Well, sort of. I mean, let me put up this list right now, Congressman, for our viewers at home. These are all of the Trump administration nominees that are still awaiting confirmation, and the list is long. I mean, look at all these faces. I know you don't have a screen there, but it is more than his two predecessors or in recent memory. So it does feel like the Democrats are slow rolling this.

HIMES: Well, I'll leave it to you and to others to look at somebody like Betsy DeVos and to watch her testimony and to ask the question whether they think she's qualified for the highest education post in the land. And Barack Obama, whatever you think of Barack Obama, there wasn't any concern that he had nominated unqualified people, but again, the Democrats are doing exactly what they're supposed to do which is when there is a consensus around Tillerson, around Mattis, around any number of other nominees it goes through.

However, when they feel that there is somebody who is in question, and Jeff Sessions, when you look at the historical records, there are some questions that need to be asked about some of the actions that he has taken, they're doing exactly what the Constitution would have them do.

CAMEROTA: OK. Let's talk about the travel ban. I know that you oppose Mr. Trump's travel ban. So last night, as you know, arguments for and against it were heard in front of these three federal judges. It did not sound, listening to the audio, as though the judges thought it was an open-and-shut case. What do you think of their responses?

HIMES: Well, I'm probably not the right person to opine on the intricacies of appellate rulings and law. You know, the judge will -- the appellate court will decide whether the federal judge was right in establishing a temporary restraining order.

What I can tell you as a member of the House Intelligence Committee who spends most of his day on issues of national security and tracking and stopping and ending terrorists, what is absurd about this whole conversation is that this executive order which is being held up by the White House as a way to keep us safe, is exactly the opposite of that.

It is not keeping us safe. None of the terrorist attacks that have occurred in the United States since 9/11 have been undertaken by refugees or immigrants from the seven countries that are named in the executive order. In fact, as we know, ISIS is using this as an example of the fact that the United States collectively hates Muslims. So all of this, you know -- and by the way, the administration has now lost two weeks, two weeks on something that the courts will decide but does not keep us one iota safer and which is in fact is heartening our enemies.

CAMEROTA: Congressman Jim Himes, thank you very much for sharing your perspective with us on NEW DAY. Great to see you.

HIMES: Thanks, Alisyn.

CAMEROTA: Let's get over to Chris.

CUOMO: So had a real barn burner last night. Senators Bernie Sanders and Ted Cruz going at it in a CNN town hall about Obamacare. This is going to be a huge battle going forward. Is there any common ground? You get the bottom line next.

(COMMERCIAL BREAK)

[08:28:46] CAMEROTA: Former presidential candidates Ted Cruz and Bernie Sanders debating the future of Obamacare in a prime time CNN town hall last night. Senator Cruz wants it entirely repealed, and Senator Sanders wants to guarantee health care for all. So how did that go?

CNN's Suzanne Malveaux is live in Washington with the highlights.

Hi, Suzanne.

SUZANNE MALVEAUX, CNN NATIONAL CORRESPONDENT: Hey, good morning, Alisyn. As you can imagine, it was no ordinary town hall. With so much at stake for Americans, the sparring in prime time over Obamacare, it was at times contentious, emotional, occasionally personal, yet Senator Ted Cruz saying President Obama lied to Americans about what they were getting. Well, Senator Sanders defended the impact of the law for some 20 million Americans.

(BEGIN VIDEOTAPE)

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

MALVEAUX: 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 healthcare 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?