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Appeals Court Refuses to Reinstate Travel Ban. Aired 6-6:30a ET

Aired February 10, 2017 - 06:00   ET

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

(BEGIN VIDEOTAPE)

UNIDENTIFIED FEMALE: A federal appeals court refusing to reinstate the president's travel ban.

[05:58:40] DONALD TRUMP (R), PRESIDENT OF THE UNITED STATES: It's a political decision. We'll see them in court.

BOB FERGUSON, WASHINGTON STATE ATTORNEY GENERAL: We've seen them in court twice. They are suffering defeat after defeat.

UNIDENTIFIED MALE: The 9th Circuit is wrong here. The Constitution statutes clearly gives this power to the president.

UNIDENTIFIED MALE: To say it's not a setback would just misread the entire thing.

KELLYANNE CONWAY, COUNSELOR TO DONALD TRUMP: We will get our day in court to argue this on the merits.

SEN. RICHARD BLUMENTHAL (D), CONNECTICUT: Judge Gorsuch said he found these attacks disheartening and demoralizing.

TRUMP: These comments were misrepresented.

SEN. CHUCK SCHUMER (D-NY), MINORITY LEADER: Not a good start for Gorsuch.

CONWAY: Go buy Ivanka's stuff. Going to give a free commercial here.

SEN. CORY BOOKER (D), NEW JERSEY: She clearly broke the law. This is unacceptable.

(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 Friday, February 10, 6 a.m. here in the east. And up first, the court has spoken, and the travel ban cannot be reinstated. The unanimous ruling and sweeping 29-page explanation rejects the administration's claim that the courts have no role as a check on presidential power. But it ain't over. There are multiple options ahead. ALISYN CAMEROTA, CNN ANCHOR: So President Trump vows to fight this

decision, once again saying the ban is for national security. What is the administration's next move?

It is day 22 of the Trump presidency. Let's begin our coverage with CNN's Joe Johns live at the White House.

Joe, what's the latest?

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: Good morning, Alisyn.

It was a big rebuke for the administration with an overarching message from the court, that the White House is seeking to make major changes to the way it restricts travel into the United States but so far has not articulated the legally justifiable reasons for changing the status quo.

(BEGIN VIDEOTAPE)

JOHNS (voice-over): The Trump administration suffering a major blow. The 9th Circuit Court of Appeals unanimously refusing to reinstate the president's controversial travel ban. The three-judge panel finding the administration failed to provide sufficient evidence to justify an urgent need for the executive order to be reinstated.

The president immediately responding on Twitter, writing in all caps, "SEE YOU IN COURT. THE SECURITY OF OUR NATION IS AT STAKE!" without specifying if that means the Supreme Court and again questioning the impartiality of the appellate court.

TRUMP: It's a political decision, and we're going to see them in court, and I look forward to doing it.

JOHNS: Trump accusing the judges of being biased, despite the fact that the 9th Circuit judges were appointed by both Democratic and Republican presidents. The court also rejecting the administration's argument that the president can act without judicial review on issues of national security.

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

AUGUST FLENTJE, JUSTICE DEPARTMENT: The -- yes.

JOHNS: But the battle over the travel ban is far from over.

CONWAY: We will get our day in court and have an opportunity to argue this on the merits, that we will prevail.

FERGUSON: We've seen them in court twice, and we're two for two.

JOHNS: All this coming as Trump's pick for the Supreme Court, Neil Gorsuch, tells senators that attacks on the judiciary are disheartening and demoralizing. News of these comments prompted Trump to lash out at one Democratic senator who met with Gorsuch privately. TRUMP: His comments were misrepresented. And what you should do is

ask Senator Blumenthal about his Vietnam record that didn't exist after years of saying it did.

JOHNS: The White House is not disputing the comments but claims they were not direct at Trump's attacks on federal judges.

SEAN SPICER, WHITE HOUSE PRESS SECRETARY: The judges was very clear that he was not commenting on any specific matter. He literally went out of his way to say, "I'm not commenting on a specific instance."

JOHNS: Senator Blumenthal said he disagreed on "ANDERSON COOPER" last night.

ANDERSON COOPER, CNN ANCHOR: Was Gorsuch talking in general terms?

BLUMENTHAL: Indisputably. He was talking about President Donald Trump's attacks on the judiciary.

(END VIDEOTAPE)

JOHNS: As we wait to hear the next move from the White House, the president meets this morning with Senate Majority Leader Mitch McConnell later today with the Japanese prime minister before heading off to Mar-a-Lago -- Chris and Alisyn.

CAMEROTA: Joe, thank you very much.

CUOMO: Appreciate it. Lots to discuss. Let's bring in CNN political analyst and "New York Times" deputy culture editor Patrick Healy; CNN legal analyst and criminal defense attorney Danny Cevallos; CNN political commentator and senior columnist for "The Daily Beast," Matt Lewis; and criminal defense attorney and constitutional attorney, Paige Pate. Wow, this is some panel. Beautiful.

All right. Let's first look at what can happen going forward. All right, Paige, we have -- they can appeal to, en banc, full judge, 11 judges, the full 9th Circuit. They can do that. They can go back to the district court and try to have a hearing on the merits here and see how that goes. They can go to the Supreme Court, and there are going to be some issues there I want you to tell us about in terms of whether the court would accept this appeal or they could redraft the order. How do you prioritize those?

PAIGE PATE, CRIMINAL DEFENSE ATTORNEY: Well, there are a lot of different options they can take, but in my opinion, there's only one smart option. And I don't know if the White House is really considering smart versus not so smart. But the right legal move here is to simply let the case go back to the district court, have a full evidentiary proceeding, go through some limited discovery and really flush out these issues so that there can be a full opinion, not just on the standing issue, not just on whether the court has a right to review an executive branch's decisions in this area, but also on the constitutional arguments.

Once you have a full district court order, then you can appeal that. You can go through the process, go back to the 9th Circuit and then eventually up to the Supreme Court. If they try to take it to the Supreme Court now, I think that court will be reluctant to accept it. Because this case is in a very preliminary stage. All we had at the district court level was a temporary restraining order. It was treated like a permanent injunction, but that's still intermediate. It's not a final decision. I really think the case should go back to the district court, then let it work its way up through the system.

CAMEROTA: Danny, it sounds like, based upon when reporters caught up with President Trump last night, he is going to press on that we don't know exactly which route he's going to take. So let me play for you his exchange with reporters last night on his plan.

(BEGIN VIDEO CLIP)

TRUMP: It's a political decision and we will them in court, and I look forward to doing it.

UNIDENTIFIED FEMALE: 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 is a very, very serious situation, so we look forward, as I just said, to seeing them in court.

UNIDENTIFIED FEMALE: Thanks.

UNIDENTIFIED FEMALE: Do you think this had undercut the early days of your presidency? This is such a core issue.

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

UNIDENTIFIED FEMALE: And have you conferred with your new attorney general on this tonight, is he...?

TRUMP: No, I haven't. We just heard the decision.

UNIDENTIFIED FEMALE: How did you find out about the decision, Mr. President?

TRUMP: Just saw it. We just saw it just like you did.

UNIDENTIFIED FEMALE: Via the news, et cetera, the media?

TRUMP: Yes. It's a decision we'll win, in my opinion, very easily. And by the way, we won that decision in Boston.

(END VIDEOTAPE)

CAMEROTA: What do you think?

DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY: In a way he has some points because it's important to remember that the 9th Circuit opinion is not a final adjudication on the merits. If this case goes back down to district court, which I agree, that's the proper route if the administration wants to try and win, there will be a hearing on the merits. And then ultimately, all of this 9th Circuit language about due process and everything else might just be moot. It might be obviated if, after a full hearing, the district court changes its mind, which it could do.

Then keep in mind these other cases are going on, for example, today in Virginia, those courts might return favorable rulings for the Trump administration. So when the Trump administration has its final day in court on this case, they may -- it's possible that they could win.

UNIDENTIFIED MALE: What's important>

CUOMO: All right, so -- Patrick...

PATRICK HEALY, CNN POLITICAL ANALYST: What's important to really remember about this, though, is who President Trump is. And this is a man who doesn't think about what the proper route, you know, to take legally is going to be. It's for him right now. There's the pragmatic decision to make and the personal decision to make.

He sees the world as winners and losers. He talks about, you know, we're going to win this case. Here it is. He is now 0 for 2 in terms of this, in terms of where this decision is going. And he wants to have a win. He doesn't want to be seen. He doesn't want this order to be seen as a loser. So the idea of somehow sort of going back to the district court and thinking about it strategically and legally and pragmatically, it's not who he is.

CUOMO: But it might be the route to winning.

Matt Lewis, a lot of this is legal, and that's legal strategy. But what about the politics of this? How does this decision play? And what are the options going forward politically?

MATT LEWIS, CNN POLITICAL COMMENTATOR: So right, because I think we always have to remember that. Donald Trump won this election. He didn't win the popular vote. He won this election, because he won states like Pennsylvania, Ohio, Michigan, Wisconsin. So how does this play in Peoria, so to speak?

I mean, right now it looks like the polls are showing that Donald Trump isn't doing all that well. I suspect, if you go up to sort of the average guy in Pennsylvania and Michigan, sort of the working- class white guy who elected Donald Trump, they are saying, "Why are these unelected judges and bureaucrats talking about things like standing? Why on earth should a foreigner have standing to be able to come to America when the president of the United States is trying to keep us safe?"

So I think that, in the long run, regardless of how the court comes down on this. Donald Trump is reinforcing this brand as the guy who's trying to keep us safe from terrorism. And these other people, these liberal judges -- and by the way, we all know the 9th Circuit is the most liberal court that's frequently overturned -- are trying to stop them from keeping us safe. CUOMO: Right. But just one point of effect. Standing doesn't go to

foreigners. Standing went to Washington state, and the court found that they do have standing, because they have prophecies, these very academics and people.

LEWIS: A very tortured legal argument, but it worked for them. If Justice Scalia were around, and this went to the Supreme Court, I wonder if he would agree on that position, as well as all the other -- you know, all the other stuff.

And by the way, I do think that the Trump administration, the DOJ who was sort of making this case on the phone really dropped the ball. There have been instances, or Somali refugees, for example, who went after people with a machete at Ohio State University last year. I don't think that even ever came up.

CAMEROTA: That's an excellent point you make, Matt. Let's talk about that, because the oral arguments -- the moment that we all heard on television, making the oral arguments in front of the 9th Circuit, seemed to hinge on this pivotal question of does the president have the ultimate authority when it comes to national security? And the court was asking the administration's lawyers about that. Listen to this moment.

(BEGIN VIDEO CLIP)

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

FLENTJE: The -- yes, there are obviously constitutional limitations, but we're discussing the risk assessment.

(END VIDEO CLIP)

CAMEROTA: OK. So Paige, do you think that that's what the 9th Circuit Court decided was where it sort of fell apart for them?

PATE: Well, Alisyn, I certainly think that's part of it. And I'm just amazed that that lawyer was not prepared for that question. It is the most basic part of their argument, that they have to convince the court that this executive order should not be carefully reviewed by a court. But the answer was somewhat inconsistent.

First he said the president should not have his order reviewed by a court but then recognized there are constitutional limitations to a president's power, even in the area of immigration, even if the reason is national security. Obviously, that was an important issue for the court, we read about it in the 29-page opinion. And I think now, even back in the district court or wherever this case ends up, these judges have told him the way to win the case on standing.

CAMEROTA: Gentlemen, thank you very much for all of the analysis. Really helpful. Great to talk to you.

We do want to get to some breaking news right now out of Capitol Hill. The Senate working into the early morning hours to confirm President Trump's controversial health secretary nominee, Tom Price. It will now be his job to begin the process of dismantling Obamacare. This as a congressional oversight committee is calling for an ethics probe of one of President Trump's top advisors.

CNN's Sunlen Serfaty is live on Capitol Hill with the latest. Hi, Sunlen.

SUNLEN SERFATY, CNN CORRESPONDENT: Good morning to you, Alisyn.

The Senate confirming Tom Price shortly after 2 a.m. And he does now go on to start his chief task of dismantling Obamacare, but even as the White House gets a big win on this, they're also finding themselves in some hot water this morning over top Trump aide Kellyanne Conway.

Here on Capitol Hill, there is a call for bipartisan investigation, looking into these comments where she seemed to plug and encourage people to buy Ivanka Trump's clothing line. The House -- the chairman, Republican chairman of the House Oversight Committee, along with his Democratic counterpart, teaming up to call the White House out on this.

They sent a letter to the oversight -- the Office of Government Ethics saying, quote, "Conway's statements clearly violate the ethical principles for federal employees and are unacceptable. We also ask you to report back to the committee with your recommendations for disciplinary action, if warranted."

Now, Kellyanne Conway, in an interview last night, was unrepentant about her comments. But she did try to emphasize that she believes she still has the support of President Trump.

(BEGIN VIDEO CLIP)

CONWAY: We're aware of that letter, and we're 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 -- and that he supports me 100 percent.

(END VIDEO CLIP)

SERFATY: The White House is clearly trying to play clean-up amid all of this bipartisan pushback on Capitol Hill. Of course, they say Kellyanne Conway has been counselled on this subject.

CUOMO: All right, Sunlen. Thank you very much. Big, big question ahead. Did President Trump's national security advisor, Michael Flynn, lie about discussing sanctions with Russia before the president even took office? That last two part could have legal implications. Our political panel will tackle the facts next.

(COMMERCIAL BREAK)

CAMEROTA: President Trump's national security advisor Michael Flynn under fire, because "The New York Times" and "The Washington Post," are reporting that he discussed American sanctions on Russia with a Russian ambassador before President Trump took office. That would be in violation of the Logan act. The White House has repeatedly denied this. Listen.

(BEGIN VIDEO CLIP)

MIKE PENCE (R), VICE PRESIDENT OF THE UNITED STATES: They did not discuss anything having to do with the United States' decision to expel diplomats or impose sanctions against Russia.

UNIDENTIFIED MALE: So did they ever have a conversation about sanctions ever on those days or any other day?

PENCE: They did not have a discussion, contemporaneous with U.S. action.

(END VIDEO CLIP)

CAMEROTA: OK. So did Flynn break the law? Let's discuss with our political panel. We have Patrick Healy and Matt Lewis. Joining them is CNN political analyst and Washington bureau chief of "The Daily Beast," Jackie Kucinich.

Jackie, let me start with you. The Logan Act says that a private U.S. citizen cannot engage in sort of foreign policy.

CUOMO: Negotiations will be the key word.

CAMEROTA: Negotiations with a foreign government without -- before being authorized before being part of the U.S. government and "The Washington Post" and "The New York Times" say that that is exactly what Michael Flynn did by discussing sanctions and possibly being sympathetic to lifting sanctions on Russia. Where are we with this?

JACKIE KUCINICH, CNN POLITICAL ANALYST: You know, but the reports also note that the law -- I think the word they use is murky and particularly because Flynn was coming in as the national security advisor. There might -- it would be unlikely and he would be prosecuted for this.

That said, he also -- we have all of these officials from Mike Pence, Sean Spicer, Reince Priebus, who said he didn't do this, who came out and put themselves on the line and defended Michael Flynn. That puts them in a very rough situation. Not to mention even on its lowest point. This is a huge breach of protocol.

The Obama administration was still in office when he was having these conversations, and usually, it kind of just kept to the weather and how was your family with an incoming administration and foreign governments. Those are the ones that are allies, not ones that are adversaries.

CUOMO: All right. So let's learn and not get distracted by things that, you know, will take us off-course, what really matters here, which was whether or not they were telling the truth about what happened with Flynn. Healy, the Logan Act, they're not going to prosecute it, because it's

never been prosecuted. OK. Even George Logan, the doctor, wasn't prosecuted. The fact that he was elected senator, you know, in the next cycle in 1800. The 47 senators with Tom Cotton, who started to go directly to Iran. The Logan Act was brought up. It probably won't turn out to be legal.

But did he tell the truth about what he was doing with Russia? When the vice president-elect, Mike Pence, went out and made sweeping statements, saying no, it had nothing to do with sanctions, that's the key question.

HEALY: Exactly. I mean, it's about intent. When, you know, Mike Flynn made that phone call, which was supposedly about setting up a call between President-elect Trump and Vladimir Putin of Russia.

[06:20:09] Where did they -- where did they drift into, and was it Mike Flynn's intent that he was going to start doing business.

CUOMO: It wasn't just one call.

HEALY: It wasn't just one call, but was he -- or were they setting the table right before President Obama was putting sanctions in. You know, essentially to do this reset of the relationship, that Donald Trump had been for months, that Mike Flynn, whose -- whose, you know, self-respect is very important to him. He's seen as a very credible guy in the intelligence community. Now he's putting out a statement saying, well, it may have come up, but I have a recollection.

CAMEROTA: We have it. Let me...

HEALY: Just as we know in Washington, D.C., you know, it's Swiss cheese.

CAMEROTA: It's also code for uh-oh.

CUOMO: Right.

CAMEROTA: Basically saying, "I don't remember." Let me read that to you, because Mike Pence can say no under no circumstances did they discuss it. That's not what Michael Flynn is saying. So here...

CUOMO: Have said it though.

CAMEROTA: Here is that statement. Michael Flynn indicated that, while he had no recollection of discussing sanctions, he cannot be certain that a topic never came up. That was his spokesman, Matt.

LEWIS: Right. So I think part of the problem here is, of course, so far it's all anonymous sources. And we had a pattern where I think the media has overplayed some of these stories.

And, you know, there was a piece in "The Washington Post" the other week about not every Trump outrage is outrageous. I do think here, though, you know, if this can definitively prove that Flynn was negotiating as a private citizen, the irony here is he's sort of telling Russia what Obama said, you know. And Obama said after the next election I'll have more flexibility. Flynn was basically allegedly saying, after we're inaugurated, don't worry about -- about all the stuff.

If it comes out, if it's proven, it's obviously a huge political problem. Maybe it means that Flynn, if it's proven that Flynn has to go. But I agree legally, I don't think there's any repercussions.

CUOMO: This information. But hold on just for one point of fact. The FBI is looking at this. These are current and former U.S. officials and the intel agencies. They're not just some guy on a street corner who doesn't want to...

HEALY: It's not that but also you're stating to have a pattern here of ethics questions regarding Tom Price, you know, HHS secretary. Kellyanne Conway. What rules she's following and sort of the idea that the media is creating something when the question is what are sort of the ethics rules? And does President Trump care about...

CUOMO: But it's the truth. The truth still matters.

CAMEROTA: Yes, it does, except that in this current climate, the poisoning of the well from the Trump administration that you know what? Sometimes the press gets it wrong; does plant the seed with his supporters that, "Well, I'm not going to believe this 'Washington Post'..."

CUOMO: He said he didn't talk about it, and now his new statement is he doesn't recollect it.

All right. So let's look at it the other day. Kellyanne, OK, she's being very clear. She went out there. She said the Ivanka stuff. Let me brush it to the side, saying I'm going to go out and buy some. People then came to her and said, "Hey, you're violating a federal statute, against trying to create commerce in your public role." She's not backing down, because she says I can't believe you're taking me seriously. Is this unfair scrutiny?

KUCINICH: No, she is -- she is in the White House. I mean, it's not just people. It's Jason Chaffetz, who's the chairman of the Oversight and Government Affairs Committee and Elijah Cummings. These are two people that haven't agreed on much. And they are sending a letter to the Office of Government Ethics, saying that this needs to be looked into.

And the thing about that letter that they sent yesterday that I thought was interesting was that they noted that the president couldn't necessarily make this -- make this judgment about her, because he had a conflict of interest, because his daughter was involved. So this is a big problem for them, and over and across the board, the question is, does the administration think the rules don't apply to them? And right now it doesn't seem like they do.

CAMEROTA: Panel, thank you very much.

CUOMO: Utah Congressman Jason Chaffetz, we were just talking about him. Boy, did he face a rowdy crowd back at home in his district. Why was this going on? Next.

(COMMERCIAL BREAK)

[06:28:19] CUOMO: All right, the GOP keeps mocking Democrats that they're not in touch with where the country is. Well, it turns out they got some touchy feelings of their own to deal with. Republican Jason Chaffetz, he went home to have a town hall and hear his people; and he was met with some ugliness and discontent.

CNN's Kyung Lah has the story.

(BEGIN VIDEOTAPE)

KYUNG LAH, CNN CORRESPONDENT (voice-over): The town hall welcome for Congressman Jason Chaffetz. Jeered, drowned out.

REP. JASON CHAFFETZ (R), UTAH: I try to be as representative as I can.

LAH: A crowd of 1,000, viscerally tired of D.C. blather.

UNIDENTIFIED FEMALE: Why aren't you checking out your own president right now?

LAH: Another 1,000 people, say police, outside.

(CHANTING)

LAH: Congressman Chaffetz seeing firsthand the national tide of angry voters. In California, protestors swarmed the town hall, chasing out the congressman.

UNIDENTIFIED FEMALE: Why didn't you let us in?

LAH: From Nebraska to Pennsylvania to Indiana. Knocking on district doors, sitting in uninvited, channeling post-election anger. A progressive movements called Indivisible.

UNIDENTIFIED FEMALE: You will have three simple targets. Your two U.S. senators and your representatives.

LAH: Indivisible was founded by former congressional staffers who saw firsthand the power of the 2009 Tea Party to stall President Obama's agenda. Indivisible now claims 3,000 groups, and 100,000 members spread across every congressional district.

UNIDENTIFIED MALE: These are the things that we need to ask Jason Chaffetz.

LAH: It's organized. Donald McGeary (ph) livestreaming an action plan to Indivisible Utah, 24 hours before the town hall.