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Appeals Court Refuses to Reinstate Travel Ban; White House: Conway 'Counseled' for Plugging Ivanka's Brand. Aired 7-7:30a ET

Aired February 10, 2017 - 07:00   ET

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

UNIDENTIFIED MALE: But if you go on FOX & Friends in the morning you think it's this goofy show, and she says this foolish thing. And nobody on the show could come -- can say you shouldn't be saying that, Kellyanne. She just went ahead and did it.

[07:00:13] CUOMO: She wasn't being serious and she was joking around. And there is no question by all accounts that the president of the United States loves Kellyanne Conway and respects her very highly.

CAMEROTA: Yes.

CUOMO: She is in no trouble. I promise you that.

CAMEROTA: Phil, Brian, thank you.

Thanks to all of our international viewers for watching. For you, "CNN NEWSROOM" is next. For our U.S. viewers, NEW DAY continues right now.

(BEGIN VIDEOTAPE)

BOB FERGUSON, WASHINGTON ATTORNEY GENERAL: We've seen him in court twice, and we're two for two.

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: The 9th Circuit Court of Appeals unanimously refusing to reinstate the president's travel ban.

DONALD TRUMP (R), PRESIDENT OF THE UNITED STATES: This is just a decision, but we're going to win the case.

UNIDENTIFIED FEMALE: This is a huge blow for the Trump administration.

JAMES CLAPPER, FORMER DIRECTOR OF INTELLIGENCE: I do worry about creating a recruiting tool for extremism.

SEAN SPICER, WHITE HOUSE PRESS SECRETARY: The judge was very clear. He was asking about his general philosophy.

SEN. RICHARD BLUMENTHAL (D), CONNECTICUT: Indisputably, he was talking about President Donald Trump's attacks on the judiciary.

KELLYANNE CONWAY, COUNSELOR TO DONALD TRUMP: Go buy Ivanka's stuff. I'm going to give a free commercial here. SPICER: Kellyanne has been counseled on that subject.

UNIDENTIFIED MALE: It's wrong. It's unethical, and I think it's illegal.

(END VIDEOTAPE)

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

ALISYN CAMEROTA, CNN ANCHOR: Good morning everyone. Welcome to your NEW DAY. We have a lot of breaking news overnight. This as President Trump begins his third week in office.

So this morning, there are reports that the president's national security advisor, Michael Flynn, spoke to Russia's ambassador about sanctions before President Trump took office. That would violate the law.

CUOMO: And it also may violate the truth because of what he said once and now. Now, another big story. The president spoke with the leader of China for the first time and did something that was very important. He reaffirmed America's stance to honor the one-China policy.

And the Senate confirmed Tom Price. He's the president's choice for HHS, Health and Human Services secretary. It was a late-night vote. This is the man who is now charged with dealing with Obamacare.

OK. So all of that news breaking after a federal appeals court refused to reinstate President Trump's controversial travel ban. Mr. Trump vowing to fight that decision. He called it political.

CUOMO: And to think we are just 22 days in. There is a lot to cover. We have it all for you. Let's begin with CNN's Joe Johns, live at the White House.

JOHNS: Good morning, Chris.

Still waiting for the administration's next move after wrapping up that big loss in the 9th Circuit last night. The message from the court: that the administration still has not laid out the legally justifiable reasons for changing the status quo and the travel ban.

(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, that 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 directed at Trump's attacks on federal judges.

SEAN SPICER, WHITE HOUSE PRESS SECRETARY: The judge 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)

[07:05:00] JOHNS: The president expected to meet with Senate Majority Leader Mitch McConnell this morning and this afternoon with the Japanese prime minister before flying off today to Mar-a-Lago.

Back to you.

CHRIS CUOMO, CNN ANCHOR: All right. Lots to discuss. Let's bring in CNN political analyst David Gregory; senior congressional correspondent for "The Washington Examiner" David Drucker; CNN senior legal analyst and former federal prosecutor Jeffrey Toobin; and CNN legal analyst and former prosecutor Paul Callan. OK. And now I start with you.

ALISYN CAMEROTA, CNN ANCHOR: Too much talent.

CUOMO: Too much talent. Too many titles.

All right. So Jeffrey, this was not unexpected. What did you see in the ruling in terms of what it means going forward?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: It means the Trump administration is in a lot of trouble on this issue. Because if they want to stay, they now either have to go to en banc, the 11 judges in the 9th Circuit, or go directly to the Supreme Court.

And in both of those situations they will be pursuing a stay of a preliminary order. And the Supreme Court in particular doesn't like to deal with preliminary rulings. They like to deal with final rulings. So the overwhelming likelihood at this point is that the case goes back to the trial judge for a trial; and that means the stay will be in effect for months.

CAMEROTA: OK. So Paul, that is, it sounds like, what President Trump is planning. He's planning to press on. We don't know what form that will take. But he's not giving up on this; he planned to press on. So that means that he would have to redo the executive order and fulfill -- add things, or take away things that the court found problematic with it.

PAUL CALLAN, CN LEGAL ANALYST: Well, right now the executive order has been suspended. And that just means we go back to what was happening before. And you know what was happening before? People could be screened. There could be secondary screening. It's not like we've opened the doors of the United States suddenly to every...

CUOMO: Well, that is the political perception that the president is projecting right now.

CALLAN: Yes. Yes.

CUOMO: Sorry for all the "P's." But that's what he's saying.

CALLAN: But that's not the reality.

CAMEROTA: Right, but he has to go go back to the drawing board and recraft the executive order.

CALLAN: That would be the most sensible thing for him to do. But Jeffrey and I were discussing this last night. He -- his tactic has always been a head-on fight with judges and the judiciary, and he's giving no signs that he wants to rewrite that executive order.

TOOBIN: To rewrite the order would be an admission that the initial order was bad. He's going to make that admission, so he's going to keep pushing more courts to uphold the current one.

CUOMO: David, this had been -- this had been predicted. To think by you, David Gregory, that you know what? Fear works with politics, works with the American people, does not work in court as a motivation for action. And the judge has cited exactly that, that the Department of Justice did not give the proof that there is a threat that justifies this ban. So politically, what are the best options?

DAVID GREGORY, CNN POLITICAL ANALYST: Well, I think politically and from a policy point of view, it is to redo the executive order and make it constitutional.

But again as has been discussed, I don't think that's going to happen, because this gets to the president's ego. But that point, Chris, really interests me. You know, the fact that the court said, "Yes, we give deference to you. You're the commander in chief. We have a role to play when it comes to protecting individual rights, even in meting our foreign policy or protecting the country, too. What is the specific evidence for harm that the executive order was designed to address?"

We've been in a state of vigilance since 9/11 and increased terror threat. There's no question about that. What this administration believes is something different. Their argument is -- and this is the fear play -- stoking fears in America that the United States is going to be vulnerable in a way that Europe is vulnerable. Think about Germany, where they let migrants come in. Immigrants come in, and they don't have the kind of vetting policy that the United States has.

And they have had problems. There's other issues with the way the federal police operate within Germany because of its past that prevent them from being as effective in rooting out a terrorist threat.

So I think the absence -- and this is what the court found. The absence of evidence of specific harm is one of the big deficits in the administration's policy.

David Drucker, last night reporters caught up with President Trump. It's only on audio, but this is where he vowed to press on. So listen to this.

(BEGIN VIDEO CLIP)

TRUMP: It's a political decision and we will see 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.

(END VIDEO CLIP)

CAMEROTA: So David Drucker, who does council the president now on what his next steps should be. Is this Jared Kushner? Is this Steve Bannon? Is this Kellyanne Conway? Where will he go for advice on what to do next?

DAVID DRUCKER, SENIOR CONGRESSIONAL CORRESPONDENT, "THE WASHINGTON EXAMINER": Look, I'm sure he's going to go to a collection of his top advisers in the White House. And I expect this to be a centralized decision in the White House versus a cabinet decision. That's just what we've seen, really, from this president so far.

But what I find really interesting here is that the president believes that this is such an imminent national security threat. And there's a case to make that he's on solid ground here. Why not go through Congress?

One of the reasons President Obama went around Congress with his executive orders, and sometimes he overstepped the law in doing so, and the courts locked him down, is because you had a Republican Congress, at least a Republican House that wasn't going to give him anything he wanted on issues like this, particularly related to immigration.

Well, here you have a Republican House, a Republican Senate. They largely agree with Trump on the substance of this executive order, even if they quibble around the edges with how it was rolled out and some of what it included. And so what he could do this week or next week, if you will, if he's so concerned -- and I believe that he is concerned -- is go to Congress and get them to work on this. The courts are much less likely to slap something down that has the imprimatur of the legislative branch as well as the executive and just something that comes out of the White House.

CUOMO: Depends what it is, though, Jeffrey. You still have a legal obstacle, if you went to the legislature and they gave you a ban -- and I don't know that politically that's salable at all. You'd still wind up in the same place legally.

TOOBIN: Maybe, but I think David makes a good point.

CUOMO: Add into this, an executive order does have this realm of superiority when it comes to questions of national security. That's not pressing (ph) for legislation.

TOOBIN: But legislation comes with a presumption of constitutionality. You know, an executive order can't conflict with the law on the books. Laws always trump executive orders, so if they were to pass a law on any area, even on any area. But if they were to pass a law, it would certainly have a better chance of being approved.

But again, that would require an admission by President Trump that he handled it badly in the first place, which is not something he is inclined to do. And Congress moves slowly, and he doesn't want to move slowly. So it's another example of how this was not fully thought through at the beginning, which is created all these problems.

CALLAN: It's not a bad idea, though. Because it gives him the opportunity to say he's being reasonable. He's conferring with the second branch of government. The legislature to satisfy the judiciary. So he's working in the system to guarantee security. I can see, Jeff, how he can play this up at a political point with Congress going along with him against the judiciary. So I think it's kind of an interesting idea to try to shape legislation that would solve the problem.

GREGORY: But isn't this in part the question of legislation goes to another question, which is what else are they doing, other than impugning the integrity of judges and screaming on Twitter in all caps, "I'll see you in court"? Well, you've already been in court, so we'll just see you more in court. What else are they doing to ensure the national security...

CUOMO: What is extreme vetting?

GREGORY: Why don't you -- there's other things they could be doing, even on the vetting question, instead of just having a battle royale over this executive order. He's the president. What other policies are they pursuing to counter the terror threat that he says is present?

CAMEROTA: How about that, David Drucker?

DRUCKER: If it's so -- David is talking about what I want to get to, which is if the threat is so imminent -- and I think the president has a case to make, that we've got a threat we need to deal with better. Then just saying, "See you in court" and letting time elapse with doing nothing new doesn't make any sense to me. It doesn't make sense politically or from a national security perspective, unless the whole goal here is to show that you're large and in charge and willing to get into a fight with the other branches of government. Doing something to me would work well for the president politically and, as a matter of policy, would put the country on more solid footing.

CUOMO: Right. The key word is better, though. Because then he'd have to show, one, that there is a real threat that we're not aware of that's manifesting itself.

CAMEROTA: Or if there's a hole in the vetting. If they can show their vetting has lapsed somehow.

CUOMO: Could have created procedures, which is what the Obama administration did when they put in their restrictions on those seven countries. They had policies in effect at that time.

CAMEROTA: Gentlemen, thank you very much.

CUOMO: The Senate working into the early morning hours, why? To confirm President Trump's controversial Health and Human Services secretary nominee, Tom Price. This as a congressional oversight committee is calling for an ethics review of one of President Trump's top advisors. What's going on with that?

CNN's Sunlen Serfaty live on Capitol Hill with the latest -- Sunlen.

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

Yes, Tom Price confirmed by the Senate shortly after 2 a.m. this morning; and he now starts on his task of dismantling Obamacare. But even though the White House is getting a big win on this, they are finding themselves in hot water this morning over Trump's senior advisor, Kellyanne Conway, up here on Capitol Hill.

There is a bipartisan call for an investigation after she said on national TV yesterday she was encouraging people to buy Ivanka Trump's clothing line. Jason Chaffetz, the Republican chairman of the House Oversight Committee, along with a ranking Democrat on that committee, teaming up here to call the White House out on this.

[07:15:08] They have written a letter to the Office of Government Ethics, saying in part, quote, "Conway's statements clearly violate the ethical principles for federal employees and are unacceptable. We ask you to report back to the committee with your recommendation for disciplinary action, if warranted."

And a senior administration official tells me that yesterday Conway did have a meeting with President Trump, and she apologized directly to him for the misstep. And this administration official says that President Trump said he backs her up completely, something she tried to emphasize last night in an interview.

(BEGIN VIDEO CLIP)

CONWAY: We're aware of that letter, and we're reviewing that internally. I'm just really happy that I spent 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 here clearly trying to play some clean up on all of this amid all this bipartisan pushback on Capitol Hill -- Alisyn.

CAMEROTA: OK, Sunlen. Thank you very much for that. So the congressman who represents San Bernardino is now talking about the travel ban, how he says it would affect his community, next.

(COMMERCIAL BREAK)

CUOMO: President Trump has often cited the terror attack at San Bernardino as one reason why America needs his executive order, banning travel from seven Muslim-majority countries. So what does the congressman who represents that community think of the ban? We have him.

[07:20:13] Democratic Congressman Pete Aguilar, proud member of the Congressional Hispanic Caucus. So you are the example of the threat in San Bernardino. The wife slipped through, even though she was making ugly messages on Facebook. The system failed, and people died, and that's why we need the ban. Do you accept that?

REP. PETE AGUILAR, CONGRESSIONAL HISPANIC CAUCUS: I don't. Clearly, what the president is trying to do, it's inappropriate and just inaccurate. But he and his administration continue to try to use San Bernardino to justify their Muslim ban. And it's just wrong.

CUOMO: One more beat on it. How is it wrong? She did get through. She and her husband and maybe others conspired and killed. The system didn't catch them. They were all Muslim. Let's try to stop that. His ban does this.

AGUILAR: Nothing that the president proposed would have stopped December 2. Nothing that he would have proposed would have stopped 9/11, as well. We were talking about a United States citizen and a Pakistani. And that was not targeted in the president's ban so that this would have had zero effect. The local police chief has said this, as well. You were out there, Chris, in San Bernardino. Nothing that the president proposed would have stopped the San Bernardino attack. It's unfortunate that he continues to try to exploit my community by trying to say that.

CUOMO: Chief fact: Pakistan not included in the seven countries, and that is where this immigration came from that that led to the San Bernardino massacre. True.

However, how do they feel in San Bernardino? Your constituents. The fear is real. The president is playing to that fear that people see Muslims killing people all over this world, and they figure, hey, I could be next. What do your constituents say, having felt the bite of terror?

AGUILAR: Well, he's clearly trying to play to their fear, and I appreciate you saying that, because it's what we feel in our community. But what we're focused on is continuing that healing process. They are individuals and survivors from that event who are still trying to get the medical care that they need.

If the president was serious about hoping he would help in that scenario. The apartment of justice has been hopeful and recently awarded a grant to San Bernardino for these purposes and if the president was serious about it he would stop trying to use fear as that tactic and he would genuinely reach out to these individuals who need care and still need to heal.

CUOMO: All right. Other issues of the day. Mike Flynn, national security advisor. The Democrats are pressing the idea that what he did in his communications with Russia before President Trump was made president may violate the Logan Act. Do you think that there's any chance of a prosecution on a law that has never been prosecuted?

AGUILAR: Well, look, clearly, Congress isn't going to take action here. Members of the House had talked about this. This is something that, if true, is detrimental to the president's relationship with Congress. And this is just yet another example of the president getting too far out and, if true, Michael Flynn has some serious explaining to do with respect to his conversations. The violation of the Logan Act, but I'm not going to hold my breath for House Republicans to move forward and to try to do anything to the national security advisor.

CUOMO: The key is if true and Flynn and maybe Pence gave you a window of approach there, because at least Flynn has backed off his initial statement of saying no twice when asked if sanctions ever came up in his dealings with Russia before he officially took office.

And now his official statement is he doesn't recollect, and that is a smelly statement at the least. So that would be something to pursue, as opposed to just the legal avenue.

Kellyanne Conway, is this worth pursuing the letter from Chaffetz? Yes. Which bolsters it as bipartisan. And Elijah Cummings saying look into her violation of the law for -- or at least ethical guidance for telling people to buy Ivanka Trump's goods while on FOX News and not being challenged about it. Do you really believe that she was seriously soliciting commercial activity in that capacity? Do you think this is worth going after?

AGUILAR: Absolutely, I mean, let's take her at her words. But what I'm concerned, too, is just days before that, she continues just like members of the administration to continue to use San Bernardino as an example of their Muslim ban. So clearly, they have a difficulty telling the truth here and the conflicts are very, very real.

[07:25:07] But this is a president who never released his taxes. Feels he's immune from the conflict of interest laws that apply. And so this is something that absolutely has to be looked at. And I appreciate the bipartisan nature that Congress has sent this on.

CUOMO: I guess the question goes to selectivity. This seems to be penny ante, compared to these other questions that you raised. Like why aren't you pushing the FBI more about where they are on the connections between the Trump administration and Russia with respect to Flynn or otherwise. Why isn't there more congressional activity? Trying to find a way to get more disclosure from the president about these obvious conflicts, not just potential conflicts but real and actual ones. Why isn't the energy being spent there?

AGUILAR: We'll continue to try to talk about it at every point. The FBI has made very clear that they won't release details on an ongoing investigation. So we don't know...

CUOMO: We know that's not always the case, though, right?

AGUILAR: We do. From before the election clearly. So this is something where Director Comey is going to have to answer to Congress, and he's going to have to give us an update on where we are.

But clearly, there is plenty here, and the president is not making things any easier. You've alluded to this. He's having an incredibly difficult week. We know that, but the conflict of interests are real. And this is just yet another example where his administration just has a loose affiliation with conflict of interest laws.

CUOMO: Representative Pete Aguilar, Democrat, California, representing San Bernardino, thank you for being on NEW DAY.

AGUILAR: Thank you, Chris.

CUOMO: Alisyn.

CAMEROTA: Well, President Trump's national security adviser reportedly discussed U.S. sanctions against Russia with a Russian official before President Trump took office. Christiane Amanpour is with us next on that.

(COMMERCIAL BREAK)

CAMEROTA: President Trump's national security advisor Michael Flynn under fire this morning. "The New York Times" and "Washington Post" are reporting that he discussed U.S. sanctions with a Russian ambassador before President Trump took office. The White House has repeatedly denied that.

(BEGIN VIDEO CLIP)

MIKE PENCE, 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: 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: Joining us now to discuss this and more, we have CNN chief international correspondent Christiane Amanpour.

Hi, Christiane.

CHRISTIANE AMANPOUR, CNN CHIEF INTERNATIONAL CORRESPONDENT: Hi, Alisyn.

CAMEROTA: If Michael Flynn did have this discussion with the Russian ambassador to the U.S. before Mr. Trump took office, it violates the Logan Act and what does that mean?

AMANPOUR: Well, that's a matter of internal U.S. legislation and clearly a matter for the United States. But what can be said is that from this end, certainly the spokesman --