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Appealing Travel Ban; Travel Ban Not Reinstated; Violation of Logan Act; Conway Ethics Probe. Aired 8:30-9a ET

Aired February 10, 2017 - 08:30   ET

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

(COMMERCIAL BREAK)

[08:30:10] ALISYN CAMEROTA, CNN ANCHOR: We do have some breaking news for you right now out of France. French authorities say they have foiled a possible terror attack arresting four people, including a 16- year-old girl. Investigators say they found an improvised explosive device and multiple French outlets say the group was planning a suicide bombing in an unspecified tourist area of Paris.

CHRIS CUOMO, CNN ANCHOR: All right, look, we're seeing it play out in real time. Stories like that plot make fear there and it reverberates back here. And it's one of the reasons the president is making his case about the travel ban.

CAMEROTA: But to be clear, it was foiled. I mean, in other words, investigators are doing their job. They were ahead of it. They stopped it before anything happened.

CUOMO: That's right.

CAMEROTA: That should be comforting.

CUOMO: But they were there and they only have to be right once.

CAMEROTA: We've seen it.

CUOMO: And that's the fear. Reasonable, unreasonable, that's up to you. The question now is, how does this administration deal with the Ninth Circuit ruling that keeps this ban banned.

Let's discuss with CNN political director David Chalian, CNN contributor, "Washington Examiner" reporter and a "New York Post" columnist Salena Zito, fellow at Brookings Institution and former White House ethics czar for President Obama, Norman Eisen and professor emeritus at Harvard Law School, Alan Dershowitz.

Professor Dershowitz, this decision not a shock, certainly to you. Going forward, we have seen the president indicate he is resolute on wanting to do this in court. Do you advise it? What do you see going forward?

ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: Well, he may win ultimately in the United States Supreme Court, but it will take a long, long time. This is a very flawed opinion. It went further than any other opinion on standing of the state of Washington, on the establishment clause. No one can predict the outcome in the Supreme Court, but it would be reasonable for him to appeal and expect that he might win at least a partial victory as it relates to people who have never been in the United States.

But it will take time. And the one thing the president's told us is that this is a matter of national security and immediacy. So the option that he should pursue is, he should rescind this order, or at least rewrite the order, and issue a new order that applies only to people who have never been in the United States, that rewrite some of the most questionable provisions, and that gives us a win-win, that protects us from terrorism, at the same time preserving our Constitutional rights.

CAMEROTA: Norm -

DERSHOWITZ: But if he simply appeals and takes time and this takes months and months and months, and if there is a terrorist attack, he can't blame the courts. He will have only himself to blame if he doesn't reissue this order in a constitutional manner.

CAMEROTA: Norm Eisen, do you agree that that's what the president's next step should be, rewriting the executive order?

NORMAN EISEN, FELLOW AT BROOKINGS INSTITUTION: Good morning, Alisyn. Good morning Chris. Thanks for having me.

I do agree that the president needs to back away, which he seems to be constitutionally incapable of doing, in every sense of the word, from his poor decision making. I have to disagree with my old friend, my teacher and my first boss when I was in law school, Alan Dershowitz, though. The glass is not half empty, Alan. It's half full because what the court did here was assert due process rights at a core that apply to lawful permanent residents, to non-immigrant visa holders. Of course you can't have this kind of a shameful order against them.

CUOMO: All right.

EISEN: The president needs to make it right by changing his E.O.

CUOMO: All right. I'm not going to have any -

CAMEROTA: Chris - Chris has had enough.

CUOMO: Battle of the crimson here on our time.

Let's get away from the law and get to the politics.

Salena Zito, look at what's happening in France. I don't want this to happen here. That's what the president says.

CAMEROTA: You don't want it to be foiled - a terror attack to be foiled. I mean it's working.

CUOMO: I don't want people to have a chance. I don't want them to be present in this country. That's what the president is saying. It's easier for Camerota to shout me down, but that's what he's echoing to the rest of the country and people do have that fear.

CAMEROTA: Yes.

CUOMO: How does he harness it in policy going forward from here?

SALENA ZITO, CNN CONTRIBUTOR: Well, I mean, I think he needs to make the case almost every day that my - my job as president is to keep you safe. That is what I'm focusing on. If I need to rewrite this, that's what I'll do. I'm considering it.

I mean, you know, when - when - when I interviewed people across the country, there were two piece - two things that really stood out that - that I think went under the radar of polls, is that not only Obamacare was a big concern for voters, but national security, even with people out in Nebraska and Iowa, where you don't see the sort of grand attack that you saw on 9/11, or that you saw in Florida, even where - it's the people - that was a concern for them. And - and while nobody liked the terminology "Muslim ban," they did like extreme vetting. They believe that the process needs to be more stringent and we need to have a better understanding of who's coming in here. That would behoove him to constantly remind people that that's what he wants to do.

[08:35:18] CAMEROTA: So, David Chalian, all of the free advice that our stellar panel has just doled out are - is actually none of the things that thus far President Trump has said he's going to do. What are his next steps?

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Well, it's unclear yet. We're waiting to hear that from the administration. But I would suggest that what Professor Dershowitz was suggesting to the Trump administration is basically that - something that they could have done initially. If it was written with full interagency review, if members of Congress were briefed, if there was a full sort of communications plan rolling this out, perhaps some of this could have been avoided from the get- go. That's not the way they approached the executive order.

If, indeed, we do know, and we've reported, that President Trump was not at all pleased with the way this was put together and rolled out, perhaps that will give him the opening without feeling that he has lost something here to say, let's give this one more shot because of how important it is, and that may be his best path to declaring victory. As we know, this president believes one thing more than anything else, he is a winner. So the idea of putting his tail between his legs and walking away from this in some way or waiting a long time for the Supreme Court to rule seems less likely to me just in terms of what Trump has displayed so far. But, again, we wait to hear from the administration what they will do.

CUOMO: So you have Norm Eisen shaking his head in the negative and you had Professor Dershowitz shaking his head in the positive.

CAMEROTA: And wringing his hands.

CUOMO: So let's give them each another bite at this apple. Professor Dershowitz, what are you agreeing there and what do you see

as the best course forward, not just in terms of rewriting, but in addressing the threat in a way that it will make it popular and also legal?

DERSHOWITZ: Remember that when the state of Washington brought this lawsuit - and it's a great thing that they did because they increased our system of checks and balances from the three branches to including the states now have a check on the national government. So it was a great thing they did. I have to congratulate them.

But they didn't even ask the court to strike it down as it relates to the family in Yemen who's never been in the country and who's applying simply for a tourist visa. So it should be rewritten to make sure it doesn't apply to green cardholders, it doesn't apply to people who are in universities now or who have close connections to the United States. It only applies to people who have no connections to the United States, who have no standing, who have no due process rights, who have no establishment clause arguments, which is a very weak argument in any event.

So I think good lawyers, the new attorney general, can craft a new order that would satisfy constitutional standards. It would be challenged, but it would have a much better chance of surviving and it becomes a win-win for the American people.

CAMEROTA: OK. Norm Eisen, your thoughts?

EISEN: Donald Trump is never going to do that. He is determined. It's like a game of constitutional chicken. He's got his pedal to the metal. We're going to see this go up to the Supreme Court. I will take the 3:15 Angus King mail train to come and appear in person on NEW DAY with you, Alisyn and Chris -

CAMEROTA: That's quite a wager you're throwing down there, Norm.

EISEN: If Trump reverses. He should reverse because what he's done here with this executive order is unconstitutional, it's discriminatory. He's brought shame upon the United States with the poor lawyering. And I thought it was very notable that the panel hammered the White House counsel, reading between the lines. They were saying, hey, Don Mcgahn (ph), you didn't do your job.

CAMEROTA: OK, panel, hold those thoughts. We have many more questions for you. Stick around, if you would, because the Trump White House is also facing some ethics issues involving two top advisers. Did his national security adviser lie about talking to Russia about sanctions? Our panel takes that on next.

(COMMERCIAL BREAK)

[08:42:41] CAMEROTA: "The New York Times" and "Washington Post" reporting that President Trump's national security adviser, Michael Flynn, discussed U.S. sanctions with the Russian ambassador to the U.S. before President Trump took office. The administration has repeatedly denied that. (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 a censure against Russia.

JOHN DICKERSON, HOST, CBS' "FACE THE NATION": 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: Joining us again, our fabulous panel. We have David Chalian, Salena Zito, Norman Eisen and Alan Dershowitz.

Professor Dershowitz, if Michael Flynn did have that conversation before President Trump took office, that, we understand, would violate the Logan Act of 1798, which we're told you are an expert in. How do you see this?

DERSHOWITZ: There's been one prosecution under the act to a farmer back in 1803. If the Logan Act were ever enforced, Jimmy Carter and Jesse Jackson would be sharing a jail cell today because they both engaged in so much activity in violation of the Logan Act.

Jimmy Carter advised Yasser Arafat not to accept Bill Clinton's peace offer in 2000-2001. Ronald Reagan's people negotiated with the ayatollah's people about releasing the hostages once he came into office.

This is a dead letter. Let's criticize him for what he said and what he did and maybe not telling the truth about it, but forgot about the Logan Act, it's dead letter.

CUOMO: Logan - George Logan, the doctor who it was named after, became senator right after it was put into effect.

DERSHOWITZ: Right.

CUOMO: So, obviously, it didn't put much bite on him.

But isn't the law a distraction here, Norm Eisen? Isn't this about this bigger question now about how the national security adviser could fail to recollect whether or not he ever discussed sanctions with his Russian counterparts before the president took office? He had said no repeatedly. He now says he can't recollect in an official statement. This is about the truth, not just the law.

EISEN: Chris, of course that's right. And the truth - telling the truth is a problem for everybody in this administration, starting with the tone deafness at the top from the president with his truth- challenged view of the world.

[08:45:16] But here is where this ethical and moral lapse, the love of lies hits the legal - the legal rubber hits the road, Chris. We know that there is an investigation of Mr. Flynn's and others around then candidate Trump's connection to Russia. If Flynn was interviewed by the FBI or other investigators and he made false statements, he has a lot more serious legal liability than under the Logan Act. And there are no shortage of those. That's the place where administration officials get tripped up administration after administration.

CAMEROTA: So, Salena Zito, there are these ethical questions about whether or not Michael Flynn did have this conversation. There are ethical questions about how Russia alleged meddled in the U.S. election. There are ethical questions about whether or not the Trump organization does still accept foreign money or what its relationship is with foreign governments.

CUOMO: Emollients. Dershowitz is an expert on that.

CAMEROTA: OK, we'll get to that in a moment. And then there is the ethics investigation that Congressman Jason Chaffetz and Elijah Cummings announced for Kellyanne Conway. So after all of those other ethical cobwebs or, whatever, spider webs, Kellyanne Conway is the person who's going to be investigated because she sort of plugged Ivanka Trump's clothing line yesterday?

ZITO: Well, of all the serious things that are going on in this country, you know, I mean, what Kellyanne Conway did, by the letter of the law, was wrong. Having said that, if you watch the clip, it's clear that she's joking. And it's also clear in the way that she's answering. I mean she did not, at least from my estimation, go on there to, like, I am totally plugging her line. I man it appears to be a throwaway line, that she was joking back and forth.

Look, the problem tends to be is that we are - we - there are so many sort of outrageous of the moments that important things like the president having - from all accounts, a fairly successful conversation with the president of China last night, over an hour, you know, where he reinstated the One China rule, which was an outrage, you know, three months ago -

CAMEROTA: Yes.

ZITO: And that he's going to be spending several hours - or several - or a couple days with the prime minister of Japan. And, you know, these are the things that sort of affect people's lives because they're based on trade, they're based on, you know, job creation.

CAMEROTA: Yes.

ZITO: You know, those kinds of things don't rise to the top of the conversation, and those kinds of things that are the things that affect people's lives, especially the people that sort of invested in him, sometimes hesitantly, with their vote.

CAMEROTA: Yes.

ZITO: And - and so -

CAMEROTA: I mean we have been having that conversation.

ZITO: Right.

CAMEROTA: Just in fairness, we have been having those conversations about that this morning.

ZITO: Yes.

CAMEROTA: But I guess that I'm just trying to point out the - you know that - I mean, David Chalian, what do you think, that this is what Jason Chaffetz has zeroed in on?

CHALIAN: Right. Well, I - again, as Salena said, as a matter of law, it was a clear violation of what -

CUOMO: I don't know that that's true, by the way. Just to be balanced here with Dershowitz and Eisen on the panel. If what Salena Zito just posited is true, which is that she was joking, she didn't mean it seriously, then she did not violate this law because she didn't have the intent to violate.

EISEN: Wrong. Wrong.

CUOMO: (INAUDIBLE). All right, I'll come to you next.

Go ahead, David, finish your point.

CHALIAN: But the point that I think both of these stories - sort of give us insight into both Flynn and Kellyanne Conway, learning this morning that Donald Trump was not at all pleased the way Sean Spicer used the word "counseled," that Vice President Pence - then Vice President-elect Pence did not seem to get a fully accurate recollection and readout from Mike Flynn. This is a team and an operation that is not running on all cylinders, that has not fully gelled yet a few weeks into this administration. I think that is really what these stories sort of give us insight into right now.

CUOMO: Let Eisen take a shot at me to end this segment.

What do you have, Eisen.

CAMEROTA: Oh, go ahead.

CUOMO: How can I violate a law if I have no intent to violate the law in this context?

EISEN: She - it is Ethics 101. You do not get on national television and plug a business. She was at best -

CUOMO: She didn't. She was joking.

EISEN: She was at best half joking. It - no, even -

CUOMO: What are you, a jokeologist?

EISEN: Even - even, Chris, even Jason Chaffetz, who refuses to look at emoluments, even Jason Chaffetz said it was a clear violation. It was a clear violation. It was condemned from a - from a (INAUDIBLE).

[08:50:02] CUOMO: Dershowitz, help me out here.

EISEN: But here's why it -

DERSHOWITZ: What -

EISEN: No, no, no, Chris, here's why it matters. I would agree that if this were an isolated incident, let it go.

CUOMO: OK.

EISEN: But it's not. It's part of this enormous Trump effort to capitalize on the presidency, to make millions.

DERSHOWITZ: Yes.

EISEN: And that is wrong. And she's just following her boss.

CUOMO: All right.

CAMEROTA: OK. Well, I mean, that - and that was originally my point of that - why is she the fall guy.

But, anyway, panel, we're out of time. Thank you very much. Great conversation. We appreciate you guys being here.

OK, he scored the winning touchdown in the Super Bowl and he just got a super surprise. We'll show you, next.

(COMMERCIAL BREAK)

CUOMO: All right, comedian Bill Maher telling our Van Jones he would gladly make a $1 million donation and take up a new religion - you know how Maher feels about religion - if someone else could take President Trump's place. Who is that someone else? Here's a clip from tonight's CNN special, "The Messy Truth."

(BEGIN VIDEO CLIP)

VAN JONES, HOST, "THE MESSY TRUTH": I want to give you a lot of credit. You got a lot of people through the Bush years by - you know, frankly. Now you've got the Trump years.

BILL MAHER, COMEDIAN: Ah, the Bush years. Yes. You know - you know I gave Obama a million dollars. You know that, right?

JONES: Yes.

MAHER: His PAC.

JONES: Yes.

MAHER: I would happily give that million dollars right now to Mitt Romney if he would take over the country. I gave it to prevent Mitt Romney from becoming president. I would - JONES: And now you're begging.

MAHER: I'm begging Mitt Romney to become president. I will become a Mormon. How about that? I will become a Mormon and give you a million dollars, Mitt Romney, if you will please take over the country.

JONES: I like it.

(END VIDEO CLIP)

CUOMO: (INAUDIBLE) into it?

[08:55:01] CAMEROTA: I don't think so.

CUOMO: I don't know.

Join us tonight for "The Messy Truth." Bill Maher is Van Jones' special guest, 9:00 p.m. Eastern, only on CNN.

CAMEROTA: That looks like it will be very entertaining and provocative.

All right, it has been a big week, as we know, for James White, the New England Patriots running back who scored three touchdowns in the Super Bowl, including the game-winner. And then, of course, he was on NEW DAY. His quarterback, Tom Brady, won the MVP award, leaving White empty-handed until last night on "Conan."

(BEGIN VIDEO CLIP)

CONAN O'BRIEN, "CONAN": Tom Brady said afterwards that you deserved the MVP. They gave him the MVP. He said you deserve the MVP. That must have felt really nice.

JAMES WHITE, NEW ENGLAND PATRIOTS: Oh, that - that felt nice, but, I mean, I wouldn't get 14 catches if he wasn't throwing me the ball. It's very nice, but he did it.

O'BRIEN: Well, Brady did say - Brady did say that you deserved - actually his quote was, I think, that he would have given you the MVP truck. And this is kind of nice because Ford agreed with Brady, so here it is. It's all yours. The Ford F-150, the official truck of the Super Bowl right over here.

This is your truck.

WHITE: Thank you. I appreciate it.

O'BRIEN: It's all yours now.

WHITE: Thank you. Thank you.

(END VIDEO CLIP)

CUOMO: Camerota and Cuomo rarely on the same page, but we both had the same reaction. You saw the truck, but what were you moved by? CAMEROTA: His thighs are so huge.

CUOMO: And that's why one hit wasn't enough and he made it into the end zone and end the Super Bowl.

Good for him. Nice for Ford too.

CAMEROTA: That's great. Yes, that was great and good for Conan.

All right, everyone, thank you very much for watching. We will see you next week.

Meanwhile, CNN "Newsroom" with Poppy Harlow and John Berman begins for you right after this quick break.

CUOMO: Have you seen Berman's thighs?

CAMEROTA: I have not.

(COMMERCIAL BREAK)

[09:00:04] JOHN BERMAN, CNN ANCHOR: Good morning, everyone. I'm John Berman.

POPPY HARLOW, CNN ANCHOR: And I'm Poppy Harlow. So glad you're with us this Friday.

This morning, a lot of news.