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Second Defeat of Trump Travel Ban in Court; White House & GOP Leaders Concede Health Care Bill Won't Pass As Is. Aired 6-6:30a ET

Aired March 16, 2017 - 06:00   ET

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

(BEGIN VIDEOTAPE)

DONALD TRUMP (R), PRESIDENT OF THE UNITED STATES: We're going to fight this terrible ruling. We're going to win.

[05:58:41] UNIDENTIFIED MALE: Revised executive order is unconstitutional and unlawful.

TRUMP: Let me tell you something: I think we ought to go back to the first one and go all the way.

REP. ADAM SCHIFF (D-CA), INTELLIGENCE COMMITTEE RANKING MEMBER: I see no evidence that his predecessor had wiretapped Trump Tower.

TRUMP: "Wiretap" covers a lot of different things.

REP. DEVIN NUNES (R-CA), INTELLIGENCE COMMITTEE CHAIRMAN: Are we going to take the tweets literally? Then clearly, the president is wrong.

UNIDENTIFIED MALE: Obamacare is in a death spiral.

UNIDENTIFIED MALE: The leadership is weak-kneed.

TRUMP: We will have negotiation. The end result is going to be great.

UNIDENTIFIED MALE: There's no question it's a hard tower (ph) budget.

TRUMP: Our budget will shrink the bloated federal bureaucracy.

(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 NEW DAY. It's Thursday, March 16, 6 a.m. here in New York. Alisyn is off. Poppy Harlow once again. It is Thursday, my friend.

POPPY HARLOW, CNN ANCHOR: Yes.

CUOMO: We've got a lot of news once again. Breaking news. A federal judge in Maryland has now temporarily blocked the 90-day ban on immigration for citizens of six countries. This is the second defeat in court in just a few hours. This will be a significant blow to President Trump's revised travel ban. Mr. Trump calling the ruling a, quote, "unprecedented judicial overreach," vowing to appeal to the Supreme Court.

HARLOW: We will see. That's what they said last time. This is all coming as there may be more trouble ahead for the president, because the GOP's health-care plan is facing more and more opposition. All of this as President Trump unveils his first budget proposal this morning. It slashed billions from federal departments to boost defense spending.

There is a lot going on on day 56 of the Trump presidency. Let's begin this morning with our justice reporter, Laura Jarrett, live for us in Washington with the breaking details. And not only did Hawaii's federal judge block this. Now a second federal judge in Maryland says this does not pass legal muster. What do you know?

LAURA JARRETT, CNN JUSTICE CORRESPONDENT: That's right. A second federal judge, this one now in Maryland, has blocked the president's new travel ban, specifically Section 2 of the new order which barred foreign nationals from six Muslim majority countries from coming to the United States.

And just like that federal judge in Hawaii last night, the judge in Maryland is squarely focused on the president's own words from the campaign trail. The judge writes the record includes specific statements directly establishing Trump intended to effectuate a partial Muslim ban by banning entry by citizens of specific predominantly Muslim countries deemed to be dangerous, Poppy.

So once again, squarely focused on the favoring of non-Muslims over Muslims, at least according to the judges.

Now, we haven't heard anything from the Justice Department about this latest development. But last night, they came out strong, saying they plan to defend the Hawaii decision in court. And I think you can expect an appeal is very likely on the way shortly.

HARLOW: All right. Laura Jarrett, thank you for the breaking news. We appreciate it now.

Let's go to the White House. The president is blasting this ruling by that federal judge in Hawaii, calling it, quote, "unprecedented judicial overreach." Joe Johns is at the White House this morning.

Look, last time he tweeted, "We'll see you in court." Then last night he said, "We'll take this all the way to the Supreme Court." What else are we getting from the White House?

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: Well, Poppy, you know, this is just deja vu for the White House. And since coming from the courts, that words matter, the words of the president. The words of his aides seemingly coming back to haunt this administration again and again and once again setting up the possibility of a court fight that could go all the way to the Supreme Court.

(BEGIN VIDEOTAPE)

TRUMP: You don't think this was done by a judge for political reasons, do you? No. This ruling makes us look weak.

JOHNS (voice-over): President Trump talking tough in the face of another major blow to one of his key policy proposals.

TRUMP: This is the opinion of many. An unprecedented judicial overreach.

JOHNS: A federal judge in Hawaii blocking the administration's revised ban nationwide, just hours before it was scheduled to take effect, ruling that the state had reasonable grounds to challenge the order as religious discrimination and then pointing to the president's own words as proof.

TRUMP: I think Islam hates us.

ANDERSON COOPER, CNN ANCHOR: Is there war between the west and radical Islam? Or is there war between the west and Islam?

TRUMP: It's radical, but it's very hard to define. It's very hard to separate, because you don't know who is who.

JOHNS: The judge also citing statements from some of Mr. Trump's top advisers.

RUDY GIULIANI, TRUMP ADVISOR, FORMER NEW YORK CITY MAYOR: When he first announced it, he said Muslim ban. He called me up. He said, "Put a commission together. Show me the right way to do it legally."

JOHNS: And policy adviser Steven Miller, who argued last month that the new ban would have the same impact as the old one, which was also blocked by the courts.

STEVEN MILLER, TRUMP POLICY ADVISOR: Mostly minor technical differences. Fundamentally, you're still going to have the same basic policy outcome for the country, but you're going to respond to a lot of technical issues were brought up by the court.

JOHNS: The commander in chief arguing that the Constitution grants him the power to suspend immigration when national security is concerned.

TRUMP: This is a watered-down version of the first one. I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place.

JOHNS: This setback comes as President Trump unveils his first budget proposal, calling for a $54 billion increase in defense spending, offset by massive cuts to the EPA, State Department, Agriculture and Labor Departments.

MICK MULVANEY, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET (via phone): The president very clearly wants to send a message to our allies and our potential adversaries that this is a strong power administration. (END VIDEOTAPE)

JOHNS: And that first budget blueprint from this administration said to be unveiled at the top of the next hour, it's only a wish list right now; but the president's budget director says it is a collection of his priorities as articulated on the campaign trail -- Chris and Poppy.

CUOMO: Appreciate it. Two big news items. Let's discuss. First step, Maryland ruling just happened moments ago; now doubles down on the Hawaii ruling that stopped the order from going into effect last night.

We've got a great panel: CNN political analyst David Gregory; CNN political analyst and White House correspondent for "The New York Times," Maggie Haberman; and CNN political analyst and senior congressional correspondent for "The Washington Examiner," David Drucker; and on the legal side, CNN senior legal analyst, former federal prosecutor Jeffrey Toobin.

Legislative intent looms large in both of these rulings, Counselor Toobin. Using the president's words against him versus just analyzing the language of the actual executive order. What's going on here?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, it's something that, frankly, I have never seen before, Chris. I mean, taking a president's words when he was candidate and using it to invalidate a law that is, on its face, on the words not discriminatory against Muslims, I think it's a very unusual approach. Both judges took it.

I would be frankly very surprised if this ends up on appeal. This is just not something that courts have historically done. I can understand why they did it here, but I just think that's not how most judges and most courts approach the evaluation of executive order.

HARLOW: And we should note, if the Department of Justice does feel this -- like it was in the 9th Circuit, it will be three different 9th Circuit judges than the ones who -- you know, who heard it last time about a month ago.

But what's interesting, Jeffrey, you know, it's not just the Hawaii federal judge who cited the president's own language. It was also so the judge in Maryland just now, as well, doing the same thing.

Here's what the federal judge in Hawaii wrote: "A reasonable objective observer would conclude that this executive order was issued with a purpose to disfavor a particular religion in spite of its stated religiously neutral purpose." How do you see that playing out?

TOOBIN: Well, I'm not sure his view of what a reasonable person would say is accurate. And also now, now that we have this Maryland ruling today, that will be going through the 4th Circuit Court of Appeals. So at this point I have to believe that the Justice Department is simply going to say, "Let's go forward with the appeals process. We're not going to redo the executive order again; and sooner rather than later, this has got to wind up before the Supreme Court, because now you have these cases all over the country. This is why we have a Supreme Court to settle big questions where many, many lower courts are looking at the issue.

CUOMO: Jeffrey, you pipe in whenever you want and during the rest of the discussion if it doesn't really -- if the intersection of politics and law is offensive to you.

But David Gregory, there is one difference in this order. You're going to hear a lot of people say, "This is exactly what Obama did. It's the same countries. We took out the religious thing." But there is a fundamental difference, and it's not about the rhetoric that surrounded it.

The Obama travel ban to these countries was about travel to those countries and was not a focus on the national origin itself. It was about who went there and the inability to track who went there and why they went there.

MAGGIE HABERMAN, CNN POLITICAL ANALYST: A waiver.

CUOMO: Do you think that's going to be a potential fundamental difference in terms of which one lives and which one dies?

DAVID GREGORY, CNN POLITICAL ANALYST: Well, on the law, the deference to the executive, the deference to the president on national security matters, as I've heard Jeff describe this in the past, probably holds sway attend of the day. But that -- what the Obama administration did is an important difference, because they were trying to close a loophole. Which is if you were -- if you were someone who had a British passport but that also had a Yemeni passport, that you could exploit that loophole because of the close relationship from customs immigration point of view to get into the United States.

I think the larger issue here is first of all, there's going to be judicial review of the president's national security approach. And two, is he trying to correct for the wrong problem that we don't have a stream of immigrants and refugees in the country that mean to do the United States harm and the premise that vetting is not good enough for refugees or immigrants is being challenged here from a political and policy perspective and that is still the major issue here that faces the administration about where they seem to be off.

So one thing cited in this ruling is the comments from Secretary Kelly when he said we might add more countries. 13 or 14 additional countries. This justice saw that as undermining the need for this ban and six specific countries right now. That's an interesting argument we haven't heard.

HABERMAN: We haven't. This is why you're going to see the need for this to be heard at a higher level. You have these cases all over the country and they're not all saying the same thing.

[06:10:05] One thing I was struck by last night -- and I'm curious what Jeffrey would say this, what the president said last night at his rally in Nashville, I have to imagine is undermining to what his own administration is going to argue in terms of defending this ban. He said, you know, this is basically just a watered-down version, and

we should go back to the original one. Steven Miller's own words, his policy director, saying essentially that, that there were some technical changes here -- this is basically the same thing, was cited in the Hawaii case. I can't see how -- this -- so yes, it is unusual that you had that sitting president say something last night that could be much more problematic for him.

CUOMO: Jeffrey, one last quick point on this. We always default to the argument on the legal side of the executive privilege here that, when it comes to keeping us safe with matters of immigration and national security the president deserves a broad path there; however, it is a qualified path in terms of meeting that standard of what it's about; and this judge in Maryland picked up on it. Questions of national security. Yes.

If there's a legitimate question of national security, this judge says, "Well, I don't know that there is one, because this initial order wasn't done with contemplation of the security agencies. It's seen as being necessary for these countries but could be expanded past them, which seems to show an indefinite threat." How real is that as a jurisprudential basis?

TOOBIN: Well, you know, the question when you talk about national security usually is who decides. You know, here you had this executive order introduced by the attorney general of the United States, the secretary of state, the Department of Homeland Security, all of whom have vast resources devoted to determining who is a threat against the United States.

Then, you have these judges who sit in their offices with three or four law clerks, and they're the ones who are going to say, "Well, it's not really a threat to the United States." I mean, it's just something that, in our system, is usually given to the executive branch to decide. Now, the executive branch must always abide by the Constitution, even in areas of national security.

And here the judges said look, we have a First Amendment to the Constitution which prohibits religious discrimination; and that's what was violated here. But usually, the rule is deference to the executive branch when it comes to national security, and I just think that's going to continue to play out as this continues to move through all levels of the court.

HARLOW: You probably expect Sean Spicer to read what he did last time, you know, 1182, Section 1182, giving that -- today.

David Drucker, thanks for being patient. Let me bring you in here. Because one thing that might help the administration is what five justices that sit on the 9th Circuit have said. And the 9th Circuit would consider an appeal from the Hawaii case. The 4th Circuit would consider an appeal from the Maryland case. This is what those five justices said. Whatever we as individuals may feel about the executive order, the president's decision was well within the powers of the presidency. That arguably could help. DRUCKER: I think that's exactly right. And I think Jeffrey has

really gotten to the crux of the matter here, which is national security decisions are left up to the executive branch; and as long as the executive branch follows the Constitution, then the intent of the president really shouldn't matter here.

However, this is another case where the president's own words are coming back to haunt him. Because so much of how the president's policies are perceived has to do with how he has chosen to describe them. And that is just something he really has to get used to. But here we have a really interesting case and test for the administration, because unlike the first executive order, when they didn't have an attorney general; and they weren't prepared to actually function here they have a Justice Department and an attorney general prepared to handle this. So how quickly can they move? How can they handle this?

And I think we're all going to see a lot more support from Republicans in Congress today which is going to be totally different than what we saw last time, and I think that could have a huge effect on the politics of this and make it a lot different than what we saw coming out of the last executive order.

CUOMO: One other factor, though, the main question: are they right about national security. You had two different reports coming out, saying there was no imminent threat. People from these countries coming in aren't the imminent threat. It would be what happens once they're here.

HARLOW: That origin is not determinative. And that they are radicalized after they get here. Both DHS reports. Good point, Chris.

Guys, stick around. We've got a lot ahead this morning. A big morning of news. Up next, this debate over what they're going to do to replace Obamacare. Even House Speaker Paul Ryan now conceding the GOP bill as it stands cannot pass. The fate of this bill rests on just two votes. We're going to get to that next.

(COMMERCIAL BREAK)

[06:18:49] CUOMO: President Trump breaking his nearly two-week-long silence in terms of big interviews about the wiretapping claim, but he is not backing down. The president and House Speaker Paul Ryan also making a critical concession on the GOP plan for facing Obamacare.

CNN's Suzanne Malveaux has all the developments on Capitol Hill -- Suzanne.

SUZANNE MALVEAUX, CNN CORRESPONDENT: Good morning, Chris.

Well, the current legislation in its form has very few backers. It is not likely to go through the full House without some major reforms. It has two committees to go through, the Budget Committee today, Rules Committee next week but even House Speaker Paul Ryan is no longer saying that he believes that this was going to pass without some changes.

(BEGIN VIDEOTAPE)

TRUMP: We're doing it a different way, a complex way. It's fine. The end result is when you have phase 1, phase 2, phase 3. It's going to be great.

MALVEAUX (voice-over): President Trump attempting to reassure his supports amid growing opposition to the GOP's health-care plan.

TRUMP: We're going to arbitrate. We can all get together. We're going to get something done/

MALVEAUX: Calling the House bill preliminary and acknowledging work needs to be done.

TRUMP: I think we're going to have the negotiation.

MALVEAUX: House Speaker Paul Ryan also conceding that his plan must change to pass the House.

REP. PAUL RYAN (R-WI), SPEAKER OF THE HOUSE: Now that we have our score from the CBO that's something we are waiting for. Now that we've got it, we've got room to make refinements.

[06:20:16] MALVEAUX: A significant retreat from the earlier position that the bill would fail if big changes were made. Ryan bristling at the question of whether it would pass as is.

RYAN: It's not coming up this afternoon. It's going through the legislative process. That legislative process has not been finalized. That's -- so that's kind of -- no offense. A goofy question or a faulty premise.

MALVEAUX: House leadership facing an uphill climb. They can only afford to lose 21 Republican votes. CNN's whip count already has 19 lawmakers on the record, saying they will vote no or are leaning against it.

The chairman of the House Freedom Caucus says he believes he has enough votes to block the bill, as Trump's health secretary made the pitch directly to the American people at a CNN town hall last night.

TOM PRICE, SECRETARY OF HEALTH AND HUMANS SERVICES: Those of us who are privileged to implement that policy, what we'll try to do is try to listen to the principles that the American people have told us are dear to them in health care.

MALVEAUX: All this comes as the president remains defiant over his unsubstantiated wiretapping claims now says he got it from mainstream media.

TRUMP: "The New York Times" wrote about it. You know, not that I respect "The New York Times." I call it the failing "New York Times."

MALVEAUX: The president attempting to redefine the meaning of "wiretap."

TRUMP: That really covers surveillance and many other things. And nobody ever talks about the fact that's a very important thing. You're going to find some very interesting items coming to the forefront a growing course of Republicans rejecting the claim.

NUNES: We don't have any evidence that they took place. And in fact, I -- I don't believe in the last week of time the people we've talked to, I don't think there was an actual tap of Trump Tower.

(END VIDEOTAPE)

MALVEAUX: This coming Monday, FBI Director James Comey will testify before a rare public hearing before the House Intelligence Committee as to whether or not he has any evidence that Obama wiretapped Trump Tower -- Chris, Poppy.

HARLOW: All right, Suzanne Malveaux. Thank you for the reporting. A lot to talk about with this health-care plan. What's going to happen? Also the budget, is that dead on arrival?

Let's bring back in our panel: David Gregory, Maggie Haberman, David Drucker.

Maggie to you, look, I mean, Paul Ryan would not answer Jake's question. If you had to vote -- if you had the House vote today, it wouldn't pass. He actually said it's sort of a goofy question, because they're not going to vote right now.

CUOMO: Of all the words that don't apply to Jake Tapper, "goofy" would be very high on the list.

HARLOW: And then he said I'll let the majority leader commit to the timing of whether they bring it to the floor next week. Where do they go from here? I mean, our latest count, you've got 19 Republicans opposed to it.

HABERMAN: I mean, there is a reason the speaker did not want to answer that question, and it's not a good answer for him.

And look, there has been -- it's been clear for the last week and a half or so that there was a divide between where the White House is on how much change this bill can absorb and where Paul Ryan was on how much change this bill can absorb.

And I think that you were seeing that the speaker is coming around to the realization that this is not going to work. The White House has not taken on the responsibility of nudging along Freedom Caucus members the way that the GOP leadership in the House had hoped they would.

And so now we are in a bit of a wait and see. They are a couple of proposals that we've heard around, but they all still involve the president basically closing the deal on this. There is a recognition in the White House. There are some people who think that they ought to just cut and run. They ought to walk away from this. I do not think we're likely to see that happening. There's a recognition they're way too deep in on this, and they need a legislative win. If they don't get it, it's going to impact all kinds of things down the road.

CUOMO: David Gregory, the ability to close on this deal, though, is going to have to involve more than jazz. This -- you know, this granular kind of debate and the mastery of what these types of systems do in health care. That's not Trump's strength, as we understand it right now.

But they also have a fundamental problem. You've got half of your opposition in the GOP say, "No, we want a complete appeal. We wanted it gutted. We want nothing like the ACA to ever exist again."

You can have this other and growing group that's saying, "I can't back something that doesn't keep these people covered. We needed to repair what's there, sure." But how do you serve both of those?

GREGORY: Well, I think that's very difficult, and I think what's interesting about this is that President Trump, the skilled negotiator, led to believe, didn't want to sweat the details on all this and wanted Paul Ryan to really lead. And then he led, and you saw all the factions kind of developing among Republicans in a way that I think lack discipline and lack real planning.

And so, as Maggie says, out of the White House there are factions. Maybe we should cut and run on this. This isn't really where the president is coming from. And the truth is that this is not where the president's coming from. As a ideological and a political matter, President Trump is not the kind of conservative that Paul Ryan is.

[06:25:08] Paul Ryan has a very definite view about what the government should and should not be doing in the health-care economy. And he has very definite views about whether health insurance is a fundamental right to the American people. He would like to leave this to more market forces.

Generally speaking, that's not what the president's coming from. So I'm curious to see how far the president will go to negotiate this. I do think reading some of the accounts of what's happening on the hill, this is looking more positive. This is starting to grind its way through, and there are compromises that are being made on this legislation that could get it over the hump.

The big political imperative on this, though, Chris, is they've got to get this done if they want to get onto tax reform, which is a bigger priority, I think, at the end of the day for the president when you get to job creation and all the rest. It's a very difficult thing to take on, though, first.

HARLOW: I mean, this is a lynch pin in the time line to get to that tax reform by August.

David Drucker, on the budget, in half an hour, we're going to get the president's budget, his wishes, his hopes for this one-and-a-half- trillion-dollar budget. It is an "America first" budget. The question becomes what parts of America first? So look at the winners and the losers that we're going to see in this. And the winners, big-time winners going to be defense spending, law enforcement, et cetera, and veterans' affairs. The green you see on the side of your screen.

The losers are going to be the State Department. You're going to expect a 21 percent cut there. The EPA, the biggest cut. Thirty-one percent cut. Also Labor Department, Agriculture Department, et cetera. Can he get this through?

DRUCKER: No, the budget's not going to get through, but it's always a wish list that comes out of the White House. And I think for Trump, it's not a bad opening gambit, in that if you really want to cut the budget in certain areas, you come in with a huge number. And then members of Congress, of course. And we're going to see this from Republicans, are going to say we don't want to cut foreign aid that much. We don't want to cut this that much. But it gives Trump a good baseline to start from.

And they're going to agree with him on hikes to military spending and the V.A. and things like that. I think, though -- and it's important to say this -- that everything really does ride on health care, because this is the first time that Paul Ryan and Donald Trump have worked together on something real. And if they can't get this done together, it's going to affect everything, and that includes a lot of this legislating, some of which is going to have to go through the Senate and get votes. And there's going to be a lot of fighting about it. And so how this goes is going to atone for both of them going forward, whether they're able to come together from their different points of view and actually govern as a united Republican Party.

CUOMO: Right. And it will be interesting to see how big a blow that attack piece from Breitbart on Ryan will loom in terms of their ability to work together.

You know what's not on that list? If you want to cut things, no entitlements. No entitlements on the list, Maggie. And that's going to be very upsetting to a lot of those fiscal hawks on the GOP side.

HABERMAN: To David's point, these are not similar men, Paul Ryan and Donald Trump, in terms of the basic function of government. We have known Donald Trump a long time. He essentially was an Ed Koch kind of big government kind of guy in terms of the role of what government should play.

He campaigned on no entitlement concepts. Incredibly important to him. He spent a long time criticizing Paul Ryan as the 2012 V.P. nominee for his budget proposals previous to that. So I think this is not a huge surprise. I'm not sure where this ends up, but that is the president sticking to what he promised in the campaign.

HABERMAN: Paul Ryan's words yesterday, we are hand in glove with the White House. Maybe on some things but not on that one.

CUOMO: Looking more like glove across the face right now. Coming up on NEW DAY, a lawmaker at the center of the health care

battle, Senator Bill Cassidy, joins us at 8 a.m. to tell us why he's concerned about the Republicans' plan to replace Obamacare.

HARLOW: Also coming up, Secretary of State Rex Tillerson right now in Tokyo. This is his first big trip abroad. He's in Asia. What's he telling allies about the nuclear threat from North Korea? Next.

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