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Washington State versus Trump's Immigration Order; No One is Above the Law; Back to Business. Aired 10-11p ET
Aired February 3, 2017 - 22:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ANDERSON COOPER, CNN HOST: We'll continue to follow it. Sanjay, I appreciate your story. Thank you, Sanjay. Time now to hand things over to Don Lemon for CNN tonight. Have a great weekend.
UNIDENTIFIED MALE: This is CNN breaking news.
DON LEMON, CNN HOST: And here's the breaking news on a Friday night. A federal judge temporarily halting President Trump's travel ban nationwide.
This is CNN Tonight. I'm Don Lemon.
The ruling coming in Washington State where Attorney General Bob Ferguson says tonight, quote, "No one is above the law. Not even the president." It follows a week of protests at airports and across the country. But tonight, ruling throws the nation's immigration system into chaos again.
Let's get right to CNN's senor White House correspondent Jim Acosta and aviation correspondent, Rene Marsh. Good evening to you. If we thought we were going to ease into our weekend, Jim, we were sorely mistaken here.
Federal judge is granting that Washington State attorney general's request to immediately halt this executive order on immigration. You have been looking at the details so bring us up to speed.
JIM ACOSTA, CNN SENIOR WHITE HOUSE CORRESPONDENT: Right. Well, according to what has happened out in Washington State, there is now a temporary restraining order that was issued by a judge in that state, essentially siding with the Washington State attorney general who has asked for a restraining order, a stoppage to this executive order that banned people from coming in from seven predominantly Muslim countries.
According to the Washington State attorney general who has been on our air for a good portion of this night, this is now a nationwide restraining order that was issued by this judge. And I do believe we have some sound from this attorney general. Here's what he had to say earlier tonight.
(BEGIN VIDEO CLIP)
BOB FERGUSON, WASHINGTON STATE ATTORNEY GENERAL: Judge Robart's decision effective immediately, effective now puts a halt to President Trump's unconstitutional and unlawful executive order. I want to repeat that. It puts a stop to it immediately nationwide.
(END VIDEO CLIP)
ACOSTA: And I don't want to preempt what Rene Marsh is going to say in a few moments but we do understand from what she's been saying talking to her sources, is that Customs and Border Protection has been in touch with the airline saying that they can go ahead and get back to business and start reinstating visas and so forth.
I've just gotten in touch with a source over the Department of Homeland Security, Don, trying to get more guidance on this. I'm told some kind of statement is going to be coming from the Department of Homeland Security. And here's a critical reason why.
Don, we've been here for several hours over here at the White House tonight. We have not gotten any kind of guidance any hind of statement from this White House as to what just occurred in Washington State. And so, the question that I have in my mind, Don, how could Customs and Border Protection issue that guidance to U.S. airlines saying we're going to get back to business without the approval of the President of the United States, that the man who signed the executive order?
But at this point we just have no clarity, no kind of statement from the White House at this point. Though, I am told by a source over at the Department of Homeland Security that they do plan on issuing some kind of statement tonight.
And the State Department also released a statement saying basically the same thing. That they're looking at what has happened over in Washington State and they'll going to be working with the Department of Homeland Security on the next steps.
But it is -- I think it's a pretty extraordinary development if these airlines are going to be, quote, "getting back to business" before this executive order, Don.
LEMON: Yes. It appears this judge has overruled the president. We'll get more guidance from our legal experts coming up in a bit. Jim, stand by. I want to get Rene.
LEMON: And Rene, Jim mentioned the visas are being reinstated. That's the reporting that we have. Tell us more about this. Because this is a really extraordinary development if that is happening.
RENE MARSH, CNN AVIATION CORRESPONDENT: Yes. That's not an understatement. Extremely extraordinary. We do know, based on a source with the airline industry, an airline official telling me that around 9 o'clock there was a conference call between Customs and Border Protection, as well as all of the major U.S. airlines.
On that call, Customs and Border Protection informed the airlines that things were, quote, "going back to business as usual" before the executive order. And on that call, the airlines were also told that visas would start being reinstated.
I can tell you that since we got word of that bit of information, we've been monitoring all of the airlines' web sites and so far, we noticed that American Airlines has stripped down all of its travel alerts relating to this ban. That is no longer on their web site.
And so we are starting to see these airlines, one by one react. Again, so far American Airlines stripping down those travel alerts that referred to that travel ban from their web site tonight, Don.
LEMON: What does this mean for the people who had been banned or couldn't come in? Can they now come back in?
MARSH: Well, so we, just as Jim said there, although we're getting this information from the sources who were actually on that call, we still haven't heard anything official from the government. So we're waiting for that.
[22:05:07] But let's just say that this is what the situation is and things are going back to business as usual prior to the executive order. What would happen is that CBP would need to reset their parameters so that when someone does show up at an airport with their travel documents and it's scanned through that automatic system, the airline doesn't get a no-board message, they get a board message.
And so, it will be up to CBP to make all those changes so that this can go smoothly. But I think right now the focus is making sure everyone understands where CBP stands on this, where the federal government stands on this as it relates to this ruling. The airlines will follow what they're told. They will not make their own decisions on this.
ACOSTA: I've got -- Don, I've got a statement from the White House.
LEMON: Go for it, Jim.
ACOSTA: This is a statement from White House Press Secretary Sean Spicer just hit my inbox. "At the earliest possible time the Department of Justice intends to file an emergency stay of this outrageous order" -- forgive me for reading down, we don't have time to put this up on screen -- "and defend the executive order of the president which we believe is lawful and appropriate. The president's order is intended to protect the homeland and he has the constitutional authority and responsibilities to protect the American people as the law states.
Whenever the president finds that the entry of any aliens," that's government language there, "or of any class of aliens in the United States would be detrimental to the interests of the United States. He made by a proclamation and for such period as he shall deemed necessary suspend the entry of all aliens," again government language here, "or any class of aliens as immigrants or non-immigrants or impose on the entry of aliens any restrictions he may deem to be appropriate."
So, Don, the statement there from the White House that I just read, it was a lengthy statement. I apologize to our viewers. But it seems to be a very strong signal from this White House that they intend to go right after that temporary restraining order as soon as possible.
And a legal argument they appear to be making here, and it's one that we heard throughout this evening on this network is that, you know, this White House believes the President of the United States has the authority, has broad authority when it comes to controlling the nation's borders as part of his powers controlling the executive branch of this government and running the Department of Homeland Security. So that is -- that I think it's going to be the argument that they make in the coming days.
LEMON: OK. All right. Jim, I want you to stand by and you, as well, Rene. And I want to bring in the governor who is in Seattle now. Governor Jay Inslee. Governor, thank you so much for joining us again. And we have our correspondents; there are experts out in the field. And they're going to be listening to us. Did you hear the statement from the White House, governor?
JAY INSLEE, SEATTLE STATE GOVERNOR: I did. And it does not, in any way, obviate the fact that this president is totally bound by this order. We expect him to abide by this order. We will not accept any deviation from this order whatsoever.
The Constitution is supreme in this country. I'm proud that Washington State has led the country in standing up for the basic values and will not allow anyone, including the president and Washington, D.C. to contravene the values.
And we had tonight, a federal judge who was appointed by republican President George W. Bush decide in a very forceful decision, frankly, that this is a country that we are not going to allow a test of religion to determine who comes in our country, we are not going to allow decision that actually jeopardize our national security.
Look, the fact is in this case that the people from these seven countries, there have been 700,000 refugees admitted since the disaster of September 11th, and not one, not one incident has occasioned where people from these seven countries caused a fatal terrorist act.
So, I know they want to talk about aliens. Let me tell you what they aliens. They're Microsoft engineers, they're Boeing salesmen, they're cancer researchers, they're students at the University of Washington, who are helping build my state economically. And this order hurt my whole state's economy, besides being unconstitutional.
So I'm quite glad that this federal court has stood up and provided what this nation needs, which are checks and balances. And we expect this president to follow them. Now they've got a right to appeal. We'll let them do so. But I think we know that the values of this country are going to be defended in the courts.
LEMON: Governor, if you -- if you, can you stand by. Because I want to bring my attorneys in. Can we get Alan Dershowitz and Michael Higginbotham in into -- OK. So, Alan and Michael. Governor, stay there.
LEMON: Because the governor says that the president is bound by this order and by this judge. Alan, you first.
ALAN DERSHOWITZ, DEFENSE ATTORNEY: First of all, I think it's very important, the White House statement, the White House statement could have said that the president is going to follow the order of the Massachusetts judge and he could have caused a major confrontation with the Washington judge.
[22:10:08] It's very important that the White House said no, the president is going to appeal the order to the ninth circuit. That's the way it should be. So we're going to get an appeal to the ninth circuit by the president, by the Justice Department. We're going to appeal to the first circuit by the plaintiffs who feel that they got with the wrong result when the judge in Massachusetts denied them a temporary restraining order.
We're going to get potentially conflicting decisions by different circuits. Ultimately, they'll get to the Supreme Court which is now divided 4 to 4. And if you want to hear something very interesting, the justice who is now been nominated to serve on the Supreme Court, Gorsuch says in his yearbook, attributing the quote to Kissinger, "The illegal we do right away, the unconstitutional takes a little bit more time."
So, if we're talking about a system of checks and balances, I think we have a little bit to worry about when the new ninth justice comes on the court who has at least as a young person said he has no problem with illegal or unconstitutional.
LEMON: OK. All right. Stand by. We've still got time for that. That hasn't happened yet. So, Michael, I want to bring you in before I bring the governor back. The governor is saying that the president is bound by this order and this judge. Do you see it that way?
MICHAEL HIGGINBOTHAM, UNIVERSITY OF BALTIMORE PROFESSOR: Well, yes, I do. And I think it's important if you look at the statement, I think it's very important that the president follows the rule of law.
I mean, we have a separation of powers principle. It's very important. And each branch must respect the other branches. And so, the president executes the law. But the courts interpret the law. And here you have two judges, one from Washington, one from Massachusetts, they have conflicting interpretations. And that must be decided by the court.
So, you're going to appeal to the Court of Appeals, ninth circuit, first circuit. They'll make a decision. And this will eventually go to the Supreme Court. That's what's supposed to happen. That's what makes our country so special.
LEMON: Yes. And Governor Inslee, you're an attorney as well, correct?
INSLEE: Correct. LEMON: OK. So, then how long given the circumstances of the
information that we have now, the statement from the White House, what the judge ordered earlier, how long will it take for this to play out and to unravel?
INSLEE: I can't predict that. It could be months. It could be years. At least we don't know the answer to that. But we do--
LEMON: But it won't happen overnight. We're not looking at a matter of a couple of days do you think?
INSLEE: Well, it's possible. I suppose the Court of Appeals could act with that alacrity but I doubt that will be the situation. But what we do know though, before the order of the judicial system is this order stand.
It's important that people understand that. This is a historic moment in our country. I do believe, at least in my lifetime, except when President Nixon was around, this is the moment where we, in most in need of judges in the separate branch of the judicial system to save our liberties.
And I have to tell you, we need a strong judiciary in this country because our liberty is at risk from those who want to put this into the chaotic situation of choosing one religion over another. And so, this is a moment we need a strong judicial system. I believe we've got one. And we certainly had one tonight. And I'm proud that we had the Beacon of Liberty shining out of Seattle tonight nationwide.
LEMON: Governor, I have to ask you. Our Jim Acosta read the statement. And I just have a copy of it here. I just want to read you the first part and ask you a question about it.
It says, "At the earliest possible time, the Department of Justice intends to file an emergency stay of this outrageous order and defend the executive order of the president," and then he said, "which we believe is lawful and appropriate." So, to file an emergency stay, how long would that take? Can they do that at this hour?
INSLEE: I suppose that's possible. But rather than speculate, let's just know one thing right now. President Donald Trump doesn't have the right to call anybody outrageous given the chaos he caused by this unplanned decision, which has created such tumult and trauma and injury across the nation.
We don't appreciate that characterization. This judge is a republican appointed judge. He ruled on the Constitution and the facts. He looked at the fact that none of the people from these seven countries were involved in one terrorist acts.
I'm concerned about this from a national security standpoint. I have people from our, basically in Washington fighting in Iraq. But the last thing we want is a recruiting poster for ISIS. That's frankly what this executive order is. But for a lot of reasons, I hope that we're going to continue to have
a strong judicial system to rein in this president who has done damage to this country already.
LEMON: So, our Rene Marsh who is listening as well, said that they're getting back to business and they've ordered that all visas from the seven countries singled out in this executive order that they were revoked.
[22:15:08] And so what does that mean? So now they said it's back to business as usual. What do you make of that? Governor?
INSLEE: Yes. Well, listen, the customs it sounds like what the agency is doing is following the order, which erases this as if it never happened. Now, again, we'll be able to have, you know, expedient sales, people goes to other products around the world and--
LEMON: So these people can travel back into your state, right? Is that what is this now?
INSLEE: Yes. From what I've heard, I'm relying on your excellent reporting for that. I don't have independent confirmation about it. But if in fact that's what the agency is saying, these folks ought to have the same rights they did as if the executive order never happened.
INSLEE: And that's important for a lot of people. Look, these are my neighbors and these are executives, these are physicians, and these are cancer researchers. And because this president didn't give two seconds thought as to what they were really doing because he didn't bother to pick up the phone and talk to his cabinet members, he issued a rogue order which caused all this chaos for business people and researchers and students in my state. So, I'm happy that we restore and announce the sanity in this country and I hope it will continue.
LEMON: Governor Inslee, thank you for your time. But don't go far away from the phone. We may need you. Because you never know what can happen and we thought we were going to ease into our weekend. But not the case. Thank you so much. We appreciate it.
I want to get back to Jim Acosta and Rene Marsh. So, Rene, you heard the governor says he is relying on your expertise -- your expert reporting. So tell us again about these visas being reinstated. He's assuming that that means people can now -- whose visas revoked, they can now come back into the state.
MARSH: So, and again, I want to clarify. You know, CBP was passing on information to the airlines, of course, it would be in the hands of the State Department to actually do the physical duty of reinstating those visas.
But yes, one would have to -- would have to think that by saying we're going to reinstate those visas, that means that if you have one and it's now valid, you will be able to, indeed, get on a plane and come into the United States.
The question is though, how long will that process take.
Remember, earlier today, our Laura Jarrett reported that the number of people who had their visas revoked was about 100,000 individuals. So, we don't know how long that process will take. But based on the language that CBP gave to the airlines it sounds as if this is something that's happening as we speak.
LEMON: OK. And Jim, I know you have to get off the lawn because there are rules and restrictions. I want to ask you. So, this is the first bit of information and the first statement you got and the first guidance. So we don't know when they will file an emergency stay for this. But they intend to?
ACOSTA: That's right. I mean, that's a pretty clear statement there from the White House press secretary that this president is not going to take this lying down. And that this is going to happen as quickly as humanly possible.
We were hearing from officials over here at the White House, that they were, you know, working with attorneys, you know, as we speak tonight to deal with all of this. And so this happened very suddenly.
But the President of the United States is finding out there are three co-equal branches of government and in this case, the judiciary branch, the judicial branch of government does have a say in all of this.
And you know, as you heard the governor there a few moments ago say, you know, democrats, they don't control the White House, they don't control Capitol Hill. So they're pinning their hopes on the judicial branch of government at this point to stop this president and this executive order.
The question though, is Don, and I think this is going to be very difficult in terms of people who want to see this temporary or this executive order struck down. Is that, you know, I mean, from what we understand the executive branch of government, the president, the White House, has pretty broad latitude when it comes to controlling the nation's borders.
And so, I mean, it will be interesting to see how far it gets up the chain, all the way to the Supreme Court and exactly what is ruled in the long run. Because for a while, you know, the courts have given the executive branch of government pretty wide latitude when it comes to this issues, Don.
LEMON: Al right. Thank you, everyone. Michael and Alan, I want you to stick around. Rene and Jim, we'll be getting back to you, I'm sure, throughout the coming hours here on CNN. So, stay with me, everybody.
When we come right back, much, much more on our breaking news tonight. A federal judge temporarily halts President Trump's immigration orders. What will happen next?
[22:0:00] (COMMERCIAL BREAK)
LEMON: Breaking news tonight. Federal Judge, James Robart, temporarily halts the president's immigration executive order nationwide. Again, temporarily. I want to get back to the White House now with CNN's Jim Acosta. Jim, you have some new information for us.
ACOSTA: Yes, Don. This is -- this is really interesting. I just want to read this to you because we read that statement to you a few moments ago. We now have an updated statement from the White House. And you can notice right away there's a big difference in the first sentence.
So, the new statement from the White House says, "At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the executive order of the president which we believe is lawful and appropriate."
I don't know if you remember from when I read that statement a few minutes ago, Don. But the original statement from the White House in all of this described the temporary restraining order coming out of Washington State as, quote, "outrageous."
In this new statement from the White House that we've just received in the last few minutes, and you know, sometimes removing a word can mean a lot, they removed the word "outrageous."
And so, I think that is an indication that, you know, while they feel, you know, that they're in the right here and that this executive order should be upheld, that perhaps, you know, treading a little more lightly with a federal judge might be in order here.
ACOSTA: This new statement from the White House took out the word outrageous. I think that's very interesting, Don.
LEMON: OK. So, let's -- Jim, let's go through this quickly. And we can back up that statement. Because first it said at the earliest possible time that they would, you know, file an emergency stay, right?
LEMON: And so now it's saying -- what is it saying now?
ACOSTA: It is saying at the earliest possible time, so they're--
LEMON: It's not giving you a time. I got it. Got it.
ACOSTA: But whereas before, they described the temporary restraining order out of Washington State as outrageous.
LEMON: Outrageous. Got it.
[22:25:00] ACOSTA: This new statement from the White House does not call it that anymore. And you know, listen. Once it's out there the first time, it's out there.
I just think it's very interesting that the White House would make this decision to remove that word. It's almost as if, you know, they shot first and aimed later in terms of reacting emotionally to this development in Washington State.
Obviously they're emotional over here. I'm sure the president I'm sure is angry that this has happened. But language matters, words matter. And it seems that they removed this word outrageous so as to thread more carefully in dealing with this legal battle that they are about to enter into.
LEMON: Jim, do you have to move from the lawn yet? Can you stick around and talk with our -- you got to go?
LEMON: We're told 10.30 is only when we have to get out of here.
LEMON: So, we'll get you back when we can. Go do your thing.
LEMON: I want to bring in -- thank you, Jim. I want to bring in the attorneys now. Back with me to discuss, Alan Dershowitz and Michael Higginbotham.
So, guys, I was looking at the original here and removed outrageous. So, my question for is more of a process question. Because we sort of gone over everything.
LEMON: Everyone is going we don't know, we don't know. This one supersedes that. The judge you said, you know, has power over the president when it comes to this with the law.
LEMON: So, walk me through, if you will, first Michael, the process, how long could this possibly take? What happens next? An emergency stay, the length, and on and on.
HIGGINBOTHAM: Well, it's really up to the parties and the courts how long it takes. But I would suspect, because this is a constitutional crisis, make no mistake about that, I suspect that both parties will be acting very quickly.
And that once this request is made, that the courts will examine it immediately, that appeals will take place quickly, and that the courts will convene quickly and make a judgment. And it's also possible that the Supreme Court, as it has done on previous occasions, way back in United States versus Nixon with the Watergate tapes, the Supreme Court can immediately take review of it.
LEMON: OK. Alan Dershowitz, same question for you. So do you think -- I think I heard an attorney on earlier on or a prosecutor saying, the federal prosecutor saying, this was -- she believed that this would indeed go to the Supreme Court. It wasn't a question about it. But walk us through the process here.
DERSHOWITZ: Well, I think it will. But it will take some time. I think by tomorrow, we will see an appeal filed in the ninth circuit. I also think we'll see an appeal filed by the plaintiffs in the first circuit. And I think the government will give the Court of Appeals a limited time and say, look, we have a right to enforce this order. And if you don't reverse this or at least consider it in the next 24, 48 hours, we're going to go directly to the United States Supreme Court.
The United States Supreme Court is reluctant to take a case away from the circuit courts. But if you have two circuit courts in conflict, the case may very well get to the Supreme Court within a matter of days.
And we saw that happen of course in Bush versus gore. We've seen it happen in other cases. Courts are very nimble. They have 24/7 availability. You have duty judges, you have circuit judges. And so we could get an a opinion from the Supreme Court by the end of this weekend. It is certainly possible.
And I think we're going to see the government push very, very hard. But let's remember also, there are plaintiffs, there's the ACLU, there are other organizations. They're going to push very hard to get a review of the first circuit, in the first circuit of the negative decision they got from the federal judge in Massachusetts. So we're going to see a lot of action over this weekend.
LEMON: OK, then, all right. That's a lot to take in. So, but at this particular point, the judge in Washington State, that stands. People can now -- their visas can be reinstated. They can now enter the country, is that right?
DERSHOWITZ: We hear that.
LEMON: Go ahead, Michael. Go ahead.
HIGGINBOTHAM: Is that for me?
HIGGINBOTHAM: Yes. If you look at what the judge said in the Washington State case, he said that his reasoning applies nationwide. If you listen to the governor of Washington State said as well, he expects his citizens to be coming into the state immediately.
HIGGINBOTHAM: So unless the decision is reversed by the ninth circuit Court of Appeals, that decision applies. LEMON: That's my question to Alan. So, at this point, the
administration, that the only alternative they have is to apply for this stay. Otherwise, it stands.
DERSHOWITZ: No. No, they can seek to apply the Massachusetts court's opinion. They could say, look, we have conflicting opinions here. We think this is a lawful order and we're going to comply with the Massachusetts court.
Now, it's a little harder. The Massachusetts court just refused to renew a stay, whereas, the Washington court actually granted a stay. So the granting of the stay is a kind of tougher order than refusing to grant the stay.
[22:30:02] And so, if I were the lawyer for the Justice Department and I were being prudent and cautious, I would say you really have to comply with the Washington State order. If you want to be aggressive and the Trump administration could be aggressive, they could say no, we're going to comply with the Massachusetts order.
And I think the statement from the White House was very revealing just saying we're going to appeal. That means they're not going to take the law into their own hands and simply comply with what they think is the order that's more favorable to them. That's a good development.
LEMON: OK. All right. That's interesting. And I'm glad you pointed that out. Because we had the attorney general on earlier from Washington State and he said, someone asked him what if -- what if the president refused to abide by this and he said, well, the president is not above the law and -- was it you who asked if him if he would find him contempt?
DERSHOWITZ: I asked him. I asked him would you hold him in contempt. Yes.
DERSHOWITZ: I mean, that would be very, very interesting to have a federal district court judge hold the president of the United States in contempt. It's possible. It's possible. The Constitution provides for that. As he said, nobody is above the law.
LEMON: So what does that mean? If you find the president -- I know we're getting ahead of ourselves here. But that's an interesting question. What happens?
DERSHOWITZ: Well, you order the president to do it and literally, you could find the president in an ultimate case, you could order his imprisonment. That's not going to happen.
DERSHOWITZ: We're not going to have that kind of a conflict. But it was a theory--
(CROSSTALK) LEMON: I just thought it was an interesting response.
LEMON: It was a great question and interesting response. Was that from -- were you speaking of the governor or I was preparing for this show. Were you speaking or to the attorney general at that point?
DERSHOWITZ: The attorney general.
LEMON: The attorney general.
DERSHOWITZ: And the attorney general said he would enforce the order or whatever it required.
LEMON: OK. Michael, to say this is extraordinary would be an understatement.
HIGGINBOTHAM: It is extraordinary. As I said, and I agree with some of the previous speakers, this is a constitutional conflict. And the question, I mean, we have--
LEMON: But not crisis?
HIGGINBOTHAM: Not crisis yet. No. But it's a conflict. And the courts will work it out. The courts are the final interpreter of the Constitution. You have two conflicting decisions. That's what the Supreme Court is there for, to ultimately interpret the Constitution.
But I actually think this conflict goes back about ten months. I really think it started when the Senate refused to give a hearing to President Obama's nominee for the Supreme Court, Merrick Garland. I think it started then. I think this is sort of a continuation.
LEMON: And of course, to be continued. Thank you, gentlemen, I really appreciate it. How will this play out politically? We're going to talk about this. A federal judge now temporarily holding -- temporarily halting the president's immigration order throwing the nation into chaos.
[22:35:00] (COMMERCIAL BREAK)
LEMON: Here's the breaking news. A federal judge temporarily halting President Trump's travel ban. The Justice Department saying it will review the judge's order and determine the next step.
I want to bring in now CNN senior political analyst, David Gergen, also Jack Kingston, a former senior adviser to the Trump campaign, David Rohde, CNN global affairs analyst, presidential historian, Douglas Brinkley, the author of "Rightful Heritagge: Frandklin D. Roosevelt and the Land of America," and CN legal analyst, Laura Coates.
A big panel because this is a big story. David Gergen, you first. I mean, this is a stunning blow in your assessment to the president's travel ban.
DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Absolutely. It's astonishing. Listen, Don, I think in fairness, new president often come out of the gate and make stumble. John Kennedy had his Bay of Pigs in his first 100 days. Bill Clinton had his whole to the controversy over in the gays in the military the first 100 days. You can go down the list.
But I must say, I cannot remember a career having a president -- having a president who has had so much chaos surrounding his presidency in the first 100 days. And you know, they brought, you know, I understand they were trying to address a serious concern they had.
But they brought this on themselves by the way they drafted that. They didn't have the lawyers. They didn't have this couple of team. They didn't want to talk this to the Justice Department. They need to vet this in a way they would have pass constitutional muster. They wouldn't have had this problem.
JACK KINGSTON, FORMER UNITED STATES REPRESENTATIVE: Don.
LEMON: I'm looking at you, I'm looking at you, Jack Kingston.
KINGSTON: Having served in Congress 22 years in the most predominant period barn on was the first 100 days of the contract with America. We would meet until 2 in the morning, routinely and often there would be some almost disaster, Newt would get us into HC 8, HC 5, there has been there kind of the bull pen and the bottom of the capitol and say, look, we got to pull together.
Sometimes we'd meet two and three times a day because it was almost like the car was going to clean off the road. Part of progress in Washington has to be sloppy. Getting things done in a town that's not used to -- the town that liked its own inertia. And I thought that many--
LEMON: You're good, Jack.
KINGSTONL Don, I'll tell you, I've talked to many members of Congress this way, they love it. They love what's going on because things are happening again. And you know, like good ball players, they've trained for the big game, the big game is on. And it doesn't mean it's going to be perfect.
LEMON: Well, just because it's exciting doesn't mean that it's good for the country. I mean, to say that this was -- I hear people saying it's great, this was working perfectly, it was rolled out.
If you talk to most republicans, not including you, or many republicans, they will tell you off camera, off the record, it was rolled out poorly. They should have put more thought into it. And I'm sure tonight they will tell you, this is proof of that. What do you say, David Rohde? DAVID ROHDE, CNN GLOBAL AFFAIRS ANALYST: I think in terms of the White
House, I think this hurts Bannon. This was his project. I met with a civil servant today who said they knew nothing about this. And that, you know, that's why you go through a process, that's why you go through an agency. You need to give guidance through the agencies about how to carry this out.
More broadly, our country is bitterly divided. The reaction of this will be very partisan. There were a lot of republicans that support this and democrats vehemently oppose it. And if you look at the polls or the approval numbers for the president, you know, it's 88 percent of democrats oppose this ban, 88 percent of republicans support it.
[22:40:00] LEMON: Well, it's like 53 percent of the country, I think oppose it and 4 -- I think 48 or something.
LEMON: But buy party, it's by party.
LEMON: There it is right there.
GERGEN: But, Don.
LEMON: But David, hang on, I got to some breaking news. I have some breaking news.
Laura Coates, I hope you're listening to this. We've gotten information. This is from White House sources or our Washington, D.C. folks. Federal official says not to expect an appeal to be filed tonight. Tell us about that.
LAURA COATES, CNN LEGAL ANALYST: Well, I'm not surprised. This is going to take a lot of diligence and trying to figure out how you can make an argument in Massachusetts and the same argument in Washintgon State and get polar opposite results from the courts.
They have to figure out a way to balance effectively to show that the basis for the executive order was lawful and constitutional. Now, most of us disagree with that principle. But that's what the Justice Department has to actually show.
And remember, Don, the Supreme Court hates confusion across the country. They do not like the fact that right now there are competing interests between two different courts. And they're going to try to clarify that and rectify that ambiguity.
Because on the one hand in Massachusetts you've got a court saying, this is not even a discrimination problem and there's no property right to even have a visa. And then in Washington State someone saying well, we're going to cancel out the order that says things about the establishment clause portions and the minority of religions in certain countries and we take issue with the ban entirely. So you've got competing interests here and the court it be ideal thing.
(CROSSTALK) LEMON: But you also -- you also Laura, if I might interject here, you
also have the former acting attorney general who was fired because she would not comply with -- she didn't think it was -- it would hold muster. And now you have this.
COATES: Yes. This is -- this is - that's a great point, Don. Because you have somebody like the acting A.G. who does carries some weight. Remember, people don't realize that the government is really fungible.
It's the United States talking collectively. It's not just Sally Yates. It's not just any other person. It has to be a collective force, which is one of the reasons why the courts have to have uniformity.
Listen, you cannot have the government lawyers going into one court arguing, this is not violating equal protection and the courts saying, we agree, and the other courts that same argument not holding any weight. This is directly coming from the confusion that was with the rollout of this program. Because that absence of uniformity and the way to enforce it has now taken a toll on the courts and they're stepping up to the plate.
LEMON: Douglas Brinkley, I want to ask you. You have the Representative Kingston who said, you know, the people are excited, that this was similar to what happened in the '90s, and Newt Gingrich r what have you, Douglas, is that a fair comparison?
DOUGLAS BRINKLEY, CNN PRESIDENTIAL HISTORIAN: No. What this reminds me of is 1952 when President Harry Truman tried to interfere with steelworkers strike. Steel mill strike and he signed an executive order saying that the federal government could take over the steel mills.
And you had Youngstown for -- Youngstown Sheet and Tubing Company versus Truman and Truman's executive order was deemed invalid. Since 1952, presidents don't willy-nilly jinn out executive orders without proper lawyers and proper vetting.
The Trump administration trying to get momentum and kind of blind side people right out of the gate, pushed this forward, it created protests all across America and now it's just been deemed invalid. Now it's going to be challenged.
But Trump already has only been president days and has us in a constitutional crisis because he didn't learn the lesson Truman learned in '52. He didn't study his history properly.
KINGSTON: Don, there's no constitutional crisis here. There's a good constitutional debate. We're actually seeing the Constitution in action if anything. You see the judicial branch, you see the legislative weighing in, you see the first amendment, the right to free speech, the right to assemble. This is what the Constitution does. The Constitution is being tested. And you also have the two courts--
(CROSSTALK) BRINKLEY: We're also supposed to be nine Supreme Court justices and
we have eight.
KINSGTON: Well, we also supposed to have an attorney general and a lot of cabinet members like the secretary of state that would designate seven states of nations of concern.
LEMON: One did precede the other though, representative.
KINGSTON: Well, Ii just want to say -- I just want to say we're waiting on a whole bunch of people.
LEMON: Eight years.
KINGSTON: We want to fill out -- we want to fill out the government rapidly.
KINGSTON: And now there's somebody to vote on for the Supreme Court.
GERGEN: Well, it is true. There's checks and balances as Alan Dershowitz said earlier, have come into play here. And I think that part of the constitutional arrangement I think does give comfort to people when the other party is in. The checks and balances serve our purpose. So, I think that's going on.
But I must say, you know, what people also want is orderly government. I do think that maybe this will send shockwaves through the administration. The President Eisenhower used to say, make haste slowly. Make haste slowly. And there's something to be said for slowing this down, having a revolution in slower motion. You know, the way it's going now is pal mal, it's very upsetting to people, it's very distressing to people.
[22:45:02] COATES: Well, Don.
KINGSTON: I agree with that. But to suggest that--
LEMON: Stand by, Laura.
KINGSTON: -- there's suddenly demonstrations because of this. The left hasn't quit demonstrating on the streets since the election. I do agree with you. There should be deliberation on any new executive order. But to suggest that the left was caught by surprise, they've been ginned up. I've never seen this. It's like a flash dance that you see on TV.
LEMON: Why do you say that -- this is that, you know, we're now seeing the first amendment in play. And listen, why would you make fun -- whether democrat or republicans, say that the, you know, the left has been protesting. That's their right to protest, whether you agree or not. That's part of the Constitution.
KINGSTON: It is.
LEMON: I mean, I mean, someone, when you said that -- we you said that we were free speech, the first amendment, it reminded me of when Bannon said, you know, that the press should shut up. He's silencing then the Constitution.
KINGSTON: No. I'm saying we are seeing freedom of speech and we are seeing the freedom of assembly. But we're also seeing the judicial and the executive branch and the legislative branch. I mean, I think it's kind of a pretty thing. It's not necessarily smooth and wonderful. But I think if you step back and see, this is our Constitution in action.
LEMON: Yes, go ahead, quickly, Douglas. I know you want to get in.
BRINKLEY: And you know, Judge James Robart, he's a republican, a George W. Bush appointee. This isn't about left protesting. It's about a federal judge saying this was an executive order that was bogus. And it's going to -- by nature, it's creating a crisis in the country that was unnecessary.
If Donald Trump wanted to do that kind of immigration ban. You do the proper legal work get it done right, instead of shoving it down people's throat last weekend on a Saturday where everybody was caught surprised. Because of Bannon and Miller out of White House would decide that they want to do this shock and awe treatment on the American people. It's called failed government when a White House operates like that.
LEMON: Laura Coates, I know you want -- you want to get in on this. Given everything that's happened when you -- can all of the things that happened, the acting attorney general being fired, what just happened with this judge now in Washington State, can all that be brought into court?
COATES: Of course. I mean, it's all going to be part of both the government's argument as to why they should, the order should be upheld in Washington and also the, I mean, in Massachusetts and also why the ACLU and others will be interested in having it upheld in Washington State.
But remember, the big elephant in the room is the fact that the president was granted the authority by Congress to determine who could gain entry into the country. And there is a deference that is given to the president whether we like or not about national interest.
The problem here why there's a constitutional dilemma is because we have to decide about those three branches of government whether or not the executive privilege is given to the president, that deference, runs afoul of our constitutional principles.
And that's why we're in a situation where nine justices, and perhaps you could do it with eight if there's a majority in one way or the other, but that's what the grappling issue is with. The big elephant in the room is that presidential prerogative holds a lot of weight when it comes to national security.
LEMON: All right. Thank you, everyone. Federal judge temporarily halting the president's travel ban. Now what?
[22:50:00] (COMMERCIAL BREAK)
LEMON: So, here's our breaking news on this Friday night. A big move tonight by a federal judge in Washington State, temporarily halting President Trump's immigration order nationwide.
I want to bring in now CNN political commentator, Sally Kohn, a columnist for The Daily Beast, and republican commentator, Joseph Borelli, a New York City councilman. I'm so glad to have both of you on. What do you think, first, councilman?
JOSEPH BORELLI, NEW YORK CITY COUNCILMAN: Well, I think we should start by saying that this sort of dispels the notion that Donald Trump is some evil dictator, when he is instructing the Customs and Border Patrol to uphold and respect the rule of this judge even. And they're going to go about challenging this in their ordinary legal, you know, methods they can.
I think that that shows some discipline that people have criticized the Trump administration for. That they're actually following the regular remedies and not just saying, we're going to, as the person Dershowitz said earlier, just follow the Boston judge.
LEMON: So you think he could have been more defined in this. And this is a release from the White House. You think he could have been more defiant? You think that--
BORELLI: Well, let's not forget. The media reported how Donald Trump was defying court orders just two days ago, and they were very hyperbolic and we were all frenzy. But tonight we see the Donald Trump administration actually following the judge and saying that they are going to go about this in the proper way.
LEMON: Let me ask you before I get to Sally. Removing the word outrageous do you think that was that unnecessarily hyperbolic and that's why they did it?
BORELLI: I think as Jim Acosta reported, there was a lot of emotion problem in the first -- in that first version of the statement. I think the real part of that statement that we all should look at is the part where Sean Spicer cites the chapter and verse of a law which gives the president the broad authority to regulate, in this case -- aliens - that's the verb that they used, the noun they use, who come into this country.
We give the president tremendous authority to regulate who comes in the country. And that's why I think once we do have these appeals, if he needs goes to the Supreme Court, the president's actual stand.
LEMON: Sally, let's read the thing. It says, "At the earliest" -- before you get in, "At the earliest possible time, the Department of Justice intends to file an emergency stay on this order and defend the executive order of the president which we believe is unlawful and inappropriate. The president's order is intended to protect the homeland and he has the constitutional authority," that's what also he said, "and the responsibility to protect the American people." An epic battle is underway.
SALLY KOHN, CNN POLITICAL COMMENTATOR: He doesn't have the constitutional authority to ignore the Constitution. And this is actually pretty simply. It's the Muslim ban. We know it's the Muslim ban. He sent his surrogates and spin doctors out to the state to say it's not. But we all know it is.
It's what he promised to do during the campaign. And if it wasn't clear, he picked majority Muslim nations and he said he was going to make sure there's special exemptions for Christian, special treatment for Christians.
Now look, this is the United States of America. Our country is founded on the principle of religious freedom. It occupies the importance in our Constitution for a reason. Before, before we even get to enumeration of presidential powers. This is essential.
[22:55:01] And you know what? Any religious group. Any religious group that he wanted to do it against, it would be wrong. It would have been wrong in the 1930s against Jews. It's wrong now against Muslims. And it is not making us safer, it is making us less safe.
BORELLI: I think we should fact-check, Sally. Another, the Seattle court was not testing whether this was a Muslim ban or not. That's not what the case was. In fact, I think the case was in Alexandria, Virginia. We were just trying to catch up with the news that was breaking.
But I think the court in Alexandria, Virginia didn't find evidence that this was a Muslim ban. So, I don't -- I don't think you should be using the term Muslim.
KOHN: I see. OK, so--
BORELLI: In relation to this court case.
KOHN: You know, it's interesting because your candidate, your president is now challenging. You're arguing the fact based on and arguing against the court finding. But you want to give the court finding credence to argue against me.
BORELLI: There were three court findings. That was Alexandria, Boston, and Seattle.
KOHN: I mean, this is insanity. We all know what it is. And he says he made it clear himself. This is about, you know, his definition of terrorism, et cetera.
But let's pay attention to what happened. What it means. Is that, first of all, countries that we have helped to destroy through our creation of ISIS, we now can't help the translators, the refugees, the people whose lives we ruined, they can't come here for solace.
LEMON: I've got--
KOHN: Businesses are failing.
LEMON: It's like this--
KOHN: They hate us. It's wrong.
BORELLI: Sarah, I wish you were here in 2011, when Barack Obama was doing the similar thing. I notice -- I notice the talking point.
KOHN: This law wouldn't have prevented that.
LEMON: It's not the same thing.
BORELLI: It is.
BORELLI: It is a similar enough thing or you can conflate the two.
LEMON: You can conflate it if you want to and if you don't want to be factual. (CROSSTALK)
KOHN: It's completely a different thing.
LEMON: But if you look at what it is, it's not the same.
KOHN: This is a litmus test that national -- the national security experts--
BORELLI: Where did you see Muslims?
KOHN: You know it and I know it and it's disingenuous to say it.
BORELLI: I totally disagree. I totally disagree. I totally, totally -- you can shout on me all you want. But it doesn't make it a Muslim ban.
OKHN: National security experts have said this makes us less safe.
BORELLI: So, a Muslim person from Indonesia, were they stopped?
KOHN: You know what? The American people don't like it. And ISIS likes it. That's what we need to know. ISIS likes the Muslim ban. The American people don't. I stand with the American people. For crying out loud, we stand to our values. BORELLI: I don't know--
LEMON: So, Joseph, let me ask you this.
BORELLI: So, CNN/ORC poll, which of course is the best poll because we're here, had the Muslim ban majority oppose it. But that was the outlier because the Reuters/Ipsos poll had the majority in the favor of it.
LEMON: Let's put the poll up. I should--
BORELLI: And the rest -- and the rest of America.
LEMON: -- let's put it up since we're talking about it. Forty seven percent -- 47 percent of the country favor the travel ban, 53 percent oppose it. Forty one percent thinks it makes the U.S. more safe. Forty six thinks it makes it less safe. Twelve people -- 12 percent, I should say, thinks it makes no difference here.
BORELLI: That's the outlier. I'm not denying those numbers but that's the outlier for the three polls that were poll in this topic.
KOHN: It's unconstitutional. It's unconscionable. We -- we incarcerate--
LEMON: I've got to go.
KOHN: -- a five-year-old kid--
BORELLI: We'll find it out.
KOHN: -- for hours this weekend.
LEMON: All right. Sally.
KOHN: Because you keep a terror threat.
LEMON: I've got to go. I've got to get to the break. But I want to ask you this. So you're giving the former president credit on foreign policy?
BORELLI: I wasn't outraged when Barack Obama did this in 2011. Nor am I outraged when Donald Trump does it in 2017.
KOHN: And those unconstitutional executive orders and he's being a king?
LEMON: Thank you very much. We will be right back.
[23:00:00] (COMMERCIAL BREAK)