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Interview With Oklahoma Senator James Lankford; Travel Ban Ruling; Court Rules 3-0 to Keep Travel Ban on Hold. Aired 6-7p ET

Aired February 9, 2017 - 18:00   ET



WOLF BLITZER, CNN ANCHOR: Will a three-judge panel reinstate the ban that caused so much confusion and outrage?

Under threat. Even as the new attorney general takes charge, we're learning about heightened security for some members of the judiciary. Are judges who previously ruled on the president's travel ban in danger tonight?

Disheartening dispute. President Trump refuses to accept that his Supreme Court nominee criticized his verbal attacks on federal judges. I will ask a top Republican senator why Mr. Trump is casting doubts on remarks that were confirmed by members of his own party.

Wrong, wrong, wrong. Even a top Republican congressman is now rebuking Trump senior adviser Kellyanne Conway for promoting Ivanka Trump's clothing line on national television. Will she be punished, while the president faces no penalty for tweeting about his daughter's business troubles?

We want to welcome our viewers in the United States and around the world. I'm Wolf Blitzer. You're in the THE SITUATION ROOM.

ANNOUNCER: This is CNN breaking news.

BLITZER: We're following multiple breaking stories right now, including a decision on the immediate fate of the president's controversial travel ban.

The Ninth Circuit Court of Appeals says it will issue its ruling tonight on the Trump administration's request to reinstate the ban, this as CNN has learned threats have been made against more than one federal judge who heard legal challenges to the president's executive order.

But we're told those judges now are receiving extra law enforcement protection.

Also tonight, the White House says the president has no regrets for slamming the judge who suspended the travel ban. Members of both parties say Mr. Trump's own Supreme Court nominee has described the president's verbal attacks on judges as disheartening and demoralizing. But Mr. Trump and the White House are denying that Neil Gorsuch

directly criticized the president. They're claiming that Democratic Senator Richard Blumenthal misrepresented the judge's comment, even though at least three Republicans have publicly confirmed what Gorsuch said.

Also breaking, the White House says Trump adviser Kellyanne Conway has been "counseled" for promoting Ivanka Trump's business on national television. There is no further explanation. Conway urged Americans to go buy Ivanka's stuff, her words, Ivanka's stuff, and talked about Nordstrom's decision to drop the first daughter's fashion line. Experts say Conway appears to have violated a rule banning executive branch employees from using their positions to endorse products.

I will talk about that and all the breaking news with Republican Senator James Lankford. He's standing by, along with our correspondents and analysts, as we bring you full coverage of the day's stop today.

First, let's go to our senior White House correspondent, Jim Acosta.

Jim, as we awaiting the ruling on the travel ban, the president is engaged in a new war of words about what his U.S. Supreme Court nominee said about him.


The White House is bracing for the ruling on the travel ban from the Ninth Circuit Court of Appeals. Aides to the president are anxiously awaiting the ruling as the president has been highly critical of the judges handling that case.

Earlier today, White House Press Secretary Sean Spicer was trying to do some damage control after the president's pick for the Supreme Court, Neil Gorsuch, told senators in private conversations that Mr. Trump's comments on the judges were "demoralizing."

Spicer told reporters earlier today Gorsuch wasn't really criticizing the president, just speaking generally. Here is what he had to say earlier today.


SEAN SPICER, WHITE HOUSE PRESS SECRETARY: The judge was very clear that he was not commenting on any specific matter, right? And then he was asked about his general philosophy. He literally went out of his way to say, I'm not commenting on a specific instance.


ACOSTA: But that does not line up with what a White House spokesperson told multiple news outlets, including CNN yesterday.

And Spicer's statement is also at odds with senators from both parties who maintain Gorsuch was speaking specifically about the president's criticism of these judges handling this case. Republican Senator Ben Sasse, for example, Wolf, took to the floor of the Senate earlier today to say that any attack on his -- quote -- "brothers and sisters of the robe," referring to judges, is an attack on everybody in the judiciary -- Wolf.

BLITZER: Jim, Sean Spicer was also asked about some comments Kellyanne Conway made earlier in the day on FOX News about Ivanka Trump. Tell us about that.

ACOSTA: That's right.

This all got started when White House counselor Kellyanne Conway was talking about, as you said, President Trump's defense of his daughter Ivanka on FOX News. You will recall the president tweeted he was upset with the Nordstrom department store chain for dumping Ivanka's clothing line due to poor performance.

Conway defended the president's tweet and encouraged viewers during this segment on FOX News to go Ivanka's products, making that pitch directly from the White House Briefing Room. The White House acknowledged that Conway made a mistake. Here is how it all played out.



KELLYANNE CONWAY, TRUMP SENIOR ADVISER: And they're using her, who has been a champion for women empowerment, women in the workplace to get to him. So, I think people can see through that.

Go buy Ivanka's stuff is what I would tell you. I hate shopping. I'm going to go get some myself. This is just -- it's a wonderful line. I own some of it. I fully -- I'm going to just give -- I'm going to give a free commercial here. Go buy it today, everybody. You can find it online.

SPICER: Kellyanne has been counseled. And that's all we're going to go on. She's been counseled on that subject. And that's it.


ACOSTA: Sean Spicer did not specify what counseled meant. But we're told the White House Counsel's Office did reach out to Kellyanne Conway shortly after those comments on FOX and advised her she could be in violation of federal ethics rules and that, during that conversation, Wolf, apparently she admitted her mistake, that she should not have said that on FOX earlier today.

BLITZER: Jim, there was another contentious moment at that briefing when Sean Spicer was asked about the president's tweets. Tell us what happened.

ACOSTA: That's right.

This may have been the testiest briefing so far to date for this administration. It got testy earlier today. White House Press Secretary Sean Spicer was asked about the president's tweets and why he has tweeted about certain things like his fight with Nordstrom, but not about more pressing matters like the recent terror like the mosque up in Quebec.

Spicer fired back at that reporter who asked that question that the White House did address what happened in Quebec and got very personal with the reporter who asked the question. And here's how that played out


SPICER: You're equating me addressing the nation here and a tweet? That's the silliest thing I have ever heard.


ACOSTA: There you go.

We hear that Spicer will be getting some relief in the coming days, Wolf. Administration officials are telling us the White House is closing in on hiring a communications director, relieving Spicer of that duty.

He has been serving as both communications director and press secretary for the last three weeks. That is a massive load, as you know, Wolf, for anyone to handle at the start of a new administration -- Wolf.

BLITZER: Certainly is. Jim Acosta, thanks very much.

Also tonight, as we await an appeals court ruling on the president's travel ban, there is new concern about the security of federal judges hearing challenges to the executive order.

I want to bring in our justice correspondent, Pamela Brown.

Pamela, what are you learning, and what's the latest?

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Wolf, we're learning from the Ninth Circuit Court of Appeals it's announcing tonight it will release the ruling on whether to reinstate President Trump's travel ban very soon.

This as law enforcement sources are telling us it has elevated security concerns for judges across the country in the wake of the legal proceedings over the travel ban.


BROWN (voice-over): Tonight, CNN has learned threats against more than one of the federal judges who heard legal challenges to the president's travel ban have led to extra protection for those judges. For now, local law enforcement and U.S. Marshals have stepped up their security.

While there is no indication recent comments by President Trump have led to the threats against the judges, his tweets did lambaste a federal judge who temporarily suspended his ban, calling him a "so- called judge" and putting him on notice -- quote -- "If something happens, blame him and the court system."

The message was clear if there is a terrorist attack, it's the judge's fault.

JOHN MUFFLER, FORMER U.S. MARSHAL: I have seen a direct correlation between negative rhetoric from politicians to increase in threats and inappropriate communications towards judicial officials.

BROWN: Trump's comments on judges are raising complications for his own Supreme Court nominee, Judge Neil Gorsuch, who found himself at the center of a political firestorm after telling senators from both parties on Capitol Hill that Trump's comments were "disheartening and demoralizing."

SEN. RICHARD BLUMENTHAL (D), CONNECTICUT: I said to Judge Gorsuch and I believe that ordinarily that a Supreme Court nominee would not be expected to comment on issues or political matters or cases that come before the court. He's been nominated by a president who has repeatedly and relentlessly attacked the American judiciary on three separate occasions.

BROWN: A spokesman and White House liaison for Gorsuch confirmed the judge's comments. But Trump today contradicted that and blamed the media.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: You misrepresented his comments totally. His comments were misrepresented.

BROWN: And White House Press Secretary Sean Spicer said the judge wasn't responding to Mr. Trump's tweets.

SPICER: There's a big difference between commenting on the specific comments that had been made in a tweet and his general philosophy about the judiciary and his respect for his fellow judges.

BROWN: The back and forth comes as the Ninth Circuit Court is deciding on whether to reinstate President Trump's travel ban. Today, Trump's new attorney general, Jeff Sessions, defended the ban.

JEFF SESSIONS, U.S. ATTORNEY GENERAL: We need a lawful system of immigration, one that serves the interests of the people of the United States. That's not wrong. That's not immoral. That's not indecent.


BROWN: White House spokesman Sean Spicer also said today the president has no regrets about the recent comments he has made about the judges.


Again, we're expecting a ruling from the Ninth Circuit Court any minute now -- Wolf. BLITZER: Once we get it, we will share it with our viewers here in

the United States and around the world.

Pamela, thanks much.

Let's talk about all the breaking news on the president's travel ban. Republican Senator James Lankford is with us. He's a key member of the Senate Homeland Security and the Senate Intelligence Committees.

Senators, thanks very much for joining us.

SEN. JAMES LANKFORD (R), OKLAHOMA: Glad to be with you again, Wolf.

BLITZER: Want to get to the breaking news. CNN is now learning that at least one of the federal judges who heard legal challenges to the president's executive order, that authorities have now had to step up security for that judge.

Do you worry that could have been prompted by that decision, maybe prompted by other statements out there or tweets, if you will?

LANKFORD: We don't know what prompted it at this point and what's taken it on.

I can tell you there are a lot of judges who face a lot of security issues. And when we talk flippantly about judges in any way or there's any conversation about judges, we miss the fact that they face a lot of threats.

They deal with the criminal element and they deal with very difficult cases a lot and very often they face real security risks.

BLITZER: Do you want President Trump to tone down his rhetoric when it comes to these federal judges?

LANKFORD: Actually, just period for all of America.

We're facing it both in the Senate. We're facing it around the nation. This is a good time to be able to help us get back to real discourse. We as Americans don't have to agree on everything. We can disagree and we can disagree strongly. It doesn't have to be personal.

BLITZER: You do want the president to tone down his rhetoric? Because he's very been active on Twitter, as you know. He's going after these judges.

LANKFORD: The president can choose to speak however he chooses to. Obviously, the people that voted for him through the process, they like this kind of rhetoric.

I would say, as the president of the United States, lead the nation in being help to turn the volume down on a lot of the rhetoric. We're facing it on the Senate floor and trying to get the volume down there of the debates and stop it from so personal. And we're facing it around the country. When people suddenly shift to accusations and throwing names out and everything else, it doesn't help us actually have real dialogue about the real policy issues.

BLITZER: That's true. And I will take as a yes.

Let's talk about this interview that the former director of national intelligence, James Clapper, just gave to CNN's Jim Sciutto. And he said -- he was out only days ago, what, less than three weeks ago as the director of national intelligence.

He said that he saw no intelligence necessitating this specific travel ban. You're on the Intelligence Committee. Did you see a specific threat over these past several weeks that could have resulted in a "flood of terrorists" coming into the United States if the president had not immediately installed that travel ban on those seven Muslim majority countries?

LANKFORD: It's not just seven Muslim majority countries, obviously, and you tracked this very well.

These are countries that have -- they are marked as state sponsors of terrorism or they were countries of particular concern that the Obama administration and Congress had already voted on previously. It's seven very specific countries on this.

The challenge for the director of national intelligence and all of us in the Intelligence Committee is not a matter of, is there a specific threat coming up? We're already at a high level of risk as a nation right now.

We see that from the ISIS threats and everything else. What he's trying to identify as I read his statement is, is there a specific credible threat the is coming at us now vs. are we already at a high level of risk? We're already there.

BLITZER: Senator, stand by for a moment.

ANNOUNCER: This is CNN breaking news.

BLITZER: The Ninth Circuit court of appeals has now issued their ruling on the president's travel ban dealing with these seven Muslim majority nations. We're getting that ruling into THE SITUATION ROOM right now. We're going to share it with you shortly. Stand by for that.

Senator Lankford, you have been closely following this case. All of us want to know what these three federal judges in San Francisco, the Ninth Circuit Court of Appeals, have decided. But the stakes clearly for the U.S. and for so many people around the world are enormous right now.

LANKFORD: They are enormous.

And as we deal with both security risks and also realizing who we are as a nation, that we've always been a nation open to immigration, but we have also always been a nation that's very attentive and aggressive on this. President Obama slowed down those refugees coming and did a short-term stop for the immigration from some of these areas as well because we wanted to make sure that we got it right.

I understand President Trump saying I want to be able to check the Obama administration, how they did the vetting and to be able to examine it and be able to see it as well. It's understandable. It's reasonable for the president. Other presidents have done it. And now we will have a court getting a chance to examine it.

BLITZER: Let's talk about the options out there.

One option is that they prevent the president's travel ban from going forward and it's basically status quo, what is going on right now. The other option is that they reverse that and they let the president's travel ban go into effect and individuals from these seven Muslim majority countries will no longer be allowed to come into the United States, at least temporarily.

LANKFORD: Right. For three months.

BLITZER: Syrian refugees won't be allowed to come into the United States indefinitely. What do you hope the decision is?


LANKFORD: You know what? I would hope that that they would actually say to the president the same thing that the judges said to the previous president that said, this is the right of the president to be able to make a decision on national security issues.

Clearly, the law already gives that latitude to the president. People may agree or disagree with the president's decision, but I think the law already gives that kind of latitude to him. I would hope that we don't get past this three months. They can get a chance to do the inspection. Quite frankly, I would hope that they would do it in less than that and be able to evaluate it. It was a very messy rollout, as you know.

There were four chaotic days.


BLITZER: Why were they so unprepared? It was so messy, this rollout. Why did they just do it the way they did it and cause such chaos, whether at JFK or Dulles Airport here or LAX in San Francisco, or at international airports? People who had valid visas to come to the United States could no longer come.

LANKFORD: Yes, it was chaotic for hours there.

There were four solid days of chaos. What they didn't do and they made the mistake on, they have now admitted. General Kelly has already come out and said we made a mistake. We should have let the information out early to these embassies, to airports, to the airlines, to our customs officials, let everyone look at it, see the interpretation, and then put it into effect.

Instead, they put it into effect. And you had four days where some airlines interpreted in some way, the airport interpreted it in a different way, the embassies overseas interpreted a different way, consular officials interpreted different, customs officials interpreted it.

Four days, everybody is trying to figure out what decision. Are legal permanent residents involved, American citizens involved? They have cleared all of that up and it's a much smoother process at this point, as they made it clear to everyone.

For instance, legal permanent residents are not affected by this. They can get a chance to come in. Legal visa holders are not affected. They can get a chance to come in. All those things have now been cleared up. But now there's a pause to say now what?

BLITZER: Because I know you agree the president -- you believe the president has the legal authority to do this right now.


BLITZER: But the president is not backing down. He says that he had to do it right away. He couldn't wait a week, couldn't wait a month because terrorists would have flooded the country. You're on the Intelligence Committee. Do you believe that?

LANKFORD: We have a high level of risk. There is not a specific credible risk of something.

There has always been a risk. And you can tell from what is happening in Europe right now where those individuals from ISIS are traveling with refugees. They are trying to be able to move through the asylum process. That is documented. We have seen that in multiple terrorist attacks there.

What the president has stepped up to say, it was the same thing that President Obama said. Let's get a chance to take a look at this, let's evaluate it and make sure we're screening in the right way.

BLITZER: How credible, how high is the risk from those seven countries that we're talking about that have these restrictions imposed? Because Europe doesn't have the restrictions imposed. Most of the Muslim nations don't have restrictions. The large Muslim country, Indonesia, there are no restrictions there, largest Arab country, Egypt.

But these seven countries, how high is that risk? You have been briefed on this.


Here is the unique issue on those seven countries. These seven countries that are state sponsors of terrorism like Iran or there are countries where there is an active war that is going on, for instance, Yemen, and Syria, or Iraq. We're also countries dealing with, Somalia, where there is no functioning government there. We have no relationship with them to know if we're getting good documentation.

So, it's seven very specific countries that Congress and President Obama agreed on before are countries of particular concern, are countries that are state sponsors of terrorism.

There is something very unique. I know they're often being labeled as a Muslim ban. It's not a Muslim ban. It's countries where there is an active state sponsor of terrorism or a particular concern due to war that is happening there or no functioning government.

BLITZER: We are now getting the breaking news, the headline, Senator, out of this Ninth Circuit Court of Appeals decision.

I want to be precise. The appeals court has ruled against, against reinstating the president's travel ban against these seven Muslim majority countries.

I want to be very precise. We're going through. Our experts, our legal analysts are going through, going through all of the document right now. They have just released it, this three-member Ninth Circuit Court of Appeals. They are saying that the -- this decision will prevent the reinstatement of those travel restrictions, Senator, from those seven Muslim majority countries.

Your reaction?

LANKFORD: So, if I'm reading that correctly and interpreting correctly what you're saying, that they will start again those individuals being able to move freely from those countries?

BLITZER: Right, which is what's going on right now.

LANKFORD: Correct, which is already happening right now.

And the challenge that will be for the president or for anyone in dealing with immigration enforcement is how does any executive able to handle this in the days ahead and what happens next?

BLITZER: But this is a major setback for the president.


BLITZER: You argued just a few moments ago that he had the legal authority to go ahead and oppose these restrictions, but this court of appeals, this decision now by these three federal judges says, you know what, they're keeping the status quo in place.

In other words, there are restrictions -- the restrictions that the president wanted imposed are not going forward.


So what they're choosing is, they're saying, we like the Obama restrictions, not the Trump restrictions. And so we will just see where that goes from there. It will be interesting to be able to read the opinion. There was a lot of debate back and forth on whether this is a Muslim ban or a religious ban. They moved back and said candidate Trump made lots of statements about blocking Muslims. Is that what this is?


Obviously, the U.S. attorneys and all those individuals said that is not what this is, because it does not affect 40 different Muslim nations, including, as you said, the largest Muslim nations. So, we will see what the actual reading is.

BLITZER: All right.

Let me go to Jeffrey Toobin, our senior legal analyst.

Jeffrey, I assume you're going through this decision by the Ninth Circuit Court of Appeals. Your analysis?


And it is a complete and total repudiation of the Trump administration's legal position in this case. It says that the state of Washington and the state of Minnesota have standing, they have the right to bring this case.

And they have made a preliminary showing that the Trump -- that the executive order is unconstitutional. So the stay put into effect by Judge Robart, the George W. Bush appointee in Seattle, is still in effect.

The other point to make about today's ruling is that it is unanimous among the three judges, the Carter appointee, the Obama appointee, and the George W. Bush appointee. So there is no political division among the three judges.

This case is not over. The legal proceedings will continue, and there are several possibilities of where we may go from here, including a request for an emergency stay of the stay in the United States Supreme Court. The Trump administration now could go to Justice Anthony Kennedy, who is the justice who supervises the Ninth Circuit, and ask them -- ask him to stay the stay and reimpose the executive order.

Justice Kennedy almost certainly will refer that request to the full court, the eight current justices. But the Trump administration now has to make a decision, do they go to the Supreme Court and try to get this decision reversed, or do they go to the district court for more extensive proceedings and try to get the order reversed there?

Either way, Trump administration has lost dramatically and completely, and they're going to have to decide what to do now.

BLITZER: And, Jeffrey, just to be precise, if it were to go to the U.S. Supreme Court, right now, there are only eight justices on the U.S. Supreme Court, four appointed by Democratic presidents, four appointed by Republican presidents. And we don't know what the outcome of their decision would be. But if it's 4-4, this lower court, Ninth Circuit Court of Appeals

decision would remain in effect, is that right?

TOOBIN: That's exactly right, Wolf.

Tie rulings when the court has an even number of justices affirm the lower court ruling. They don't establish a national precedent, the way a Supreme Court opinion with five justices establishes a national precedent. But if this ruling, today's ruling upholding the stay is appealed to the Supreme Court and the court splits 4-4, the stay will maintain in effect.

I don't want to overly complicate this story any more than it's already complicate, but remember, there are other challenges to the Trump executive order in many other jurisdictions in the United States. So those cases are now going to start bubbling up through the system.

It is clear, I think, that the Supreme Court is going to have to address this sooner rather than later. That doesn't mean this week. But given the magnitude of the ruling, given the number of cases, given the importance of this issue, the Supreme Court is going to get this case at some point in the next few months.

BLITZER: And very quickly, Jeffrey, the fact that it was a unanimous decision by these three federal judges, Judge Canby, Friedland, Judge Clifton, how significant is that in considering where to go next? If it would have been, for example, 2-1, would that have made a difference, as opposed to a unanimous decision?

TOOBIN: Well, as a technical legal matter, there is no difference between a 2-1 decision and a 3-0 decision.

However, as a political matter, as a matter of the public perception of the two rulings, there is a big difference between 2-1 and 3-0, especially when the judges come from different political backgrounds.

This decision will have a lot more public credibility because it is unanimous. And I think it complicates the Trump administration's attempt if they choose to make it to disparage this decision as simply a political act.

The fact that it comes from a diverse political panel will insulate this decision from a kind of criticism that it would have gotten if it had been two Democrats vs. one Republican.


BLITZER: A major setback for President Trump and his administration, a complete setback, I should point out.

The order, the travel ban, that he wanted to go into effect will not -- at least for now -- will not go into effect.

And, Senator Lankford, I know you have been looking at this as well. I want to get your reactions to a pretty complete loss for the White House.

LANKFORD: Jeffrey Toobin, I agree with him completely. It's a 3-0 decision on it, that does make a difference in political -- it doesn't make a different in the actual standing of the ruling.

But it does make a difference in that. The other option that he did not mention there is for the Trump administration to be able to pull the executive order back, take a look at exactly what the court identified as unconstitutional and inconsistent, strike that area, resubmit a new executive order, and to say, now we have corrected this executive order, this is how we're going to carry it out.

BLITZER: You think he should do that?

LANKFORD: I think it's a possibility. Obviously, he has several options on the table, not only arguing at the Supreme Court, dealing with the stays, as he mentioned, but also trying to correct an executive order and get it back out.

BLITZER: Because if he goes to the Supreme Court, he might lose there as well if there's only eight justices.

LANKFORD: Correct. Yes, a 4-4 court is obviously unpredictable and the court has been very hesitant to be able to push out a lot of issues that are 4-4.

BLITZER: Senator Lankford, thanks very much for joining us. Appreciate it very much.

Pamela Brown, our justice correspondent, is with us as well.

I know you have gone through this decision, the document right now. What else is jumping out at you?

BROWN: Right, 29 pages' worth.

And just on the heels of what you said, what is interesting here is you will remember the compromise that the government presented to the justices, perhaps had this temporary restraining order applied to people who have already been here to the United States, who have a reason to be here, who have valid visas, and have the ban still be in effect for people who have never set foot in the United States.

But clearly the justices, the judges, I should say, in the Ninth Circuit Court have rejected that. And they have said that the temporary restraining order should stay as is, what Judge Robart ruled in Washington State.

And they basically said there was a big difference between the state's case and the government's case. And I think this quote really sums it up in terms of how they looked at the government's argument. They said: "We hold that the government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay." By contrast, it says: "The states have offered ample evidence that if the executive order was reinstated even temporarily, it would substantially injure the states and multiple other parties interested in the proceedings." It says these are substantial injuries and even irreparable harms.

BLITZER: I want to go to Jeffrey Toobin.

Jeffrey, we're waiting for reaction from the White House. We don't have any reaction yet. I assume officials at the White House, at the Justice Department, the State Department, Department of Homeland Security, they're all reviewing this court decision right now.

There was -- in the original Justice Department statement that was delivered to the Ninth Circuit Court of Appeals, they did have an option, a sort of compromise that they put forward. But clearly even that's been rejected, at least for now.

TOOBIN: It's been rejected explicitly in this opinion. They address the possibility of carving up the executive order and upholding some of it and rejecting some of it. And they say can't be done. The whole thing is unconstitutional.

You know, you say we're awaiting the response of Homeland Security, of the White House. I think the most colorful reaction to this opinion is likely to come from the keyboard of Donald Trump and his Twitter account, because if you think he was angry about Judge Robart's ruling in the district court, this more thorough, more thoughtful, more complete repudiation of his administration's position will likely enrage him further.

And the issue that is still out there that is I think the most troubling, the most difficult in this case, which is who decides what's in the national security interest of the United States, that's still a tough argument for the -- for the plaintiffs in this case.

This court did not have any trouble rejecting the idea that they were jeopardizing the national security interests of the United States, but that's still a very powerful argument.

One principal responsibility of the president of the United States is to protect national security and that includes deciding the policies at the border. That's going to be the toughest argument against this ruling today, but all three judges agreed that they were not jeopardizing national security and that's where we stand right now.

BLITZER: A huge setback for the president and his proposed travel ban.

I want to go to our senior White House correspondent, Jim Acosta.

Jim, you're getting some initial reaction, I take it, from officials at the White House?

[18:30:07] ACOSTA: Wolf, only that the White House is right now reading through this ruling and that they're expecting to issue some kind of statement later on this evening. Nothing in terms of a statement from the White House at this point, but I think what you can expect to hear from not only the statement but from the president himself. The president, as we saw in the last week, he may go farther than the official statement we get from the White House tonight.

But what the administration has been saying all along is that they believe that the president has this broad discretion to defend the borders of the United States. My guess is that they're going to make the same argument to the Supreme Court. And you heard the president in recent days indicating that he is willing to take this case as far as he can, and that means all the way to the Supreme Court.

But Wolf, keep in mind, because we've been talking about Judge Neil Gorsuch so much, this Supreme Court, as I'm sure you guys have mentioned, is deadlocked, potentially, 4-4 on this. And so the president may not get relief from this restraining order that started in Washington state.

And it just goes to show you that a president can only do so much with his executive authority if there's a judicial branch of government that says, "Hey, wait a minute. You've got too far here." And that appears to be very much what this 9th Circuit of Appeals decision is saying. Some fairly breathtaking, potent language, pushing back on the president and his belief that he can institute a travel ban on those seven countries, Wolf.

BLITZER: Yes. The 9th Circuit Court of Appeals, the three judges, they were unanimous in ruling against the president's travel ban. We don't know what the final outcome would be in the U.S. Supreme Court. Although you correctly point out, we've pointed out, four Democratic -- Democratic-appointed justices on the Supreme Court right now, four Republican justices. But that doesn't necessarily mean that they would be deadlocked.

Pamela Brown, our justice correspondent, you've been reading more from this document. What else you got?

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: It really is potent language, just like what Jim Acosta said. And we're learning a little bit more behind the thinking of these three judges in the 9th Circuit and why they are not issuing the stay.

And it talks about all the attention this case has garnered. It says, "Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages." Goes on to say, "On one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel and avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay."

And they also discuss the reviewablity of the court in this. Because you'll recall during the oral arguments that did come up. And the Department of Justice attorney said, look, when it comes to national security and matters of immigration, this should be something for Congress and for the executive branch to deal with. But they say explicitly, the three judges say explicitly, "There is no precedent to support this claimed unreviewability which runs contrary to the fundamental structure of our constitutional democracy. Rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all. We disagree."

So very strong language.

And just for context for our viewers, again, as we've said before, two of these judges were Democratically appointed. One of them was a Republican appointee, but clearly, all three of them are in agreement that the temporary restraining order should stay in place.

And of course, the next step could be an appeal from the federal government. That is what we expect. And what's interesting there, if it goes up to the Supreme Court and if there's a 4-4 split, since of course, Justice Scalia's seat has not been filled, that means whatever this 9th Circuit Court ruled would stay as of now.

But this is not, and I think this is important to emphasize to our viewers. This is not about the merits of this case. That will come down the pipeline. I want to bring in my colleague Laura Jarrett, who can sort of lay that a little bit more, what the difference here is between the temporary restraining order and the long-term merits of the executive order.

LAURA JARRETT, CNN JUSTICE CORRESPONDENT: That's exactly right, Pam. This is really a temporary restraining order that just presses pause. It doesn't say that the order is unconstitutional, but it does say, "Hey, states, you have a pretty good likelihood of success on the merits, so we're going to keep Judge Robart's -- the Seattle judge's -- order in place to protect you during this sort of unknown chaotic period."

But it doesn't say that, for sure, it's unconstitutional. It just says right now the stay or the temporary restraining order will stay in place.

BLITZER: The Washington state attorney general just tweeted, "Denied." There you see it right there: "Unanimous precurium," which means unanimous right now. The fact that it was unanimous, all three judges, that does say a lot right now, and as we've been pointing out, two of them Democratic appointments, one Republican appointment. But this is a unanimous decision.

JARRETT: Well, that's right. And it's going to be interesting to see what the federal government does right now. Does it appeal to a larger panel of the 9th Circuit? It can go en banc and get a larger number and try to see if it can do a little bit better than with these three judges. Or does it immediately file an appeal with the Supreme Court and take their -- take their risk there? We don't know yet.

[18:35:16] BLITZER: We're waiting for the White House to give us some reaction. Everybody, stand by.

Jeffrey Toobin, people are watching us not only here in the United States but around the world and especially from those seven Muslim- majority countries. There are a lot of people, thousands of people who have valid visas to come to the United States. Some of them have green cards. Some of them have family members living here in the United States. They want to be able to go back and forth.

A lot of them are students. Thousands of students, for example, from Iran right now, one of those seven countries. They want to be able to freely study here in the United States, go back to Tehran or other cities in Iran right now.

Basically, what this three-member panel has done, has sent a message to all these people around the world, "Don't worry. What President Trump announced only days ago, that's not going into effect. You'll be fine."

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: That's right. And it's also important to point out about this decision, is that it doesn't say there are no rules. It doesn't say our borders are free and open to everyone.

All it says was that the law that was in effect before Trump, President Trump issued this executive order, which has considerable vetting, considerable restrictions on travel, that's the law now. It's not that there's suddenly a free-for-all situation. You mentioned states -- students. It's very important to this ruling...

BLITZER: Let me interrupt you. Let me interrupt you, because we just got a tweet from the president of the United States. This is what he said. He said, "See you in court. The security of our nation is at stake." There you see it right there, Jeffrey Toobin, "See you in court. The security of our nation is at stake." That suggests he's going to continue the legal struggle.

TOOBIN: There's no question that they're going to continue the legal struggle. It's -- as Laura was pointing out, I mean, there are different ways it can be done.

And it is no coincidence that the plaintiffs have pushed this case the hardest in the 9th Circuit, because the 9th Circuit for many years has been most liberal of the 12 circuit court of appeals in the United States. It covers the West Coast, Alaska, Hawaii. And it has many more Democratic appointees than Republican appointees.

The issue with an en banc is -- is also one. There is a possibility other than going directly to the United States Supreme Court. They could ask for what's called an on bank hearing. The 9th Circuit -- which means the full appeals court, not a three-judge panel. The 9th Circuit is so big that they don't have en bancs with all judges. They have 11 judges at a time here en banc rulings.

So one possibility here is that, instead of going directly to the United States Supreme Court, they could ask for a random sample of 11 judges on the 9th Circuit to hear the case and perhaps overturn what the three-judge panel did.

So I am certain, certainly based on what the president just tweeted, they are going to appeal this ruling, but the question -- the decision they have to make is are they going to appeal it to the en banc panel or to the Supreme Court?

BLITZER: So when the president just tweeted in all caps, "See you in court. The security of our nation is at stake," what court is he talking about?

TOOBIN: Well, that -- it's up to his lawyers. The question is will they go to an en banc panel of the 9th Circuit, which means 11 judges of the 9th Circuit, or will they go directly to the United States Supreme Court, which would involve going first to Justice Anthony Kennedy, who supervises the 9th Circuit, and he could either decide it by himself. But in high-profile cases, the judge who is representative for the circuit almost always refers it to the full Supreme Court. So Justice Kennedy and the seven other justices would then decide whether to uphold this stay or reject it.

BLITZER: Which do you think, Jeffrey, would be a better strategy for Donald Trump's, the president of the United States, perspective?

TOOBIN: I think the Supreme Court. I think the 11th [SIC] Circuit is known as a liberal court. You never know which 11 justices. They could get more conservative judges than usual. But conservatives have disdained the 9th Circuit for a long time.

And even though it's a 4-4 Democratic-Republican division in the United States Supreme Court, I think the federal government has a better chance in the Supreme Court. And I think they'll go there next.

[18:40:13] BLITZER: Pamela, you're getting some reaction from the Justice Department, new attorney general today, day one for Jeff Sessions as the attorney general. They've got to make some major decisions over there, as well.

BROWN: What a day. In fact, the Justice Department says it is aware of this ruling, that it is currently reviewing the appeals court decision and weighing its options. And so presumably, the new attorney general, Jeff Sessions, is part of this process now. As you point out, this is his first day. The department says it has no further comment, so it could appeal and ask for an en banc, as we've been talking about, or it could appeal to the Supreme Court.

And as you'll recall during the oral arguments on Tuesday, the government continued -- really focused on the fact that the states don't even have a legal standing, have a legal right to pursue this. And clearly, in this order, in this opinion from these three judges, they believe they do. And, in fact, they believe they will be successful in their claims.

And they point out that the government did not talk about any evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States. That was a big sticking point for the judges during the oral arguments.

They said, "Rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all. We disagree, as explained above."

So again, talking about the fact that the government did not present enough evidence to make its case, particularly evidence to show why it believes these seven countries listed in the travel ban posed such a threat or why the people from those countries posed such a threat.

BLITZER: and Jeffrey Toobin, you're an expert on the Supreme Court. You've written books on the Supreme Court. If the White House, if the Justice Department, the president, who in that defiant statement that he just tweeted decides they want to take this right away to the U.S. Supreme Court, walk us through how this will play out. Are we talking weeks, months? How long is that process potentially going to take? All eight justices on the court right now, would they have to get involved?

TOOBIN: Well, just to -- the process is actually pretty straightforward. It is simply an appeal, a brief presented first to Justice Kennedy. Now, your question is would all the -- would all the justices have to be involved? That would really be up to Justice Kennedy. Justice Kennedy hears all emergency stays out of the 9th Circuit.

Knowing what I do about the court, I don't see any way Justice Kennedy would simply decide this case on his own. I think he would refer it to all of his colleagues, which would mean all eight justices would have to decide whether to uphold this stay or reject it.

I think the Trump administration is really facing an uphill battle in the Supreme Court. Because -- not just because of the fact that there are four Democrats on the Supreme Court, is that the Supreme Court almost always likes to hear a case that is over, that has had all the evidence presented, that is not preliminary.

And this case, if the stay is upheld, simply goes back to the district court, where there is a fuller trial of whether this executive order is lawful.

Remember, this is just a preliminary stay. If -- so I think the Supreme Court, even justices who might be more sympathetic to the Trump administration, they might say -- they might say, "Look, we need to see the full record in this case. There is no full record. There hasn't been any witnesses taken. No witnesses have testified. No documents have been submitted. No depositions have been taken. Let's have this go to the district court, and then maybe -- then after it's appealed, after a final judgment, then the Supreme Court will take it."

So it's not just that this ruling is unanimous. It's not just that it's a bipartisan panel of judges. It's that it's a preliminary order. And Supreme -- the United States Supreme Court does not like to get involved in cases at a preliminary stage. They like to have final judgments, and this isn't a final judgment. BLITZER: David Chalian is with us, as well. A major setback right

now for the president of the United States and his proposed travel ban, not happening -- not happening right now, based on the unanimous decision of the 9th Circuit Court of Appeals. These three judges.

Very defiant response: "See you in court. The security of our nation is at stake." And remember, just the other day, he said even a bad high school student would have to rule in his favor on this travel bn. Well, these three justices -- these three judges are more than bad high school students.

[18:45:00] DAVID CHALIAN, CNN POLITICAL DIRECTOR: Look at that tweet all in caps. Donald Trump is quite adamant about his feelings about this ruling. You are right that this is a setback.

The administration has been trying to lay the groundwork for this. Sean Spicer has been in the briefing room -- so you were talking about the legal realm. Now, into the political realm, Sean Spicer has been in the briefing room sort of laying the groundwork saying, this is just on process. Although as you've all been discussing -- the substances underlying all of this. So, they've been trying to act like this is not something to sort of adjudicate and obviously, the process will continue, the actual executive order, the content of the executive order.

But to say it's not a setback would just misread the entire thing. Out of the gate, one week into the administration, he issues this executive order. We're only a few weeks in, this is -- he can't get out of the gate it seems on this very important issue that started as a major campaign promise, something he was trying very hard to deliver on, and now he is completely stymied from doing so.

So, clearly, he's going to continue to fight this in the public opinion court as best he can to try to rally folks to his side.

WOLF BLITZER, CNN ANCHOR: Laura Coates, you're with us, stand by for one moment.

Representative Peter King, Republican of New York, is joining us on the phone right now.

Congressman, I assume you've gone through this unanimous decision by these three federal judges telling the White House, telling the Justice Department you know what, the president's travel ban against these seven mostly Muslim countries, not happening. Your reaction?

REP. PETER KING (R), NEW YORK (via telephone): You know, first of all, Wolf, I do support the executive order. I support it very strongly. But even if I didn't, just as a lawyer, I think the Ninth Circuit is wrong here in trying to interject its opinions or its beliefs on foreign policy, and on immigration.

To me, the Constitution and statutes clearly give this power to the president. So I think legally, I would strongly disagree with it, and I assume the administration is going to take an appeal to the full court or to the Supreme Court. Again, it's -- this is a -- to me, a very serious issue.

I believe strongly that the -- that the terrorist ban, this stay of immigration was important for the president to implement and again, this is a -- again, it's a battle between the courts and the executive. I know the courts have held President Obama on various cases on immigration, but to me, this is -- this is very different.

I think the Ninth Circuit was wrong. It is the most liberal court in the country. That's what it is. And that's where, you know, this has to be played out and ultimately probable to the U.S. Supreme Court. But again, I will emphasize, I strongly support the thrust of the executive order.

BLITZER: I know you do, Congressman. Senator James Lankford, Republican of Oklahoma, I spoke with him. He doesn't disagree with you. But he thinks it was awful the way it was rolled out, the way it was implemented in airports, whether at JFK, in New York, or LAX in Los Angeles, or Washington Dulles International Airport here, or Atlanta, Chicago. It was just awful the way it was rolled out.

I wonder if you agree with Senator Lankford that the administration could have done a much better job explaining what they wanted to do.

KING: Yes, I fully agree with him on this. The administration -- I was going to get to that. This was not handled properly in the beginning. Now, I don't think that's the court's business to invalidate the order because of how it was implemented.

No, I think this was handled badly. They should have had everything lined up in advance. They should have given the Department of Homeland Security more notice.

They should have had lawyers at the airport to resolve issues that came up. They should have anticipated what was going to come up with green cards, with visas, with young children. They should have had a hotline going right from the airports to Washington to quickly resolve issues. I said, probably, 90 percent of the confusion we saw those first two or three days should have been resolved before it ever happened, or should have been resolved very, very quickly.

So no, as far as implementation and the rollout, it was wrong. Now, it was handled very, very poorly. But that to me does not go to giving the court the power to invalidate the entire order. If that's the case, they should have put some corrective measures in or asked the administration to make corrective measures. So, I think that was, we're mixing several things here. But as far as what the Senator Lankford said, I agree with him completely on that.

BLITZER: All right. Congressman Peter King of New York, thanks very much.

I want to go back to quickly to Jeffrey Toobin, the argument at the beginning, the opponents of the president's proposed travel ban, Jeffrey, they said this was a Muslim ban, that the president, the administration, the Trump administration were preventing Muslims from coming to the United States. And the court considered that. Tell us what you found out.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, the court, there were two main legal arguments against the ban that the court considered. The first it said, this was a violation of due process of law. That it simply did not draw distinctions that were meaningful and legitimate for why it did what it did.

[18:50:05] But the second reason was religious discrimination. It didn't develop that argument as fully but in the course of that argument, the court mentions President Trump and candidate's Trump repeated invocation of a Muslim ban and said that that is one of the reasons they struck down or at least put a stay on this ruling.

So, you know, candidate and President Trump's references to Muslim bans and the religious nature and effect of this executive order is certainly one factor that went into the court's determination.

BLITZER: The latest -- once again, reminding our viewers, we did get reaction from President Trump. He tweeted it. "See you in court. The security of our nation is at stake." All caps.

Laura Coates is with us as well. Laura is our CNN legal analyst, former federal prosecutor.

Were you surprised? Because we all listened carefully the other night, two nights ago, to that one-hour session that they had on the phone, lawyers for the Justice Department, lawyers for Washington state, Minnesota, they made their respective cases. They each had a half an hour before those three appeals court judges.

And I certainly came away from that session with the impression that the Justice Department lawyer had a really tough time making the case for the president's travel ban.

LAURA COATES, CNN LEGAL ANALYST: And that's accurate assessment, Wolf, and this case really comes down to one question asked by Judge Friedland, which said, why do you think that the president's actions are unreviewable or do you think they are?

The crux of their order essentially says not only is it reviewable, democracy requires you review the president's executive orders even as it relates to immigration. They even go as so far as to cite two different incidents in American history where we do that, when we denied communists their passports, entry back into the United States. We also talked about Japanese internment camps.

They slammed that argument about unreviewability and they did it in a very, very direct way. Not only, they talked about the idea of, as Jeffrey Toobin was talking about and my colleagues said as well, you can go behind and look at the intent of this ban. And the idea that you may have a secular territorial reason for having this executive order, they're essentially saying we have the right and we are obliged to look behind that.

All this is to say that we have to resolve this in the lower court. We haven't fully decided the merits of this case yet, but if we did, looking ahead, the Washington state, the state of Minnesota, has the stronger case.

BLITZER: Senator Ben Cardin, the Democratic senator from Maryland, is joining us from Capitol Hill right now. He's a ranking Democrat, a ranking member of the Foreign Relations Committee.

Your reaction to this decision by the Ninth Circuit Court of Appeals, Senator?

SEN. BEN CARDIN (D), MARYLAND: Wolf, I'm just pleased that our check and balance system is working in this country. The executive order I thought was dangerous to our country. I thought it made us less safe rather than more safe. So, I was pleased with the results that it won't go into effect. But more importantly, it shows that the courts are going to be there when President Trump uses his power and exceeds his constitutional authority. And I think that's an important message that our constitutional system will work.

BLITZER: When Donald Trump, the president of the United States, tweets as he did just a few moments ago, his reaction to this decision, "See you in court, the security of our nation is at stake," all caps right there, what was your reaction to his reaction to this decision?

CARDIN: Well, unfortunately, I wasn't surprised. But you cannot conduct policy of this nation through tweets. You can't conduct foreign policy that way. You can't talk about constitutional issues that way.

This is an important learning moment for our nation that no branch of government can operate in a vacuum, that we have checks and balances. Quite frankly, on immigration policy, Congress should have acted. We didn't. It leads to the president taking action but his action is limited under the Constitution as we saw today by this court ruling.

So, I'm disappointed that he used that tweet to say, look, we'll see you in court. It's demeaning to the constitutional system of checks and balances.

BLITZER: The State Department the other day said 60,000 people who had valid visas to come to the United States, they were impacted if the travel ban had gone into effect. I assume all of those people right now if they have a valid visa, they will be allowed into the country.

CARDIN: Our normal system will now come back. These people have been vetted in order to get the visa, they are eligible to come into the United States and they'll be permitted to come into the United States. They've gone through screenings and will continue to do that. In regards to the refugee program, that also will be subject to the vetting.

BLITZER: But the president says you need extreme vetting. How can you vet refugees, for example, from Syria when there really isn't a regime there or a government there that can provide valid, important information to the United States? [18:55:07] CARDIN: The Syrian refugees go through extreme vetting.

They are personally interviewed not once but at least twice. They've also been interviewed by the United Nations.

Their account of what they went through is verified. We get that information and we check third party sources.

If we can't verify that, in fact, they did and are subject to the type of persecution, they will not be permitted to come to the United States. They're screened by multiple agencies to make sure they have no ties to terrorism. Most are young children and women. These are not terrorists. These are the victims of terrorists.

BLITZER: So let me just point out, Senator Schumer, your leader, the Democratic leader in the Senate, the minority leader, he just tweeted, "President Trump ought to see the writing on the wall, abandon proposal, roll up his sleeves, and come up with a real bipartisan plan to keep us safe."

I assume you agree, but is that realistic? You know Donald Trump, the president of the United States. Do you think he'll accept the advice from Senator Schumer?

CARDIN: Well, I think it was three years ago there was a bipartisan support in the United States Senate. We passed a comprehensive immigration bill that received close to 70 votes. I think we need to go back to that type of cooperation.

Let's Democrats and Republicans work together. We all want to keep this nation safe. There are proper ways we can deal with immigration reform. But we shouldn't back away from America's leadership on refugee issues. That's a global leadership that's important.

I met with the king -- King Abdullah of Jordan. They have 650,000 Syrian refugees. We have a few thousand. King Abdullah was not concerned with hi security because of refugees. He's concerned that if we turn our back on refugees, it adds to the recruitment of terrorist organizations and self-radicalization in our countries.

So, I think we need to work together to keep America safe and we need to put this partisan politics aside, figure out a way to do this in keeping the values of America which is our real strength and we can do that in a way to keep America safe.

BLITZER: Senator Cardin, thanks very much.

Let me just repeat the headline right now. The Ninth Circuit Court of Appeals in San Francisco has ruled against President Trump and his travel ban proposed against seven Muslim majority countries will not -- repeat -- not go into effect.

You think there's a chance, David Chalian, that the president will accept Senator Schumer's advice? I'll read it once again, President Trump Abandon proposal, roll up his sleeves, come up with a real bipartisan plan to keep us safe? CHALIAN: I think there's very little chance of that. I think the

things we have to watch for now, will President Trump start going and talking about these judges personally? Will he rule it a completely political ruling and discredit it that way, or does he just stick to the merits of the decision?

If he starts going after the judges, this is going to enter the whole Gorsuch confirmation fight again. This issue is going to be front and center. If it's with us this long, it's going to be with us when Neil Gorsuch is before the Senate Judiciary Committee and this is going to be front and center in that confirmation process.

BLITZER: This could have an impact on his confirmation, Neil Gorsuch, the federal judge who's been nominated by the president, Laura, to become a United States Supreme Court justice. So, this could have an impact how the president, how the administration plays this process out.

LAURA JARRETT, CNN JUSTICE REPORTER: That's right. And there's no question Judge Gorsuch is going to be asked about this at length by the senators. He'll be grilled about it for hours probably.

BLITZER: During his confirmation hearing.

JARRETT: During his confirmation hearing.

CHALIAN: He'll probably say he can't answer it because it may come before him, right?

JARRETT: That's exactly right, and he'll find a way to gracefully dodge and say that he's not allowed to speak on it, but there's no question given the stakes involved, he will be pressed on it.

BLITZER: When the president says negative things about a federal judge, and these judges are all friends, basically. They respect each other. That potentially could have an impact.

JARRETT: It does. And what it does is offend judiciary at the core of saying, listen, we may be thin skinned individually but the issue here is you are basically undermining our democratic system and that's very offensive to the bench. These are people who are sworn to uphold their system.

But remember, this is procedural thing at this point, Wolf. It's not just about the merits. Remember, the reason that they have denied the reversal of this suspension and decided not to reinstate it is because the federal government has failed to show that it will be harmed by returning to the status quo.

They have not given a reason they found articulate or not or justifiable to say, why did the vetting measures we had in place prior to the travel ban, why are they not enough? What do you now know that you're not telling us? And unfortunately at the oral arguments, there was crickets in response to that question. And that's why we're here.

BLITZER: And the president says, "See you in court. The security of our nation is at stake."

That's it for me. I'm Wolf Blitzer in THE SITUATION ROOM.

But our special breaking news coverage continues right now with "ERIN BURNETT OUTFRONT."