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Trump Loses Bid to Get Travel Ban Reinstated; Trump Tweets: "See You in Court" After Losing Appeal on Travel Ban; Interview with Sen Richard Blumenthal. Aired 8-9p ET.

Aired February 9, 2016 - 20:00   ET


[20:00:10] ANDERSON COOPER, CNN ANCHOR: Good evening. Thanks for joining us.

The breaking news tonight is big. A major setback from President Trump. The verdict from a federal appeals court has come in. It is unanimous.

They are not reinstating his travel ban against refugees and citizens from seven majority Muslim countries. We have reaction tonight from the president, which came swiftly on Twitter, and in all caps, we should point out.

He tweeted shortly a decision from the court, "See you in court, the security of our nation is at stake."

Now, off camera at the White House, the president told reporters he thinks the ruling was political. As I said, the ruling was unanimous from a panel of judges appointed by Presidents Carter, George W. Bush and President Obama. The original ruling blocking the travel ban came from a judge appointed by George W. Bush.

Now, here's what President Trump said to reporters. Again, this was off camera, so it's audio only.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: It's a political decision and we will see them in court and I look forward to doing it.

REPORTER: So, you believe the judges made a political decision?

TRUMP: We have a situation where the security of our country is at stake. And it's a very, very serious situation. So, we look forward -- as I just said -- to seeing them in court.


REPORTER: Do you believe this has undercut the first days of our presidency? This is such a core issue.

TRUMP: No, this is just a decision that came down, but we'll win the case. REPORTER: And have you conferred with your new attorney general on this tonight? Is he on --

TRUMP: No, I haven't. We just heard the decision.

REPORTER: How did you find out about the decision, Mr. President?

TRUMP: Just saw it. We just saw it just like you did.

REPORTER: Via the news, et cetera, media?

TRUMP: Yes. But it's a decision that we'll win, in my opinion, very easily.

REPORTER: And are you --

TRUMP: And, by the way, we won that decision in Boston.


COOPER: Let's get the on the ruling from CNN justice correspondent Pamela Brown.

So, let's talk about what the ruling actually says, Pamela?

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: So, bottom line, this is a huge blow to the Trump administration, Anderson. The three judges and the Ninth Circuit Court repudiated a travel ban and there's 29-page opinion saying that the government failed to prove why this is travel ban was necessary as an urgent national security matter, as you just heard President Trump say.

The judges said, quote, "The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in United States. 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, basically, the court is saying that while it does give deference to immigration and national security issues, it has every right to review this case, unlike what the government argued on Tuesday. And in the end, the judges said the government did not show enough evidence to support its case, therefore, this travel ban should continue to be halted, saying, quote, "it holds 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."

You may recall, Anderson, that compromise the government adjusted on Tuesday for the ban to only be halted for people who have already been to the U.S. from those seven countries and have valid visas. But these three judges rejected that option as well, which is interesting to note if the administration wants to rewrite this executive order.

Right now, the Justice Department is reviewing the opinion, weighing its options, which could mean an appeal to the Supreme Court. But this could very much lead to a long legal battle ahead. It's important to note this is just talking about a temporary restraining order, basically what to do with the travel ban while the appeals process takes place and these three judges believe that the travel ban should continue to be halted during this process -- Anderson.

COOPER: All right. Pamela Brown, appreciate that.

I want to check in now with Jim Acosta who's at the White House.

So, the president, Jim, clearly, obviously, unhappy about the result. Do you have any idea of exactly how the White House is viewing this decision? Because the president said he has not talked to his attorney general yet.

JIM ACOSTA, CNN SENIOR WHITE HOUSE CORRESPONDENT: That's right, Anderson. I had a chance to catch up with Kellyanne Conway, the counselor to the president, one of the top officials here at the White House. And I asked her just a few moments ago, on camera, whether or not the president views this decision from the Ninth Circuit Court of Appeals as some sort of set back or defeat. She didn't exactly answer that question, but here's what she had to say.


ACOSTA: This is a defeat? Did he see this as a setback?

KELLYANNE CONWAY, COUNSELOR TO THE PRESIDENT: He sees it as, what he's always seen it as, which is the statute provides a president, in this case, President Trump, with great latitude and authority to protect the citizens and protect the nation's national security. This was not argued on the merits. Now that we'll have an opportunity to argue on the merits, we look forward to doing that. We look to prevailing.

I think his tweet was perfect when he said, we'll see you in court. And --


ACOSTA: So, there you go. Some confidence being expressed by Kellyanne Conway over here at the White House, and then really sort of a restating what we've heard from this White House from the very beginning of all this, Anderson, which is that they believe the president has this latitude, this discretion to defend the nation's borders.

Not a lot new in terms of arguments being laid out by the White House this evening in response to this, just a lot of, you know, very tough talk that we're going to see you in court.

[20:05:03] That's what we heard from Kellyanne Conway. That's what we heard from the president of the United States.

That is not exactly going to win the day at the Supreme Court. I asked Kellyanne Conway, was this something you're now going to take to the Supreme Court? And she didn't exactly answer that question either.

And so, I think the next legal steps for the White House are still sort of up in the air at this point. I don't think they've gotten to that point in terms of where they go after what is a setback for this administration, Anderson.

COOPER: You heard Kellyanne Conway calling his tweet about see you in court perfect. Do we expect the president to continue, you know, his line of attack, whether it's verbally or on twitter against particular judges as he continues to fight for this ban?

ACOSTA: Well, you heard in that audio that we played earlier, Anderson, that he sees this decision as political. And that is an echo of what he said just yesterday when he made those comments to these law enforcement officials gathered here in Washington, that the courts are acting in a political fashion.

But, you know, Anderson, we've talked about this. This is a president who is sort of new to this when it comes to dealing with over co-equal branches of government. This is the judicial branch of the government saying you've gone too far here. And he's going to have to make his case to a Supreme Court, which is deadlocked, you know, four Democrats, four Republicans.

But keep in mind, that Ninth Circuit Court of Appeals had a Republican who heard this case, a Bush appointee. So, it's not exactly a sure thing that this will be deadlocked 4-4. They may be looking at another se setback when it comes to the Supreme Court, if it gets that far.

But, Anderson, unless this is taken up immediately by the Supreme Court, they're looking at weeks, perhaps months of this temporary restraining order being in place and this travel ban being frozen. And so, the new normal for the White House is going to be dealing with the fact that this ban is just not going to be going into effect any time soon.

COOPER: All right. Jim Acosta, thanks very much. We got a lot to talk about with some of the legal minds we know.

And joining me tonight is CNN legal analyst Jeffrey Toobin, also Paul Callan, Leon Rodriguez is here, he's the former director of the U.S. Citizenship and Immigration Services, Kansas secretary of state and Trump supporter Kris Kobach, he's joining us by remote. So is constitutional law professor, Elizabeth Foley, legal analyst Laura Coates, and Harvard Law School professor emeritus, Alan Dershowitz.

Jeff, let me get your reaction first of all, overall, to this ruling.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, it's a complete repudiation of the Trump administration's position on this case. And it is also now four judges who have reviewed this, two George W. Bush appointees, two Democratic appointees, and all four have ruled against this.

COOPER: The original judge in the decision to stay was a George W. Bush --

TOOBIN: Was a George W. Bush appointee.

The Trump administration now has go options. One is go to what's called an en banc, more judges on the Ninth Circuit. It would be 11 judges to hear the case of or go directly to the Supreme Court to challenge this stay.

The problem with both of those options is that this is an appeal of an early part of the case. This is just the stay while the case is being litigated.

COOPER: Right. This isn't on the constitutional merits of the case itself?

TOOBIN: No. It's a hint of how they think the merits will turn out, but it is not that judgment. The Supreme Court in particular -- the Supreme Court in particular does not like to hear cases until they are finished, even conservative judges don't feel that way -- don't like that. So, it's just going to be very difficult to over turn this stay.

COOPER: Professor Dershowitz, you said there's actually a third option. Jeff Toobin is saying there's two options. You said there's a third way -- which is?

ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: Third option is for the president to realize he's not going to win on this stay issue. He may win three months from now, four months from now. But he has said on camera this decision poses a grave threat to the national security of the United States.

So, his option is very simple. Withdraw the current order that is subject to the stay, write a new order with the help of his new attorney general, national security people, perhaps some legislators that will survive constitutional attack, explicitly eliminate green card holders.


TOOBIN: Alan is exactly right. Alan is exactly right. This is an option.

For Donald Trump to admit that he was wrong to file this executive order and say, I'm going to do better next time. Alan, have you been paying attention for the past 20 days? Do you think that's a possibility?


DERSHOWITZ: -- is we have a conflict between what the president says is the national security of the United States, juxtaposed against the ego of the president of the United States.

I think we can pressure him into saying that in order to protect the national security of the United States, he can't tolerate a situation where for the next months this case is in limbo and it's not being enforced.

COOPER: But Professor Dershowitz, doesn't --

DERSHOWITZ: He should issue a new order.

COOPER: But, Professor Dershowitz, by doing that -- mean, to Jeff Toobin's point, isn't he acknowledging then that they rushed into this, it wasn't well-thought out?

[20:10:06] I mean, he could decide to do that, you're absolutely right. But I guess the question is he, is that probable?

DERSHOWITZ: There's another way he can do it, too. He can leave this order in effect. Leave it subject to a stay. And then issue a new order which supplements the order. That way he protects his ego. He doesn't have to say it was wrong. He just says, look, there's a stay in effect. I'm now going to issue a new order and that order applies only to A, B, C.


COOPER: Paul Callan?

PAUL CALLAN, CNN LEGAL ANALYST: The reason I think that Jeffrey is correct on this is if you look at Donald Trump's history, the president -- the last big piece of litigation he was involved with was his Trump university case. Now, how did he respond to adverse rulings in that case? He attacked the judge, calling him a Mexican.

COOPER: But he did ultimately settle.

CALLAN: He ultimately settled the case, but his initial reaction is always aggressive fighting back, threatening an appeal, and that's the way he's tended to --

COOPER: Right. But he hasn't talked to -- when he made those comments tonight about this being political, he said he hadn't talked to the attorney general yet. Maybe after he actually consulted his attorneys, they may say, look --


CALLAN: One of the things that surprised me is that normally when the government loses a case, you get sort of a vanilla statement that says, we respect the decision of the court, we're going to look at the decision and decide whether to appeal or not. But the response here was a Twitter response.

COOPER: Right.

Professor Foley, one of the main arguments from the Department of Justice was that the president's decisions about immigration when motivated by national security concerns are unreviewable. I want to read a section of the ruling which basically shoots down that argument. It says, quote, "There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy." To that, you say what?

ELIZABETH FOLEY, CONSTITUTIONAL LAW PROFESSOR, FLORIDA INTERNATIONAL UNIV.: Look, I think that's fundamentally correct. I don't think that the president's decisions on national security are unreviewable. That's really not the argument that the administration is putting forward here.

The argument instead is that under a Supreme Court precedent called Youngstown, when the president acts with the explicit blessing of Congress, which the president has done here, he is entitled to a presumption of constitutionality. When those two political branches are in agreement, the court should defer on the issue of national security. I do not see that that the Ninth Circuit engaged in any such deference here.

And let's keep our eye on the prize here.

COOPER: But the Department of Justice did argue unreviewability to this court.

FOLEY: Yes, in a very half-hearted way. But you have to realize that they were --

COOPER: Or they actually just seemed confused. I mean, the guy paused for a long period of time when asked about this and said, yes, it's unreviewable. Clearly, they were not impressed by that argument.

FOLEY: And they shouldn't have been impressed by that argument. Everyone agrees that the Constitution would trump any statute or any presidential executive order taken pursuant to a statute.

But I do want to remind the viewers, though, that this is a statute that Congress has passed. That statute says that the president may suspend the entry of all or any class of aliens if he deems it appropriate in the national interest. So, he does have the blessing of Congress. This is not just the Trump administration. This is Congress also weighing in on this and blessing what the president has done, which is narrower than what the president could have done under the statute.

So, what we have here is a court that's being very aggressive and not giving the president and Congress the deference that a court would normally give them.

COOPER: Laura Coates?

LAURA COATES, CNN LEGAL ANALYST: Well, you know, that's true. That is a part of what Congress did. The other part of what Congress did is say that you cannot discriminate based on national origin, which is part and parcel to what's going on here.

But remember what's really the case. The court did give extreme deference. They talk about it a great deal in the opinion that they were trying to defer and they recognize the president should deserve some deference. However, that deference is contingent on there actually being a

national security issue. The court was trying to resolve this very discreet point, please tell us why we should reinstate a ban and not go back to the pre-travel ban status quo where when he had vetting measures in place. Tell us why you would be harmed, federal government, if we returned to the ban we had in place.

And to that, there was crickets. The Justice Department could not answer what the newfound risks would be that would require this court to reinstate the ban.


COATES: And that is why the court said we're not going to do that.


LEON RODRIGUEZ, FORMER DIR. U.S. CITIZENSHIP AND IMMIGRATION SERVICES: I think that's a critical issue here, which is that nationals that's a critical issue. They were the most intense vetting of any travelers to the United States, in particular those coming here as refugees and in particular beyond that, those who are coming from sierra.

[20:15:06] So, the idea there was a need to do more than was already being done in any kind of substantial way is not actually supported.

COOPER: And, Leon, just from your expertise and from your past role as the director, how will this actually work now moving forward while this is going through the court system? It goes back to the way it was, but that doesn't mean that, you know, to paraphrase Donald Trump, a bunch of bad people will rush in. It still means everybody has to go through the same process of applying for a visa, the vetting that --

RODRIGUEZ: Let's take the example of Syrians, because this is the thing we've argued about a lot. If you look at the history of our adjudication of Syrian refugee applicants, many have been denied, because during the process of looking at those cases, we found bad information in law enforcement intelligence databases, we didn't find them credible during the course of interviews.

That means there was a process in place that was actually working. There is always room for improvement but the fact is the process was substantially working before.

COOPER: So, Secretary Kobach, the president said earlier tonight that his decision was political -- that the court's decision was political. I mean, you know, as has been pointed out, there was a Carter appointee, a George W. Bush appointee as well, as an appointee from President Obama.

Do you see this as political?

KRIS KOBACH, KANSAS SECRETARY OF STATE: Well, I -- as someone who has argued these very same issues in various courts of appeals through the country, I see this as a very weak decision. When you have a decision full of gaping holes, you sometimes have to wonder where the judges are reaching, trying to reach a conclusion that they wanted to reach, without sufficient legal backing to get there.

Let me give you just a couple of examples. Standings of the states, I've argued cases where states are trying to assert standing to challenge an executive immigration order of a president. We had here was the states asserting injury to the visiting student is through several leaps of logic injury to the state itself. That would not fly in any other certain circuit, except the Ninth Circuit, I'm absolutely convinced of that.

Irreparability. The court simply concluded without any analysis that the injury to the state is not irreparable. That means you can't repair it. And the court was saying, well, you can.

Think about what we're talking about here. We're talking about a national from a terrorist-sponsoring region or country who then is allowed to come in and then vanishes into the fabric of America like the 9/11 hijackers did, like many terrorist operatives do. You can't repair that. You can't magically find that foreign national and say, oh here he is. So, it is a reparable harm.

The due process analysis. What the court did is it took the most favorable person and said -- there are multiple categories of aliens affected here -- they took the most favorable one, that is to say a lawful permanent resident who's already gotten his green card and said, yes, that person needs some time to make his case before you revoke the green card. But there are all kinds of other aliens affected by this executive order who don't have the same due process claim, they've standing outside of the country, they've never been given anything by the United States and the court was sort of taking the due process analysis and applying it to everyone.

So, there are so many legal holes in this opinion. I would love to appeal this because it would be easy to go against this on appeal.

COOPER: I want to talk to our other attorneys about the issues you raised, because I know, Professor Dershowitz, you raised the issue of standing and how the Supreme Court may view it differently than this court. We'll talk to -- we've got to take a quick break. We're going to continue the conversation in just a few minutes.

Later, we'll also talk about the political impact this loss may have on the president who obviously loves to focus on winning.

Much more to get to tonight. Stay with us.


[20:22:39] COOPER: Welcome back.

The breaking news tonight: President Trump loses a court battle to reinstate his travel ban. A bipartisan panel of three judges issued the ruling just a short time ago. It wasn't on the constitutional actual merits of the executive order but they just held up what the Washington court had ruled on last Friday. The president tweeted, "See you in court." As we'll wait to see if

there's more reaction from the White House tonight, as there very well maybe, CNN's Jim Acosta spoke with Donald Trump's adviser, Kellyanne Conway, a short time ago.



ACOSTA: Did he see this as a setback?

CONWAY: He sees it as, what he's always seen it as, which is the statute provides a president, in this case, President Trump, with great latitude and authority to protect the citizens and protect the nation's national security. This was not argued on the merits. Now that we'll have an opportunity to argue on the merits, we look forward to doing that. We look to prevailing.

I think his tweet was perfect when he said, we'll see you in court.


COOPER: Back with the panel.

Professor Dershowitz, before the break, Secretary Kobach was saying that he felt that there were a number of kind of overreaches by this court. He raised a number of issues, three main ones. The first one being the idea of standing.

If this does, assuming this does go to the Supreme Court, assuming the president does not take your advice and issue another executive order, goes to the Supreme Court, do you think the issue of standing is going to be one -- is going to be primary?

DERSHOWITZ: I do. And I think that the Supreme Court will not accept the lower court's rulings on standing. This is the most extreme extension of standing that I've ever seen. It gives the state of Washington standing to raise constitutional issues on behalf of a family in Yemen who have never been to this country and are coming for a tourist visa. It's just very much of a stretch.

Also, the establishment argument which would give standing because the establishment clause basically is limitation on government, in addition to a grant of rights, it's hard to say that there's an establishment of religion here because they picked seven terrorist nations that happened to be nations that are involved in Islamic extreme terrorism and giving preference to religious minorities. That's been done before. The Refugee Act in 1944 gave preference to Jewish refugees being victimized by Nazism.

So, I think if the case does go to the Supreme Court on the merits, there's a substantial case the court will rule in favor of the Trump administration at least insofar as it applies to people who have never been in the country.

[20:25:03] But it's a long time in coming. It won't happen right away. I don't think the Supreme Court will reverse this stay order, but if they get to the case on the merits, it's going to be a very close case.

COOPER: Jeff Toobin, you know, the president just tonight said, look, this politics. How much does personality play into this? I mean, these three judges, are they affected? Is there any to tell whether they're affected by the president of the United States, you know, tweeting about them or calling them out?

TOOBIN: You know, in my journalism career, I've devoted a lot of my life to try to figure out why judges do what they do and I have to confess that I've only had partial success. It is very difficult to ask a judge, why did you rule the way you did because they always say the same thing. I wrote it down. That's why I rule the way I did. The law forced me to rule the way I did.

The fact is judges are human beings, so it's not just the law. I don't think Donald Trump helped his cause by demeaning Judge Robart and by calling him a "so-called judge", by saying all these judges are political.

But would this decision have come out a different way if he hadn't said those things? I doubt that too.

So, at the margins I think judges are affected by the political context, by the emotional environment but, you know, the merits are the merits and I think these judges are --


CALLAN: You know, I tried a lot of cases and universally lawyers say don't insult the judge, don't become the judge's enemy because in truth in a close case, an attack on a judge could be fatal to your cause. But here, you have a unanimous decision by the court in a very, very strong opinion against the Trump administration. So, I really don't -- I think the insults are a strategic mistake but they didn't --


RODRIGUEZ: I'm a trial lawyer too. I think at the end of the day, facts matter. And I think what the court saw here is there are an intensive vetting process already in place. There was no real showing by the administration how this step would in any way actually enhance our safety based on the steps that were being taken.

The administration failed to make a factual record that showed at the end of the day, they were going to protect us any more than the system in place.

COOPER: Professor Foley?

FOLEY: Yes. You know, look, let's keep in mind that this has been procedural wrangling thus far. I agree with Alan that I've never seen any decision by any court that pushes the idea of third party standing this far. Usually, third party standing is used for individuals who cannot for some pragmatic reason bring their own constitutional claims.

That's not the case here. Those who are affected, the students, the faculty, the scholars in the state of Washington who are affected by this executive order were perfectly free and capable of bringing their own lawsuit should they have wished to do so. So, to extend standing to an institution like the state of Washington is unprecedented not supported by Supreme Court precedent. I do think that would eventually be overturned.

But going back to the merits of this case, assume even strict scrutiny applies to this executive order because we believe there's some sort of national origin discrimination or discrimination based on religion, you would ask yourself first, is there a compelling government interest? The compelling government interest here is national security. That's been accepted as a compelling government interest for a very long time now.

And then you'd ask yourself about narrow tailoring. This executive order is narrowly tailored to the seven countries identified by the previous administration and Congress as posing significant national security risk to Americans and it's temporally limited in time.

So, I think it would survive both prongs of strict scrutiny. The administration is in a very strong position on the merits.

CALLAN: Could I make a brief point on standing? Because I think, you know, lawyers love to talk about standing but most people don't know what they're talking about. You know, standing has to do with whether somebody has a right to bring a case in a United States courtroom.

And I think what has the surprised all the lawyers who have looked at this decision is that what the court said here is that the state of Washington, because it brings students into its universities, brings customers into its restaurants, is the representative of virtually anybody across the world who's not an American citizen, and it extends in some respects to the constitutional rights of Americans that only Americans are persons in the United States to the world --

COOPER: Right. Professor Dershowitz was raising the issue of why does a family in Yemen who's never been to the United States --

CALLAN: That's exactly the point. Why would they have standing to appear in our federal court and argue that the U.S. Constitution protects their rights? I think the court --

COOPER: Laura Coates?

COATES: But, you know, here's the thing. We're forgetting about a very recent case where we assumed standing was not an issue. We have the Texas DREAMers case where the state of Texas was acting in a similar way to the state of Washington and its decision about whether to extend an executive order by President Obama.


[20:30:2] LAURA COATES, CNN LEGAL ANALYST: -- where the state of Texas was acting in a similar way to the state of Washington and it's, you know, decision about whether to extend that executive order of President Obama. And we are all guessing to an extent because the Supreme Court did take that case, it run to 4-4 split so we have no idea whether or not they were ultimately going to find standing.

And here's the thing about Supreme Court cases. Even though the Ninth Circuit has found standing in this case, even if the Supreme Court would have take this case up, we can't presume that they will also agree there standing. That still are going to be an argument they're going to have to face. But to say that it's totally unprecedented is a little bit irresponsible.

ANDERSON COOPER, CNN HOST: OK. Secretary Kobach, let me ask you. Professor Dershowitz raised the idea of, you know, a third option that the president could do is basically to start out with a new executive order to say -- and make it more focused. And, you know, if that went to the Supreme Court, if he got another ruling that -- is there an advantage for him to get a positive ruling at a lower court level before going to the Supreme Court? If he goes to the Supreme Court from this ruling -- from a ruling against him, does that in any way sort of prejudice the Supreme Court against the case?

KRIS KOBACH, KANSAS SECRETARY OF STATE: Well, obviously, if it's a 4- 4 decision it would not be sufficient to overturn --

COOPER: Right, because they would go back to appeal.

KOBACH: -- appealing this one to the -- yeah, exactly. So, there's that disadvantage here. There is the point that I made earlier, though I think this is a poorly reasoned opinion so it's a good candidate for appealing. But on an eight-member court there's a problem.

You know, I would also say that the factual -- that the court barely scratched the surface on the facts, both at the district level and at the Ninth Circuit level. There are many terrorists who have come in and who have been from Somalia. There are many -- just the Bowling Green terrorists for example, those plotters were from Iraq.

And so the seven countries are involved and we have many, many terrorists who abused our refugee program. Just in the last couple decades, I could name 18 of them, including three of the World Trade Center. First of all, Trade Center attack plotter. So, the notion that there aren't facts to justify a pause in the refugee program and higher vetting in a temporary ban from --


COOPER: Right. But there were changes made to the Iraq vetting after the Bowling Green case.

KOBACH: Absolutely. There were very substantial changes. And there are -- even after the Bowling Green case, there have been many improvements to the vetting process. For example, the ability to check in a comprehensive way, law enforcement and intelligence database is to find out if there is information that needs to be applied in one of those cases.

COOPER: All right. We got to take a break. Much more to talk about ahead. I want to thank all our panels, including the political fall out of tonight's ruling against President Trump's travel ban. We'll be right back


[20:36:41] COOPER: Breaking news night in a unanimous decision, the Ninth Circuit Court of Appeals has ruled against President Trump. His travel ban will not be reinstated. President Trump is not backing down tweeting, "See you in court." Shortly after the ruling was issued, he did that. The Attorney General of Washington State who won the ruling had this response.


BOB FERGUSON, WASHINGTON STATE ATTORNEY GENERAL: Well, we have seen him in court twice and we're 2 for 2. That's number one. And in my view, the future of the constitution is at stake.


COOPER: Well, certainly a lot to discuss. Jeffrey Toobin is back with us. Joining the conversation is CNN Political Commentator Errol Lewis, CNN Political Analyst and USA Today Columnist Kirsten Powers, CNN Political Commentator Jeffrey Lord, Angela Rye and Kayleigh McEnany, and CNN Chief Political Correspondent Dana Bash.

Dana, let's start with you. So just in terms of the presidential reaction calling this a political decision, it was a unanimous decision including judge appointed by President George W. Bush. Would it surprise you if the president continues to go after these judges?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: To go after them personally rather, yes, it would surprise me given the backlash that we have seen from everybody including his own nominee for the Supreme Court. However, I'm told by a senior administration official that the backing that they say that they have for the allegation that this was a political decision is because of the fact that in this ruling the judges cite arguments that the Washington State Attorneys made talking about the fact that this is effectively just a part of the Muslim ban that then candidate Trump talked about on the campaign trail and that is they argued unconstitutional.

Now, the judges didn't actually say that this -- that they agreed with it, but the fact that they referred to that argument a couple of times in their ruling suggests to the people at the White House they say that it is inherently political because they're reaching back to a political statement even though the Justice Department attorneys were arguing, "No, no, no, that's not what this is about. This is about national security."

COOPER: Jeff Toobin, does that make it a political statement? I mean that fact that they sort of -- in Washington they were reaching back to things that candidate Trump said about a Muslim ban or alleged comments to Rudy Giuliani

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: I just think that is ridiculous. I mean, the decision is the decision. And the decision is by a bipartisan group of judges and the fact that they cited a statement by President Trump, it is well established that the courts can look at motivations for law. It is not just the text of the law.

Courts can look at legislative history. They can look at the statements of members of Congress when they're reviewing a statute. That's something that the courts have done for decades. And the fact that a president has called or -- and a candidate and then a president has talked about a Muslim ban, that is one factor that is relevant.

COOPER: Jeffrey Lord, is that a political -- is it a political decision?



LORD: This has been going -- well, because I think that these people have political opinions. I mean, I hate to say this. I mean, I was disillusioned of this when I worked on about five Supreme Court nominations for the Reagan in White House. This is a highly political business. The fact that Roger Taney found -- wrote -- tried to right slavery into the constitution was entirely political because he was pro slavery. This was goes back forever.

[30:40:03] COOPER: But aren't these judges -- I mean, the judge in Washington was appointed by George W. Bush, one of these judges --

LORD: Anderson, I've had -- when I worked in the United States senator (ph), I worked on federal judges appointments. These things come through the Senate. They get a so-called blue slit from their home state senators. The senators in Washington are liberal Democrats, so they're going to see to it that whoever is appointed is fairly consistent with their point of view.


KIRSTEN POWERS, CNN POLITICAL ANALYST: Yeah. I mean, I think -- look, I think it's fair to say that there are certainly, you know, there are judges that have perspectives and it's entirely possible that he has little -- that the conserve -- the George Bush appointed judge has a liberal perspective. We don't know that.

But to say like Jeffrey said, intent is something that you look at. That's a matter of law. That is something that you consider. So what Donald Trump said about what he wanted to do actually is relevant. There's nothing political about it. And then you look at the actual words in the executive order and that was -- the problem is the executive order on its face of it actually, I think isn't providing a religious test that's unconstitutional. But when you add in what Donald Trump said his intention was, that's where they run into trouble. KAYLEIGH MCENANY, CONTRIBUTOR, "THE HILL": They could have found the different intent. They could have said, "Oh, wait, here's what Trump did. He designated the same seven countries President Obama did as having an affiliation with terrorism and said based on these legitimate reasons."

COOPER: The White House -- when we talked the political -- the communications director last night, Jim Tuckey (ph) was saying it was the Republican called -- controlled Congress who actually identified these.

MCENANY: Will they allowed the White House DHS, the Department of Homeland Security to make a list? Part of it was designated by Congress, part of it by DHS. But let me tell you what President Trump should do.

He faces a really hostile climate if he appeals this up to the Supreme Court. There is zero chance that you are going to get Ginsburg, Kagans, Sotomayor, or Breyer to come on your side of this argument and solve this order. If they want to be politically responsible, don't appeal to the Supreme Court. You're going to lose there.

Let this play out on the merits, because I do think they'll win on the merits, or do as Professor Dershowitz suggested, make the make the executive order more limited to appease the Ninth Circuit and let this go away.

COOPER: Bur isn't that Donald Trump having -- President Trump having to admit that this thing was rushed, it wasn't well thought out and we made a mistake and --


MCENANY: It partly is. It should have never applied to legal permanent residents. They should never been affected by this day of the full plan of panoply of constitutional rights. It should have happen. They should say, "We rushed this vision to happen. We're amending it. We're going to change this. Appease the Ninth Circuit. Appease the national security interest of the United States."

COOPER: Interesting.

ANGELA RYE, CNN POLITICAL COMMENTATOR: So, I think one of the most fascinating parts of this are the countries that they chose to single out and continue to place at the feet of the Obama administration. They rely on what happened on 9/11, but they fail to honor the fact that 15 of the 19 attackers were from Saudi Arabia, not included in the executive order. Two of them were from the United Arab Emirates, not included in the executive order. One from Egypt, one from Lebanon, not included --

COOPER: Planning on -- in Pakistan.

LORD: But that was 15 years ago.

RYE: You know -- no, no, no. But it says in the executive order, this is based on what happened in nine -- on 9/11. We cannot get away from that. So that's another part of the (inaudible) that we also have to look at --


COOPER: Errol?

ERROL LEWIS, CNN POLITICAL COMMENTATOR: I mean, that they -- in the decision, it's really important to note this. The Ninth Circuit said, "We have begged, basically begged the White House to make its case, to show us why it's so urgent to get this done and they have not come up with an explanation." So they didn't go through country by country, they simply said, "You know, why do you have to do this?"

And the White House's explanation which was, you know, really very much an overreach sort of saying, "Our decision is unreviewable. You know, you're not even supposed to challenge us on anything. If we say terrorism and we say national security and we say immigration, the courts are supposed to just fall away." The most important part of the decision I think is the court saying, "That's absolutely not the standard."


COOPER: Just politically, how much now does this -- it hurt the White House and also started now occupy the time of the White House? I mean, this becomes obviously a huge deal for them until they -- I assume, come up with something else to, you know, change focus.

BASH: No question. Look, it already has. I mean, the fact of the matter is that this has taken up much of the oxygen of the first few weeks of the Trump presidency and not in a positive way.

I mean, certainly, the president and his aides who wrote this and said that they thought that they were doing this, first and foremost, to keep the campaign promise or at least part of one think that, you know, that they did OK. But even the president we know from our reporting was not happy when he realized the way that it was -- this was fumbled big time in its -- the way it was written, the way it was executed, that way it was communicated, every way that you're supposed to do something like this that is so incredibly sensitive and knowing that it is incredibly sensitive.



TOOBIN: Just one point about, is that there was an order along with the opinion issued today where the court laid out how you appeal on bank. And the short version is the briefs won't even be in until the end of March if they go on bank. It just gives you some idea of how long this will stretch out.

[30:45:07] COOPER: We have to end it there. Just ahead, I'm going to talk to Senator Richard Blumenthal about the heat he's taking from President Trump after reveling what the Supreme Court nominee Neil Gorsuch told him yesterday about Trump's dispersing remarks about the judiciary. We'll talk to the Senator, right ahead.


COOPER: Well the breaking news, President Trump has lost his bid to reinstate his travel ban, the Ninth Circuit Court of Appeals ruling unanimously against him. A short time ago, President Trump called the ruling political. He started his day by attacking Senator Richard Blumenthal on Twitter for revealing what Trump -- Supreme Court nominee according to the senator said to him, the nominee Neil Gorsuch, about Donald Trump's criticism of judges. The White House has been (inaudible), they denying that Gorsuch said -- not only what the senator said -- he said but with multiple people say they heard. Athena Jones tonight has details.


ATHENA JONES, CNN CORRESPONDENT: Supreme Court nominee Neil Gorsuch meeting with senators who will decide his fate and avoiding questions about President Trump.


JONES: This, after senators from both parties say Gorsuch told them in private that he found the president's remarks criticizing the federal judge's handling a challenge to the administrations immigration ban demoralizing and disheartening.

[30:50:10] SEN. RICHARD BLUMENTHAL, (D) CONNECTICUT: There's no question that Judge Gorsuch said to me that he found this attacks on the judiciary by the president to be disheartening and demoralizing.

JONES: Today, meeting with the bipartisan group of senators to discuss the nomination to the high court, the president denying Gorsuch ever criticized him.

DONALD TRUMP, U.S. PRESIDENT: His comments were misrepresented.

JONES: But White House Press Secretary Sean Spicer went further, insisting over and over that Gorsuch was talking in general term and not directly recalling out the president.

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

JONES: But that statement refuted by a Gorsuch's White House appointed spokesman and the Senate Republican who met with the nominee and said they discussed the president's criticism.

UNIDENTIFIED MALE: Disheartening is a great world. Judge Gorsuch and I actually talked about that and frankly, he got pretty passion it about it.

UNIDENTIFIED MALE: Your answer about the context doesn't make sense when you think about what Senator Ben Sasse said today -- I mean, this morning on T.V. he said that he asked Judge Gorsuch specifically about the president's so-called judge tweet and in response --

SPICER: You know, this is like the fourth time, I've asked and answered.

UNIDENTIFIED MALE: No, but this is a different context.

SPICER: I understand that.

UNIDENTIFIED MALE: What do you want?

JONES: Connecticut Senator Richard Blumenthal said Gorsuch made it clear he wanted his concerns shared.

BLUMENTHAL: In fact, Judge Gorsuch specifically said, "You should feel free to mention what I said about these attacks being disheartening and demoralizing."

JONES: Still, he and other Democrats want Gorsuch to go further and publicly denounce the president's comments.

SEN. CHUCK SCHUMER, (D) MINORITY LEADER: What he did does not show independence. It shows an ability to desire the appearance of independence without actually asserting it.

JONES: While Republicans contend the episode demonstrates Gorsuch's respect for judicial independence.

SEN. ROY BLUNT, (R) MONTANA: What Judge Gorsuch is showing here is his independent character, the fact that as a judge he's going to call them as he sees them.


COOPER: That was Athena Jones reporting. And just before the broadcast (ph), I spoke with Senator Blumenthal.


COOPER: Senator Blumenthal, first of all, I just want to get your reaction to the decision of the Ninth Circuit Court of Appeals.

BLUMENTHAL: This ruling may be narrow in scope, but it has very, very broad ramifications in ending the chaos and confusion that the president's executive order unleashed. It's a real victory for the rule of law showing that courts will not be bullied by threats and personal inductive and insults. And my hope is that it indicates where the courts will be going and sending the president a message. Rip up this order. Do not adopt bans based on religious tests or unconstitutional standards.

COOPER: Today, the White House Press Secretary Sean Spicer said that Judge Gorsuch was talking in general terms and not directly calling out the president when he was speaking to you. So I want to ask you, was Gorsuch talking in general terms?

BLUMENTHAL: Indisputably. He was talking about President Donald Trump's attacks on the judiciary. And I repeated several times that I was absolutely outraged by these attacks by the President of the United States and Judge Gorsuch responded that he found it disheartening and demoralizing, referring to those same attacks. But, Donald Trump --

COOPER: So were those that he found it demoralizing and disheartening? I mean, that -- if he was referring to you have no doubt was what you had -- that the tweets, the comments by the president?

BLUMENTHAL: Not only I have no doubt, but also his spokesperson that same day confirmed my interpretation, Judge Gorsuch's own spokesperson. And, at least three of my colleagues have heard the same thing from Judge Gorsuch and had confirmed it, two of them publicly. And so, I think that President Trump ought to listen to them and to his own White House staff who were at the meeting.

COOPER: So just to be absolutely 100 percent clear, when Sean Spicer says and I quote, "The way that Senator Blumenthal characterized them, -- I mean, the remark, he was talking about the tweets and saying that he, Gorsuch, was disheartened. That is not what the judge said." You're saying he's flat out wrong?

BLUMENTHAL: I'm saying that what Judge Gorsuch said to me was that disheartening and demoralized were what he found Donald Trump's attacks to be. And there is no doubt in my mind that he was referring to those attacks, because I urged him and, in fact, he must publicly condemn them, not behind closed doors in the privacy of my office or my colleagues, but publicly, clearly, directly. That's what he must do.


[30:55:09] COOPER: And you said that to him?

BLUMENTHAL: Absolutely.

COOPER: And what -- how did he respond, because yesterday you said that, you know, he sort of didn't really answer.

BLUMENTHAL: Well, he declined to answer that question, and he declined to answer other questions, which I found very troubling.

COOPER: But, I mean, he will be appearing on the Hill in public hearings. You and others will have the opportunity to ask direct questions to him publicly. Isn't that the venue for -- I mean, for him to be able to talk about the president's tweets or to repeat what he said to you?

BLUMENTHAL: It's another venue. And I will press him very aggressively for answers then and in the meantime. But right now, there is a special obligation for him to condemn publicly these attacks, because the independents of the judiciary core principle of our democracy is at stake here. And it's not at some point in the future that he can avoid the damage to the courts. It's right now and he needs to demonstrate his independence. Otherwise, the American people will have justifiable doubts that he will be more than a rubberstamp for the Trump administration.

COOPER: As you know, the president also brought up an incident from 2008 where you said you served in Vietnam. You hadn't actually serve in Vietnam, but served during Vietnam as a reservist. President Trump this morning tweeted, "Senator Richard Blumenthal who never fought in Vietnam when he said for years he had major lie, now misrepresents what Judge Gorsuch told you." Do you have any response to the president?

BLUMENTHAL: This issue is not about me. It's far bigger than me, and far bigger than Judge Gorsuch's nomination. It's about the independence of the judiciary and Donald Trump's attacks on it, which really are a disservice to the core principle of our democracy, the integrity and independence of the courts.

COOPER: All right, Senator Blumenthal thanks very much.

BLUMENTHAL: Thank you.


COOPER: A quick programming note for the breaking news on the travel ban court ruling, "The Messy Truth with Van Jones" will not air tonight. Instead, that's going to air tomorrow night at 9:00 p.m. Eastern. I hope you'll watch that.

Up next, in the second hour of "360," the Washington State Attorney General Bob Ferguson and his Solicitor General Noah Purcell, I'll talk to them live about their victory.