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Acting Attorney General Defies President Trump's Executive Order. Aired 8-9p ET

Aired January 30, 2017 - 20:00   ET


[20:00:06] ANDERSON COOPER, CNN ANCHOR: And good evening. Thanks for joining us tonight.

We have breaking news, a direct challenge to President Trump's authority and the travel ban he imposed Friday night. It's coming from his own Department of Justice, headed for the moment by an Obama appointee and it's far from the only headline tonight.

There's the human cost, the resistance to the order from protesters around the country and the world. Those are live pictures you're seeing there of protesters in Columbus, Ohio.

And now, former President Obama making his first policy statement since leaving office. We'll bring all of you to that ahead.

Also, the support for what President Trump did from everyday Americans who said they feel safer now.

A lot to cover in the next two hours, starting, though, with the acting attorney general's act of defiance.

CNN's Evan Perez joins us with the latest.

So, an executive order from the acting attorney general to the Justice Department, what are the details?

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: Well, Anderson, this is an extraordinary order from the acting Attorney General Sally Yates. She's ordering the Justice Department lawyers not to defend this executive order that the president, the new president, Donald Trump, issued on Friday with regard to refugees and immigration. She says in her order to the Justice Department lawyers that she does not believe that this order is lawful.

That's a big deal for the government because now they're facing challenges in at least five jurisdictions, five states right now, Anderson, where judges are hearing challenges to whether or not this law, this executive order from the president, is legal.

And what she said, and I'll read you a little piece of what she said in her order, she says, "I am responsible for ensuring that the positions we take in court remain consistent with this institution's solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the executive order is consistent with these responsibilities, nor am I convinced that the executive order is lawful."

So, Anderson, what happens next, we don't know. The president has the right to fire the acting attorney general, but then she is the only one left inside of the Justice Department who's Senate confirmed and who could sign off on surveillance warrants, international surveillance warrants. And that's a big deal for the government.

COOPER: So, her statement was really only in effect to the -- it's only in effect until the acting attorney general leaves office.

PEREZ: Right.

COOPER: Wherein Jeff Sessions will then be sworn in.

PEREZ: Right, the assumption has been that Jeff Sessions was going to be confirmed as attorney general later this week. We don't know whether or not that changes if this -- we know that for instance some of the Republicans on the Hill, on Capitol Hill, have been uncomfortable with some parts of this executive order, especially because it wasn't briefed to them before the president signed it.

A lot of people did not see this, including Sally Yates, and she struggled with this over the weekend, Anderson. That's what I'm told by sources at the Justice Department. And so, finally today, she issued this order to Justice Department lawyers that they were not going to defend this, at least until the new attorney general takes office.

COOPER: All right. Evan Perez, thanks very much.

We should point out, President Trump just tweeted and I quote, "The Democrats are delaying my cabinet picks for purely political reasons. They have nothing going but to obstruct, now have an Obama A.G."

Let's bring in some legal expertise. Joining us is CNN legal analyst Laura Coates, a former federal prosecutor, also, constitutional attorney Page Pate, and Harvard's Alan Dershowitz.

Professor Dershowitz, what do you make of the acting attorney general's decision and how does this actually play out?

ALAN DERSHOWITZ, HARVARD: Well, she's a terrific public servant with a great reputation, but she's made a serious mistake here. She's responded to politics with politics. It's so easy for somebody who is the outgoing acting attorney general to stand up and be a hero against the elected president.

This is a very difficult nuanced question. Some of the executive order is probably unconstitutional, as it applies to green card holders. Some of it may be in violation of the statute that prohibits visas from being denied on religious grounds. Some of it may be constitutional as it applies to people who haven't ever been in the country and are trying to visit. What was needed was a nuanced, calibrated, legal approach instead of a

kind of knee-jerk statement, "I'm not going to enforce it at all." The president has the right to have a lawyer defend his actions in court. And if she won't do it, the courts will probably appoint somebody else to do it.

So, I think it's a little bit of politics versus politics. She could have done a much, much better job if she had responded to the very, very badly crafted order, something I disagree -- the executive order, I fundamentally disagree with.

But if she had responded to it in a more lawyer-like, careful, nuanced way, she would have had a bigger impact. I think she played into the hands of Donald Trump by doing what she did.

[20:05:00] COOPER: So, Professor Dershowitz, what are Donald Trump's options here? I mean, the Justice Department does ultimately answer to him. It's part of the executive branch.

DERSHOWITZ: Well, I think it would be a mistake to fire her, that would play again to the political card. I think what he should do is arrange to have another lawyer defend the actions.

I heard earlier that maybe the legal counsel's office of the Justice Department might have had a somewhat different view of this. I think that he should respond -- if he's smart, he should respond in a more nuanced way than she responded and take the high ground.

It's hard because this is such a bad policy, implemented in such a terrible way. But we shouldn't confuse a bad policy with either an unconstitutional policy or an unlawful policy. Something can be very bad and still be legal. And it's not the job of the Justice Department to do, to quote Sally Yates what is right. It's to do what's lawful, that's her job, not to do what is right.

COOPER: Laura, when the attorney general, in this case, the acting attorney general, gives a directive like this -- are all federal prosecutors bound to follow it full-stop? Or is there wiggle room? Can they make up their open minds?

LAURA COATES, CNN LEGAL ANALYST: Well, they are bound to follow her. She is essentially their commander in chief.

But I have to say, I disagree to an extent here with Mr. Dershowitz, what he's saying, because remember, the Justice Department does have a role. And that is also to preserve the credibility of the government in making any arguments in front of the courts.

And one of the responsibilities of the DOJ is to ensure that it has that credibility going forward and that they have the backing to be able to say, to walk into any court that what they're defending and what they're actively trying to enforce is a lawful, completely lawful act. And here I think what she's doing is not just making a political statement, what she's doing is saying, because of the ambiguity in this executive order, and because there are portions of it at least that may defy not only the Constitution, perhaps the Establishment Cause, not discriminate against people because of national argument, we cannot make a straight-faced argument in totally in a way that preserves the DOJ's credibility going forward.

COOPER: But, Pate --

COATES: It's a smart decision.

COOPER: Sorry.

But don't lawyers all the time make arguments based on what their clients believe, not necessarily what their personal beliefs are? Isn't that how the legal system works?

COATES: Well, that is the pessimistic view, of course, of what lawyers do. But it's true, they do make arguments, but they have to be grounded in the law.

Remember, one of the issues with this particular executive order is not just the morality portion. Forget the morality portion for a second. Legally speaking, there's not clear guidance going forward on how to actually enforce the law and whether or not what they're enforcing is consistent with other objectives. Namely, civil rights organizations talked about this that we have responsibility as DOJ attorneys not just to enforce blindly things that are unconstitutional or may be, there is a responsibility that is higher than just trying to apiece the client.


COATES: Remember, the president is not the client of DOJ, the people are.

COOPER: Page, I understand you knew the acting attorney general when she was a U.S. attorney in Atlanta. What can you tell us about her?

PAGE PATE, CONSTITUTIONAL ATTORNEY: I've then her a long time. The first thing you need to know about Sally Yates is that she is not political. She's been a career prosecutor for decades. She was an assistant United States attorney here in Atlanta. She became the number two in this office, under both Republican and Democrat United States attorneys. And then she became deputy attorney general in Washington.

She has never made decisions based on politics. She makes decisions based on what she believes is right and consistent with the best policies of Department of Justice. Now, I believe that this is something where we need some nuance. But nuance should have come before the executive order was ever issued.

And at this point -- I'm sorry?

DERSHOWITZ: I agree but she can't respond to lack of nuance with lack of nuance. You don't fight fire --

(CROSSTALK) PATE: But it's her responsibility as head of the Justice Department at this point to say, I should have reviewed this, it should have gone in front of lawyers who were not just concerned with the letters that are in the executive order but what's being said around it, the context, and more importantly, how it's being implemented.

I think she sees a very serious constitutional problem and it's her obligation to say something, because nobody else in that administration is.

COOPER: Professor Dershowitz, how unusual is this?

DERSHOWITZ: But I think that's right. Yes, go ahead.

COOPER: How unusual is this? How unchartered waters are we in here?

DERSHOWITZ: Well, it's very unusual. Usually when somebody refuses to enforce the orders of the president, it involves a very, very clear case of unconstitutionality, unlawfulness.

She's wrong when she says it's the job of the Justice Department to make sure that what is happening is right or I think also your other guest is wrong to preserve the integrity of the Justice Department and the credibility before the courts. That may be what they would like to see happen, but her job is to enforce the law unless it is clearly unconstitutional or clearly in violation of a statute.

And this law doesn't satisfy that very hard criterion or its respects. There may be parts of it that are unconstitutional. Let me give you an example.

[20:10:02] If you have people who are in Yemen, they've never been in the United States, they want to come here, the president has plenary authority to deny them. We have a long history, a tragic history, but a long history of denying people the ability to come to this country on political grounds. We don't like their ideology. We kept them out if they were communists.

That happens to be the law and the precedence. I wish that would change. But it's not the job of the attorney general to refuse to enforce a law based on her personal views that it's bad policy. She can resign --


PATE: This is not a normal law. This is an executive order signed by the president that was not reviewed by the top level at the Justice Department and it's not just what's in that order, it's the process. And I think she has an obligation to make sure the process is followed.



COATES: The Justice Department is not motivated by ego, Mr. Dershowitz. Their credibility they're trying to maintain is the consistency of constitutionality throughout the land. And for the reasons you just stated, but there are portions of it that can be parsed out as unconstitutional. They can't very well enforce the piecemeal version that you'd like them to do so. They have to enforce --

DERSHOWITZ: Why not? They do it all the time.


DERSHOWITZ: That's just wrong. They do it all the time.

COATES: They do not.

DERSHOWITZ: Executive orders -- that's just wrong. You have executive orders and the courts enforce part of them and don't enforce others of them. They're severable. And the laws generally are written in ways that are severable. That's very common.

COOPER: Let's leave it with the professor here for now. Page Pate, thank you. Laura Coates, as well, Professor Alan Dershowitz, as always.

I want to bring in the panel. "Daily Beast" Matt Lewis, former Michigan Governor, Democrat, Jennifer Granholm, CNN political director David Chalian, also Trump supporter, "American Spectator" contributing editor, Jeffrey Lord, "New Yorker" and Washington reporter Ryan Lizza, and Democratic strategist Hilary Rosen.

We've been waiting for, David, for Donald Trump's response. You just got -- do you want to put that up again?

"The Democrats are delaying my cabinet picks for purely political reasons. They have nothing going but to obstruct. Now have an Obama A.G."

I mean, Donald Trump could just fire her, yes?

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Certainly, he could although it does have this problem you heard Evan Perez discuss, which is that she may be the only person who can approve these foreign intelligence surveillance acts, orders, to acquire foreign intelligence.

But, Anderson, I just -- what is astonishing to watch, including tonight watching how Donald Trump is going to react. From the very beginning, it didn't have to go this way. Apart from the policy, the implementation of what went on here, he probably could have accomplished the same goals without the blowback if it wasn't sort of the not ready for primetime players putting this together. But that's --

MATT LEWIS, THE DAILY BEAST: I'm not confident this is just incompetence. I think this might be -- this is me being a little sinister here, but they like -- they like controversy. They want to fight. And let's just game out what could happen. Donald Trump -- they like

disruption, right? Disruption is a good thing for them. Let's say Donald Trump does fire the acting --


LEWIS: Well, let's say Donald Trump fires the acting attorney general, right? So, now, all of a sudden, we can't get orders signed. That expedites Sessions' confirmation for attorney general.

But Democrats won't go along with it, right, they filibuster it. Now, Mitch McConnell has a perfect excuse to invoke the nuclear option because it's a matter of national security. Now, this is a weird, crazy theory, but I'm just telling you how --

COOPER: Ryan, go ahead.

RYAN LIZZA, CNN POLITICAL COMMENTATOR: They cannot filibuster nominees, anymore. The nuclear option has already happened.

LEWIS: OK, I'm sorry, for the Supreme Court, you can. But not for --


LEWIS: It would expedite the nomination.

LIZZA: I totally agree with Matt, though, that this is now going to be a referendum -- Sessions' nomination will now be a referendum on the executive order. So, I think there are a few Democrats who have said they will vote for Sessions, there's going to be a lot of pressure to withdraw that support. And any other actions they can take to slow down Sessions' nomination.

COOPER: Jeffrey, could this have been avoided if some more lawyers were consulted or some lawyers were consulted or, you know, the head of Homeland Security was consulted or, you know, it went through a little bit more rigorous screening?

JEFFREY LORD, CNN POLITICAL COMMENTATOR: Well, possibly. I'm not a lawyer, and I'm not certainly going to play one on TV.

But here's the problem. By chance I have a column coming out of the "Conservative Review" discussing this before I knew about this. What we've got here, think about the Badlands Park people defying the president. Think about the Energy Department --

COOPER: By the way, that was a former employee who had access to a Twitter account --

LORD: OK, all right. But there's other examples. The Energy Department refusing to turn over names. The Secret Service agent who said, "I'm not going to take a bullet for him."

And today, we have this idea from "The Washington Post" about State Department employees saying they've got a dissent challenge on all of this. What we've got here is a bureaucracy that over decades and under

Republicans, under presidents of both parties, have mushroomed here to the point where they think, they're here forever, the president comes in and they can have the freedom to do that.


COOPER: I get your point. But is that really what's going on here?

[20:15:01] Or is it not enough people were actually consulted who actually should have been?

JENNIFER GRANHOLM (D), FORMER MICHIGAN GOVERNOR: It turns out, you know what, being president is a really complicated thing. And you have to rely on the experts in making your steps, because you have no idea as a business guy coming in who's negotiated property deals that this is going to be analogous experience to running an entire government, which is the most powerful position in the world and has consequences across the globe.

So, now, we have the whole Muslim world up in arms. We have Iraq taking action against us. We have our greatest allies, including England and including Germany coming back at us. We've pissed off -- excuse me -- Mexico. We've got the civil servants who rightly believe that they have been serving our nation and all of a sudden they're being asked to do what they believe are wrongful acts.


GRANHOLM: We've got the business community -- let me finish, the business community up in arms. We have the faith community, 2,000 faith leaders write a letter to Congress.

The whole thing is caving in. And turns out, you could have done this better if you had been a better manager.

LEWIS: Yes, but that's what my point is. I know this is crazy. But the Steve Bannon -- I'm not convinced that this is incompetence or mismanagement, right? And let me give you an example.

GRANHOLM: He should be impeached.

LEWIS: This is flooding the zone. Just today Donald Trump signed an executive order nobody's talking about, that basically changes everything about regulations.

They're going to try to -- for every one new regulation that passes, they will repeal two regulations. This could have big impact on things like EPA regulations --

GRANHOLM: You think he was trying to bury that?

LEWIS: Are we talking about? I'm saying they're flooding the zone --

GRANHOLM: I think he was trying to change the subject.

COOPER: Let's hold this thought. We're going to continue the conversation in a moment.

Democratic Senator Elizabeth Warren is now in the floor, in the middle of an hour-long speech against the executive order. As we go to break, let's listen in.

SEN. ELIZABETH WARREN (D), MASSACHUSETTS: -- entering the U.S. are offensive and unconstitutional. So, where are you right now, Vice President Pence? Have you called to overturn President Trump's offensive and unconstitutional order? Have you asked Republicans to introduce a bill --


[20:20:19] WARREN: -- human values. We will not be divided by hate and fear. Fifteen months ago, I traveled to the Greek island of Lesbos --

COOPER: Democratic Senator Elizabeth Warren on the Senate floor weighing in against President Trump's executive order.

In addition to Senator Warren and others, the acting attorney general throwing down the gauntlet, telling Department of Justice lawyers not to defend President Trump's executive order on immigration and refugees from seven predominantly Muslim countries.

We're now waiting for the next shoe to drop which could include the president firing her. That's one option.

Back with the panel.

You know, Hilary, the president tweeting today, I quote, "If the ban were announced with a one-week notice, the bad would rush into our country during that week. A lot of bad dudes out there."

There's certainly a lot of Americans who think, look, I feel safer with this policy. We had a lot of them on CNN all throughout the day. I talked to Ali Soufan, former FBI interrogator about this idea that had they announced it or planned it a little bit more, all the "bad dudes" -- to quote the president -- would rush in, he just thought it was laughable because it tables people a long time --


COOPER: -- to get visas into the United States, particularly from places like Yemen and Syria and elsewhere.

ROSEN: You know, that kind of a response from the president of the United States, to say, well, I had to rush this out --

COOPER: Sean Spicer said the same thing.

ROSEN: First of all, it proves they're on the defense about this and a little disconcerted.

On the other hand, when the president of the United States actually tells the people an untruth, saying that if I didn't do this this way, we would be more threatened -- when it's completely untrue -- is pretty overwhelming.

And that's why I agree with Matt. Not only are they doing this deliberately, they're creating this disruption. They actually like it when Democrats are up in arms and the unhappy and they're fighting back, because this is exactly what Donald Trump and Steve Bannon think they promised the American people. That they were essentially going to blow Washington up.

And the problem that, you know, we have, though, is the consequences of this. The chaos of this. They cannot control.

COOPER: Jeffrey --

ROSEN: And so, they will find themselves over the course of the next several weeks, the next several months, maybe the next several years, with damage that they are doing, that they will not be able to undo.

COOPER: It is interesting, because -- I mean, something like this does have ripple effects around the globe. I mean, this is not something that just affects people within the United States. It affects troops serving overseas who are in Iraq right now, serving side by side with Muslim forces from Iraq.

LORD: This is why I think the Trump movement, Brexit, all this sort of thing, extends far beyond Donald Trump and Washington. It's a global phenomenon.

And what he's doing here, I agree at least with half of what Hilary's saying. I do think this is an executive style. He's the first serious executive, first executive, period, from the business side, to be president of the United States. He's not a politician.

He is doing this to shake people out of the status quo. This is what is being demanded in many quarters around the world. People are really upset.

And I think he not only wants to drain the swamp, as it were in Washington, I think he feels that there's a need to drain the global swamp, as it were, and change things and give different perspectives. And the very first step you take is shaking these people -- you know, shaking the whole system.

ROSEN: But they clearly didn't consult with people who would have told him not to do it.

LORD: Well, that's --

ROSEN: Rex Tillerson, his secretary of state nominee, said today he was baffled that he wasn't consulted by this. People at the State Department --

COOPER: The head of Homeland Security, that's surprising.

ROSEN: The head of Homeland Security --

LIZZA: You can't argue -- ROSEN: The airlines who were responsible for rerouting people. I

mean --



LIZZA: You can't argue that this executive order is an example of Trump's brilliance as an executive. Because if you were a great executive, you would come into the White House, you would learn the process by which an executive order --

COOPER: But the fact that you have to step back and say, the green cards, that's going to be case by case --


LIZZA: The Iraqi translators, the green card holders. You would know you want the Justice Department and your lawyers to have a bullet- proof executive order so when it's challenged which everyone knew it was going to be challenged, you go into court with solid arguments. He left himself open to Yates saying, I'm not going to send the Justice Department lawyers in to defend it, it wasn't legally sound.

Why not, even from your perspective as someone who wants Trump to succeed, why not have the executive order on solid legal ground? I don't think you can make it so --


ROSEN: They had the chance to play policy, to do policy, which is what they said they wanted to do, and instead they're playing politics. It's a huge mistake.

LORD: When you look at these pictures, we've looked at these pictures all weekend, I don't -- I think truly the same people would think this is a negative thing are the same people in many cases who said, he couldn't win in the first place.

[20:25:06] I mean, I think it's part and parcel of the same --

GRANHOLM: I don't think -- I mean, to this point, people who are looking at -- if you're in Middle America, you do want to be safe. There's no doubt, right?

LORD: Yes.

COOPER: Everybody wants to be safe.

GRANHOLM: Of course, everybody does. So, Democrats have to make sure that everybody understands that, of course, we want our country to be safe. And, of course, we want actions by our president to be lawful. And, of course, we don't want to violate the Constitution.

But we've got to make that clear as Democrats that we get that people want to be safe. So, we also can be clear that the countries that he targeted don't

have any terrorists coming in here that have committed any acts.


COOPER: Do you understand, Jeffrey, why is Afghanistan not on the list?

ROSEN: Or Saudi?

COOPER: Or Saudi Arabia, where the 9/11 hijackers came from?

LORD: I mean, frankly, I would like to see Saudi Arabia on that list. But I think that they took these seven from the Obama administration or from Congress at some point. I do think that that's what their starting point is on this.

Let's be candid, there's, what, 40 Muslim countries. I mean, to say this is a Muslim ban is not true, there's 40 Muslim countries who are not on the list. This is sort of crazy to say this, right?

CHALIAN: Well, let's be clear, though --


COOPER: That's how it started --

CHALIAN: It started as the Muslim ban in the campaign. And, by the way, as an example of Donald Trump actually not leaning into this but responding to some public pressure, he pulled back from that in the campaign. His advisers restructured it to make it not a religious test. That's where this started.

LORD: One other point here, Senator Schumer, who's making such a big deal about this, in November of 2015 was saying, maybe we need to pause this whole thing. He was saying in essence what Donald Trump is saying now, back in 2015.

ROSEN: No, no, President Obama actually did pause. They actually had a very rigorous screening process. There actually was considered --

LORD: Why did he --


ROSEN: Donald Trump didn't do that. He threw a cherry bomb, a gas bomb --

COOPER: Somebody had gotten in.


COOPER: Right, and they redid their policies to make the screening --

LORD: People want to be safe. COOPER: Well, no doubt about it. There's a lot more ahead, including

the White House response to all this, the president tweeting about 20 minutes ago. We'll take you to the White House next.



[20:30:24]ANDERSON COOPER, CNN ANCHOR: Well, here's where things stand tonight in Washington. President Trump's defended his executive order on immigration refugees. His acting Attorney General an Obama hold over ordering her lawyers not to defend it and president railed on Twitter against her. Now we're waiting for the White House to act. CNN Sara Murray is there tonight, with what her sources are telling her

So beyond the president's tweet just a bit ago, how has the administration responded to this order from the acting Attorney General?

SARA MURRAY, CNN WHITE HOUSE CORRESPONDENT: We'll we have seen other advisers who the president out there this evening, basically calling on other networks saying that this is a politicization of the legal process.

Now, of course, this is an Obama appointee who is making these decisions, but there were a lot of questions from some about why Donald Trump would move forward with this travel ban without his own Attorney General in place. We know that Jeff Sessions has not been confirmed yet. It is just the latest hiccup in what has been a rocky roll-out for Donald Trump's travel ban.


MURRAY: Donald Trump springing to the defense of his controversial travel ban, which caused chaos in airports across the country over the weekend and drew fire from both sides of the aisle.

DONALD TRUMP, U.S. PRESIDENT: It's not a Muslim ban. But we're totally prepared to work it out very nicely.

MURRAY: The president executive order includes a 90-day ban on citizens coming to the U.S. from seven majority Muslim countries, identified as countries of concern under the Obama administration. And it suspends the refugee programs for 120 days.

Over the weekend it prompted protests in the streets and elicited a sharp response from Democratic leaders.

SEN. CHUCK SCHUMER, (D) MINORITY LEADER: This executive order was mean-spirited and un-American.

MURRAY: Today a cutting rebuttal from the president.

TRUMP: I noticed that Chuck Schumer yesterday with fake tears. I'm going to ask him who was his acting coach, because I know him very well. I don't see him as a crier.

MURRAY: But it's not just Democrats raising alarm.

SEN. ROB PORTMAN, (R) OHIO: You have an extreme vetting proposal that didn't get the vetting it should have had.

MURRAY: Trump administration officials including senior policy advisor Stephen Miller and chief strategist Steve Bannon quietly crafted the order with limited guidance from the administration's own agency.

It caught the Department of Homeland Security, State Department and customs and border patrol flat-footed, breeding confusion at airports. White House press secretary Sean Spicer is defending the roll-out, and calling the criticism overblown.

SEAN SPICER, WHITE HOUSE PRESS SECRETARY: If we announce this a lot earlier, it would have given people plenty of time to flood into the country who could have done us harm. That's not exactly a sound strategy, right? So, the people that needed to be kept in the looked were kept in the looked. The people that needed to be brief were.

MURRAY: Trump also tweeting, "If the ban were announced with a one week notice, the bad would rush in to our country during that week. A lot of bad dudes out there." But the refugee process often drags on for more than a year. And even visas can take weeks for approval.

The uncertainly the administration unleashed drew a shark rebuke from many Republicans. Senators John McCain and Lindsey Graham warned the travel ban could alienate Muslim allies saying, "Ultimately, we fear this executive order will become a self-inflicted wound in the fight against terrorism."

Trump swipe back on Twitter calling them weak on immigration, and saying they're, "Always looking to start Word War III."

SEN. LINDSEY GRAHAM, (R) SOUTH CAROLINA: I'm not trying to start a war. I'm trying to win the war we're in, and you're not going to win the war by lumping everybody into a big pot.


COOPER: Sara, Pres. Trump has said he was working with his allies on the Hill. A lot of them didn't seem to know about it, though.

MURRAY: That's absolutely right, Anderson. If he was working with allies on the Hill, it was a very tight circle and excluded a lot of the leadership officers and a lot of the relevant committees that we would expect to be involved in this And that means this is basically just costing Donald Trump unnecessary political capital.

A lot of Republicans on the Hill who have been very critical of this order had made it clear that it's not necessarily the policy they're opposed to, but they're opposed to what was a very sloppy roll-out, and the fact the administration did not use the tools at their disposal within their own agencies and within the expertise of Congress to sort of help them do this in a more organized manner, Anderson.

COOPER: Sara Murray. Sara, thanks very much.

Back with the panel. Ryan, what do you think Pres. Trump does? I mean if the acting Attorney General by doing this actually is playing into his hands, and sort of setting up this battle? How do you respond?

RYAN LIZZA, WASHINGTON CORRESPONDENT, THE NEW YORKER: Well, there seems to be one big obstacle with fire (ph). Remember, the Trump White House asked her to stay on, right? They asked her to remain in that job, because they didn't have their own team in place. But there is this one important obstacle of the FISA court, right? When FBI agents go into the foreign intelligence surveillance courts, there has to be a Senate confirmed senior justice department official who signs that application.

[20:35:14] And I think right now he's probably trying to figure out is there anyone else at the senior leadership in the Justice Department, if she goes to do that. That's a big deal, right?

FISA warrants are a daily occurrence. And if he can't -- in such a National Security (inaudible). Otherwise I think his (ph) instinct, the fact that she is a holdover from Obama it will be -- frankly to sack her. I think that raises a lot of questions, because it's fine for the president to sack anyone he wants in the executive branch, but the tradition is that the Justice Department you don't fire someone based on their legal arguments alone, right?

We all remember the Saturday night massacre -- maybe we don't remember, but at least we're reading about it.


UNIDENTIFIED FEMALE: But it's a good lesson in history to think about Richard Nixon never really recovered from demanding that Archibald Cox be fired. It created a narrative that he was crooked, that he had something to hide, that he was not transparent and that he was not interested in serving the American people. If Pres. Trump goes down this road with Sally Yates, that's exactly what he's going to end up.

JEFFREY LORD, TRUMP SUPPORTER: I think the narrative would be exactly the opposite that there's a lot of bureaucrats in this town who don't like. It's not just that they don't like Donald Trump. You know, there's some other conservative in there doing this, they would have the same problem. This is grown like --


UNIDENTIFIED FEMALE: Jeffrey, she's served Republicans and Democrats as a U.S. attorney and field offices. She's never been in a political job. And the reason we are at this point is because --

LORD: -- law firm.

UNIDENTIFIED FEMALE: -- a federal judge declared this unconstitutional yesterday, which requires the Justice Department to go in and defend an executive order. So this isn't coming from out of the blue. It's already been declared unconstitutional


LIZZA: She was confirmed by the Senate 84-12, and she, you know, she's a lifelong prosecutor. I don't think you can turn her into a partisan Democrat.

COOPER: We got a lot more ahead. The uproar over Pres. Trump's decision to give his advisor Steve Bannon a seat on his highest-level national security team, Sean Spicer and so David Axelrod had it. Luckily we have David Axelrod. Coming up, we'll talk to him. Is that really true what he said? We'll be right back.


[20:41:14] COOPER: Tonight on top of the travel order flap, the Trump administration is also taking heat for a change that would ordinarily get very little notice, namely who sits in a certain meeting. However, the meetings in question are the president's highest level of national security team, and now two key players are no longer permanently invited, however one influential political player is our justice correspondent Pamela Brown, joins us with more. So Pamela, the political player and confidant who is invited is senior advisor Steve Bannon, right?

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: That's right. He is Pres. Trump's senior adviser in the White House. This is not a cabinet position confirmed by the Senate. Steve Bannon, up until six months ago, was running conservative-leaning Breitbart before leaving to join Trump's campaign. And now he has more influence inversely (ph) anyone else in the White House. And he will be taking the top National Security Council seat as part of this principle committee.

For context here, Anderson, the principals are considered the most senior National Security people in the government and past political advisers such Karl Rove and Valerie Jarrett did not have those sheets. So this is considered unusual, however, today during the White House briefing (ph) Sean Spicer defended this saying that, this has been done in the past, Anderson.

COOPER: Right, and that's just not true. I mean what he said he actually specifically was talking about David Axelrod. David Axelrod was not a principle. David Axelrod (inaudible) -- when he sat in when it was on stuff about Bin Laden, because he was going to have to publicly explain things and he wanted to be part of that process, but he didn't actually speak in any of those meetings.

Bannon is based on replacing the chairman of the Joint Chiefs of Staff and the director of National Intelligence. They're no longer permanently invited. What did the White House say about that shift?

BROWN: That's right. So he's going to be joining Secretary of State, Defense, Homeland Security and Treasury, but not notably the director of National Intelligence as well as the chairman of the Joint Chiefs of Staff.

So this is pretty significant. And today Sean Spicer at the White House said that they would still be encourage to participate only where, "issues pertaining to t he responsibilities and expertise are to be discussed." And he also pointed out to this memo on the principal committee is the exact same as 2001. Here's what else he said.


SPICER: The idea is that the chairman of the Joint Chiefs of Staff and DNA are being downgraded or removed is utter nonsense. They are at every NSC meeting and are welcome to attend the principals meetings as well.


BROWN: And so he reiterated that Pres. Trump has great respect for the two officials and said that they are welcome to attend these high priority National Security principal meetings anytime, but if there is a meeting outside their scope, they're not required to attend he said. And he also announced, Anderson, that Trump would add the CIA director to the NSC, Anderson.

COOPER: All right, Pamela Brown. Pamela, thanks.

We talked about what Sean Spicer said about David Axelrod today, the briefing he said. Here's that moment.


SPICER: The idea is that the chairman of the Joint Chiefs of Staff and DNA are being downgraded or removed is utter nonsense. They are at every NSC meeting and are welcome to attend the principals meetings as well.


COOPER: Joining me now is the one and only David Axelrod, CNN senior political commentator and former senior advisor to Pres. Obama.

So David, you wrote an Op-Eds for about this, the head of which is, I woke up this morning as an alternative fact." So let me ask you.


COOPER: Did you, as Sean Spicer says walk in and out of NSC meetings quite frequently?

AXELROD: No, not at all. I sat in on some principals committee meetings during the period when they were reviewing the Afghanistan policy, because the president was trying to make a weighty decision about where he wanted to go on strategy in Afghanistan. And we knew that it was going to be one that was going to bear a lot of explanation and that was going to be very important to the American people.

So Robert Gibbs, or press secretary and I, sat in as observers on those sessions so we could get a sense of how the decision came about, what the process was going into it. Never did we speak in those meetings. We were purely observers.

[20:45:14] What Steve Bannon is doing is completely different. And he is going to be a principal at the table. And what is clear is he's emerging as one of the principal National Security and Foreign Policy advisers to the President. I would never have described myself that way when I was senior adviser to the president. My portfolios were politics and communications.

So, this really is new ground that they're charting. And using me as a kind of example or a precedent is way off the mark.

COOPER: Yeah, I think I said -- I think I misspoke a thing. I think I said to Pamela that you were there at Bin Laden meetings, as you said with Afghanistan meetings. I appreciate the clarification. The other thing that Spicer was saying today is that the policy regarding the director of National Intelligence and the chairman of the Joint Chiefs of Staff that their attendance at some meetings will be optional. There was the same policy under Pres. Obama. Is he correct on that account?

AXELROD: Well, I've got to tell you, I cannot imagine meetings, principals' meetings where you don't want to hear from the director of National Intelligence as you're making decisions about the National Security of the country, or have the chairman of the Joint Chiefs of Staff who's going to execute on orders that the commander-in-chief gives. It just seems illogical to me that you would want to exclusive them from any meeting or that they would not be permanent members of this group.

The other thing, you know, Pamela, was --I think what charitable in describing Breitbart as a conservative-leaning news outlet. It is the voice of the Alt-Right movement. It is the voice -- not just here, but now in Europe of the right-wing populist xenophobic, anti-trade, anti-immigration movement.

So, their -- it is consequential that the person who helped lead that organization is now one of the -- or maybe the principal Foreign Policy adviser, National Security adviser to the President of the United States.

COOPER: And this group, are they the ones who sort of approve assassinations overseas? Or approve who, you know, gets targeted by the U.S.?

AXELROD: Well --

COOPER: I'm not sure assassination is the right word, but certainly drone strikes targets.

AXELROD: No, no. But -- yeah, I mean, the most essential decisions that a president makes on National Security are made in this group. So it is -- this is no small thing. This is a big deal, and the fact that Steve Bannon is there speaks to the role that he's playing in this White House.

COOPER: Why do you think it's important that purely political considerations don't come into play, don't interfere with the decision-making process that takes place in these meetings?

AXELROD: Well, you want those decisions to be made purely on the basis of National Security. And what the President wants to draw on those people around him, who are going to give him advice, based on National Security, not on politics, a good example is this order that went down over the weekend.

Steve Bannon apparently was the architect of this order, or one of the architects of this order. But the President did not have the input of his director of Homeland Security, did not have the input of his Defense Secretary, did not have the input of the Attorney General or the acting Attorney General, and you saw the chaos that resulted.

He was trying to score -- in my view he was trying to score political points, and he may have scored political points with some of his supporters, but the result of it was the chaos that we see and the ramifications could be far-reaching.

COOPER: Just lastly, I want to ask you about something else Sean Spicer said today, when asked about State Department employees who were circulating what they called the dissent channel memo basically voice and disagreement with the president's executive order about that Sean Spicer said they should, "Either get with the program or they can go." Should federal employees not be able to dissent? What do you think of that?

AXELROD: I think it's such a dangerous position to take because these are professionals -- most of these people I would guess all of these people are people who are career professionals within the State Department and have served this country under Democratic presidents and Republican presidents, and have the expertise and the associations around the world to be on the forefront of diplomacy.

If those people walk out just as if some of the key people in our Intelligence Community would walk out, it would weaken our ability to do the business of United States American around the world.

So I wouldn't be so callous or so flippant about addressing their concerns. Their concern should be heard.

COOPER: David Axelrod, this may not be the last day you are an alternative fact so.

AXELROD: I'm sure of that. Thanks.

COOPER: To be continued. Thanks, David.

Just ahead, President Trump's travel ban and crackdown on refugees are being celebrated by many of his supporters. To them he's delivering on a campaign promise that won their vote. What Trump voters in Pennsylvania told Randi Kaye in a moment.


[20:53:09] COOPER: Well, as you've seen President Trump's travel ban has sparked confusion and protests across parts of the country and the world. It's also being applauded by many of his supporters who voted for Trump because of his proposal to ban Muslims initially.

Randi Kaye talked to some them in Pennsylvania, key swing state that turned red this year.


JANET GATTINE, TRUMP SUPPORTER: We have to check out who is coming in. We have to know who is coming in.

RANDI KAYE, CNN CORRESPONDENT: Supporters of President Donald Trump and his refugee plan weren't hard to find at the beltway diner in Luzerne County, Pennsylvania.


KAYE: After all, Trump won this county with 58 percent of the vote, a major reversal from Pres. Obama's tight victory here in 2012.

Do you think this will make America safer? And prevent terrorism?

GATTINE: Yes. Yes.

KAYE: Why?

GATTINE: Because there is so many of them here now, it's hard to keep track of them. And they just keep coming and coming and coming.

KAYE: This Pennsylvania farmer, a long-time registered Democrat, switched parties to support Trump because he liked his refugee plan. He says this isn't a ban on religion, this isn't against Muslims, how do you feel about it?

STANLEY TORKOWSKI, TRUMP SUPPORTER: It's not. He's doing the right thing. Those people have to be vetted. These people are coming off the street. We have no idea who they are.

KAYE: But the State Department does vet them already. They spent a couple years vetting these folks and maybe they turned some away, you're saying, it's not enough?

TORKOWSKI: But there's still enough room for those people to sneak through. I don't think they get everybody.

KAYE: And if they're coming in from Syria, many here told us don't bother vetting, just keep them out for good.

TORKOWSKI: There's a lot of bad people there that we don't know their backgrounds. We don't know where they came from. We don't know they're fully -- what they're behind. And I'm sure -- KAYE: You sound like Donald Trump when you say that?

TORKOWSKI: I kind of agree with him.

[20:55:01] KAYE: Not a single Trump supporter here considers Pres. Trump's executive order discriminatory.

What do you say to those who call this discrimination and illegal?

JANICE CALHOUN, TRUMP SUPPORTER: You can't call it discrimination when we've got so much violence with the bombings and attacks. It's like he is just trying to keep us safe.

KAYE: Will this make America safer, do you think?

CALHOUN: I don't know. I don't know. I'm hoping it will.

KAYE: In a diner jammed with Trump devotees, this woman stuck out. An independent who supported Hillary Clinton, she says Pres. Trump is bullying Muslims.

What about the ban, specifically?

JOAN SWEDAR, CLINTON SUPPORTER: The ban is a disgrace. This country is made up of immigrants. He just wants to sign executive orders to show that he's doing something. He has no idea what it's all about.

KAYE: Is this discrimination in your view?

SWEDAR: Oh, definitely. It is discrimination. It's illegal. And it's a disgrace to our country.

KAYE: This woman couldn't disagree more. She says it's the only way to stop terrorism.

What about the terrorism? What scares you about that?

GATTINE: Oh my god, you never know where it's going to be. You know? You could be shopping or, you can go to church, they might want to blow up your church?


COOPER: Randi joins us now. I mean the people you spoke with, sound like they are generally afraid of refugees entering this country. That's the sense I assume you got.

KAYE: Absolutely, Anderson. We picked up on that, fear, and really bordering on paranoia about these people coming into this country. One guy telling me that refugees and Muslims are tricky, that was the word he used. He said, they're professionals, they know how to get around vetting. That's why it is so dangerous here, and that's why, we need this extreme vetting that Donald Trump is talking about.

And speaking with these people Anderson, all of them incorrectly believe that attacks in this country like San Bernardino, or Orlando, or Boston bombing were carried out by people coming from countries that are now on this banned list. And when I set them straight of that, and I told them that some of them are U.S. citizens, some of them have been from other countries that aren't on the list to ban countries, they were dumbfounded. They couldn't believe it, yet they still stood their ground. And they still said that it's dangerous here and that they believe that Donald Trump will make America safe again. Anderson.

COOPER: All right. Randi, thanks very much. Much more ahead in the second hour of 360 including the acting Attorney General defying Pres. Trump's executive order on refugees. And what Republican lawmakers are saying on Capitol Hill, about the crackdown.