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Federal Judge Temporarily Halts Travel Ban Nationwide; CBP to Airlines: We Will Begin Re-Instating Visas. Aired 9-10p ET.

Aired February 3, 2017 - 21:00   ET


[21:00:00] JESSICA SCHNEIDER, CNN NATIONAL CORRESPONDENT: It was supposed to be a weekend working with some of his staff, his advisers, also attending that International Red Cross Ball that's happening tomorrow night. But now, of course, the issue of President Trump's executive order on immigration now forcing into the forefront yet again. Once again, this issue in legal limbo.

We did hear from that federal judge in Washington State, issuing that temporary restraining order halting President Trump's executive order. This has been a week where this issue has been in the courts all throughout the country. This order in Washington State, it does apply nationwide. While the White House has not spoken out about it, we're still waiting for a response from them.

Senate minority leader, Chuck Schumer, issued a very quick response saying that it is a victory for the Constitution, but we know that it does not exactly have any practical effects. That's because today, we learned that according to a Justice Department lawyer, about 100,000 visas had already been revoked. The State Department later dialed that number back to about 60,000 visas.

So those people in those seven-affected Muslim-majority countries, their visas have been revoked. That happened over the past week. So it's not like at this point practically people would be able to hop on planes, they would have to reapply for visas. So the practical effect of this order is still the same as it was just about a week ago. But now, we're hearing the political effect of this. We're waiting for the White House response, waiting to see whether this will likely be appealed to the Ninth Circuit court.

But a lot unraveling right now in what was supposed to be somewhat of a low-key weekend for President Trump, a festive weekend. He's here at Mar-a-Lago, expected to attend that Red Cross ball tomorrow. But still waiting right now, late on Friday night, to hear what they have to say about the federal judge's order out in Washington. Anderson?

ANDERSON COOPER, CNN HOST: OK. All right, Jessica Schneider, thanks very much. We'll check in with you if we hear anything from Mar-a- Lago.

CNN's Jim Acosta is at the White House. Jim, any word from there?

JIM ACOSTA, CNN SENIOR WHITE HOUSE CORRESPONDENT: Not yet, Anderson. We do know that from talking to people in the administration that they do plan to have some kind of statement some time tonight. It's unclear when that's going to come. They're aware of this ruling. They're aware of this temporary restraining order. But I think you had Maggie Haberman on earlier saying that perhaps, you know, they may take their time with this. That could be the case.

However, we should point out, this administration all week long, this White House all week long, has been almost pugnacious in defending this executive order. There really hasn't even been an acknowledgement that they botched the rollout of the executive order even though there are a number of Republicans saying that up on Capitol Hill.

What we can tell you is that, as soon as we get that statement, we'll bring it to you. But earlier this week, the Justice Department for this administration handed out guidance, saying that they believe that this executive order is legal and, you know, just consider the brouhaha that we just, you know, saw develop throughout the week.

The acting Attorney General Sally Yates was personally fired by the president because she would not carry out this order. She issued a statement saying that she believed that this executive order is not legal. That resulted in a personal firing where the president of the United States personally let her go, just to show how strongly he feels about this.

And so, you know, make no mistake, Anderson, this White House is not going to get, you know, get over this executive order without a fight. They are likely going to send out a statement tonight. My guess is that it's going to say that they are very confident that they're going to prevail on the appellate level and that this executive order is here to stay.

As of this point, as you just heard from Jessica Schneider, you know, the president was expected to have a pretty low-key weekend, he was going to watch the Super Bowl, go do a Red Cross gala tomorrow night and so forth, but now they have a very messy legal entanglement to unravel over the next 24 to 48 hours. But my guess is, Anderson, is that we're going to get a response from this White House before tomorrow.

COOPER: All right, Jim Acosta, we'll be on the air. Jim, thanks very much.

CNN's Rene Marsh has been gathering information on potential impact of all this, some people wanting to come to the country who had visas, that visas were rescinded, the airlines as well and more.

Rene, any word from Customs and Border Protection, which is really critical in sort of trying to figure out what the ramifications of this judge's ruling are?

RENE MARSH, CNN AVIATION CORRESPONDENT: You're right, Anderson, they are a critical piece of this hearing what their responses going to be to this judge's order. Because really when it comes down do what does did mean for people who want to fly from point A to point B who have visas, the word and that guidance to airlines is going to come from CBP. And airlines will not make any decisions on their own until they get that guidance from Customs and Border Protection. So that's a situation that we're in now.

We did speak with a spokesperson who, I would say, about an hour ago, we essentially alerted them to what was happening there in Seattle, what had unfolded in Seattle. And so, they were just kind of getting up to speed. At this hour, we do know that members at DHS, Department of Homeland Security and CBP are all trying to wrap their minds around what do they do next.

[21:05:12] But what is so important here is that, you know, the million dollar question is what does it mean for travelers, and at this point, I would say that everything that you knew or every rule that was in place yesterday or even earlier today, it essentially remains in place right now until we hear from the CBP.

And here's why I say that. For U.S. carriers, in many cases, if a traveler shows up at an airport their travel documents are scanned, and that is scanned through an automatic system. If the CBP doesn't update their system to say this person is good to board, the person, the CBP officer or even the airline will see a message that says "No Board", and the airline will never go against that. If it says "No Board", an individual would not be allowed on the plane. And the reason why airlines don't go against that is because they can be fined by the Customs and Border Protection if they don't follow their guidance.

COOPER: Right. I mean, there's so moving parts to this, it's really too soon to tell exactly what the ramifications are. I mean if the judge's order ruling is upheld by the Fifth Circuit, assuming that the White House is going to contest it, which we certainly believe that they would, then -- and we still need to know the parameters of the ruling. Does this apply to only those people who have their visas rescinded? Does this apply to the entire executive order?

Rene, I appreciate that. We're going to check in more with you.

Joining us now is Washington Attorney General Bob Ferguson. Mr. Attorney General, appreciate you coming back.

So much to talk to you about -- first of all, we are still waiting for the entire judge's ruling, the written-out version. This was just an oral ruling initially. Do you know when that's going to be released?

BOB FERGUSON, WASHINGTON STATE ATTORNEY GENERAL: Yeah, my recollection, Anderson, from his oral decision was that that would come very shortly. I think it could potentially be tonight, if I remember his words correctly or certainly by this weekend.

And just what one of your earlier guests said in mentioning that the administration is going to be pugnacious in defending this executive order, I want to be very clear, I'm going to be pugnacious in defending the Constitution of the United States. President Trump violated that. That's not OK. And we're going to make sure he upholds the rule of law in this country. COOPER: So what does that actually mean? So they -- where do you -- where are you prepared to go with this? What is your argument?

FERGUSON: We'll go wherever we need to go. But what we saw just matter of a couple hours ago is a federal judge, appointed by President George W. Bush granted difficult relief to achieve a temporary restraining order, shutting down an executive order signed by the president of the United States. Federal judges don't do that lightly. You have to show that you are likely to prevail on the merits, that the public interest is in your favor, that there's significant harm that will be done if the judge does not take that action. Those are steep hurdles, Anderson, in a courtroom as any lawyer knows and the judge probably met each of those hurdles.

COOPER: Do you know -- when you say shutting down the executive order, do you know if that means shutting down the rescinding of the visas to whether it's 60,000 or 100,000 people who had their visas rescinded or if its shutting down the executive order, meaning there will be no pause in the granting -- the regular granting process for visas from these seven countries. Do we know at this stage?

FERGUSON: I'm not sure we can say at this stage, Anderson. I've been listening to your conversation for the past few minutes. So that level of specificity around the visas, I can't speak to right now. What I can speak to is what Judge Robart ruled a couple of hours here in Seattle, which is the key sections of the president's executive order are now not in effect nationwide. And the judge was crystal clear on that,

And so, it is certainly my expectation that the federal government will honor that order immediately and take steps to allow folks who've been denied coming into our country to now come into our country. The judge was very, very clear on that point.

COOPER: I think, you know, a lot of people watching tonight might be surprised that a judge in Washington State in a courtroom can make a ruling that has nationwide implications. So if you can explain kind of just take us back to what your argument was and how this played out? Because you've fought this on a number of grounds.

FERGUSON: That's correct. And you raised a good point. A lot of folks -- it's not intuitive. How can one judge in any federal district court take an action like that? But we -- this is not unprecedented. We saw that when President Obama was president, where Republican AGs sue the Obama administration a variety of contexts and we saw a federal district court judges issue rulings that essentially shut down action by President Obama. So there's nothing unusual about it from that respect.

[21:09:58] Arguments in a nutshell were really in two different buckets, Anderson. We have a group of constitutional claims. In other words, that the executive order violates basic constitutional principles like due process, equal protection.

The First Amendment Establishment Clause, you cannot favor one religion over another. We had a group of claims there. We also had a group of claims that are statutory in nature. So in other words, saying that the president's action violated specific federal statutes like the Nationality and Immigration Act or the Administrative Procedures Act.

The bottom line is, the judge did not pick and choose which ones he thought were most persuasive. We may see that in his written order coming out in the next couple days, Anderson. But the judge did conclude that we were likely to prevail on the merits of this action.

COOPER: And that's an important point and I think bears repeating that what -- in your belief, your interpretation is the judge by making the ruling that he has made, though he's not ruling on the constitutional merits of your argument, you believe this is an indication that, were he to rule on that, he would rule in your favor?

FERGUSON: What I can tell you, Anderson, is the standard is very explicit to get a temporary restraining order, and that's not easy to get for all sorts of obvious reasons. A part of the standard is, we, the state of Washington, I had to show, to demonstrate, that we were likely to prevail on the merits when the judge eventually gets that point. The judge had to reach that conclusion that we are likely to prevail on the merits. That's a high hurdle, obviously, a few days after filing a complaint, but the judge did conclude that in order to grant our motion for the temporary restraining order. That is just a part of the order today.

COOPER: Why was this something that you filed? I mean, in Washington State, obviously, I assume there are number of businesses in Washington, obviously, Amazon and others that -- I mean, did they play a role in this?

FERGUSON: They did, I guess, first in terms of why I filed it, a couple thoughts. Number one is we are a nation of laws, right? And I had a clear view and opinion that the executive order was unconstitutional, and my legal team agreed. And we moved very, very quickly, literally working around the clock, and that is not an exaggeration, around the clock since last weekend to prepare our complaint and our motion.

The reason I feel so strongly is the executive order of such magnitude that the president signed, just is a violation of our constitution and different statutes. And it impacts so many Washingtonians in such deeply personal ways.

More over to your point about businesses, I deeply appreciate businesses like Expedia and Amazon here in Washington State that last weekend when I reached out to them quickly wrote declarations for our filing before the court in support. And their motions -- their declarations, excuse me, go to issues of how this impacts their employees adversely and adversely impacts their business. And so I think that helped us make our case that there's an adverse impact not just to Washingtonians, here in my state, but also to businesses in my state as well.

COOPER: Obviously, a lot of people are going to see this through a political lens, no matter what side of the aisle they're on. You are you a Democrat but you're pointing out that the judge who has made this order tonight, he's a Republican, appointed by George W. Bush, right?

FERGUSON: That's correct. And one more thing I'll say about that is whenever folks say that this is a political thing, that's what someone says when they don't have an argument. Honestly.

And I'll just point out that I'm in my fifth year as attorney general of the state. In the last four years, my first term, I twice sued the Obama administration, things I don't do lightly. I deeply respect and admire the president, but that respect and admiration is still relevant to my decision on whether to file a lawsuit against the federal government.

If they are violating the law, you know, unconstitutional way or unlawful way, it is my responsibility, Anderson, to defend the rights of Washingtonians. It does not matter who the president is, it does not matter if he or she's a Democrat or Republican, irrelevant.

And so folks who want to say this is political, A, they don't know what they're talking about, and B, they don't know my record, and C, they do not understand the Constitution.

COOPER: I'm not smart enough to have gone to law school, but thankfully we do have a number of very smart attorneys with us.

Harvard Law professor, Alan Dershowitz. I believe has a question for you Mr. Attorney General.

Professor Dershowitz?

FERGUSON: You bet.

ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: Well, first of all, I want to commend you. I think the adversary system requires that you bring this kind of action and bring it vigorously, and I commend you for getting the result you got. But as you now in Massachusetts a judge came to a somewhat different result, and we're going to see in the days that come, probably a variety of different results around the country. And what impact do you think it's going to have that some judges have refused to grant stays and have come to conclusions that seem inconsistent with the judge in your case.

Obviously, the government is going to appeal your case to the Ninth Circuit, probably the plaintiffs will appeal the Massachusetts case to the First Circuit. We're going to have conflicting rulings, won't this ultimately have to go do the United States Supreme Court, initially to the circuit justice and then perhaps to the whole court?

[21:15:00] FERGUSON: Thanks for that question, Professor. Yes, I agree and we've been prepared since last weekend when I first asked my team to draft and file this complaint and motion. It was my feeling that an issue of this magnitude would likely end up before the United States Supreme Court. That would not surprise me.

I do think that the judge's decision here today sends a strong indication of where this case is heading and I think -- I'm confident that we'll prevail in the Ninth Court of Appeals.

But to your point directly, yes, it will not surprise me or anyone else if this ultimately end up before the United States Supreme Court.

DERSHOWITZ: Would it surprise you also if the judges ultimately ruled that some parts of the executive order may be unconstitutional, but other parts may be constitutional? For example, a family in Yemen who has no connection to the United States that simply wants to visit and is turned down for a visa, what kind of standing would they have to challenge this, and can they use your standing as the attorney general of Washington to bring this challenge, a challenge that they couldn't otherwise bring?

FERGUSON: Yeah, that's a complicated question, but to be clear in the action that we brought, and my solicitor general know per se who made the oral argument today made clear that the case we are bringing are on behalf of Washingtonians here in the state, that we're aware of the difficult circumstances of folks trying to come to our country, where we're bringing it on behalf of the people of our state.

So, I can't speak, hey, what the impact might have for others around the world. But the case that we are bringing, Professor, is based, and the judge found we had standing because of the harm done to Washingtonians and businesses and universities and colleges here in my state.

DERSHOWITZ: And one final question, would you bring a contempt order against the president of the United States if he fails to comply with this order? Would you actually try to hold him in contempt of court?

FERGUSON: Look, I want to be crystal clear. It is my expectation that the president in this administration will follow what Judge Robart ruled today. And whatever means I need to use, Professor, to make sure that happens, I will absolutely utilize every tool that I have. Nothing is more sacred in our country than the rule of law, period, full stuff. That's it.

It applies to everybody in the country, even the president. In some respects, especially the president. And that's a principle of why I went to law school and why I practice as an attorney to uphold the constitutional rights of the people who I represent. And yes, you can be sure I'll use every tool at my disposal to make sure the federal government follows this order by this judge here today.

COOPER: Mr. Attorney General, what would be the next step? Assuming the White House is going to try to challenge this judge's ruling, is it the Fifth Circuit? And if so, is that something that could take place this weekend?

FERGUSON: So it's the Ninth Circuit.

COOPER: Ninth Circuit.

FERGUSON: The state out here in the western part -- that's no problem, in the western United States. So, it's really best directed for the federal government, but yes, that they could seek an immediate review by the Ninth Circuit Court of Appeals. They could wait and tell Judge Robart issues a final decision on the merits to our complaint and our motion here in the western district of Washington. That will be up to the federal government to decide.

What I told my team to do before I left to come down here to the studio was get a good night's rest, because we may be right back at it tomorrow with whatever may be coming our way. The bottom line though was, we're absolutely prepared to continue working around the clock to defend the constitutional rights of the people of my state.

COOPER: I know a number of other of our panelist have some questions for you if you can stick around.

David Gergen, I think you had a question to Attorney General?

DAVID GERGEN, FORMER PRESIDENTIAL ADVISER: Yes, Mr. Attorney General, thank you for coming back fast in the conversation.

FERGUSON: You bet.

GERGEN: Could you help us, sir, if you were to prevail, not only on the temporary restraining order but on the merits, on the substance underneath, what, you know, what cures are you seeking in the executive order, so we know how the world may change?

Obviously, the federal government, the president does have authority to strengthen and -- the vetting process. We've seen that in numerous presidents, especially since 9/11. So how -- what are you arguing this administration can do that would cure the problems you're raising?

FERGUSON: Well, I guess I'm not sure I'm in a position to say. It's not my job to say what they need to do to cure it. I think my job is to point out the unconstitutionality of the order and how it's unlawful. That said, your points will take in that in general, presidents do have a broad discretion to sign executive orders.

Now, as part of the case made by the lawyers for the federal government today but as the judge asked a number of times and say, hey, are there any limits to that, and the lawyers for the federal government frankly did not want to answer that question directly, but there are limits to any president's action.

GERGEN: Can you give us two or three specifics that you would strike down if you win?

FERGUSON: Well I guess I'm not sure I wanted this. Sections 3 and Sections 5 are the focus of the executive order are the focus of what our claims are directed at. We also have the statutory claims as well. So for example, there was no due process whatsoever for individuals who were denied entry to this country, right, just basic due process suggests you've got to follow and allow certain due process for the people of our country, they're entitled to that under the Constitution.

[21:20:05] And so that's an example of a -- part of this order that failed the constitutional test that the court was looking at.

COOPER: Mr. Attorney General, we've just gotten -- to point out to our viewers, seven pages of the judge's ruling. We're all going through it, so -- but I now Paul Callan, legal analyst, would like to ask you a question, I think based on some points. Go ahead, Paul.

PAUL CALLAN, CNN LEGAL ANALYST: Yeah, I think a lot of Americans are wondering why the state of Washington (inaudible) the federal judge sitting in the state of Washington, why does his order bind the whole United States of America when there are other federal judges in other districts who differ on this. Do you think you acted properly in asking that this order be imposed on the entire nation without waiting to see how the other district courts viewed it? Does that strike you as being a fair way to approach it?

FERGUSON: I'm not going to wait to uphold the constitutional rights of my people. Quite the opposite. I instructed my team last weekend, we're working through the weekend. We're filing Monday. I'm not going to wait one hour, one day longer when the constitutional rights of appeal of my state are being violated by the president, that's number one.

Number two, I've not seen what the Massachusetts judge ruled today. I have no chance to take a look at that. But multiple judges, as you know, ruled in favor of individuals who were bringing claims, who are denied entry to this country. So the overwhelming majority of the courts that look at look at these issues have ruled in favor of small group of plaintiffs of individuals for their specific claims or in our situation on behalf of the state of Washington. So it's very clear what direction judges all around the country are going on this.


CALLAN: Well, I understand that, Mr. Attorney General, but the question is, you are -- you hadn't even read the judge's order, and you were asking the judge to impose it on the entire United States. Don't you think you're moving a little bit too quickly?

FERGUSON: You may think we're moving to quickly to uphold the constitutional rights for the people of my state, but I do not. And the judge was very clear in his oral rule that's supplied nationwide. And to be candid, when President Obama was president, Republican AGs challenged different aspects of decisions he made and federal district court judges could issue decisions that impacted the entire country. That happened when President Obama was president, it's happening.

But just to be clear, there is no part of my job description that says I should wait to uphold the constitutional rights of the people of my state.

And more over, and this important, Anderson, for people to come to my state, they of course fly from all sorts of different airports as they connect into my state. My lawsuit was joined by the state of Minnesota as well, and the judge mentioned that. So in order to achieve the relief we're seeking, I think the judge appropriately issued this on a nationwide basis. COOPER: You know, for people who are watching around the world who may have had their visas rescinded, is there anything you can say tonight about how they should proceed if at all -- I mean if this really does change anything? Or do we have to wait -- do they have to wait until the Ninth Circuit rules? Is there anything you can directly say to them?

FERGUSON: Anderson, I wish I could answer that question. We literally just walked out of the courtroom, you know, an hour and a half or so ago. So I wish I could answer that question directly. I'm sure these things will be worked out soon. The bottom line though is the federal government has a responsibility to move quickly to implement the judge's decision tonight.

COOPER: Was the federal government, the Department of Justice, was their ability to argue this in the court in Washington against you, was it affected by what happened with the Department of Justice where the acting assistant attorney general told her attorneys to not defend this and then she obviously was fired and replaced? I mean, I assume there were federal lawyers arguing against your case.

FERGUSON: Yeah, I'm glad you asked that question, Anderson, because of course there were attorneys there for the federal government, they did an excellent job. They're excellent attorneys. I know who they are. I read their brief. Their brief was filed at midnight last night. I received an e-mail for my team at midnight last night. It was a copy of their brief. It was excellent. They did a very good job advocating for their position and did an excellent job at the oral argument answering very difficult and challenging questions from Judge Robart.

So, no, the federal government's position was well articulated and briefed as you'd want to see. I encourage any of your legal experts to take a look at their briefs. It was very well done and praised by the judge.

COOPER: I want to bring Danny Cevallos, who's been reading the Judge's ruling. Danny?

DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY: Yes, I think the -- Mr. Attorney General, you haven't even had the benefit of reading this yet. This is hot off the presses to us. And it's interesting that, you know, we were talking about enforcing the power of a federal court to enforce this law, not only in the state where it sits but nationwide, and it appears that this judge in his opinion addressed just that, citing precedents in the fifth Circuit that the immigration laws of the U.S. should be enforced vigorously and uniformly.

And of course you also retreat back to some basic principles like Marbury v Madison. The essence of federal courts is that they can question and ultimately strike down federal law, so it's not a great stretch to say that an executive order falls within that family.

[21:25:07] FERGUSON: I appreciate it. I have not had a chance to read it, as you pointed out. So I appreciate you mentioning that. And those are important principles. So, I recognize that it's -- it may be counter intuitive to folks watching, hey, how can a judge anywhere in the country have that kind of impact, I don't want to say it happens all the time, but it is not particularly unusual that judges do have that power, particularly in the areas that you mentioned.

CEVALLOS: But, Mr. Attorney General, I will point out too that as we had spoken about earlier, this short opinion here does not mention which of your grounds, constitutional or statutory, it based this TRO on. And I am going to -- I'm sure you're going to find that very curious and wonder when you're going to get some clarity.

FERGUSON: All of course when -- to when the judge elaborates. But what he needed to find, the standard of review that he was looking at today for our TRO, for our temporary restraining order, was likelihood of success on the merits combined with other factors, and he clearly found that we had a likelihood of success on the merits here. And then I'm confident when he eventually makes an ultimate ruling on this that will go our way.

COOPER: Mr. Attorney General, there's a couple more. I know Professor Dershowitz is going to be reading now the judge's finding and wanted to ask you a question based on it. Professor?

FERGUSON: You bet.

DERSHOWITZ: The judge's order is really fascinating. It does say that the statute requires uniformity. But now we have one judge in Washington saying uniformity around the country requires that it be blocked and another judge in another part of the country saying uniformity around the country requires that it not be blocked. So ultimately, the case for uniformity is not settled when you have different judges making different orders.

One other point, you mentioned due process. The Supreme Court has been very clear that that family in Yemen who was denied a visa has no right to due process. Due process only applies to Americans, either American citizens or green cardholders, but there is no due process right to get a visa for anybody abroad. So I think although the judge did a very good job on the uniformity, I don't think he wrote a particularly compelling decision on why it's likely to succeed on the merits in striking down the entire, the entire order.

And so I think you're going to have an uphill fight in the Ninth Circuit, in defending his opinion as it relates to the entire order. How are you going to deal with that? Are you going to try to take half a loaf if you can get it and just strike down parts as it relates to people in Washington State or as it relates to business in Washington State? What's your approach going to be?

FERGUSON: Sure. So I will not take a half a loaf when it comes to the Constitution, number one. And number two, Professor, (inaudible) disadvantage, I've not seen the Massachusetts decision or the written order here of course. So I'll take a look at that, and my team will be working tonight to take a look at those. So I'm just not in position to answer those directly not having read those. But your point about due process for someone outside the country, I think is well taken. That was mentioned in court today. And so, on those points well taken. I'm just not in position to address your point about the order in Massachusetts having not read it or the one by our judge here in Washington.

DERSHOWITZ: Look, I still want to commend you. I think you -- look, you've brought this to a point now, you've done a great job. Whether in the end you win or lose, you've done the job of the attorney general. You've represented the people of your state, the businesses of your state. And whether you win or lose, I think the people of the state of Washington should be very proud of you having brought this issue to a head. So congratulations to you.

COOPER: Mr. Attorney General --

FERGUSON: Thanks for saying that. I do plan on winning, but thanks for saying that.

COOPER: I do want to point out to our viewers, this is from a reporting from our Rene Marsh, the CBP, the Customs and Border Protection has made initial contact, according to her reporting, with some airlines who expect to get more guidance as soon as tonight about the impact of the judge's order. That's according to an airline executive telling CNN.

I think Paul Callan -- if you can stick around still, I'm sure you want to get a glass of water or something but just stick around for a moment more. Yeah, Paul Callan has got another question. Paul?

CALLAN: Yeah, I was just going to say, you know, I've had a chance to look at it now, the specific provisions. The judge did force his attention, really, to specific aspects of the executive order. He talks about the 90-day suspension. That now has been eliminated. The 120-day rule, he's not allowing that to be put in place. The restrictions on Syrian refugees he's ruled to be unconstitutional. The provisions on giving preference to other non-Muslim religious minorities, he's focused on that and seems to suggest constitutional problems.

So he doesn't really deal with, as you know, it's a fairly lengthy executive order, he's focusing on these specific provisions. The order itself is about seven pages in length, and, you know, as Professor Dershowitz mentioned, the judge does focus on the fact that we need a uniform nationwide policy. Obviously, that would be chaos if you could enter the United States at Kennedy Airport but you couldn't get in to the United States if you happen to fly into Seattle.

[21:30:08] So, obviously we need a uniform rule in this area, and this judge had said, the only to do that is by having one district court order upheld.

COOPER: Mr. Attorney General, do you expect to hear -- will the judge, just in terms of how this works, is this the final order from the judge, or this weekend would possibly he write more? FERGUSON: I'm not sure, Anderson. Things are happening pretty quickly here. So, I had to go back and check with my team.


FERGUSON: So, I'm not sure if this is his final order or if something more is coming out. I'm sorry I just don't know --

COOPER: No problem. David Gergen has got one more and then we'll let you go.

GERGEN: The ruling comes down and says by 5:00 on Monday you have to have materials in hand for motion for preliminary injunction, could you explain the difference between a TRO, the temporary restraining order you have now and the preliminary injunction you're seeking?

FERGUSON: I'm sorry, David, you might, you know, one more time. Is that from the order you're quoting from?

GERGEN: Yes, it's from the order, and it says that the court orders, the parties to prepare the briefing schedule and noting date with respect to the states motion for a preliminary injunction, no later than Monday, February 6 at 5:00. The court will probably schedule a hearing or the state's motion for a preliminary injunction different question and necessary following receive of this parties briefing. So, help us understand the difference between a TRO and a preliminary injunction and where you maybe going.

FERGUSON: So, I will try though, I'm not sure not having that in front of me right now, but it's possible what that's getting to, and maybe other folks there who are looking at it can weigh in. Because the judge of course did not reach the merits of our overall motion, right. In other words, he's issuing a temporary restraining order right now. He still has yet to rule ultimately on the merits, that maybe a scheduling order for getting too ultimately on the merits. I just don't know for sure not having that in front of me.

COOPER: We're going to -- we're going to let you -- I know you want to read the rulings, so we're going to let you go and do that. I very much appreciate your patience with us tonight both in the last hour and this hour. I know it's been a huge, busy week for you. Thank you very much, Mr. Attorney General.

I want to go to our Rene Marsh who has some breaking news as well. Rene, what are you hearing?

MARSH: That's right, Anderson. I just got off the phone with one airline official who tells me that at the 9:00 hour there was a conference call between CBP and all of the major U.S. airlines. And CBP informed the airlines that things were going back to business as usual prior to the executive order. This source also telling me that CBP told the airlines that they are in the process of reinstating those visas. This one airline telling me that they are now going through their own process of starting to remove those travel alerts from their websites --


MARSH: -- and reaching out to customers to let them know about this change.

COOPER: Wow. This is huge.

MARSH: Right.


MARSH: Yeah.

COOPER: -- let's just be clear about this. Base -- what you are hearing is that the people who had had their visas rescinded are -- the visas that they currently have will be made valid again?

MARSH: What I'm hearing from this individual who was on that conference call is that CBP told them and I'm using very exact language that they're in the process of reinstating those visas. So one would believe that's what that means. So again the guidance that they are receiving at this hour which was literally just about 30 minutes ago is that things were going back to business as usual prior to that executive order, Anderson.

COOPER: Wow. So, again, because earlier, I mean, you know, half an hour ago, you and I were talking about whether if the judge's order was upheld if this meant people had to actually go back and reapply --

MARSH: Right.

COOPER: -- for visa, if this is true, if the source you spoke to, you know, accurately recounts this, it would seem that that would not be the case, assuming the judge's order is upheld.

MARSH: Right, and I do want to say this, I mean we don't know how long this process of reinstating --

COOPER: Right.

MARSH: -- is going to take. We don't know, you know, should you race to the airport tonight? I don't know, but I do know that the guidance is that they are actively working on this as we speak. So even the airline official who I spoke to, everyone in shock, saying this is big, this is huge, because of course it's all started with the Seattle judge who made this all come to where we are now at this point where CBP is now saying they are going to pull back on that.

COOPER: Rene is going to stick around with us. I mean Ron Brownstein, go -- yeah.

RON BROWNSTEIN, SENIOR EDITOR, THE ATLANTIC: Here's what's really, I think, fascinating about this. We said I think in the earlier hour, the closest analogy to this was when the attorney general of Texas and other Republican states went to court to block President Obama's executive order, extending legal protection to undocumented immigrants who were the parents of children who are legal citizens, it was called DAPA. It was knocked down, it was blocked by a single judge in district court. Same kind of situation in Texas, Andrew Hanen went up to the Fifth Circuit, was upheld there and then the Supreme Court didn't act on it.

[21:35:12] So the order was killed. It is precisely that case that this judge cites in his argument that the immigration laws of the United States should be enforced vigorously and uniformly, it is that case that he cites as a precedent for applying a nationwide action, and it just really underscores how the political combat has extended and how kind of raising these kinds of extending the battle field in one direction can come back and bite you from the other side.

MAGGIE HABERMAN, CNN POLITICAL ANALYST: I think if Trump is watching, which, as we know, he has a bit of a history of viewing, and he just saw that report that the visas might starting be reinstated fairly quickly, we obviously don't know the timeframe. I think that is going to infuriate him, and I think you are going to see a reaction of frustration from the White House, either from Sean Spicer, the press secretary or from the president in terms of tweets. But I think --

COOPER: I can understand why he would, obviously, be frustrated by it.


COOPER: Let her finish.

GERGEN: Can he tell customs? No, no, no, we're not doing that.

HABERMAN: I think that this is going to be any -- yet another in a series of lessons that we are seeing this president have about what the limits of his power actually look like. And I don't think we quite know what it is going to be yet. But this is going to be an interesting weekend.

COOPER: It is interesting, I mean, you know, Donald Trump, particularly from his supporters, but even from others has gotten, you know, a lot of praise and a lot of attention for having a large number of executive orders. There are some Republicans who are concerned about the large number of executive orders, but in terms of, you know, having things -- getting things done, appearing to get things done, appearing to be working hard, really I understood, he's getting started, the White House has been able to give that indication, this is kind of showing potentially the weakness on the executive orders.

GERGEN: Do have a nice point, he's got, you know, lots and lots of executive orders and very few lawyers to help process all of this, he just, you know, he's not going to the Justice Department. He's having to do is sort of internally, and I think he's handicapped. But he's also just trying to blow through those barriers. He's trying to act like a strong man.

HABERMAN: Well, I think that there are divided camps throughout the West Wing as there was certainly throughout the campaign. We're seeing that transfer right now. You have one group, which is primarily Steven Miller and Steven Bannon and Trump called them "My Steves", who recognize that they probably have a limited window, where there's sort of a wide opening to push through work that they would like to see done. This executive order was part of that --

COOPER: Why do they think there's a limited window?

HABERMAN: Because at some point these, you know, deputy secretary -- undersecretary jobs in the Cabinet will start to fill. We're a ways a way from that. And it's pretty surprising how slow it's gone. At some point, the West Wing will staff up more, at some point, there will not be sort of even whatever minor honeymoon he got, there still was a little bit of one. And then at certain point just the gears will grind to more of a halts.

Steven Bannon and Steven Miller, but Steven Bannon at the higher echelon, is one of the only people in that West Wing with an actual policy vision. That is not what Reince Priebus is there to do. Jared Kushner is sort of a loosely defined in various ways. So Steven Bannon is sort of the most important voice on policy. And I think that is a lot of what you are seeing. I think it is not so much Trump's own personality reflection as it is him listening to a certain camp within his office, and that camp also moving on its own.

COOPER: I want to bring in constitutional law attorney, Page Pate who has been with us and listening in as well, and also reading this. Page, in terms of what the -- of what President Trump can actually tell Customs and Border Protection, I mean, do we know?

PAGE PATE, CONSTITUTIONAL LAW ATTORNEY: Well, customs is part of the executive. So if the president ordered them to do something, they would have to follow that order unless they did like a deputy Attorney General Yates and said I'm not going to follow that order. I was very impressed by the breadth of this particular order entered by the judge in Washington. Washington basically got everything that they asked for.

First of all, the judge found that every ground necessary to enter a TRO was present in this case. And then went a step forward, didn't just stop things at the status quo, and that's normally what you have with a TRO, it's a restraining order. Everybody stop, I'm not going to let the government remove people, but I'm also not going to step in and tell the executive who to issue visas to. But it sounds like from the text of this order, this judge is basically telling the president that very thing. You cannot evaluate visas, and who comes into this country based upon your executive order. That's out the window now. So I think this order is incredibly broad, I'm certain it's going to be challenge by the Justice Department and its going to go up to the Ninth Circuit.

COOPER: Page, just in terms of the timeline of that, I mean going up to the Ninth Circuit, could that happen this weekend?

PATE: It could, but I don't think we're finished in Washington yet. As one of your other guests noted, in the order, there's requests from the judge for additional briefing, additional arguments to be provided on Monday. [21:40:05] So I think we're going to have an additional hearing before a preliminary injunction is entered by this district judge. Now justice could ask for an emergency stay, and they go ahead and take it up to the Ninth Circuit, but I think if they're smart, they'll let the district court go ahead and wade through the merits and issue another order before they take it up.

COOPER: Professor Dershowitz, you're still with us. If there's going to be another hearing before this judge on Monday, but the reporting now from Rene Marsh is that Customs and Border Protection is talking about reinstating the visas that were rescinded, does that mean -- and we may not know the answer to this, that people in between now and Monday who had had their visas rescinded could get on a plane and come to the United States?

DERSHOWITZ: I think it does, and that's why I think the order will be challenged tonight or tomorrow morning. I don't think anybody is going to wait until Monday. I think this one of the possibility we have to talk about, it is an unlikely possibility, but it's possible. And that is the president may say, look, I have an order of a Massachusetts judge, I have an order of a Washington judge, I'm going to follow the order of the Massachusetts judge, and he can disobey the order of the Washington judge, and then we have a real crisis, a real conflict. We have a president refusing to obey an order of a federal district court judge without appealing it.

Now for most presidents, that is an unlikely scenario. For this president, I don't think we should take that off the table. It is a possibility that he may say, I have a Massachusetts judge, I'm simply not going to obey, and he will order the people who are administering this order to continue to administer it. Then we would have a real crisis between the judicial and the executive branches of the government.

COOPER: Well, Professor Dershowitz, I mean just to play that out, and again, this is a hypothetical, if there is that crisis as you call it, how does that crisis get resolved? Is that something that the Supreme Court has to resolve?

DERSHOWITZ: That's right. Initially, the Court of Appeals.


DERSHOWITZ: What would happen is the Justice Department would bring an immediate emergency order and you try to get a stay of the stay. And you'd have a First Circuit opinion, a Ninth Circuit opinion, and ultimately, you would have to go to the single justice of the Supreme Court, or there have been cases where the Supreme Court, even over the weekend, has convened by telephone, by fax and has issued an order.

Just remember, Bush versus Gore, middle of the weekend, Justice Scalia granted a stay, things like this could happen. So I think this is going to be a busy weekend.

GERGEN: That is four to four.


COOPER: Yeah, I mean Professor Dershowitz, I mean David Gergen raise points, what if it's four to four?

DERSHOWITZ: Then the order of the lower court prevails, but if you have conflicting orders of the lower court -- upholding, conflicting orders. Now we have a real conflict.

COOPER: Wow, my head is hurting. Laura Coates, is also joining us. Laura, how do you see this?

LAURA COATES, CNN LEGAL ANALYST: Well, you know, Dershowitz is actually right about the idea that you have this conflict. And remember the Justice Department had a really big win earlier today before they had this loss in Washington State. And these are polar opposite conclusions, although the Washington order is 27 pages long compared to Massachusetts when just, you know, 21 pages, they both showed their hand quite well.

In Washington, that constitutional bucket that A.G. Ferguson was talking about, it was the Establishment Clause issues et cetera, that was the real crux of their issue and why that TRO is even entered in Washington State. But on the flip side, in Massachusetts, the court said, look there's not even a property right for you to have a visa let alone to retain a visa. This is not -- and they also are very clear at one thing and said, there's no indication this travel ban was actually a religious discrimination act.

And so you've got a conflict here that really talks about the nation's conflict of whether this ban is about national security or whether it's about discrimination, and that is for the Supreme Court to decide.

COOPER: Fascinating.



TASINI: You know, my mom wanted me to go to law school, but I declined. So I'm not going to weigh in, in the discussion on the Constitution. But I do want to go back to the point I made in the last hour about the street which is first of all, we have an American hero and that's the attorney general of Washington. He stood up to bigotry and racism and contested it. And did something very important, but I don't think that would have happened if the tens of thousands of people had not turned out to airports, not marched in the streets, not gone to the Seattle Airport.


COOPER: The question though is what happens now? Just in terms of polarization. Because now you have people who support this and overwhelmingly Donald Trump supporters --

TASINI: That kind of inflammatory language. JACK KINGSTON, (R) FORMER U.S. CONGRESSMAN: It's not --

TASINI: But bigotry and racism?

KINGSTON: Yes, absolutely.


TASINI: It's behind this order.

KINGSTON: 50,000 people whose visas are in play right now. There are still millions of other people who don't have a visa, who -- if they wanted to come here, would have to apply for a visa. As I understand it, the administration would still have some authority over those new visas. This doesn't say they can't --


[21:45:07] COOPER: Professor Dershowitz, is that your understanding as well, that this is basically would affect those who would had -- the tens of thousands who had had their visas rescinded, not necessarily those who, you know, a month from now want to apply for a visa to come to the United States?

DERSHOWITZ: Well that would be a correct constitutional result. To distinguish between people who don't have visas, I think the Massachusetts court is correct that there is no property right to get a visa, but once you have a visa, certainly if you have a green card, if you're in the country, your constitutional status is very different. That's why this requires a nuance calibrated constitutional analysis, and I'm not sure a preliminary injunction against the entire statement by the president is going to be upheld by the Ninth Circuit.

Now the Ninth Circuit is a strange circuit. It has 26, I think, active judges, it's incredibly divided. Everything turns on the wheel, which three judges you get out of the wheel. You could easily get three who will uphold it. You can easily get three who will reverse it. And so we're playing judicial roulette here.


COOPER: Professor Dershowitz, it's just -- from a historical standpoint, how unique is this? I mean how historic is this? How big is this?

DERSHOWITZ: Oh, it's very -- it's not unique, but there haven't been more than a handful of cases like this where you have one judge giving a kind of not only national, but global decision. This opinion applies, essentially, to the whole world, so this may go further than any other single judge's opinion, at least in my memory.

COOPER: And Jeffrey Lord, just as a Trump supporter, I mean there, you know, there's an awful lot of people who like Donald Trump's executive order, who we interviewed, who felt that this makes them safer, this is exactly what Donald Trump was elected to do. JEFFREY LORD, TRUMP SUPPORTER: Exactly.

COOPER: And, you know, Jonathan was talking about the street, there's also, you know, in terms of the sides being drawn, all the starker, this kind of -- what has just been done by a judge can make the sides be drawn.

LORD: Anderson, I can tell you in an instant what these people are thinking. I mean, they will listen to this entire discussion from all these distinguished legal folks who are distinguished. And I mean, this is a serious discussion. The question is going to be, what if something happens? While all these people are having all these arguments, what if there is another Boston marathon, another San Bernardino, another, what, you pick the attack.

COOPER: Well, Jeffrey that's the kind --


LORD: Then what happens.

COOPER: Right, but that -- I mean --

LORD: And I can only tell you, President Trump will be there to say I told you so.

MARGARET HOOVER, REPUBLICAN CONSULTANT: But Jeffrey, as you know -- well, as you know, many of these attacks, this ban would not prevent any of these attacks. What would this ban do with the San Bernardino shooters? What would this ban do with the Orlando Pulse nightclub shooter? It would not have any difference in the outcome.

You and I know there is a precise, really thoughtful way that you can vet individuals, without vetting their religion, the country they're coming from. I mean, there are heroes who have done yeoman work in Syria. They are allies.

LORD: Margaret, where was all (inaudible) when Barack Obama banned people from Iraq.


HOOVER: No, no, no. Jeffrey --


HOOVER: -- you and I are both Republicans. We want this administration to get it right. They're not getting it right. And that's -- I mean that's what this is about, Jeffrey.

KINGSTON: And the attorney general said he's there to uphold the rule of law. That's a very important principle Jeffrey which is on agree --

COOPER: Ron? BROWNSTEIN: I'm just struck that a weapon forge by Republicans to use against President Obama has now been deploy by Democrats to strike a significant blow against President Trump in the same way that Democrats --

COOPER: And rule by a Republican judge.

LORD: Right.

BROWNSTEIN: The same way that Democrats who eliminated the filibuster in the Senate are now struggling with the consequences of that on appointments and you see the logic of the polarization and the kind of the shredding of any Geneva convention in politics taking us to a point where you get more and more divided and more and more venues in which to fight this out. Because the idea of this coming up through the states when Democrats in Congress lack the ability to stop is something it is very significant and an extension on what we saw from Republicans under President Obama.

COOPER: David?

GERGEN: But it also --

DERSHOWITZ: We have a system of checks and balances.

COOPER: Go ahead, Professor.

DERSHOWITZ: But our system of checks and balances, our system of checks and balances is still very strong, even though the Republicans control the Senate and the House, and even though this judge is a Republican, we still have the judiciary, with neither sword nor purse that can hold up an executive order and can make the entire country think about the Constitution. So I am very optimistic that our system of checks and balances seems to be operating and this is a very good example.

COOPER: David?

GERGEN: Point well taken, move on.

COOPER: Maggie.

HABERMAN: No, I mean, I think that's right, the system I point earlier about how President Trump is about to discover with the limits on his power are. I mean I think that what you have seen is a very robust executive branch in the last couple of weeks.

[21:50:03] And I think that when you -- hearing Trump's rhetoric on the campaign trail, it's really no different than what we've seen in the White House and what he said in his speeches leading up to the inauguration. He was openly again talking about (inaudible) and about take the oil which is not legal as something he talked about in Iraq and something he might revisit. So I think that this is going to be a bit of a bracing moment. And the other point I would make is the administration kept describing this as something of a communication's failure in terms of defining what this was, when the executive order happened. It was not rolled out well.

COOPER: Right.

HABERMAN: If this get struck down at the Supreme Court, then it's going to be more than that and that's problematic.

COOPER: I want to thank everybody on our panel here, Professor Dershowitz, Laura Coates, Page Pate, everybody who's been giving us some legal advice over the last two hours.

When we come back, I think this is our first commercial break in two hours, I don't know, on this night that affects potentially millions. The story of just one little boy coming up and his family.


COOPER: A one judge's ruling with a potential to affect millions around the world. There's no denying what tonight could mean. Right now though we want to focus on a single story of a family trying to be, well, trying to be a family in these difficult times. Our chief medical correspondent, Dr. Sanjay Gupta has one family's story.


UNIDENTIFIED FEMALE: They give you these little gas heaters to heat up, and if you don't unclog it and the fire breaks up, and by the time they got him, the plastic melted and fell on his face and feet.

SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT: It was Dilbireen Muhsin's first birthday, Iraq, January 4th, 2016. In an instant, the soft cartilage of his nose, his lips and most of his face ravaged. The images are tough to see.

UNIDENTIFIED FEMALE: You realize is there's something different about him. And it's really, really sad because these kids, they run away, they're already scared of him.

GUPTA: The name Dilbireen means wounded heart. And his story is complicated.

[21:54:59] It's a story of being trapped. His family fleeing from ISIS to this refugee camp. And now trapped in the United States without his parents. You see, this woman, Adlay Kejjan is not Dilbireen's mother. She's not even a relative. She is simply a kind stranger.

Dilbireen's parents, a world away. But we tracked them down in northern Iraq.

It's really hard his father said. He's a little boy. He needs his parents. So what happened here? Well, after the fire and burns, the British aid group Road to Peace arranged for Dilbireen and his father Ajeel to come to Shriners Hospital for Children in Boston. That was for the first of a series of operations to slowly release the contractures of his chin and his lower lip, allowing him to take a bottle again. But with his wife about to give birth back in Iraq, Ajeel couldn't stay and he begged Adlay to watch after his son.

And at that point, they say to you, please take care of him. We'll be back.

ADLAY KEJJAN, YAZID AMERICAN WOMAN ORGANIZATION EXECUTIVE DIR.: Yes. So you know, they said we'll be back in four to six weeks the most because they weren't sure of the exact due date for his wife. Six weeks go by, and then a month, two months, and now we're at three months.

GUPTA: When Dilbireen's little brother was born the day after the election. His parents grateful that the United States has provided medical care, decided to name their newborn son, Trump. That's right, Trump Ajeel Muhsin.

We want to show our appreciation to America for what they're doing for our boy. That's why we named him Trump.

Then, despite being initially approved, in early January, Ajeel and Flosa's visas were revoked. They were in Iraq, 2-year-old Dilbireen was in the United States.

His father said they didn't give us visas because they thought we would go there and stay. We wanted to finish our son's treatment and then return home.

CNN did reached out to the State Department for comment and we're told, "We are not able to discuss the details of any visa case." And then things got even worst.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I'm establishing new vetting measures to keep radical Islamic terrorists out of the United States of America.

GUPTA: President Trump likely made it impossible that his namesake, along with mom and dad, will travel to the United States any time soon.

KEJJAN: That's what we are afraid of is they have to wait 90 days which the baby Dilbireen doesn't have that. He needs his surgery as soon as possible.

GUPTA: What's this sentiment or the emotion? Are they angry?

KEJJAN: Not really. Just sad and hopeless. They don't know what to do.

GUPTA: You think there will be an exception made?

KEJJAN: We're praying for that.

(END VIDEOTAPE) COOPER: Sanjay joins us now. Why were their visas denied in the first place, do we know?

GUPTA: Well -- yeah, I mean I think the issue really was they didn't have enough proof that they had enough ties in Iraq and the concern was, are they going to come from Iraq, come to the United States and basically stay there? That's what they were trying to prevent. But, you know, again, they had their visas initially. Two-year-old boy gets the operation, and now they can't come see him.

So it was, you know, they had the visas initially. And even despite the fact that they're trying to visit their son pose-operatively and that can't happen right now.

COOPER: And were his mother and father going to come when he was having the surgery?

GUPTA: Yeah, so this is very interesting. So mother and father are both going to come. Mother was pregnant at the time not imminently pregnant, but she was pregnant and, you know, they could have come. They both had visas. Trump, the baby you just met there, the younger brother, would have been born in the United States, a United States citizen.

But they didn't do that, because they really had no intention of wanting to stay in the United States. So she -- again, why she stayed in Iraq. And this is the point that they continue to make over and over, Anderson. And again, this is happening real-time. And this boy is recovering with strangers in a different state in Lansing, Michigan. His operation was in Boston. His family is in northern Iraq. And they got this little baby boy now, too, obviously they're trying to care for.

So they're going to go back on Sunday, two days from today, and make another appeal. They know there's a 90-day ban essentially. But they're going to try and consider themselves, make themselves the exception to what is happening here. Because they've got to get here, the boy needs another operation.

COOPER: So he does need another operation?

GUPTA: He does -- he's going to need a series of operations. And, you know, and they -- an operation is supposed to be done earlier last month in January. That obviously did not happen.

At some point what may happen is this woman that you saw in the piece, who's again a non-relative, may just have medical power of attorney and start basically okaying this operations with the parents still being in Iraq. They're trying to communicate as much as possible. But, you know, it's -- just a very untenable situation. Hard to have predicted something like this would happen. But it happened at that exact time, Anderson.

[22:00:00] COOPER: Wow, we'll continue to follow. Sanjay, appreciate your story. Thank you, Sanjay Gupta.

Time now to hand things over to Don Lemon for CNN TONIGHT.

Have a great weekend.