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Ninth Circuit Court of Appeals to Hold Hearing on Travel Ban; Ninth Circuit Court Appeals To Hold Hearing On Travel Ban; Trump Talks to Troops; Trump Slams Media during CENTCOM Speech; WH Releases List of Undercovered Attacks (We Covered Many); Does Bannon Belong With The National Security Council?; Trump Defends Putin: "You Think Our Country's Is So Innocent?"; Former Joint Chiefs Chair Blasts Bannon on Natl Security Council. Aired 8-9p ET

Aired February 6, 2017 - 20:00   ET


[20:00:19] ANDERSON COOPER, CNN ANCHOR: Good evening. Hope you had a good day. Thanks for joining us.

Tonight, we have breaking news on President Trump's travel ban which could go all the way to the Supreme Court. It comes after a day and weekend of tweets, sound bytes and headlines from Trump. He's back in Washington after speaking today at CentCom headquarters in Tampa, igniting a controversy over some of what he said.

He also touched off something of a storm over what he told Bill O'Reilly last night about Russia and he's drawing fire for a tweet over the weekend, slamming the judge who put his travel ban on hold on Friday night.

Today, the appeals court handling that case, received final written arguments from the Justice Department on restoring it, and they scheduled the hearing for tomorrow.

Our justice correspondent Pamela Brown joins us now.

So, let's bring us up to speed here. What are the government's main arguments to lift the judge's temporary halt of the travel ban?

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Well, first of all, the government said that the district judge who issued this injunction was wrong and overstepped his bounds. The Department of Justice lawyers argued in the brief filed just tonight that the court's sweeping nationwide injunction is vastly overbroad, extending far beyond the state's legal claims, it argued the president has wide discretion under both the Constitution and the law to manage immigration, particularly when it comes to national security and refugees, and it says in part, that the state simply don't have standing to even bring this lawsuit, the states in this case, being Washington and Minnesota. And it says in this brief filed tonight that the state lacks authority to sue to protect its citizens from the operation of the federal law.

This is important, because you have to show injury. You have to prove that to the courts and in this case, the Department of Justice is saying that there is no standing. So, in the end, it could down to that.

And also in the brief tonight, it talks about the fact that the refugees and those citizens of those seven countries and the travel ban who have never set foot in the United States do not have constitutional rights according to Department of Justice lawyers. But what's interesting here, Anderson, is that at the very end of the 15- page brief, there is what's called a carve-out, basically an option that DOJ is giving the Ninth Circuit judges to limit the injunction if they must to previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.

Of course, these people would have previously not been allowed to travel to the U.S. under the travel ban for at least 90 days. But the lawyers here are saying, if you must, at least limit this to them, not the others.

COOPER: And what do the states argue now?

BROWN: Well, really at the heart of the state's argument for both Minnesota and Washington state, according to the attorneys general is the fact that it hurts their economy, it hurts businesses, it breaks up families, it hurts public universities. For example, a medical student from one of those seven countries who's here in the United States on a visa, and it's clear that the district judge in Washington state, Judge Robart, actually believes there's some merit to those claims, they could be successful in those claims, that in part factored into his decision to issue that nationwide injunction on Friday, Anderson.

COOER: So, the hearing tomorrow, that's obviously the next step in this process?

BROWN: That's right. So, this is going to be oral arguments, both sides will have 30 minutes. It's going to be over the phone. We got word it will be live streamed, 3:00 p.m. Pacific Time is the time of the hearing. Shortly after that, we expect the Ninth Circuit Court to act quickly to issue its decision whether to reinstate the ban during the appeals process, but you can bet, Anderson, that the losing side will want to appeal. Which means it could go to the Supreme Court fairly quickly, Anderson.

COOPER: All right. Pamela Brown, busy night tomorrow night. No doubt.

Joining us now to speak more about the state's argument, the official dissenter of the court case in this story, Washington State Attorney General Bob Ferguson is joining us again.

Mr. Attorney General, I appreciate it.

First of all, I just want to get your initial reaction to the filing from the Justice Department and the arguments they're making.

BOB FERGUSON, WASHINGTON STATE ATTORNEY GENERAL: Sure. No surprise, they're repeating arguments they made before Judge Robart, that Judge Robart was not persuaded by. So, there's nothing today, Anderson, in the filing I've seen. I only had a chance to look at it quickly. It just came out, of course. There's nothing in there that's particularly surprising.

COOPER: So, the argument essentially that your state doesn't have standing to even be bringing this to court. What do you say?

FERGUSON: Yes. And was central to their argument for Judge Robart, and I think your previous guest really hit the nail on the head, right? We make it clear that we're bringing this case on behalf of numerous residents of our state who are adversely impacted by this executive order. And also, now, 97 businesses from Microsoft to Google and many others filed supporting affidavits talking about the adverse impact, the significant adverse impacts, Anderson, on their businesses, resulting from this executive action, going to their employees and recruitment and retention, for example.

[20:05:10] So, we believe we have a very strong case of our standing, and it's one that was persuasive obviously to Judge Robart.

COOPER: And when the Department of Justice says that this judge overreached, that he essentially he went beyond what he should, what do you say?

FERGUSON: Well, of course, they're going to say that, right? Judge Robart has an excellent reputation, as you know, as we discussed before. He was appointed by George W. Bush, I understand that's their argument.

But it's a pretty straightforward case, right? The federal government wants to assert that one cannot look behind or examine a present action when it comes to issuing order. And, Anderson, that simply has never been the law and cannot be the law.

We are a nation of laws. A president must act in a constitutional fashion. And, frankly, it's appropriate in our system of checks and balances for the judiciary to look at an executive order, examine it and determine whether or not it's constitutional.

COOPER: That was done against President Obama too and some of his executive orders?

FERGUSON: That's exactly right. And so, in fact, his executive order relating to immigration reform was struck down by the courts. It started with a district court judge in Texas, I believe. I think the lawsuit was initiated by the then-Texas attorney general, and a similar thing happened, right? A federal trial court judge struck it down nationwide. The court of appeals there, upheld that, and the Supreme Court split 4-4 if I recall correctly, which upheld the lower court decision.

So, yes, we've seen this before. And there was standing in that case for the plaintiffs. And we anticipate the Ninth Circuit will take the same position the circuit court took in that case.

COOPER: So, let's talk about that. The Ninth Circuit Court of Appeals, we're hearing, as we talked about, that's tomorrow. If they do -- I mean, you said you think they'll back the judge in Washington's ruling. But if they rule against your state, you're willing to take this all the way to the Supreme Court?

FERGUSON: Oh, I'm in this for the long hall. I believe strongly and my legal team believes strongly that the executive order is unlawful and unconstitutional. So, I view it as my duty and responsibility on behalf of the people I represent, to make sure I use every legal tool at my disposal. Frankly, Anderson, that's why we moved so quickly to file this lawsuit the Monday after the executive order was announced.

As you know, my legal team working around the clock, because literally every hour, every day counts, I was at SeaTac Airport just a couple of hours ago for the first time to have a chance to great folks coming off the planes who had been denied access in the past. And, you know, these are folks who spouses our citizens and want to be reunited with their spouses, their cousins work at Boeing, our graduates over universities. It was a really wonderful scene and a good example of why the law matters.

It's not an abstract notion of law. The law has a huge impact of the people of this country and that's why upholding the Constitution matters so much.

COOPER: So, when President Trump tweets out, that the so-called judge is basically endangering the United States, and if there's an attack, he should get the blame, what do you think? What did you think when you saw those tweets?

FERGUSON: You know, where to start, Anderson, right? I guess what I can say is my mother and father raised me to be gracious in victory and defeat as a kid. That's what we try to pass on, my wife and I, to our young children. Based on those tweets, it appears to me it's a lesson that's been lost on President Trump.

COOPER: If you can stay with us, I do want to bring in our panel.


COOPER: CNN legal analyst and former federal prosecutor Laura Coates is here. Constitutional law attorney Page Pate, Ryan Lizza, Washington correspondent for "The New Yorker", CNN political analyst and "New York Times" White House correspondent, Maggie Haberman. Also, Harvard University's Alan Dershowitz and former Virginia Attorney General Ken Cuccinelli.

Professor Dershowitz, as we did on Friday night, I would like to give you a chance to ask the attorney general a question, if you'd like.


One of the arguments made in what I think was a very good brief by the Justice Department was that there is a compromise possibly afoot here. Namely, you didn't even ask the judge in the federal district court to extend his injunction to people who have never been in the country, have never set foot in the country, who are just seeking a visa. You didn't ask for it, but he granted that. And the Justice Department is now suggesting that, well, maybe you can

split the difference here. Maybe you can continue the injunction as to people who have been in the country, who have had contact with the country, the people you described who are coming to work or to reunite with relatives while eliminating the injunction as it applies to people who are outside the country, have never been in the country and probably have no constitutional right to come into the country.

Would you be prepared to sit down with the government and try to negotiate a compromise along those lines?

FERGUSON: Thanks for that question, Professor.

A couple of thoughts -- number one, yes, the briefing from the Justice Department, and their oral argument frankly before Judge Robert have been excellent.

[20:10:01] Those attorneys are well known to me and to my office and they're doing excellent jobs of advocating on behalf of the federal government.

Number two, the answer to your question directly on whether I'm prepared to sit down with the federal government and work out a compromise -- no. We have a Constitution.


FERGUSON: I expect the president and the federal government to uphold the Constitution and I don't think you can split the baby when it comes to the Constitution. Moreover --

DERSHOWITZ: You didn't even ask --

FERGUSON: I think it's revealing -- I think it's revealing that the federal government is willing to concede some ground based on our argument. They started by saying we have nothing here, we went to trial court, the Ninth Circuit Court of Appeals refused an emergency stay. I appreciate they're trying to offer something up, but from my standpoint, the executive order is unconstitutional, and that's the bottom line.

DERSHOWITZ: But you didn't even ask the court to extend it to people who have never been in the country. Doesn't that sound unreasonable that you would not accept now something that you don't even ask the court to do. That makes you sound more unreasonable than the president of the United States. And that's a pretty low threshold.

FERGUSON: Professor, as you well know, judges have broad discretion to rule as they see appropriate. Whether it's based on arguments made by the parties or not, they have broad authority. They're federal judges.

And so, that's entirely appropriate for Judge Robart to take the position he did. But, no, if the question is, am I prepared to negotiate something with the federal government at this point? No, until they're willing to strike down Sections 3 and 5 of the executive order, really the conversation we're going to be having is before the Ninth Circuit.

DERSHOWITZ: I also want to bring in Attorney General Cuccinelli.

Mr. Attorney General, is there anything you'd like to ask the attorney general from Washington?

KEN CUCCINELLI, FORMER VIRGINIA ATTORNEY GENERAL: Yes, I listened to your comments earlier, Attorney General Ferguson, and I noticed that you said you're suing on behalf of people in your state, businesses in your state. Have you alleged any actual harm to the corporate entity that is the state of Washington by this order, or are you simply stepping in on behalf of people and businesses in your state?

FERGUSON: No, we have. The universities, for example, are part of the state. We represent them, and so, for example, universities, colleges, the many students who are adversely impacted by this executive order, just to give one example. And that was discussed at the oral argument before Judge Robart, and he clearly ruled in our favor that we're in a position to bring this particular cause of action.

COOPER: We've got to take a quick break. We're going to have a lot more to talk about in this two hour edition of 360.

Just ahead here, what President Trump said when asked about Vladimir Putin that left one GOP lawmaker speechless and other leading Republican with plenty to say. We'll be right back.


[20:15:41] COOPER: Welcome back.

The breaking news tonight, oral arguments coming up tomorrow before the ninth circuit court of appeals in San Francisco on President Trump's travel ban.

Back with the panel, along with Washington State Attorney General Bob Ferguson.

Right before the break, Attorney General Ferguson, Attorney General Cuccinelli asked a question.

And, Attorney General Cuccinelli, if could you just explain why that question is important to you about Washington, whether Washington made the argument that they -- that there was harm done by the president?

CUCCINELLI: Sure, whenever an attorney general comes in to federal court to challenge action of the federal government, the first issue to be demonstrated is that the state itself is somehow injured. And even the attorney general's answer with respect to state employees, was suing on behalf of state employees, the history in this area is individuals are the only ones with standing, and that's also why a district court in Massachusetts on the same day, last Friday, that what we've been talking about was going on, ruled that the president's order was facially constitutional, appropriate and was inappropriate for the court to step in and take any action. Much less going radically beyond what the litigants even requested as

happened with the judge on Friday out in Washington. So --


CUCCINELLI: -- that standing is the first threshold. It's often a tough one for states. I've won and I've lost on those arguments. But when this gets all the way through the process, and you can mark my words, standing is going to lose. States are going to lose on standing in this case.

COOPER: All right. Let me bring in Attorney General Ferguson.

What do you think about that, Attorney General?

FERGUSON: Well, the attorney general raises a very important point. He's exactly right when he says the issue of standing, whether the state can bring this claim is fundamental and was discussed at length before Judge Robart. He's obviously very aware of it as well.

That said, when I sued the Obama administration, in my first term as attorney general, standing was an issue there. It went to whether or not I could bring a claim the involved worker safety at Hanford nuclear waste site in Washington state. We had a big conversation about standing in that case, and we prevailed there as well.

So, I'm confident Judge Robart has it right here. Just like the judge in the eastern district of Washington had it right, when I sued the Obama administration and brought that claim on behalf of the state and people of the state as well. But agree that it's a critical issue and one that the Ninth Circuit will no doubt be grappling with as well.

COOPER: Attorney General Ferguson, I was reading through the document from the Department of Justice, I wanted to ask you about the last section. It seems like the argument they're making is that at most, there could be an exception for previously admitted aliens who are temporarily abroad now or wish to travel to the United States in the future, which is I think what Professor Dershowitz was alluding to.

Is that your understanding as well that they are arguing that at most, these people should be exempt?

FERGUSON: I'm not exactly sure. Literally, we just got this document in the last hour or so, I've not had a chance to read it carefully with my solicitor general and legal team. So, I don't want to make any premature statements. I do find this conversation interesting around that.


COOPER: Yes, Attorney General Cuccinelli?


DERSHOWITZ: Can I follow up on that? CUCCINELLI: What was argued was, that for those individuals, aliens

to this country who have never set foot in this country and are not currently in this country, they cannot possibly have any rights or any right to judicial review. They don't even have the right to have their situations heard in courts.

So, if you take all of that away, which is what the federal government is asking to do, and then focus on what remains, that's the piece of the brief you're talking about, Anderson. And it, of course, would wipe out 98, 99 percent of the individuals involved, and they would be under the president's order.


COOPER: Professor Dershowitz, I want to let you in. But also, Professor Dershowitz, I would like to hear what you think about President Trump essentially questioning a federal judge, calling him, you know, a "so-called judge", et cetera?

DERSHOWITZ: I think it's outrageous. Here's a man who essentially called the former president of the United States a so-called president. Here's a man who was confirmed 99-0, a Republican appointee.

He's really challenging separation of powers in this country, and that's just unacceptable for a president.

But I'd like to challenge the attorney general who I admire enormously, and did a great job here. Make a case for how you think this is unconstitutional, as it applies to a family in Yemen that's never been in the United States, that is simply seeking a visa, that has no constitutional right to be in the United States, how is this regulation unconstitutional as it applies to that family?

[20:20:11] COOPER: Attorney General Ferguson?

FERGUSON: As we discussed -- yes, as we discussed on Friday night, Professor, our claim is brought on behalf of Washingtonians, and businesses and the impact of Washingtonians here. So, I understand the overall impact and reach of Judge Robart's decision.

But if one looks at our complaint, and looks at our motions and our briefing carefully, what we're talking about, what we're asserting, why we're bringing this claim is on behalf of Washingtonians who are adversely affected. Yes, of course, Judge Robart's decision has a broad impact on people around the world. I met with some of those folks today at SeaTac Airport, but our claim is grounded on the adverse impacts of Washingtonians.

COOPER: I do want to quickly bring in our panel.

Page, I saw you shaking your head --

PAGE PATE, CONSTITUTIONAL LAW ATTORNEY: I think there's more to it than that, the family in Yemen still does have an argument because there are two constitutional arguments the attorney general has raised that I think really limits government action more than it protects people. So, while the family in Yemen may have a hard time making a due process argument, we can still make an Establishment Clause argument, we can still make an Equal Protection argument, because those parts of the Constitution apply to everyone, and they limit government action.

CUCCINELLI: No, they don't. They do not apply to foreign nationals who have never been in this country and have no rights under American law.

PATE: You cannot pass an unconstitutional law. You cannot sign an unconstitutional executive order, if it simply incidentally affects someone who's outside of the United States. That doesn't allow you to do something unconstitutional.

CUCCINELLI: Nothing was passed here. A law was relied on passed by Congress that says the president uses words like any. Any classification, and it speaks in terms of classifications to protect America in the sole discretion of the president.

In these national security arenas -- and that's what this is, this is not just immigration, it's also national security, the courts, not counting Judge Robart, give massive deference to the president. I know that because I've been on the losing side, suing the NSA over their violations of the Fourth Amendment here in this country.

It is massive level of deference -- this judge did not accord the executive branch that deference. The violation of separation of powers here is by Judge Robart. Tweets aside, from the president, you may not like the president lashing his tongue out at judges, but I'm hearing a lot more people upset about that when the president of the United States did it in the State of the Union to the Supreme Court sitting in front of him. I'm course referring to President Obama and then doing it again the month before the ruling in Obamacare.

PATE: It's not the tweets. Regardless of how much discretion the president has, and he does have a lot of discretion, both Congress has given him that discretion, the Constitution has. But he cannot violate some other provision of the Constitution, he does not have that much discretion.

COOPER: We've got to take a quick break.

We're going to hear from our panel.

Attorney General Ferguson, I know you've got to go. I really appreciate your time. You've got a hearing tomorrow.

FERGUSON: Absolutely.

COOPER: We've got to let you go and prepare.

FERGUSON: Thank you very much.

COOPER: Everyone else, if you can stay with us, we're going to continue this conversation after a quick break. We'll be right back. (COMMERCIAL BREAK)

[20:26:55] COOPER: Distinguished legal panel we've been talking about.

So, let's continue the conversation on the travel ban, the court case and oral arguments tomorrow.

Laura, we haven't heard from you. I mean, does a family in Yemen have any constitutional right to come to the United States?

LAURA COATES, CNN LEGAL ANALYST: Well, no, not necessarily at all. I mean, somebody who has not has a legal entitlement to be here cannot use the Constitution to protect themselves.

You're conflating two different issues here. There's the issue of standing, which is a fancy way of saying, do you have an actual, not a hypothetical dog in this fight?

COOPER: You mean the state of Washington?

COATES: The state of Washington. Do you have a dog in this fight? If you do, you can challenge the government's actions to try to have this travel ban. If you don't have a dog in this fight, then the issue is about the Establishment Clause is actually saying, well, listen, can the government do this in general? Can they violate the constitutional provision that says you cannot prefer a religion? They're two separate issues.

COOPER: Explain what the Establishment Clause is for those folks --


COATES: Yes. Well, the Establishment Clause is First Amendment of the Constitution. And it says essentially that the United States is denominationally neutral. We don't advocate a religion and we don't prefer one.

The reason this come up is because Section Five of the executive order talks about, I think it's Section 3, talks about being able to give a preference to entry into the country if you are from a minority religion. The debate between those two things is, of course, listen, I'm saying, any minority religion -- that's what Trump is saying, I'm not saying which one. It may benefit Christians, it may benefit Muslims, the minority religion.

But that's kind of a semantic space argument. And we're arguing essentially is saying, no, no, we don't give preference. It's a facial --

COOPER: These countries on the list are Muslim majority?

COATES: Right.

DERSHOWITZ: But hat issue, the government will win on that issue, because minorities include Sunnis who are oppressed by Shias. They include Baha'is, they include Kurds. Yes, they include Christians. But I think that will be sustained on the merits.

I'm going to make a prediction here. I think the injunction will continue, because I think no court is going to try to create chaos now, by saying, all right, now you can stop them from coming in tomorrow, we'll say you can allow them to come in.

But when it comes to the merits, I do believe there's going to be a split decision, that the court will hold unconstitutional those parts of the executive order that relate to people who are in the country now, people at universities. But it will hold that there's either no standing or no constitutional right as to people who have never been in the country.

So, I think both sides will be able to claim victory. And I would hope that they would go back and rewrite the order and make it constitutional so we can both protect our safety and our security and also not violate the American norms of discrimination.

COOPER: I want to bring in Maggie Haberman from "The New York Times".

Maggie, moving away from the legal arguments which I'm not going to make you make, I mean, just in terms of what the president has said about this judge, I mean, you know, it does echo what we heard the president say about the judge in the Trump University case. Obviously, it's not the first time he's gone after a sitting judge.

MAGGIE HABERMAN, CNN POLITICAL ANALYST: It's not. And I think the point that was made earlier in the show, though, that this is -- presidents do criticize judges. This is not unique to Trump. The way in which he does it is unique to Trump. So, you know, he referred to him as a "so-called judge" today. We did hear him attacked Judge Curial over the Trump University suit during the campaign last year.

What I think was -- took it to a different level with Trump was when he said essentially, if there is a terrorist attack, blame this judge. And he said that in a tweet. I think that took it to a different degree where it's essentially moving the responsibility away from the executive branch, and that was unusual.

ANDERSON COOPER, CNN ANCHOR: But Ryan, I saw your tweet a lot of about this over the weekend, one of the things you said was imagine if a judge had tweeted out, calling the President Trump a so-called president.

RYAN LIZZA, CNN POLITICAL COMMENTATOR: Right, because the difference is nine points out, presidents often attack criticize the judiciary right, they criticize the content of decisions, they criticize the arguments coming from judges. That is completely normal in our system. When you go into a court as a lawyer for the federal government, you're criticizing the judge right if you're appealing something.

So that is to and all, what is different here is, he seemed to, and it depends on how you read so-called, he seemed to attack the legitimacy of this judge. That this judge had the right to rule the way he did. And that's why he say if the judge had attacked President Trump's legitimacy, if he said well, he lost by 3 million votes and the Russian's interfere to me election and Comey's letter, you know, if he made all those arguments the people on the left made, people would have been outraged. And, you know, I think there's that's --


LIZZA: I think Maggie is absolutely right that setting up an argument if there's a terrorist attack in this country and blaming it on the judiciary is very dangerous.

COOPER: Kenneth Cuccinelli, what -- you get the last word (ph).

CUCCINELLI: Yeah, there's an element of truth here. Now, there's no question President Trump is perhaps among the most flamboyant users of his Twitter account in history. Nonetheless, what he hit this judge on is if there's an attack, then look to this judge for blame, that's got an element of truth to it, which is exactly why courts defer almost completely to the executive branch and issues and questions of security, and national security, including immigration questions, and remember, the underlying place where they got the seven countries was from Congress and the Obama administration's previously existing list.

Trump didn't come up with this list, if he was after Muslims, he'd have seen Indonesia in on there, he had seen Saudi Arabia on there, but he pulled the seven most dangerous countries according to Congress and President Obama in his conclusions. So, that is why courts defer so much to the executive branch in this area, it is because the responsibility in our three-branch system of government is exclusively, supposed to be exclusively with the executive branch.

COOPER: Maggie?

HABERMAN: President Trump did not say in his tweet, if there is a terrorist attack that relates to these seven countries over this, you know, 90 to 120 days or whatever, it was a pretty broad based statement. And I think that is unfortunately the president has a habit of going to a very, very broad based rhetoric, where people can reach as far as they want. And so it's nonspecific, I understand what the attorney general is saying, what the president did was much broader than that.

COOPER: All right, we got to take a break. Everyone is going to be returning except Attorney General Cuccinelli, I really appreciate you being on the program. Thank you for perspective.

Tonight, in his first speech to the military commander-in-chief, President Trump took another victory lap escalated his war on the media as well. So a lot more, we'll talk that ahead.


[20:37:06] COPPER: Well as we said, President Trump gave his first speech at U.S. Central Command today at MacDill Air Force Base in Florida. He promised to invest heavily to give troops and their commanders the tools they need to beat ISIS. He also ramp up his battle against the news media and before we got to all that though, he started as he often does, by recapping his election victory. Jim Acosta tonight has more.


JIM ACOSTA, CNN SENIOR WHITE HOUSE CORRESPONDENT: Heading into his third week in the White House, the president is still taking victory laps, this time in front of military commanders.

DONALD TRUMP, U.S. PRESIDENT: We had a wonderful election, didn't we? And I saw those numbers. And you like me and I like you. That's the way it worked.

ACOSTA: In a visit to U.S. Central Command in Florida, President Trump offered a dark world view on the global war on terrorism.

TRUMP: Radical Islamic terrorists are determined to strike our homeland as they did on 9/11.

ACOSTA: The president insisted to his military audience that the news media is intentionally downplaying the terror threat. But offered no proof to back up his claim.

TRUMP: All over Europe, it's happening. It's gotten to a point where it's not even being reported. And in many cases the very, very dishonest press doesn't want to report it. They have their reasons, and you understand that.

ACOSTA: Mr. Trump is also lashing out at recent polls that show the public is wary of his controversial travel plan. Tweeting, "Any negative polls are fake news just like the CNN, ABC, NBC polls during the election. Sorry people want border security and extreme vetting."

The president is making the case that he is in-charge despite recent reports that his top aides are largely dictating sweeping new of the administration policies, tweeting, "I call my own shots, largely based on an accumulation of data and everyone knows it. Some fake news media in order to marginalize, lies. The president isn't holding back on other issues, maintaining widespread voter fraud cost him the popular vote despite overwhelming evidence he is wrong.

TRUMP: We can be babies, but you take a look at the registration, you have illegals, you have dead people.

ACOSTA: After his tough talk on Obamacare, Mr. Trump now concedes overturning the health care law won't happen overnight as he once promised.

TRUMP: I would like to say by the end of the year, at least the rudiments, but we should have something within the year and the following year.


COOPER: And Jim we should point out though, the White House now has released this list of terror attacks, the president said the media is downplaying or not reporting on, right?

ACOSTA: That's right Anderson, I have it right here, 78 attacks since September of 2014. And the White House is careful to say that most of these attacks were not reported on adequately enough. But Anderson, just going through the list, there's no scoring system or grade system here to say, OK these attacks were covered adequately, these attacks were not. And most puzzling of all Anderson, inside this list, you see mentions of the Paris attacks, where 129 people died, the San Bernardino terrorist attack, the Nice truck attack and so on.

[20:40:03] And as you know Anderson these are all terrorist attacks that we covered days on end, not only here at CNN, but other international news outlets around the world. So this appears to be a talking point that is in search of a set of facts that just doesn't exist. The other thing we did not get an answer for is why the president made this claim today, that the news media are not reporting on these attacks, he said, I think you know why to those military commanders today, but no explanation was given as to why the news media would not report terrorist attacks given all of our coverage it's just not true.

COOPER: All right, Jim Acosta thanks very much.

And keep in mind as Jim said not only did we cover many of the attacks on that list, the White House has release. We covered them heavily I know, because I was there on the ground reporting a number of them, "360" was in Ottawa, Canada, October 2014, that's on the list. Were a gunman killed a reservist, the National War Memorial, where he was on duty at the Tomb of the Unknown Soldier.

I was in Orlando last June, that was on the list also after 49 people were gunned down in the Pulse Nightclub, I know, because I flew there right after the news broke. December 2015, that was also on the list, San Bernardino. I was there, 14 people are killed and 21 wounded in coordinated attacks, this was just a month after I reported on the carnage in Paris, where terrorists killed at least 130 people and wounded 100 more series attacks across the city where there are pretty much all week. To be sure, are ways of program did not cover each and every incident on the list, however other programs as well as CNN International covered most if not all of them, many of them exhaustively.

So a lot to discuss with my panel, Ryan Lizza, Maggie Haberman are back. Joining the conversation, CNN political commentator's Kayleigh McEnany, Maria Cardona and Matt Lewis.

So Maggie, I mean President Trump falsely accusing the media of basically covering up terrorist attacks. Not just under reporting, but intentionally not reporting on things.

HABERMAN: I mean he did what he often does, which is a bit of a rhetorical slight of hand, where it sounds like what he is saying is the media is covering up, he didn't actually say that, now his supporters are saying, that's not what he said. He did say that, you know, there some kind of a hidden motive without saying what it is in why the media isn't giving in opinion sufficient coverage, I agree with you.

You know, the media has been extensively covering terrorist attacks going back to the bombing of USS Cole in 1990 -- in I remember that's -- sorry 2000. 2001 was obviously the 9/11 attacks. You know, I had friends who I worked with the New York Post who got sick breathing in the dust down there, because they were down there everyday, I covered it for years after rebuilding.

So, this is -- but this is something that I think you're seeing President Trump take to a new level today, which is essentially that news that he doesn't like or news that he doesn't agree with, all polls are fake, that, you know, shows something that I don't agree with. He is making the media into a boogyman, he's been doing that his aides have been pretty open about doing it, it basically his whole premise during the campaign was believe me and it's I alone can fix it, and this is sort of the people.

COOPER: Right, I mean Ryan put out a list where Pulse Nightclub is on it, where, you know, the Bataclan massacre is on it.


LIZZA: Not to make light of this because it's pretty serious conversation. But look, we cable news has a well known aversion to covering terror attacks? I mean come on, it's the most important thing that we do at 24 hour news networks, it's. I think the question just as Trump was sort of insinuating that there was something behind the media's alleged lack of attention to terrorist attacks. The question raises in my mind is, what is the white -- what is the reasoning behind the White House trying to get all of us to focus so much on terrorism right now? Why is that? Why does the White House want us to focus on that? There have not been think on string of terrorist attacks in the United States recently, right.

The numbers go up and down, it's not likely that any of us are going to die by terrorist attack, right, we all know is miniscule chance of that happening in the United States. So, it makes me a little suspicious when government officials are pointing to things like terrorism without an explanation.

COOPER: Matt, I mean, one of the arguments, I -- you know, supporters of what the president said, and if you look at info wars and stuff, where they or one of the arguments they make, which I assume the president is picking up on, is the notion we're downplaying radical Islam, in some of these terror attacks. The counter argument to that is initially, it's not our job to make a leap, until authorities have said for sure, this is a terrorist action or it's not it's, you know. But -- and so I get people's criticism that what we don't report fast enough, that this is a Islamic radical, but certainly, if there's proof of that, we report that.

MATT LEWIS, CNN POLITICAL COMMENATOR: Yeah, I think that's true. Look, I don't know where this is coming from, (inaudible) think maybe the media over hypes terrorist attacks.

COOPER: Well, that's another counter which I get all the time from (inaudible).

LEWIS: But it's -- I mean it's horrific to say, but it's TV. And it -- you -- TV is about images and controversy, controversies sell, images sell. If it bleeds it leads as they have said for a long time, long before cable news came along. So, I think that Donald Trump is wrong about that.

[20:45:03] COOPER: The argument actually is interesting, because, you know, if you look, we actually have more coverage than ever before any kind of attack, because there's now cell phone cameras in a document, when a British soldier was beheaded adversely beheaded on the streets, there was cell phone video made.

LEWIS: It actually ratchets up the terror.

COOPER: Right.

LEWIS: It partially does their job for them.

COOPER: Right.

LEWIS: But, I think that part of the story here is, Ryan asked what is Trump's end game, I don't know what it is. But one sort of theory would be, so he's getting -- this is a war against the media --

LIZZA: Sure.

LEWIS: -- it's not really about whether or not we cover terrorism enough. So God forbid what if, you know, we talk -- we just had a whole discussion here as to whether or not people who are not even citizens of America have standing to come into America. I can imagine a lot of middle -- sort of middle America folks out there, working class white Americans out there who are saying, why -- you know, why should Syrians come to America. And God forbid if there is an attack down the road. That judge -- they will point to that judge.

COOPER: Right.

LEWIS: I think it's the larger in there.

KAYLEIGH MCENANY, CNN POLITICAL COMMENATOR: Look, I mean the media does cover terrorist attacks, I remember the week of the Pulse Nightclub shooting, the political panel was preened (ph) in the entirety of the week, from my recollection. So, they do cover terrorist attacks, I think the better argument the Trump administration could make is weather in the commentary there is enough of a honest discussion about the times when immigration is connected to terrorist attacks. For instance, the three stabbing that happened last year at the Minnesota mall, the Ohio state car attack, and also the Ohio attack on an Israeli deli.

You know, those were all connected to immigration. The Afghan refugee who put bombs in New York and New Jersey, and thank goodness they were found. You know, Donald Trump said today, we want good immigrants to be here, we want people who love this country here, but if you put the focus on the media and the commentators in particular, not having a discussion on the on --

COOPER: I think though to San Bernardino where the wife came from Pakistan, I mean there were endless stories, and it's fair to point out there were other stories are there one, this is just jumping my mind. There were -- we did a lot of stories on how did you come to the United States? How did they not see your social media postings and things like that?

MARIA CARDONA, CNN POLITICAL COMMENTATOR: And Pakistan is not even on the list of countries, right? So, I have a theory to answer Ryan's question, and you touched a little bit upon it. I think he wants to blame the media or blame the judge to have everybody talking about terrorism, so that there is a reason that the judiciary will give him standing to pass what he wants to pass. And the reason why I think that is so alarming and so dangerous is that I call January essentially what has come out of the White House, is instill feel of brown people month, because what they did, with the Mexican wall, making Mexico pay for it, denigrating the Mexican president. What they're doing with this Muslim ban is essentially again to your point, you've kind of touch upon this, is to make Middle America, to make white America fear people with brown skin, whether it's Mexicans or whether it's Muslims that is what your trying to say.

MCENANY: No, no, he is in 90 day halt, because someone got through our borders and killed American citizens and took their right to life.


MCENANY: It is such -- Tashfeen Malik in San Bernardino came here on a K1 --

CARDONA: So why isn't Pakistan on the list?

MCENANY: So, to have a 90-day break Somalia --

CARDONA: It doesn't make any sense.

MCENANY: -- and 25 people were wounded at the end of a knife, because a Somalian refugee got into this country. So they have 90-days --

COOPER: But didn't he get into this country as a child with his family?

MCENANY: He did, but we should take a pause for 90 days.

CARDONA: And a lot of more American citizens --

COOPER: All right, coming up next --

CARDONA: They're not on the list.

COOPER: -- we're going to continue this discussion in the next hour. President Trump's also decision to have Steve Bannon take a seat on the National Security Council. I'll talk about that with former Joint Chief's chairman Admiral Mike Mullen, he joins us in a moment.


[20:52:14] COOPER: Welcome back. You probably heard their comments President Trump made over the weekend about Russian President Vladimir Putin where he said in an interview with Bill O'Reilly that he respects Putin. Here's what else President Trump said.


TRUMP: Will I get along with him? I have no idea, there's a possibility --

BILL O'REILLY, O'REILLY FACTOR HOST: There's a killer (inaudible), Putin is a killer.

TRUMP: There a lot of killers, we've got a lot of killers. Why you think our country's so innocent.


COOPER: And joining me now is retired Admiral Mike Mullen, former chairman of the Joint Chief of Staff. I'm wondering, Admiral Mullen, when you heard that, did it sound you like he's making a moral equivalence argument between United States and Russia or how do you interpret it?

ADM. MIKE MULLEN, FORMER CHAIRMAN JOINT CHIEFS OF STAFF: Well, at certainly seeing to be some one kind of equivalence. I think it's really important that the United States always maintain the high moral ground. And I actually believe what Bill O'Reilly said, that Putin is a killer. He has no -- there's no upside in terms of the United States, in terms of Putin's interests. He'll do as much as he can to destabilize us, to reassert the great power status that he thinks Russia is deserves, and he'll do everything he possibly can to get in our way.

Our interests just from that standpoint don't overlap. I think we need to have a relationship with him, whether it's political or diplomatic or economic. And we need to have a relationship from a position of strength. So in terms of, again, that moral equivalence, I thought the statement was pretty appalling.

COOPER: I want to ask you about President Trump naming Steve Bannon to the principals committee of the National Security Council, you wrote in "New York Times" op-ed today, and you said, "Every president has the right or responsibility to shape the security council as he sees feet a partisan politics has no place at the table and neither does Mr. Bannon."

I'm wondering what prompted you to go public with your concerns.

MULLEN: Well, at the time, I don't have to remind you of this, Anderson, when just about everything, every institution, every issue is so highly politicized, the purpose of my writing this was really to focus on one of the institutions, at least in my experience, that hasn't been politicized, and that's the National Security Council. And I've watched this. I served on it with President Bush, I served on it with President Obama. And it wasn't politicized then. Karl Rove was never anywhere near, David Axelrod never had a voice in it. And so it's less about Mr. Bannon himself and more just about not politicizing a really critical institution in terms of the national security of the United States.

COOPER: The White House pushed back that the Steve Bannon merits being on it at least in part because, because he served as a naval officer.

MULLEN: I don't think that background has anything to do with it. Knowledge in terms of the national defense isn't a qualifier, necessarily at all. He was a naval officer I think for about 10 years.

[20:55:12] This is just at an entirely different level. He's clearly a political guy, a political supporter. He's very close to the president, and, as I said in the op-ed, presidents -- each president gets to choose how they put their National Security Council together, that politics gets involved in national security issues, it does happen, but it happens outside the situation room, which is where the National Security Council meets.

And so I would hope and really, the purpose, the whole purpose of the op-ed today was I would hope that President Trump would reconsider the structure which now includes Mr. Bannon and certainly use him outside the situation room in terms of his views at the right time.

COOPER: And the Trump administration is also in the end see configuration is just like that a President George W. Bushes administration, you were a joint chief of -- your joint chief chairman then during part of the Bush administration. Is that not comparison?

MULLEN: I'm sorry, Anderson.

COOPER: That they're saying the makeup of the NFC, the configuration is the same as it was during the George W. Bush administration.

MULLEN: That's true and president of -- in terms of the chairman of the Joint Chiefs as well as the director of National Intelligence actually, when the Bush administration came in, the director of National Intelligence didn't exist. And in present -- and that's the way it was initially in terms of the chairman of the Joint Chiefs being an adviser to the president and not a specified member of the council. The -- President Obama changed that. And I just think that from a standpoint of focus, priority, inclusion if you will, in all the key meetings, that that change was a very healthy change.

COOPER: That the chairman of Joints who's the chairman should be on it as well as the director of National Intelligence.

MULLEN: Exactly.

COOPER: Yeah. Admiral Mullen, I appreciate -- I urge everybody to read your op-ed in "New York Times", thanks so much. Appreciate it.

MULLEN: Thank you Anderson. COOPER: We have much in our next hour, including breaking news, the ninth circuit court of appeals will be holding hearings on President Trump's travel ban. We'll talk about that and more ahead.