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Ninth Circuit Court of Appeals to Hold Hearing on Travel Ban; White House Downplaying Reports of Infighting; Spicer: I Don't Think the President Owns A Bathrobe; White House Lashes Out at NYT's Reporting; Senate Democrats Hold All-Night Protest Ahead of DeVos Vote; Pres. Trump's Defender-in-Chief; Trump's Labor Dept. Pick Admits to Employing Undocumented Worker; Some Republicans Itching to Repeal Obamacare. Aired 9-10

Aired February 6, 2017 - 21:00   ET



[21:01:08] ANDERSON COOPER, CNN ANCHOR: Welcome back to the second hour of "360". Topping this hour, all sides getting ready to speak up and make their case on President Trump's travel ban. A federal judge, as you know, blocked it on Friday, an appeals court to grab off the weekend. The party submitted briefs today.

Joining us now is justice correspondent, Pamela Brown. So let's get up to date. What's the latest?

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Well, the states have argued that this travel ban hurts their citizens, breaking families, hurting businesses. But tonight, Justice Department lawyers argue that the district judge overstepped his bound saying that his nationwide halt on the travel ban was far too broad and went far beyond than even the states were asking for, Anderson.


BROWN: Tonight, Justice Department lawyers are trying to get an appeals court to reinstate Donald Trump's travel ban. As the President speaking to a military crowd in Tampa, remains confidential when the court battle.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We've been seeing what's been going on over the last few days. We need strong programs so that people that love us and want to love our country, and will end up loving our country, are allowed in. Not people that want to destroy us and destroy our country.

BROWN: DOJ's attorneys argue the President, not the court should make national security decisions, in part because courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations.

On Friday, Washington State District Judge James Robart set off an immediate chain of events ruling the plaintiffs, Washington State and Minnesota demonstrated immediate and irreparable injury from the executive order, in areas of employment, education, business, family relations and freedom to travel.

The ruling angered Trump who fired off tweets, even attacking the judge, who was appointed by Republican President George W. Bush. "The opinion of this so-called judge, which essentially takes law enforcement away from our country is ridiculous and will be overturned." And, "Just cannot believe a judge would put our country in such peril. If something happens, blame him and court system." But even lawmakers in Trump's own party say the system of checks and balances is working as it should.

SEN. BEN SASSE, (R) NEBRASKA: We don't have so-called judges, we don't have so-called senators, we don't have so-called presidents. We have people from three different braches of government who take an oath to uphold and defend the Constitution.

SEN. MITCH MCCONNELL, (R) MINORITY LEADER: We all want to try to keep terrorists out of the United States, but we can't shut down travel.

BROWN: Tonight, 10 high-ranking former National Security officials, including CIA directors and secretaries of state have told the appeals court the ban would undermine the national security of the United States, endanger U.S. troops and help ISIS. As the fate of the travel ban hangs in the balance, people from the seven banned countries are rushing to get in under the wire, like this Somali mother and her children who landed at Dulles Airport.

So what were you feeling when you were getting on the plane?

BISHARO MOALIN, SOMALI WOMAN WITH U.S. VISA: So scared that we would be turned back. After all the hassle, alone in the baggages, it's very hard.


COOPER: Pamela joins us now. So the hearing tomorrow, what's the schedule? How's it going to work out?

BROWN: So the hearing is scheduled for 3:00 p.m. Pacific Time. And this will be oral arguments over the phone, each side of the federal government and the attorneys general for Washington State and Minnesota will have 30 minutes. And it will be the three appeals judges, three federal appeals court judges will be listening on this from the Ninth Circuit of course.

And so, after that, we're basically just going to wait for the appeals court in the Ninth Circuit to make its decision whether to reinstate the ban during the appeals process, but we expect the losing side, Anderson, to appeal, which means, it could go to the Supreme Court fairly quickly from here.

[21:04:59] COOPER: And Pamela, I don't know if you know the answer to this but is that something that, you know, viewers who want to listen in or that we can broadcast it or is that something that is just between the callers and the judge? BROWN: Well, we just found out tonight, Anderson, that it will be live streamed, 6:00 p.m. Eastern, 3:00 p.m. Pacific Time. And so, yes, anyone who wants to listen in can listen in, which is pretty unique.

COOPER: All right, Pamela Brown, thanks very much. We'll obviously have full reporting on that tomorrow night at 8:00 on "360".

Washington State Attorney General Bob Ferguson appeared in the last hour of our program. Here's what he had to say about how far he plans to take this.


COOPER: If they rule against your state, I assume you're going to appeal to that decision and you're willing to take this all the way to the Supreme Court.

BOB FERGUSON, WASHINGTON STATE ATTORNEY GENERAL: I'm in this for the long haul. 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.


COOPER: Back with our panel. Joining us this hour is CNN political -- senior political analyst, David Gergen, also Elizabeth Foley, professor of Constitutional Law at Florida International University, also Harvard Professor Dershowitz is with us as well as Laura Coates and Page Pate.

Professor Dershowitz, I want to get your reaction to what Attorney General Ferguson said that he's in this for the long haul and is going to take it to the Supreme Court if necessary. I mean do you have any doubt this is going all the way to the Supreme Court?

ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: I think it probably will go to the Supreme Court, and I think what will happen is he will win the first round. Because I don't think the Ninth Circuit will undo the injunction because that would cause chaos, especially if they think maybe they would have to then renew the ban later. So I think he's going to win the first round.

And I think on the second round, he'll have a partial victory and a partial loss. That is the rule that some of the executive agreement is constitutional. Some of it's unconstitutional. And then they'll have to make a decision, whether to accept half a loaf or whether to try to appeal to the Supreme Court, where you get an uncertain result, because you have the 4-4 split.

COOPER: Professor Foley, do you agree with Professor Dershowitz on how that may play out and what would that split look like of getting half a loaf?

ELIZABETH FOLEY, CONSTITUTIONAL LAW PROFESSOR, FLORIDA INTERNATIONAL UNIVERSITY: Well, I mean, frankly, if the Ninth Circuit is going to abide by existing precedent, they probably should, I don't know if they will, but they certainly should kick Washington's lawsuit out on the issue of standing, because the state of Washington doesn't have the kind of concrete particularized injury that we normally demand in cases like this.

But having said that, if the Ninth Circuit plays politics with this case rather than going with existing precedent, then we can expect an affirmance of the TRO, which means that the Trump administration then would have an interesting strategic decision, whether or not to file an emergency stay petition with the U.S. Supreme Court and get immediate review or go back to Judge Robart and go ahead and litigate this thing on the merits.

COOPER: Professor, the state of Washington says that they have standing because they represent state universities in Washington, which are adversely affected by this travel order.

FOLEY: Yeah, I mean, that's completely speculative. That kind of allegation of injury without any facts to back it up, any concrete particularized injury has never sufficed before. And I will say that the -- realize that a state like Washington or any other state does not have the power to adjudicate the rights of its citizens, including the faculty and the staff. If those individuals believe they have been harmed by the President's executive order, they're supposed to bring their own lawsuits.

The only thing that a state would have standing to litigate would be what are called sovereign harms, which the state of Texas, for example, in the litigation involving President Obama's DAPA and DACA immigration orders satisfied by showing fiscal harm by the issuance of driver's licenses. But I haven't seen any allegations of facts of fiscal harm that the state of Washington has proffered here. And they have the burden of proof on standing.

COOPER: So, Page, do you agree with that, that the state of Washington doesn't have real standing?

PAGE PATE, CONSTITUTIONAL LAW ATTORNEY: No, but I do think that's going to be the big issue. In fact, I expect almost the entire hour of oral argument to be focused on the standing issue.

There are two ways a state can have standing. And one is, you can show a direct harm to the state, an economic interest. And that's what happened in the DAPA case. Texas was able to show that we're going to have to spend money for driver's licenses, allowing these folks to stay in the country. It's going to cost us money, so we're harm by, so we get to sue. And the Fifth Circuit Court of Appeals accepted that and that's why they were able to deal with that case.

But there's another argument that was made in that case but never ruled on and it was what Mr. Ferguson was alluding to earlier. We're representing people in our states. We're representing institutions in our states. And who else is going to argue for them? Because the only other alternative is you're going to have a bunch of individual lawsuits in district courts across the country and absolutely no uniformity on this very important issue.

[21:09:59] DERSHOWITZ: But that won't apply to the person who's outside the country, the Yemenite family who has never been in the country. What interest does Washington State have in whether or not a family from Yemen gets a tourist visa or not. So they actually need to have double standing. They need to show that they represent people in the state but also that the people that they represent have themselves standing, and the Yemenite family doesn't.

That's why, I think, even if they survive standing, the government will prevail on the issue of people outside. And that's why the government in its brief essentially looked for a compromise, saying we'd be maybe willing to accept a half injunction, as long as it doesn't apply to people outside the country, but Ferguson said, "No, I'm not buying that. No half loaf here."

COOPER: Right. It's interesting, Laura, what the attorney general of Washington is saying and Professor Dershowitz is right, he's saying, "Look, I'm not going to make a deal at this point." And essentially the fact that the Department of Justice is already kind of conceding some points and willing to maybe get half a loaf, the attorney general took as a sign of strength, how do you see it?

LAURA COATES, FORMER FEDERAL PROSECUTOR: Well, you know, the fact that you talk about settlement and kind of negotiating things, is more of a civil lawyer kind of role here. You're talking about whether there's a constitutionality issue going on, whether it's actually unlawful or not.

So, maybe splitting the baby is really not pertinent in these sort of cases. But why standing is important, Anderson, why anybody cares with this issue? In the Supreme Court is not really a -- is a policy court. They're not interested in having things come to them in first impression. Just saying, listen, is there an issue somewhere in the world, let me go ahead and solve it.

They'd like to know that there has been a diligent and thoughtful opinion by a lower court that talks about this issue. And Judge Robart, although, he has talked about the issue, he has not given a really full opinion on the merits of the case. That's what we're waiting to hear about.

And so, until that happens, the Supreme Court is looking at this saying, this is interesting, but why would it come to me now. And so standing is going to be the threshold, not only to figure out if it's going to be a winner tomorrow, but if the Supreme Court finds no standing it will never reach that.

COOPER: So, David Gergen, in terms of the politics of all this, I mean how unprecedented is it that a President in his first few weeks in office is in a legal battle over the constitutionality of an executive order that could end up in the Supreme Court and very likely will.

DAVID GERGEN, FORMER PRESIDENTIAL ADVISOR TO NIXON, FORD, REAGAN & CLINTON: It's unprecedented as far as I can tell. But I do think we have to recall that FDR, Franklin Roosevelt, with the new deal, began to run into judicial headaches along the way, hurdles toward what he was doing. And, you know, he got into a famous argument with the court and then tried to replace a lot of judges in his second term and he failed. But the court itself changed its mind and came over to his side. You know, it was a stitch in time save nine argument.

But here, Anderson, I think that this President has plunged into this legal battle so early, that it does pour tend a lot of legal battles ahead. And as Alan Dershowitz has been saying over the last few days, it also brings into focus the fact that the checks and balances of the Constitution have once again become very important. There are guard rails. The President and the executive branch cannot go beyond certain bounds.

And what you have here is a national security argument being put forward by the government as it often does in insisting that he has -- the President can do whatever the hell he likes, versus the constitutional argument about the protection of rights here in this country. I don't know, I don't -- I'm no authority on standing, but I do think it's worth pointing out, there are nearly -- almost a hundred companies, many of the biggest tech companies in this country who are arguing that this hurts them.

COOPER: Right.

GERGEN: And universities, there's no question of public universities being damaged by this to-ing and fro-ing and the chaos.

And I hope, finally, that whatever it comes down, if the courts rule in favor of Washington State, I hope that's not treated well, they are just playing politics, but if they go against Washington State, well now, we're protecting the authority of the President. I hope we don't inject politics -- whoever loses doesn't say well, it just a political judgment.

COOPER: Yeah. We're going to have to end it there. I appreciate all our panelists. Thank you very much.

Coming up next, reports of White House infighting and a battle of no kidding over bathrobes. It's getting surreal. Also, why Democratic senators are holding an all-nighter right now on the Senate floor. Details ahead.


[21:17:27] COOPER: Well, the Trump White House is heading into week three, trying to downplay the role out of the travel ban and other glitches that are getting attention. They're also trying to discredit what leakers have been sharing from inside 1600 Pennsylvania Avenue and other places. Sarah Murray tonight has the latest.


SARA MURRAY, CNN CORRESPONDENT: President Trump's top aides are taking pains to insist everything is going smoothly in the West Wing.

KELLYANNE CONWAY, COUNSELOR TO PRESIDENT DONALD TRUMP: We're a very tight group. We all live in the foxhole together.

MURRAY: In a whirlwind two weeks, Trump has delivered on many of his campaign promises.

TRUMP: We'll begin immediate construction of a border wall.

MURRAY: But he's done so with chaos churning in the background.

The President faced backlash for putting Chief Strategist Steve Bannon on the Principals Committee of the National Security Council. And the rocky rollout of Trump's travel ban was panned even by his close allies, who said he wasn't well-served by his advisers.

GOV. CHRIS CHRISTIE, (R) NEW JERSEY: The President has a structure inside the White House with three folks who are predominantly in charge of operations at the White House, Mr. Bannon, Mr. Kushner and Mr. Priebus. I think anyone who looks at this knows that it could have been and should have been done better.

MURRAY: Well, Vice President Mike Pence acknowledged there were some missteps.

MIKE PENCE, VICE PRESIDENT OF THE UNITED STATES: We'll concede that sometimes the usual Washington niceties of informing members of Congress were not, you know, fully implemented.

MURRAY: It's all part of a learning curve for Trump and his team. Advisers say the President didn't realize how controversial it would be to put Bannon on the Principals Committee. And with the travel ban now embroiled in legal challenges, Trump has tasked Priebus with ensuring future agenda items are implemented smoothly.

TRUMP: Reince is antistatic.

MURRAY: But sources tells CNN the Trump administration is putting more energy into downplaying reports of staff infighting than actually solving tensions that persist between Priebus, Bannon and others in the West Wing. Those tensions may put Trump's GOP allies in Washington on edge, but there's little sign they bother the President.

He tweeted, "I call my own shots, largely based on an accumulation of data, and everyone knows it."

Trump is often the driving force behind the cycles of chaos then calm that were all-too-common in his presidential campaign. The big challenge for his team, moderating the impulse to act first and deal with the fallout later.

Sara Murray, CNN, the White House.


COOPER: Today the White House took aim at the "New York Times" over its article describing the West Wing as being turbulence. It also included details about how President Trump spends some evening in the White House and the residents, sometimes watching television, watching cable news in his bathrobe.

[21:20:10] What has -- Press Secretary Sean Spicer blasted the report.


SEAN SPICER, WHITE HOUSE PRESS SECRETARY: There were just literally blatant factual errors, and it's unacceptable to see that kind of reporting or so-called reporting. That is literally the epitome of fake news. I don't think the President owns a bathrobe, definitely doesn't wear one.


COOPER: So, it's possible the President does not wear a bathrobe. Now, we checked, he definitely wore them in the past as you can see in this photograph that the Daily Mail published. It's probably from a trove of late 1970s photographs obtained by a collector.

Here's another one, obviously we don't know if Donald Trump actually owned the robe that he was lounging in. It could have been a hotel robe, it could have been provided by the photographer, but he is wearing one.

Joining me now is "New York Times" White House correspondent and CNN political analyst, Maggie Haberman, who co-wrote the article and is at the heart of this bath -- I don't even know what is -- that's for updates.

So to -- the "New York Times", the article that referenced this, that launched a thousand tweets I guess about the bathrobe and comments from the White House, how do you respond to what Sean Spicer is saying that this is full of factual inaccuracies?

MAGGIE HABERMAN, CNN POLITICAL ANALYST: Well, we've asked him to talk about what these factual inaccuracies are. We've asked others in the White House to tell us what they're talking about. We have not heard back.

COOPER: All he's pointed out is --

HARBERMAN: Is the bathrobe and we're comfortable in our sourcing. We also let the White House know what we were reporting, would have been happy to have updated the story with them saying that that wasn't true. Later, they instead chose to do it this way.

COOPER: So you gave a heads up to the White House, "OK, this is what we're reporting," and they didn't push back on that?

HABERMAN: And I think the -- I think that the -- what we end up talking about is a day of bathrobes, which is there's plenty of presidents who have worn bathrobes, there's tons of pictures of Ronald Reagan in a bathrobe, LBJ in a bathrobe, GHW in a bathrobe, Nixon in a bathrobe --

COOPER: This is a surreal conversation we're having.

HABERMAN: Right. Well, I mean we're going down this path.

COOPER: Yes, I know. I know.

HABERMAN: But what we were trying to do with the story, this is one detail of --

COOPER: It's a fascinating story by the way.

HABERMAN: We were jut -- we were actually trying to paint a panorama, my colleague, Glenn Thrush and I, of what the White House's first two weeks have been like. We were trying to pull the camera away from, you know, who's up, who's down.

COOPER: I thought it humanized President Trump in a way.


COOPER: Like I thought it was a nice profile of man in the White House adjusting to being in this new position?

HABERMAN: That is what we were attempting to do, to really describe. And I did another story about him adjusting a couple weeks ago to life in the West Wing --

COOPER: Right, and you had interviewed him about, he talked about by the phone --

HABERMAN: Yeah, and it was -- and I mean it was -- we were really attempting to sort of give a texture of picture and to humanize him. The problem is is that what I have found with President Trump over the last several years is he doesn't always want to be humanized. I mean I think there is certain things that he feels a little private about or little guarded about or he sees and he thinks that they're intended a different way than they are.

So, I mean, bathrobe detail is, you know, is one of many, many details but it's really -- it just sort of describing what life is like for the most significant figure in the country.

COOPER: Well, it's also interesting just -- some of the adjustment problems which all White House is having, folks trying to figure out even the lighting system.

HABERMAN: Exactly, which was also frankly we thought it was sort of endearing. I mean these people have been there literally two weeks. And so they are building this -- at the same time, they are conducting this massive shakeup of Washington, which is what President Trump went there to do, and he was pretty clear about that.

Everything he has done for the most part, he hasn't done everything he said he would do. But he has -- everything he has done so far, almost everything he's done so far is something he said he would do. And so, they are doing this massive, seismic shift while sort of building the plane on takeoff, and that's what we were trying to demonstrate.

COOPER: I mean, I get of the White House being upset if this was some snarky article. I didn't read as that at all. I just thought it was actually a very interesting look at the life in the White House and the adjustment that every president makes.

HABERMAN: Well, thank you and we were actually -- we were trying -- I mean our tone, we were attempting to really just be very straight forward and clear and direct and show and not tell the most interesting thing that we learned in reporting on sort of what life is like for him. And I do think he is much more isolated than he's used to. I do think this is a transition. He has never held elected office of any kind before. And he's -- the first office he's holding is the presidency.

That's a major change. And this is a person who has spent his whole life, you know, in Trump Tower for the most -- not his whole life, but most of his adult life in Trump Tower. So, this is a very different thing and he's surrounded by this town of people in Washington who he knows sort of sneer at him.

And these elected officials who sort of mock behind his back and he really wants to be accepted. I was really struck by the fact that he has never had a boss except for his dad. The one picture behind his desk is of his father. It was really fascinating.

COOPER: It's also interesting you made the extent to which he continues to watch coverage, read coverage. I mean most people I know not -- I don't now a lot of presidents, but people, you know, who have obtained a lot of success in their life and/or in their media life, they don't read about themselves, because it's self-defeating. I mean it takes away from you.

HABERMAN: It's circular for him, but he is -- Bob Costa of the "Washington Post" once had a great line that Trump is T. V. and that really is true.

[21:25:04] I mean he just sort of absorbs it and takes it in and then embrace it back out. He is very, very focused on image and always has been.

COOPER: Interesting. Maggie Haberman, thanks so much. I appreciate it.

HABERMAN: Thank you.

COOPER: Just ahead, tonight, President Trump's effort to scale back regulation of the financial industry and one senator has ever stop it. I'll talk to Senator Al Franken, next.


COOPER: Welcome back. Breaking news tonight, inside the Senate chamber, Democrats are staging around the clock protest of sorts. They're speaking out against the confirmation of Betsy DeVos as Education Secretary. They hope to persuade one more Republican senator to change sides which would then torpedo the nomination.

Democratic Senator Al Franken opposes the pick. He also opposes White House efforts to scale back regulation to financial industry. I spoke to the senator right before air time.


COOPER: Senator Franken, I want to ask you about Dodd-Frank but I do want to ask you just first about some of the stories that are in the headlines this evening. We're monitoring obviously the latest developments the President's travel ban. What do you say to people tonight who may be overseas, who have had their visas basically reinstated and are trying to figure out if they should come to United States or even come to your state who may be confused? What do you say to them?

[21:30:02] SEN. AL FRANKEN, (D) MINNESOTTA: Well, I tell them that they probably are going to have to hold on. I'd like them to be able to travel. We had, you know, refugees from different places around the world that were part of this travel ban that were prevented from coming to Minnesota. And we got one, a 4-year-old girl, who was scheduled to come on January 30th -- the 30th, I believe, we got her to come from Uganda. Actually, Secretary Kelly was very helpful in making that happen.

But we are going through the legal process now, the adjudicative process on this. So I would say that I'm sorry that we have interrupted your life in this way. It's -- I think this executive order actually makes us less safe as a country. I agree with Senator McCain and Senator Lindsey Graham that this has provides propaganda for ISIS and for Jihadists. This is not America. We welcome refugees. Refugees from Syria are fleeing terrorism. And this is, to me, was a terrible idea and a terrible idea that was executed very badly.

COOPER: So let me ask you. I mean, you've taken a very strong stance against President Trump's move to, in your words, take a hatchet to what you call important financial safe guards, referring to Dodd-Frank Bill which you helped to write. To those you argue, the President was elected in a large part to disrupt, upend certain regulations. That's what he promised to do on the campaign trail and now, he's doing it, isn't that his prerogative?

FRANKEN: What he promised to do was "drain the swamp." And what he promised to do was fight for the American people. And what he did was demonize Wall Street and Goldman Sachs in his last ad or video. He said that there's this global conspiracy that involves Wall Street, and he put up the chairman of Goldman Sachs. Now, Goldman Sachs is sort of the minor league team for his Cabinet. He said he'd be fighting for people on Main Street, for little people, for people who don't have the government fighting for them. He is doing exactly the opposite of what he promised to do.

COOPER: So, I mean, what they're saying is look, the banks aren't lending money. We want to kind of stimulate that. We want to get it and that will create new jobs.

FRANKEN: Yeah, I know that's what he says. I think he said he has some really good friends that have been having trouble borrowing money. So I think he wants some rich people to be able to make more money. I think that's what he's talking about.

I mean, there are some community banks that have come to me and said, you know, we can talk about doing this without unraveling Dodd-Frank, and let's remember what this lack of regulations did. It led to this financial meltdown which meant that millions of Americans lost jobs. Millions or hundreds of thousands of businesses went under. This -- we don't want to see that again. And Dodd-Frank was written to make sure that it doesn't.

COOPER: Senator Franken, I appreciate your time, thank you.

FRANKEN: Anderson, good talking to you.


COOPER: The interview with Senator Franken went longer than that. We had edited it down for time. But you can see the full conversation at

Up next tonight, President Trump's defender-in-chief, Vice President Mike Pence in the breaking news just in that could put a Cabinet nomination in jeopardy.


[21:37:56] COOPER: Hey, welcome back. On Tuesday, Vice President Pence may perform a constitutional duty as we touched on earlier. He may need to break a 50-50 tie that could happen if the vote for Education Secretary Nominee Betsy DeVos goes to that. These days, the Vice President is also playing another role, defender-in-chief for President Trump. More on that tonight from Brianna Keilar.


BRIANNA KEILAR, SENIOR POLITICAL CORRESPONDENT CNN: Vice President Mike Pence making the rounds this weekend.

PENCE: You see a president who is in the promise keeping business.

KEILAR: Backing up President Trump after his comments about respecting Russian President Vladimir Putin.

BILL O'REILLY, FOX NEWS ANCHOR: Putin is a killer.

TRUMP: There are a lot of killers. We've got a lot of killers. What, you think our country is so innocent? Do you think our country is so innocent?

KEILAR: Pence was pressed to explain Trump's comments.

PENCE: I expect he's always going to continue to be candid with the American people. But what you have in this President is an absolute determination to reengage the world.

KEILAR: Pence put this spin on President Trump's tweet about the so- called "judge", as he put it, who suspended the immigration ban. PENCE: Well, look, the President of the United States has every right to criticize the other two branches of government. And we have a long tradition of that in this country.

UNIDENTIFIED MALE: But is it a constructive way to do it?

PENCE: I think people find it very refreshing that they not only understand this President's mind but they understand how he feels about things. He expresses himself in a unique way.

KEILAR: And when the President says this about Iran's behavior and the nuclear deal President Obama struck.

TRUMP: They follow our planes, they circle our ships with their little boats, and they lost respect, because they can't believe anybody could be so stupid as to make a deal like that.

KEILAR: Pence translates.

PENCE: What we're seeing here is hostile action, belligerent action being supported by or taken by the Iranians, and we're just not going to put up with it anymore.

KEILAR: The idea that Pence softens Trump's sharp edges has become a punch line.

ALEC BALDWIN, SATURDAY NIGHT LIVE: I love you, Mike. You're the reason I'm never going to get impeached.

KEILAR: Of course, they haven't always been in lockstep.

TRUMP: It's a rigged election.

KEILAR: As running mates, Trump and Pence split on many issues, including this one.

PENCE: I've said before that we'll certainly accept the outcome of this election --

UNIDENTIFIED FEMALE: Do you want us to come to make that clear?

[21:40:00] PENCE: -- but in the 20 days-- well, he said it in the first debate.

UNIDENTIFIED MALE: And then he took it back.

PENCE: Well, he said it in the first debate, folks.

KEILAR: Follow the next day by this.

TRUMP: I will totally accept the results of this great and historic presidential election if I win.

KEILAR: When audio of Donald Trump bragging about sexual assault surfaced.

TRUMP: Grab them by the [beep].

KEILAR: Sources told CNN, Pence considered dropping off the ticket, but ultimately, Trump's defender-in-chief stood by him.

PENCE: When he said on national television he wasn't proud of it, he was embarrassed by it, I do believe that he expressed himself straight from his heart to the American people.


KEILAR: Pence is now leading Trump's voter fraud investigation. And today, he said it would be his honor to do so, even though, despite Trump's claims, there was bipartisan agreement that there was no wide- scale voter fraud in the election where Donald Trump lost the popular vote to Hillary Clinton by about 3 million votes. Anderson?

COOPER: Brianna, thanks very much.

I want to get a reaction to that. Also, there's some breaking news just into CNN, Andrew Puzder, President Trump's pick to lead the Labor Department has admitted to something that has sunk several other nominees before in the past. His statement reads tonight, "My wife and I employed a housekeeper for a few years, during which I was unaware that she was not legally permitted to work in the U.S." He went on to say, "When I learned of her status we immediately ended her employment and offered her assistance in getting legal status." He added that he has paid back taxes on her wages and submitted all the paperwork to IRS in California authorities requiring these cases.

Joining us now is Ari Fleischer, who served as President George W. Bush's Press Secretary. And back with us, David Gergen who was an Adviser to Presidents, Nixon, Ford, Reagan, as well as Clinton.

Ari, let me ask your reactions to all of this, to Pudzer?

ARI FLEISCHER, WH PRESS SECRETARY FOR PRES. GEORGE W. BUSH: Well, to Pudzer, I think the key question is going to be when did this happen? If this happened two years ago, three years ago, five years ago, he realized it at the time and took care of it at a time. And that's one thing and I think it may be survivable particularly because he's not the first to have this happen. But if it just happened and only in the vetting for the job of Secretary of Labor did he catch this and realized it, then this could be a fatal wound.

COOPER: Because that's what happen in the past when it's revealed in the last minute?

FLEISCHER: Because he was still doing it. That's the program. If in the past he realized that this was going on, it shouldn't have been going on, and he made amends for it not -- as a private citizen, not because he was ever going to be up for a government job. He didn't know he's going to be up. Well, then he took care of it. He addressed it when he found out about it. But if it's current and the only reason he found out about it was because he was nominated for Secretary of Labor, that's going to be harder.

COOPER: David, do you agree with that?

GERGEN: I'm not sure I agree with that. OK, if it happened three years ago, five years ago, he obviously didn't happen yesterday. It should have come up in the vetting, you know. And I also think, Ari, in this case, you know, the Democrats have taken a lot of swings at the Cabinet members and so far they've missed everyone. Everyone seems to be going through. And so I think they'll go with particular vengeance against Puzder. They want to put at least one, you know, one mark on the wall if they can.

But I do think it's worth remembering. Other people, I don't remember all the particulars. But listen, Bill Clinton lost two potential attorney generals over this issue, and, you know, two people got knocked out. And other people have gotten knocked out. So it should be no big surprise if he gets knocked out.

COOPER: Ari, let's talk about Vice President Pence and his role. I mean, this notion that he's the explainer in chief, CNN has reporting tonight that Vice President pushes back on that idea. Do you see his role as the standard role of a Vice President, now he's been asked to look into this, you know, allegations about voter fraud, you know, which is, you know, kind of perhaps a thankless task?

FLEISCHER: Anderson, I think in the Trump White House there are no standard rules. Everybody's job is amped-up and more difficult, and that's because of the personality, the nature of the President and the way the President conducts himself.

Look, he did not come to Washington, Donald Trump, to be a typical politician, for whom there's no explanation necessary because they couch every word, the word has any meaning. They don't speak plain English. And so when Trump talks about the Iranians and their small boats and, you know, treated us that we're stupid.

You know, frankly, I think a lot of people relate to that kind of straight talk. The issue's going to be for, Sean Spicer, the Vice President, for Kellyanne, for everybody in his side when Donald Trump tweets, when Donald Trump says something that no typical politician would say, how do people who are raised in traditional politics deal with it, adjust to it and that's what you're seeing with Mike Pence, who spent a career on Capitol Hill and as Governor of Indiana.

COOPER: But, you know, it's interesting, David, when you actually listen to what the Vice President says a lot of times, I mean, it's not agreeing with what the President has said, and it's not even necessarily defending what the President has said, it's often saying, well, I think a lot of people, you know, view, you know, appreciate his candor or the President speaks his mind.

GERGEN: Right.

[21:44:59] COOPER: It's not actually saying, well, the President's right, that there's a lot of killers, or that, you know, whatever the subject may be.

GERGEN: And I think he's become an enormous political asset for the President, one of the most valuable players he has in addition to his generals who are Cabinet officers and Tillerson, the State Department.

And, you know, he walks a very fine line, a very real tightrope here. He -- just as in this issue of whether or Russia is on the same moral plane as the United States, which that raised a lot of Republicans. He was -- he is very -- Michael Pence is very carefully did not disagree with Donald Trump, and yet he did say, you know, that our -- he didn't say we're superior so he would be disagreeing. He said our ideals are superior, our actions may not be, you know, don't match our ideal, but our ideals are superior. That was a very smart way of doing this, and I think that, you know, that he has done more than take the edges off.

I think he's given you a sense there's an adult in the room. What the puzzle here to me is he obviously has been a good defender-in-chief, better than the Press Secretary so far, but why is he not in the room when big decisions are made, where was he during the executive order drafting, you know, on the travel? You know, that's, you know, it seems to me somebody that close in, has been so helpful really might be helpful on how you put together executive orders and other policy.

COOPER: Yeah. We got to leave it there. David Gergen, Ari Fleischer, always good to have you. Thank you.

Up next, the battle of a repealing and replacing Obamacare, a live report from Capitol Hill in a moment.


[21:50:06] COOPER: Well, as you know, President Trump has pledged to repeal and replace Obamacare, but now he says it could be a year before that happens. It's not music to some GOP ears.

Our Phil Mattingly joins us tonight with more. So, I understand some Republicans are not happy with how the President has been pushing back the timeline for the repeal of the Affordable Care Act, right?

PHIL MATTINGLY, CNN CONGRESSIONAL REPORTER: Yeah. According to one GOP official, I got a text message from right after he saw this interview, he said three words, "Timelines aren't helpful." And here's the reason why, this is really the flash point of the early debate on how Republicans are going to approach this. He made a lot of big bold promises, not just the members of Congress but also the President himself about the timeline for repeal and replace. Well, it turns out legislating rather difficult, that timeline is spacing out a little bit. It's something Senator Orrin Hatch one of the key Senate Chairman on this issue, laid out on the Senate floor today. Take a listen.


SEN. ORRIN HATCH. (R) UTAH: I believe there's work to replace Obamacare, should also begin immediately, meaning that our repeal bill should include as many Obamacare replacement policies as procedures allow.

A more complete replacement can and should be crafted in the coming months as the work through -- as we work through some of the more complicated issues.


MATTINGLY: Complicated issues being the key words there, Anderson. And the President's timeline is actually kind of tracks more with reality than some of the other timelines we've seen. But as we've heard repeatedly, there were a lot of promises made, and there are a lot of expectations from constituents. They would like to stay away from specific timelines, because they know, this is a difficult process, it's a complicated process, a divisive process and one, Anderson, that will most certainly take a lot of time.

COOPER: And the Heritage Foundation, which is a conservative think tank, they're holding an event on Wednesday where they're going to be discussing why Obamacare must be repealed immediately. What details do you have in that?

MATTINGLY: Yeah, that's the flash point in and of itself. The Heritage Foundation, House conservative want it done immediately, quickly, not just repeal but replace as well. So, when you see senators, when you see the President take a different tactic, a different message, that's where you see the conflict start.

Again, the process itself, the legislating itself is going to be difficult enough, fights over timelines, kind of going back and forth on how long this is all it's going to take, that right now, when you talk to Republican officials, Anderson, is a distraction and one that only sets them back on this very difficult process.

COOPER: All right, Phil Mattingly, I appreciate the update. Thanks very much.

Tomorrow night at 9:00 p.m. Eastern on CNN, we're going to have a really a fascinating debate. The likes which you probably haven't seen on the future of Obamacare. Senators, Bernie Sanders and Ted Cruz will face off, progressive versus a conservative Republican. Both former presidential candidates will go for 90 minutes, that's starting at 9:00 p.m. We'll obviously be on in the hour ahead of that. I hope you join us.

Just ahead, Iraqi toddler came to the U.S. for medical care after he was severely burned. Now his parents cannot be with him as he faces more surgeries. We reported the story on Friday. Dr. Sanjay Gupta has an update tonight.


[21:56:32] COOPER: As we wait for the court hearing tomorrow to see what comes next in the fight over President Trump's travel ban, an update tonight on one family caught in the fallout. A toddler who's been through more than any child ever should. His parents were desperate to be with him.

Our Chief Medical Correspondent Dr. Sanjay Gupta has an update.

(BEGIN VIDEO CLIP) DR. SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT: Last week, I traveled to Michigan to meet this sweet 2-year-old boy, Dilbireen. A year ago, Dili was living in this refugee camp in northern Iraq when a fire start by heater left him permanently disfigured. Dili and his parents were granted medical visas to come to the United States for care at Shriners Hospital for Children in Boston.

In her third trimester of pregnancy, though, Dili's mom, Flosa, stayed behind. When it was time for her to give birth, Dili's dad, Ajeel, returned to Iraq, leaving his son in the care of, Adilay Kejjan, a kindhearted volunteer whom he had just met.

Do you have any idea how many procedures they say he will need still?

ADILAY KEJJAN, EXECUTIVE DIRECTOR YAZIDI AMERICAN WOMEN ORGAZATION: I'm not sure. They say, up to a year. As his growing, they need to kind of loosen up the scar tissue.

GUPTA: So needs to get this care?

KEJJAN: Yeah. So the eye -- this one is the main concern.

GUPTA: In December, when Dili's new baby brother was old enough to travel, they applied for his visa, so the family could reunite with Dili. The application was denied. Now when Ajeel and Flosa appealed that decision in January, the baby's visa was denied again and this time their visa's were revoked because they were "Unable to establish clearly that their stay in the United States would be temporary."

As a parent, it's hard to imagine not being able to get to your child when they need you the most.

Sunday morning in Iraq, Dili's parents are on their way back to the U.S. consulate in Erbil. Ajeel asked Flosa if she thinks they'll get their visas this time.

"I'm hopeful. God willing," she says.

Today, the United States not only has a new president, but also a new executive order. A 90-day travel ban that bars Iraqi citizens from entering the United States.

GUPTA: "It's hard not knowing if they're going to give us a visa or not," Ajeel say. "We're not going for a vacation. We are going to do the surgery on our child and return back home."

And despite the temporary stay to this travel ban, Ajeel is turned away at the door, denied entry into the consulate, unable to plead his family's case. He's given no explanation, all part of the chaos and confusion surrounding this executive order.

GUPTA: "We lost our homes and our property," he says, "but the most important thing is to make sure our boy is healthy."

Dr. Shirzad Khaleel, Medical Coordinator for the U.K. Charity Road to Peace which arranged Dili's care to the United States, has a message for American authorities.

GUPTA: "We hope you guys do the right thing for the sake of humanity," he says. "All these children are victims of ISIS."

Asked to deliver a message directly to their son, Ajeel says, "I am hopeful we will come soon, finish up all of your operations and after that, we will return to Iraq. We love you."


GUPTA: One thing I want to point out, Anderson, this may surprise you, but oddly, the woman who's taking care of Dilbireen, she's not actually against the ban. She sort of understands the ban. She with her family was terrorized, brutalized by ISIS, and anything to keep ISIS from coming into the country, according to her, is a good thing.

She hopes, of course, that this family is the exception to the rule, they can make their case.

[21:59:59] What will happen if they don't, likely, Anderson, is that this boy will probably end up going to the U.K. and the family will try and get the operations done over there, instead. Originally, they can't go to the U.K. because it was easier to get to the United States initially, but not now.

COOPER: We'll continue to follow up. Sanjay, thanks very much for the update.

Time now to hand it over to Don Lemon.