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9th Circuit Court Hears Oral Arguments in Travel Ban Case; Jake Tapper Interview with Kellyanne Conway; Tapper Presses Conway on Presidential Falsehoods; Source: Trump Disappointed in Spicer's Performance; Sanders, Cruz Debate over Obamacare; Sources: Trump WH Ramping Up Search for Communications Dir.; Appeals Court Hears Arguments over Trump Travel Ban; Awaiting WH Reaction Appeals Court Travel Ban Hearing; When Will Republican "Repeal and Replace" Obamacare?; Sanders and Cruz Debate The Future Of Obamacare; Republicans Struggling To Replace Obamacare. Aired 8-9p ET

Aired February 7, 2017 - 20:00   ET




ANDERSON COOPER, CNN HOST: And good evening, thanks for joining us.

President Trump calls his suspended travel ban "a matter of common sense." Tonight, a three-judge federal appeals court panel heard legal arguments on whether it should go back into effect. The larger legal question, whether the president's actions were constitutional or not, could go all the way to the Supreme Court.

And if you've lost track, it's worth noting that this is all happening in less than three weeks into this president's term. Now in a moment, we'll hear from our team of legal and political analysts.

But, first, our Justice correspondent Pamela Brown joins us.

So the Justice Department, explain what arguments they put forward tonight.

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Well, right off the bat, Anderson, it was a hot bench with these three judges peppering the Justice Department lawyer with questions on everything from evidence connecting the seven countries and the travel ban to terrorism, to even asking why they're listening to the oral arguments today after the DOJ attorney said on repeated occasions that things were moving very quickly.

Here's that exchange.


JUDGE MICHELLE FRIEDLAND, UNITED STATES COURT OF APPEALS FOR THE 9TH CIRCUIT: Why should we be hearing this now, as it sounds like you're trying to say you're going to present other evidence later?

JUDGE WILLIAM CANBY, UNITED STATES COURT OF APPEALS FOR THE 9TH CIRCUIT: Could the president simply say in the order, we're not going to let any Muslims in?


CANBY: But could he do that?

Could he do that?

FLENTJE: Well, that's not what the order does --

CANBY: Would anybody be able to challenge that?

FLENTJE: That's not what the order does here.


FLENTJE: -- get to one key point.

JUDGE RICHARD CLIFTON, UNITED STATES COURT OF APPEALS FOR THE 9TH CIRCUIT: Well, we'd like to get to an answer to that question, I mean, because it speaks back to the standing issue.

If the order said Muslims cannot be admitted, would anybody have standing to challenge that?


BROWN: And the standing issue came up repeatedly. In fact, the DOJ attorney says that the states don't have the legal right to even bring this lawsuit because many of the people impacted by the travel ban have never even stepped foot in the United States. But there were moments of high drama, Anderson.

And at one point the DOJ attorney conceded that he wasn't sure he was convincing the court.

COOPER: What was the State of Washington resting its case on?

BROWN: So the State of Washington, the solicitor general said the travel ban harms their citizens and that it violates the establishment clause, saying that it discriminates against Muslims. But at least one of the judges tried to poke holes in that argument.



CLIFTON: -- you infer that desire if, in fact, the vast majority of Muslims are unaffected?

PURCELL: Well, Your Honor, in part, you can infer it from intent evidence. I mean, there are statements that we have quoted in our complaint that are rather shocking evidence of intent to discriminate against Muslims, given that we haven't even had any discovery yet to find out what else might have been said in private. I mean, that the public statements from the president and his top advisers reflecting that intent are strong evidence, that's certainty at this pleading stage to allow us to go forward on that claim.

CLIFTON: You faulted the government for exactly the same thing. Don't tell us you need more time because the government brought the stay motion.

Well, don't tell us you need more time. You're the one that sought the temporary restraining order. So far I haven't heard a lot of reference to evidence and a lot more references to allegations. And I don't think allegations cut it at this stage.


BROWN: And the judges also asked the solicitor general whether the state would be OK with a compromise that DOJ had actually proposed, having the travel ban only apply to those at this point that have never stepped foot in the United States.

But the solicitor general rejected that option, saying that would still harm the state citizens. And we do expect a decision from the 9th Circuit Court sometime this week, according to the court -- Anderson.

COOPER: All right, Pam Brown, thanks very much.

Let's go to our CNN's Jeff Zeleny, who is at the White House for us tonight.

So any statement from the White House on tonight's hearing?

JEFF ZELENY, CNN SR. WASHINGTON CORRESPONDENT: Anderson, there has not been a statement from the White House yet on the hearing. But I can tell you they were reviewing it and watching it very carefully hee and giving the president updates as the hour-long proceeding went on.

Now they heard the skepticism in the judges' voices as well here.

But I am told by a senior administration official, they are not planning at least to release a statement tonight. They are going to wait until they get some type of a ruling.

But, Anderson, it is such a marked contrast. We have seen the president commenting again and again throughout the weekend about this ruling. But for the last couple hours or so, it's been very quiet here. They obviously are waiting to see and don't want to influence, perhaps, the outcome of those three judges' decisions.

COOPER: Yes, and talk about the message from White House in the run- up to the hearing.

ZELENY: Well, throughout the day, the president was arguing that it's common sense. He said common sense should prevail over this. He was meeting with law enforcement officials. Of course, that was by design here to make, you know, this argument. He's also been talking about the rising terror threat across the

country, saying falsely the media has not been sort of focusing on this and covering this. They're trying to conflate the two things, that there is a rising threat here, that's why this is needed.

But, again, Anderson, I am struck by the silence of the president tonight. He could sort of speak out, you know, in --


ZELENY: -- this evening or overnight or in the morning, as he often does. But at least, as of right now, I'm told by an administration official, they will not comment until a ruling comes in. We'll see if that holds.

COOPER: All right, Jeff Zeleny, Jeff, thanks.

Let's bring in our panel. Constitutional law attorney Page Pate (ph); CNN legal analyst Laura Coates and Jeffrey Toobin, both former federal prosecutors; from supporter American spectator contributing editor, Jeffrey Lord; Democratic strategist Paul Begala; also Elizabeth Foley, constitutional law professor at Florida International University and former Virginia attorney general, Ken Cuccinelli.

I want to start, though, with the legal minds here.

So, Jeff, what do you make of the arguments you heard tonight?

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Well, I know from painful experience how difficult it is to predict the results of any case based on oral arguments. So I think the real answer is we don't know.

The judges were clearly giving both lawyers a hard time. I think on the standing issue, whether Washington has the right to bring this case, I think Washington was -- is pretty -- is in good shape there.

But on the merits, the Bush appointee, Judge Clifton, seemed very skeptical of whether this was appropriate, to have this stay.

Judge Friedland, the Obama appointee, seemed like she was sympathetic to the plaintiffs, to Washington State.

And Judge Canby, the 85-year-old brother-in-law of Walter Mondale, was harder to read. I just don't know.

COOPER: Laura, what about the issue of standing?

LAURA COATES, CNN LEGAL ANALYST: You know, I thought that Washington made some very compelling arguments about that they had people who were going to be injured in some way by this ban, by not allowing them into the country.

And so they made a more compelling argument than the DOJ lawyer did, which surprised everyone. They didn't have a very strong response to the standing issue. But the most telling part about this all was the question about what

was the president's and the administration's evidence as to why they put forward this ban because, remember, the big gun here for the Trump administration is the national security interest.

Was there evidence behind that?

There wasn't a really good question or answer behind that. And that was very telling and revealing about where they're going in terms of the balancing the interests of the government (INAUDIBLE) to the state.

COOPER: OK, you did hear one of the judges pushing back on the notion that this was a Muslim ban, saying the vast majority of Muslims around the world would not be affected.

PAGE PATE, CONSTITUTIONAL LAW ATTORNEY: That's right. But I would expect that from the judges. I mean, I think Jeffrey's right. You can't tell how they're going to decide based on their questions.

I've argued about a dozen times before federal appeals courts and I'll walk out of that argument thinking I've won, no question about it. Then I get the opinion and unfortunately I haven't.

But they're going to press each lawyer, they're going to focus on the weakest points of that argument and then they're going to question them.

And that's exactly the whole point of an oral argument. They've read the briefs; they've read the cases. Now let's get in there and really hash it out. So I'm not surprised by that.

Attorney General Cuccinelli is somewhat familiar with legal claims made by states in federal court. I'm wondering, what's your assessment of what you heard?

KEN CUCCINELLI, FORMER VIRGINIA ATTORNEY GENERAL: yes, I certainly disagree with the comfortable position Washington is in as far as standing goes. They really didn't and they still haven't shown an injury other than to the people in their state. And no one disputes that.

But you even heard the Obama judge there questioning, she said, if we don't find this parens patriae standing, are you done?

And, of course, Washington said no (INAUDIBLE) judge, we'd still be here. We have other bases for our claim.

But the problem is there's no factual basis, there's no reason for -- the state is harmed. Individuals ought to be caring for this case, as they did in Massachusetts, where Judge Gordon over there ruled for the Trump administration in the District of Massachusetts, which, by the way, would also seem to undercut the likelihood of success on the merits when the only case actually drawn to conclusion went the Trump administration's way. COOPER: Professor Foley, would you expect the 9th Circuit to take into account the level of confusion that we saw at airports and elsewhere, the confusion that might potentially result if then the judge's stay was reversed, if they reversed the district court's order, essentially reinstating the travel ban?

Do they consider that component?

And do they consider also statements made, as Washington certainly hopes they do, by then-candidate Trump?

ELIZABETH FOLEY, CONSTITUTIONAL LAW PROFESSOR AT FLORIDA INTERNATIONAL UNIVERSITY: Well, I certainly hope not. I mean the issue of confusion based upon executive order has nothing to do with the legality of that executive order. So I hope that the court stays focused on the legal issues.

And with regard to those legal issues, I continue to believe that the standing hurdle is the biggest impediment here for the State of Washington. I don't see, as Ken just mentioned, any injury, in fact, by Washington as a state.

The Supreme Court has made clear since 1923 in a case called Massachusetts versus Mellon (ph) that states don't have the standing to bring claims on behalf of their citizens. If the citizens have injuries themselves, they're supposed to bring their own lawsuits.

And Ken is absolutely right, again with regard to the state's attempt to salvage standing, by saying, well, we may have some loss to our tax revenues or we may have some --


FOLEY: -- lost university tuition. But all of those allegations are completely speculative. And that kind of speculation has been shot down time and time again by courts.

COOPER: Page, what do you think about that?

Because what the -- when I talked to the attorney general for Washington, he said, well, we represent public universities, who are being harmed by this. And we also are speaking for companies which have filed motions.

PATE: There are several different ways to evaluate standing and there are at least two theories that the states have put forth here.

But in my experience, standing is whatever the judges say it is. If the judges don't want to hear your case, they can kick you out on standing. They'll find a way to do it.

But if they want to address the constitutional issues, they'll find a way to give the state standing because I think that was pointed out in the questioning very well, is if we can't listen to these states, who are we going to listen to? COOPER: Well, Jeff, at one point, though, the solicitor general from Washington, who -- it was noted by one of the judges -- or the solicitor general from Washington said that they hadn't had a chance to have discovery to see what private comments were made by President Trump or others in the administration about whether or not this was a Muslim ban.

But they certainly are pointing or alluding to comments made by Candidate Trump.

TOOBIN: They are. But I thought that was actually a very weak moment for the State of Washington because, you know, they are the ones -- Washington is saying to these judges, stop this enormous federal program.

And -- but at the same time they're saying, well, we don't have enough information. Well, then the judges say, well, OK, let's just have a trial or have more discovery and then we can decide whether you're entitled to this stay.

But they are asking for a really very serious piece of relief from this court. And for them to say, well, we don't have enough information, I think that's a weak moment.


CUCCINELLI: Yes, it goes beyond that. So of course they've cherry- picked the statements where Trump was at his most blatant in terms of the Muslim language. But he also said "terrorism;" he also said "Islamic terrorists."

He used a lot of other phrasing that would come out in a full-blown trial. And at this stage, with the extraordinary standard that is supposed to be achieved for preliminary injunction, to say nothing of an injunction that goes way beyond what the State of Washington even asked for by Judge Robart, there's an awful lot more evidence out there.

And Trump really helped himself by relying on President Obama's classification of countries and congresses. That provides a permanent rationale, national security rationale, underpinning this order.

COOPER: We got to take a quick break. We're going to have more with our panel, more about the legal ramifications of the political dimensions of President Trump's first big constitutional showdown. That's next.

Also coming up at the top of the next hour, debate night in America: the future of ObamaCare. Senators Bernie Sanders and Ted Cruz squaring off, Jake Tapper, Dana Bash going to moderate just about 45 minutes from now.




COOPER: We've been focusing on a three-judge panel in the 9th Circuit Court of Appeals in San Francisco, hearing oral arguments on President Trump's travel ban, which a federal district judge in Seattle put on hold Friday night.

Another key moment tonight, the interchange between the Justice Department litigator and Judge Michelle Friedland over how broad presidential discretion is in cases involving national security and what role, if any, the courts can play. Listen.


FLENTJE: The district court's decision overrides the president's national security judgment about the level of risk.

And we've been talking about the level of risk that is acceptable. As soon as we were having that discussion, it should be acknowledged that the president is the official that is charged with making those judgments.

I'd also like to --


FRIEDLAND: So are we --

FLENTJE: -- talk briefly --

FRIEDLAND: -- you -- are you arguing, then, that the president's decision in that regard is un-reviewable?

FLENTJE: The -- yes. The -- what we -- there are obviously constitutional limitations but we're discussing the risk assessment.


COOPER: I'm back with the panel.

Jeff, before I want to bring everybody else on the panel, can you just explain what we heard and the significance?

TOOBIN: The Justice Department lawyer gave a very halting performance, especially in that moment.

But that's a very important point, which is who decides what's in the national security interest in the United States?

And clearly the Justice Department position is the president makes that decision. That's why we have presidents. That's what the president's primary responsibility is.

And who are courts to tell the president, no, Iraq is not that much of a threat?

Courts don't have that kind of expertise. The problem is that discretion can't be completely unlimited. There

has to be some limit on that. And that's really what this case is about.

Have we reached that limit.

COATES: And that limit really is whether or not there is a valid, not a hypothetical national security concern, but about which whether -- the first question out of the gate, one of them, was do you have any evidence for why these countries were chosen and why this ban was in place?

And that was very telling to show the people that, listen, it must be more than hypothetical to trample on either separation of powers or constitutional rights.


But Attorney General Cuccinelli, don't courts give wide latitude usually to the president on issues of national security?

CUCCINELLI: Massive latitude. And, look, I shooed (ph) the NSA over their data gathering. I got it upside the head, how much latitude the executive branch gets.

And I would disagree with one of your panelists. There are times where the court literally says we cannot review this, for instance, classification questions.

And when it comes to -- I disagree with the last speaker -- when it comes to the decision about whether there is a threat or not, under the Immigration and Nationalization (sic) Act, the courts do not have the authority.

It is a violation of the separation of powers for the courts to second-guess the president's assessment. They do not have that authority.

COOPER: I want to bring in Paul Begala, so Jeffrey Lord -- are you concerned about the idea that the attorneys from Washington State are talking about, you know, discovery on what the president said to folks on his staff?


PAUL BEGALA, DEMOCRATIC STRATEGIST: Yes, when the solicitor general of the State of Washington was appearing by phone with the court, they pressed him about what -- and he said we haven't had discovery, which is a fair point.

I kind of panicked, as a former White House aide, because I don't want lawyers sitting a national security advisor down, grilling him about what he told the president Friday.

I have some history. I worked for President Clinton, who Ken Starr forced his private Secret Service agents, the guys who were closest to him physically, who were ready to risk their lives to protect him, he forced them to testify against him, against the president, because he so obsessed with Clinton's sex life.

I want to keep this fair. I want the executive branch to be able to make national security decisions without having --


COOPER: You think that actually would harm --


BEGALA: -- national security. And I'm the most anti-Trump you could be and I think this ban is terrible, I think his policy is terrible, he's off, I don't even like his hair.

But as a citizen, as a former government official, you cannot have lawyers grilling White House aides about advice they gave the president.

It was bad when Ken Starr did it. It's bad now if Democrats want to --


COOPER: Jeffrey Lord --

JEFFREY LORD, CNN POLITICAL COMMENTATOR: -- another president and another White House staff in the future.

COOPER: Would you advise President Trump to comment about, you know, what we heard tonight, on whether somebody via Twitter or anywhere else, before there's an actual ruling?

LORD: Politically speaking?


LORD: Sure.

COOPER: Really?

LORD: I would. I would. And the reason -- I wrote a column, went back and looked at presidents who've attacked federal judges. One of the most notable to me was not Andrew Jackson, who did this, but Abraham Lincoln, who couldn't abide Chief Justice Roger Taney because of his Dred Scott decision.

He makes that very plain in his campaign. He gets elected, Taney has to swear him in. He thanks him and then turns around and attacks the Supreme Court while he's standing there in his inaugural address.

So there is a political point to this kind of thing, which I'm sure, when the president -- when President Trump talks about common sense, I think he's appealing to his audience out there, to say we've got a bunch of pinhead liberals, if you will, on the bench, who are trying to take this and somebody is going to get hurt.

BEGALA: Well, he's -- those attacks, I think it's two things that's -- the poll numbers on this are going down. Anytime a president waves the bloody shirt of terrorism, it moves up; the American people panic and Trump is an expert at manipulating fear.

This time he's losing. In a Quinnipiac poll out today, you've had a 12-point decline in support for this policy in just a month. Used to be positive, +6; now it's negative, -6. And it's, I suspect, for a couple of things.

I think this is why the very first sentence in the State of Washington's brief to the 9th Circuit is this, "On January 27th, President Trump unleashed chaos."

Now that's not legal terminology, that's political. People don't like the chaos. They don't like the perceived discrimination and they don't like the way Donald Trump personally attacks judges.

COATES: One thing also, if I may, you're missing the bigger point here and that is, yes, national security is an extremely important point but it's not carte blanche and you really can't use it if it's not the actual reason.

They want to know if the emperor has on no clothes. If he doesn't have any clothes on, then you can't have this executive order stand.

CUCCINELLI: And that's part of the brilliance of the foundation of this order. Part of the brilliance of the foundation of this order is because they use President Obama's classification of the countries from which danger from terrorism arises -- and Congress'.

That was not Trump's own discretion. It was not his own decision. He used his discretion for the Immigration and Naturalization (sic) Act to take their judgment, President Obama's judgment.

Anybody on this show want to say he was a bigot when he made that judgment?

I don't.

How about Congress?

Were they bigots when they decided Iran was dangerous?

That classification is bulletproof.

When this case is over, these seven countries and the blocking of people coming from these countries until this time period is over will stand. The only thing that may go down is what, frankly, the federal government has already conceded and that is the inapplicability to lawful permanent residents.

COOPER: All right.

CUCCINELLI: That's it. COOPER: -- the others. I want to thank everybody on the panel.

Coming up, why the President of the United States says things that simply are not true, time and time again, about the press, about terrorism coverage, last -- yesterday and today about the murder rate in the United States. Jake Tapper pressed Kellyanne Conway on that in a fascinating interview. More today and you do not want to miss it. We'll show you some of that -- ahead.



COOPER: Welcome back.

Well, for the second time in just the last two days, the President of the United States has said something that is objectively, demonstrably untrue.

Today he said that the murder rate in the United States is the highest it's been in 47 years.

That is not true.

Yesterday he says it's gotten to a point where terror attacks are not even being reported.

That is not true.

When the president says things that are not true, there are, I guess, two explanations. One, he's getting wrong information and then spreading it or he's just deliberately not telling the truth.

Today, Jake Tapper asked White House adviser Kellyanne Conway about the falsehoods of the past two days. Take a look.


JAKE TAPPER, CNN CHIEF WASHINGTON CORRESPONDENT: Kellyanne, CNN and other media organizations cover terrorism around the world all the time.

Saying that we don't cover terrorism, that's just false.

KELLYANNE CONWAY, TRUMP COUNSELOR: What the president is saying there, Jake, is that there are other attacks that don't get as much coverage. Obviously, the very sad incidents that you've related where, frankly, CNN did amazing coverage for weeks at a time, I saw you all there on the ground doing that and telling the human interest stories and the tragic stories and, frankly, the involvement of the terrorists in those brutal attacks, those get coverage.

The other ones on the list, not so much. I think his point is twofold.

TAPPER: Those ones were on the list -- but the ones I just recited for you were on the list.

CONWAY: Absolutely. Oh, no, and I'm saying the ones that have high casualties like Nice and Brussels and certainly Paris and the like, those are covered extensively by all media outlets, as well they should be.

TAPPER: Earlier today, President Trump made a quote about the murder rate being at the highest level it's ever been in 47 years. He said that and he said nobody in the media reports on that.

There's a reason that nobody in the media reports on that. It's not true.

The murder rate is not at the highest rate it's been in 47 years. It spiked a little; it went up a little. But it's still much, much lower. It's 4.9 people per 100,000, that's dwarfed by the murder rates in the 1990s and, before that, the 1980s.

Facts are stubborn things. And to say that we're not reporting something that happens not to be true, therefore, we're not to be trusted, that's a problem.

[20:30:04] CONWAY: Well, Jake, if I can take the broader issue of our relationship with media, I mean, I'm among, if not the most open press person in the White House. I'm now being attacked by the media, including networks that are familiar to you. And I'm just going to keep soldiering on.

TAPPER: Have you or President Trump ever said anything incorrect? Or are there any false --

CONWAY: Absolutely, I did --

TAPPER: -- false coming from your mouths?

CONWAY: Well I did this past weekend. I regretted it tremendously because I used the wrong word to describe something several times and I'm sorry because I've spoken literally millions of words on TV I'm sure, been on CNN over a thousand times in my career I'm sure. And --

TAPPER: You're referring to the bowling green massacre?

CONWAY: Yes, I am because I felt really badly about that, but I am glad that I -- I felt badly about that and I apologized and I rectified --

TAPPER: Are we fake news Kellyanne? The CNN fake news?

CONWAY: No, I don't think CNN is fake news. I think there are some reports everywhere. In print, on TV, on radio, in conversation that are not well researched and are sometimes based on falsehood.


ANDERSON COOPER, CNN ANCHOR: Well, back with the panel. Joining the conversation, New Yorker Washington -- New Yorker Washington correspondent Ryan Lizza, Trump supporter Kayleigh McEnany, conservative writer Matt Lewis.

Jeff, what is the purpose of the president of the United States saying things which are demonstrably obviously not true?

JEFFREY LORD, CNN POLITICAL COMMENTATOR: I think in terms of the murder rate, I think that he just said this and frankly I don't think that there's anything Machiavellian or anything about it.

COOPER: But he's claiming not only that the murder rate -- he's incorrect about that --

LORD: Right.

COOPER: -- but then he's also implying that we're not reporting it for some --

LORD: The terrorist.

COOPER: No, no the murder rate.

LORD: Oh the murder rate.

COOPER: We're not reporting it for some ulterior motive.

LORD: I honestly don't know, I don't know and I don't want to say, you know, not knowing where he's going with it.

COOPER: Does it help the president in some way?

LORD: Well every president learn --

COOPER: To so doubt about every -- anybody who does any typical reporters?

LORD: Every president -- and Anderson as we've had this conversation before. This has been going on for like four or five decades.

COOPER: What lying from a president?

LORD: No, no, no.

COOPER: Day after day.

LORD: The conservatives feel that the media is tilted against them. And let me pick up on this.

COOPER: I know, because that has nothing to do with whether or not the president is actually lying, because we tend or whether he's just incredibly badly informed.

LORD: Let me pick up on the terrorist end. I mean I saw the show last night. I mean obviously you've been there. I mean CNN has been fabulous doing this. But here's where the thing gets a little hazy. I saw in "the New York Times" today a list of these -- this 78 list of attacks and then they put their coverage down there. So I looked at the coverage. For instance there was a guy who took a hatch it to a couple cops in New York City. That wasn't on the front page of their paper.


LORD: Yeah, but it wasn't. They did like two stories on it. What it seems to me they are saying is the extent of the coverage as, these incidents untold?

COOPER: Your right, but that's what they're saying now, because initial the statement was is not being report on. Now they're changing it to -- it's underreported.

LORD: I heard Sean Spicer on Air Force One I guess the other day, answering. I mean that to me was honestly my take. And I just -- you're there. There's no question CNN is there. What I -- and these others, but I think what they're trying to communicate is the degree and the intensity because of --

COOPER: OK, there's another argument, Paul, which is that the president is intentionally basically labeling, you know, CNN anybody who does any critical reporting as fake news to basically make not only his supporters but just everybody doubtful about what's true, what's not. How does anyone know what's true?

PAUL BEGALA, DEMOCRATIC STRATEGIST: The president is clearly a highly intelligent man.

COOPER: Right.

BEGALA: I think he's the liberace of lying, he's floored (ph), he's flamboyant but there's a point to it and his point is to undermine any check on him and on his authority.

COOPER: So that's what happening behind the candelabra?


BEGALA: Liberace, I mean that's the true, there's -- I've lost my metaphor.

MATT LEWIS, CNN POLITICAL COMMENTATOR: There's false apart, when you come up against somebody like Jake Tapper. Well I think it was a rock star in that interview.

BEGALA: It does --

LEWIS: And let me say Kellyanne Conway has a shtick. We've seen it for years. She's very good at what she does.

COOPER: Well the pivot like -- well let me just a larger point. I mean --

LEWIS: She's got about five different go-two moves.

COOPER: Right, yeah.

LEWIS: There's the one move where she's combative, very hostile, she'll take you on, not going to do that against Jake Tapper. Now, when he has this righteous indignation defending journalism. I think he was right to do. Here I think she was playing the -- this is all a big misunderstanding act and I think it was pretty laughable.


BEGALA: He's trying to undermine the free press, he's trying to undermine the independent judiciary, personal attack on this judge who ruled against him. He was attacking our intelligence community, he's undermining our allies, our democratic allies around the world. It seems like anyone who can be a check on him is going to be discredited and that's troubling.

COOPER: But its interesting, Kayleigh, I mean because he specifically had said during the campaign I will never lie to you, the American people, and look, presidents lie, you know, but I mean daily there things which are just demonstrably false coming out of the White House.

KAYLEIGH MCENANY, CNN POLITICAL COMMENTATOR: Well yes, and this is why -- not yes that they're demonstrably false. I think sometimes there are nuances that are not said, that his to ensure that he says.

[20:35:02] COOPER: But the murder rate the worse has been in 47 years.

MCENANY: But here, I know what fact he was referring to and I have it right here, and this is the headline from "PolitiFact", "Donald Trump largely accurate that U.S. had biggest increase", biggest increase, not biggest murder and murder rate since 45 years.

COOPER: That's not what he said.

MCENANY: He cited that the during the campaign, he left out one word, increase in murder rate, not murder rate.


COOPER: Right, but right -- if you're trying to paint a picture as chaos in America, then that's a pretty big word to leave out.

MCENANY: Of course and I think that's why nuance is important. And I lambaste my leftist friends and mainly about nuisance when -- with reference to the Muslim ban. So, 100 percent he needs to be more careful and more careful with respect to nuance and ensure that every word he says is --

LEWIS: It's not nuance it's --

MCENANY: -- and entirely.

LEWIS: -- precision, detail. Words matter.

MCENANY: But here's the problem, and here's what Kellyanne was getting at and I know you said her performance was laughable, I thought it was -- LEWIS: Of course (ph).

MCENANY: -- I thought it was very good. Because when the things she said --

LEWIS: There's been like --

MCENANY: -- some in the media, not all, jump to the collusion immediately that there has to be a negative spin on things. It isn't that Donald Trump just accidentally cited a static wrong.

LEWIS: He lied. He lied.

COOPER: But the president --


LEWIS: And then she tries to go on up against a journalist and can't pull it off because, look, she's accusing journalism of lying, of making up fake news and she is the one --

MCENANY: She's not lying.

LEWIS: There was a massacre?

MCENANY: She used the wrong word.

COOPER: But no -- but she -- no, no, no, no, no --


COOPER: But first of all, wait a minute, let me just stop this. In the last interview I did with her two weeks ago, she said something whether it was intentionally a lie or just a completely misinformed but it certainly did -- it suit their agenda which was to equate, saying that what we were reporting about the intelligence chief briefing the president on this two page summary with those salacious details which we never even reported, she said that didn't happen and that night after the interview that Clapper came out and said, you know, it did happen and then Vice President Biden said we got the same briefing. So, the idea that she doesn't says stuff was not true, is just -- I mean, it's just not true.

MCENANY: Well, in CNN didn't link (inaudible), a friend sent to me and point that out --

COOPER: Right, she said, where she said we were --

MCENANY: But my point is that it's always in assumption that it's a lie. It's not an assumption that maybe she misspoke when she said Bowling Green massacre instead of Bowling Green mastermind. And I don't think that we did the same thing, not CNN I'm saying but commentators generally did the same thing with the Obama administration that they have done to the Trump administration.

COOPER: Ryan? RYAN LIZZA, CNN POLITICAL COMMENTATOR: Even with the example that you cite, right the statistic, there was pickup last year in the increase in crime, right. That was pointed out to Trump when he mentioned that in the fall during the campaign. How is it in February he's still getting that wrong? Unless to --

COOPER: And it's not just that fact but it's also that we're not reporting that false fact because of some sort of conspiracy on our part.

LIZZA: Right, that's new what is even more troubling. Look, I think just trying to discredit the media is what you do. And frankly in a democracy, you can't just yell at journalists, so politicians do, they try to discredit them.

COOPER: Yeah, but President Obama tried to do against Fox News, you know --

LORD: Yes.


LIZZA: This is at level that is beyond anything in modern history. We go back to the 19th century there some close examples. But, look we're lucky, we can't -- they can't throw us in jail, right. So there's democracy, you discredit. You know, Brian Stelter had a great line today, it's like, you know, ocean waves on the beach and you just kind of, you know, breaking down this --

LEWIS: But we are trying to get to libel laws though, I do have to warn you. So, you know.

LIZZA: Well -- so far look, if he really was trying to, you know, do anything that was legal against the press he probably would have, you know --

LORD: But politically in court --


LORD: The press, the media is not popular. I mean I haven't looked in a while, but I imagine it's somewhere below Congress. So, you know, his -- there is --

LIZZA: He's the president of the United States. We can get things wrong. We're just journalists frankly. The president of the United States. We have to --

COOPER: But also we correct things all the time if we get it wrong. I haven't heard him do that.

MCENANY: And the White House --

LIZZA: He held the highest standard.

MCENANY: --- the fact that the media hasn't covered terrorism, because you guys haven't.

COOPER: I want thank everybody. Coming up, we'll tell you about our reports that the president is not thrilled with press Secretary Sean Spicer's performance and the search for someone to help lighten his load.

Also, at the top of the hour, debate on the future of Obamacare. This is going to be fascinating. Jake Tapper, Dana Bash moderate debate between Senator Bernie Sanders and Senator Ted Cruz. We'll be right back.


[20:43:01] COOPER: Welcome back. You may not realize this, but Sean Spicer is wearing two hats actually right now in the Trump White House. And multiple sources say there's an increased effort to get that down to just one. The sources tell CNN the White House is ramping up a search for a new communications director.

Right now Spicer is acting both in that role and as press secretary. And a source familiar with internal community case says the president is disappointed in his performance. Press secretary and communications director are typically two different jobs is obviously both incredibly difficult. What better time to bring in our new CNN political commentator, Jen Psaki, former Obama White House communications director.

Jen, official thanks for being here, welcome to CNN.

JEN PSAKI, CNN POLITICAL COMMENTATOR: Is great to be here. Good team.

COOPER: So, this idea of the leaks that are coming out now with the White House about Sean Spicer, what about the difficulty of holding these two roles?

PSAKI: Well, unless you're in the cloning business, Anderson, it's pretty hard to do both jobs.

COOPER: What is one -- what is communications director do versus what we see Sean Spicer do?

PSAKI: Well, the press secretary is really the fireman or fire woman of any administration. So they take all of the incoming. They are the face of the administration aside from the president answering all of the media inquiries. It really takes the entire day to fulfill that job between preparing for it and getting the answers you need and then conducting the entire briefing.

COOPER: And the communications director?

PSAKI: Well, at the same time, while the press secretary is preparing for the briefing and out there briefing the media, the communications director, a role I played as of two weeks ago, is meeting with the policy teams, meeting with the president, determining what the strategy and the message will be moving forward and really has a seat at the table for all of that is just --

COOPER: So kind of a bigger picture --

PSAKI: Exactly.

COOPER: -- strategies.

PSAKI: Exactly. They work very closely hand in hand, and ideally the press secretary and the communications director are communicating about what's happening in the this meeting, what should we recommend, what should we say about this controversy or this breaking news story. And they work very closely together.

COOPER: Do the -- let's talk about the travel ban for a moment, because what we're hearing a lot from Republicans that these seven countries that are on this temporary travel ban in most cases according to the Trump administration, they say they were identified by President Obama, by the Obama administration. Is that in your opinion accurate?

[20:45:11] PSAKI: That's a great deal of revisionist history, Anderson. What happened was in 2015 right after the Paris attacks, people in the country were really scared, Congress was reacting very strongly. They decided they want to put in new restrictions on visas.

COOPER: Congress did.

PSAKI: Congress did, Republicans in Congress specifically. What we did is we tried to dial back and work back what we thought would be viable. Make it not as stringent and not as strong. Now that was never a ban. It was never banning any individuals from these countries coming in. But even the visa restrictions that were proposed, we're not proposed by the White House. We weren't in control of Congress. This was, you know --

COOPER: So these seven countries you're saying they were identified by members of Congress?

PSAKI: They were identified by members of Congress, yes.

COOPER: Do you know what that identification was based on?

PSAKI: You'd have to ask members of Congress.

COOPER: OK. Your old boss came up in an interview that President Trump do with Bill O'Reilly over the weekend. And I just want to play part of what he said.


BILL O'REILLY, "O'REILLY FACTOR" HOST: You guys seem to get along. All right? Would that be accurate?

DONALD TRUMP, U.S. PRESIDENT: It's a very strange phenomenon. We get along. I don't know if he'll admit this, but he likes me.

O'REILLY: How do you know if --

TRUMP: I like him because I can feel it. You know, that's what I do in life. It's called, like, I understand.


COOPER: Now I'm going to put you on the spot, but your former boss and whether he does feel that way about President Trump.

PSAKI: Not doing friendship bracelets.

COOPER: But, you know, look President Trump, can be -- I mean view him more as a candidate more, it can be charming. I mean individually and people a lot of people who know him well say, look he's very different one-on-one or in small meetings than he is maybe what you see in front of a rally. What do you make of what he said?

PSAKI: I think what he's seeing and misreading is the pragmatist in President Obama. He's somebody who is a really practical guy and even in the 24 hours after the election, he was thinking about what to do during that first meeting and what to get out of it. And he has always seen that relationship as one where he can try to convey how difficult it is and what the impact of unwinding the Affordable Care Act or unwinding the Iran deal. And he still sees that as a useful channel, whether he's affect to that, ever impactful, we'll see.

COOPER: All right, Jen Psaki, great to have you here.

PSAKI: Great to be here Anderson.

COOPER: Just ahead, just days after President Trump said it might take until 20108 to repeal and replace Obamacare, House Speaker Paul Ryan is setting a different time line, even some Republicans are raising concerns and we're just minutes away from, we'll have more on that.

We're also minutes away from this fascinating debate Senator Bernie Sanders, Senator Ted Cruz, they're debating the future of Obamacare. Jake Tapper, Dana Bash the moderators. Those in the audience will be asking many of the questions. Stay tune for that, we'll be right back.


[20:51:39] COOPER: We're about eight minutes away from CNN's town hall debate, Sanders versus Cruz, the future of Obamacare, the two senators and former presidential candidates will face off in front of a live audience. The backdrop obviously is the campaign promise Donald Trump made to repeal and replace the Affordable Care Act.

How quickly that will happen, that is growing more unclear. President Trump and House Speaker Paul Ryan have decided conflicting timeline, just over the past three days.

CNN's Phil Mattingly joins me from Capitol Hill with the latest. So, it seems like Republicans can't settle exactly on a timeline on this central campaign issue of the last four elections. How big Republicans -- the GOP is that right now?

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: We have several problem. Look, what you're seeing right now is campaign promises running head long into the reality of legislating. Legislating takes time and that something when you talk to Senate leadership and House leadership, they acknowledge, this is going to be a lengthy process, particularly as they go through the replace process.

Those details far from agreed upon. But you do have a lot of Republicans Anderson who as, you know, made a lot of promises to constituents. They want to move quickly. The problem is some senators in particular aren't ready. Take a listen to what Senator Lindsey Graham told me earlier today.


SEN. LINDSEY GRAHAM, (R) SOUTH CAROLINA: When it comes to people's healthcare, I've seen speed. I've seen partisan results, it's called Obamacare. I don't want to go down that road. The only goal I have in my own mind is try to find a way to improve healthcare for people who don't have it without changing the entire system for people who do.

So the bottom line is you can't keep your doctor if you like it. You can't keep your healthcare if you're fond of it under Obamacare, so my goal is to get it right. More than anything else, and there's no timeline associated with that.


MATTINGLY: Now Anderson, no timeline might work for senators that are not up for election in two, four, six years, but for House members, there's a lot more urgency right now. They made a lot of big promises, they want to deliver on those promises for their constituents. They want movement now, even if that's not really a real option right now.

COOPER: And as your sources described, the ideal repeal and replace process walk us through it, and so I mean, is it clear how that's going to work?

MATTINGLY: There's a -- there is a strategy Anderson, it exist, but it's kind of a school house rockish type way of doing things. They want committees to take action, they want votes in the committee. Ten they want it to move to the floor. And its important to note, this is expected to be a piece by piece process. A number of Republicans have told me, look, the Democrats did thousands of pages of bills. That's not what we want to do. We want to take step by step, but Anderson, step by step means it takes time, time as we've noted repeatedly is something a lot of Republicans don't necessarily think they have right now and it's not just conservatives in the House. There's also outside groups that are also pushing this as well.

So Anderson, a lot of pressure on this process, a complicated one to begin with. It's only going to continue in the weeks and months ahead. COOPER: All right, Phil Mattingly, appreciate it from Capitol Hill.

Joining me now is Robert Reich, former Labor Secretary and author of "Saving Capitalism: For the Many Now the Few", he's also a professor Public Policy at the University of California in Berkeley.

Also with us, CNN senior economic analyst Steven Moore, his chief economist of the Heritage Foundation and serve as a senior economic advisor to the Trump campaign.

Secretary Reich, we heard a different timeline obviously from President Trump this weekend, saying they should have something by the end of the year, maybe even next year. This is something he said he was going to do on day one. Is this just the reality of the challenge settling in?

RICHARD REICH, FORMER LABOR SECRETARY: Well it's probably the reality of the challenge Anderson, but let's go beyond that, it's reality of mathematics. Because what Republicans have discovered, and this is not a new discovery. Even when they were railing against Obamacare, two and three, five years ago, they were trying to come up with a replacement, they couldn't.

[20:55:08] Because, if you want preexisting conditions to be covered, you've got to have a mandate for healthy people to get healthcare. You've also, in terms of subsidizing 80 percent of the people who are on Obamacare or the Affordable Care Act to get some federal subsidies to pay for those subsidies, you've got to raise taxes, primarily on the wealthy, and that's the way Obamacare is organized. If you repeal this piece or that piece, you simply can't afford to do it.

COOPER: Steven, is that how you see it? That it's much more difficult than Republicans had sort of let on?

STEPHEN MOORE, CNN SENIOR ECONOMIC ANALYST: Well, look, I think it is mathematics, Bob, and I think you got the mathematics all wrong. I mean the problem with Obamacare was it he promised Anderson that we're going to put tens of millions more people under a government- subsidized system and that there were going to be also sorts of services provided and that somehow this was actually going to save the system money there were going to root is (inaudible), none of that has happened.

Bob, there aren't a lot of people in this country are saving $2,500 a year on their health insurance, in fact most families are costing more. I mean my own situation, we're -- my family, we're $2,000 more per, you know, for our family per year, and those are costs people simply can't afford. The key statistic I think Anderson that is the killer statistic for people who support Obamacare is that in 2017, the costs of these plans are going up by 22 percent.

Bob, you talk a lot about the fact that workers haven't had a pay raise in a long team and I agree with you. One reason is these exploding healthcare costs are costing employers so much money they can't afford to give workers a raise. REICH: Well, you know, Steve you put your finger on exactly the problem. It's not the Affordable Care Act or Obamacare, it's exploding healthcare costs. That's the problem, that's what's going up. Regardless of whether you have Obamacare or Affordable Care Act coverage, everybody outside the Affordable Care Act is also suffering from, you know, bigger deductibles, bigger premiums.

MOORE: Bob, it was people like you who said that this was going to save money. You said it was going to reduce healthcare costs, and we're seeing these rising costs. I think that's why the American public --


REICH: What has happened Steve is that the Obamacare actually did start to slow the rise of healthcare costs. But the cause are still rising and my point is that it's not Affordable Care Act, Obamacare, it's not even Medicare. The problem is you've got these huge healthcare mergers, bigger and big -- more and more economic power and hospitals and drug companies. Look at the prices of drugs. I mean drug prices continue to rise --

COOPER: Let me ask.

REICH: -- one of the faster --

COOPER: Hold a minute.


REICH: Healthcare costs, and there's no attempt to actually do anything about it and drug companies have enormous political sound.

COOPER: OK, Steven let me ask you, some the Secretary Reich said early on, I mean there are popular aspects of Obamacare that guaranteed coverage for those who have pretty distinct conditions, being able to stay on your parents' insurance until you're 26.

MOORE: Yeah.

COOPER: Is it possible to keep those parts of Obamacare while getting rid of the ones that people don't like, like the insurance mandate (ph), but Robert Reich said it's not.

MOORE: Absolutely, yes I mean that's what Donald Trump had said, we're going to keep the coverage for people with preexisting conditions.

COOPER: How do you do that?

MOORE: Well, you basically put them in a pool and you have public subsidies for people who have, you know, high healthcare class with preexisting conditions. I have a niece who have those epilepsy, she has high healthcare cost and the public should pay for that. But she don't have to ruin Bob the entire healthcare market. Here is what I would propose, and I think Donald Trump is in support of this. Bob tell me why you don't think that insurance companies, if I live in Virginia, why shouldn't I be able to buy a healthcare plan anywhere in the country. In other words rather than two or three options, I could have 100 options.

COOPER: Secretary Reich?

MOORE: More competition, we have more competition lower cost.


REICH: Wait a minute, I'm in favor of that, but I also --


REICH: -- want to use anti-trust laws to bust up the big pharmaceutical companies --

MOORE: All right.

REICH: ... the big corporations. And also the big insurance companies, look at how the insurance companies are merging like mad. They should not be allowed to merge. You know --


MOORE: Bob, I'll agree. I think you're on to something there. I think they can agglomeration of healthcare is a big problem we need more competition, more choices --


MOORE: -- but we also have to go after the trial lawyers, because the medical malpractice reform would also save money for families as well. But I think we're almost there Anderson with a little bit of a consensus there.

COOPER: Well let's see if Senator Sanders and Senator Cruz actually get this consensus in the next hour.

REICH: We talked that in six minutes.

MOORE: But Obamacare has to go Bob.

REICH: You call it Affordable Care Act people, you know, a third of Americans don't even know that Obamacare and the Affordable Care Act is the same thing.

MOORE: Because it's not affordable, Bob!

COOPER: All right, well gentleman we'll leave it there, thank you so much. Interesting discussion and answering to some agreement there between you, Robert Reich, thank you Steven Moore and thanks a lot for that.

As I said we have remarkable event coming up right now in just a matter of seconds were on. Thank you for watching "360". I want to hand you over now to Jake Tapper as well as Dana Bash for tonight fascinating town hall debate on this very subject, The Future of Obamacare, Senator Sanders versus Senator Cruz, let's go over to throughout the hall.