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Dems Wage 24-Hour Debate Against DeVos; Rubio to White House: Don't Lift Russia Sanctions; Trump Says New NAFTA Deal Could Pay for Wall. Aired 9-9:30a ET

Aired February 7, 2017 - 09:00   ET


[09:00:00] JOHN BERMAN, CNN ANCHOR: -- and the truth of one of his new controversial statements is beyond question, really.

Later today, three federal judges will hear arguments on the telephone on whether to reinstate the travel ban on folks from seven Muslim majority nations. This comes as the President is accusing the media of not reporting terror attacks, which is, in fact, not true.

POPPY HARLOW, CNN ANCHOR: As you can see right there on your screen. All this as Senate Democrats wrap up their overnight offensive against Betsy DeVos, the President's nominee for Education Secretary in a move that would make history. Vice President Pence is expected to break the tie when the Senate votes a little bit later today.

We begin our coverage this morning with CNN's Joe Johns at the White House. A lot going on.

Good morning, Joe.

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: Good morning, Poppy. The President's false assertions, his misrepresentations over media terror coverage, pretty much throwing a wrench into the whole issue that is before us out on the west coast. That, of course is the issue of a hearing over the immediate fate of the President's order on immigration.


JOHNS (voice-over): Three federal judges from the 9th Circuit Court of Appeals will hear arguments from the Justice Department and from Attorneys General from Washington state and Minnesota.

These two states argue that the Trump administration has failed to show the country would be irreparably harmed by the suspension of the ban.

BOB FERGUSON, ATTORNEY GENERAL, WASHINGTON: 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.

JOHNS (voice-over): The President continuing to stoke fears, tweeting, "The threat from radical Islamic terrorism is very real. Courts must act fast." The Justice Department urging the Appeals Court to quickly reinstate the President's ban, maintaining the executive order is a lawful exercise of the President's authority.

SEAN SPICER, WHITE HOUSE PRESS SECRETARY: He has broad discretion to do what's in the nation's best interest to protect our people, and we feel very confident.

JOHNS (voice-over): The President using the legal battle over his travel ban to admonish the, quote, "dishonest media" for under reporting terror attacks.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Radical Islamic terrorists are determined to strike our homeland, as they did on 9/11. It's gotten to a point where it's not even being reported. And in many cases, the very, very dishonest press doesn't want to report it. They have their reasons and you understand that.

JOHNS (voice-over): Hours later, the White House releasing a list of 78 attacks they claim the media ignored, but many of them were, in fact, heavily covered by CNN and other media organizations.

During the visit to the U.S. Central Command on Monday, the President, once again, touting his election victory.

TRUMP: We had a wonderful election, didn't we? I saw those numbers. And you like me and I like you.

JOHNS (voice-over): And in an interview with Fox News, Mr. Trump opens up about his relationship with former President Obama.

TRUMP: I don't know if he'll admit this, but he likes me. I like him --

BILL O'REILLY, FOX NEWS HOST: How do you know he likes you?

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

JOHNS (voice-over): Reflecting on the heated campaign and that historic moment the two men rode together to the U.S. capitol.

TRUMP: And we said horrible things about each other, and then we hop into the car and we drive down Pennsylvania Avenue together. We don't even talk about it. Politics is amazing.


JOHNS: So what's happening today here at the White House? The President is expected to meet within the hour with members of the National Sheriff's Association. They have a meeting here in Washington. Some of those members are going to be people who very much support the President's policies on immigration.

Poppy and John, back to you.

BERMAN: All right. Joe Johns, thanks so much. We'll keep our eye on the White House because we are expecting those pictures in a little bit. HARLOW: Yes.

BERMAN: For the meantime, let's talk about this big hearing tonight, this telephone hearing. Joining us now, CNN Justice Reporter Laura Jarrett and Jeffrey Toobin, CNN's senior legal analyst and former federal prosecutor making his new NEWSROOM debut.

Laura, first to you, the mechanics of this hearing today. Explain to me how it's going to work on the phone, who these three federal judges are, and when we expect to get their ruling.

LAURA JARRETT, CNN JUSTICE REPORTER: So we've got two judges appointed by Democratic presidents. The first judge, William Canby, an appointee of President Jimmy Carter. The second is Judge Michelle Friedland. She was appointed by President Obama. And then finally, we've got Judge Richard Clifton, an appointee of President George W. Bush.

Both sides, both the state and the Justice Department, will get 30 minutes to argue their case by phone.

HARLOW: Jeffrey Toobin, other than the fact that I think a lot of America would be surprised to hear that this is something that is done over the phone, this is inevitably going to go to the Supreme Court. And one of the key questions here is standing.

Does the state of Washington and the state of Minnesota, do they have the right to bring this case? Because many would argue that just individuals would have standing. They need to argue irreparable harm to the state. How do they do that?

[09:04:58] JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, Poppy, this is an incredibly difficult case in many ways. You know, it is always dangerous for so-called experts like me to predict, but this is even more difficult than usual because you have so many moving parts, and standing is one of them because states usually don't have standing to challenge the federal government. However, there's an important precedent, very recently.

When the state of Texas and other states sued to stop President Obama's immigration executive orders, they were granted standing and they won and stopped that executive order. So I expect you'll certainly be hearing that, if the standing issue is raised.


BERMAN: The administration is arguing that the President has wide latitude on issues of national security and also immigration. For the judges to rule against the administration, they have to decide what?

TOOBIN: Well, they have to decide that that authority has limits, and the limits are imposed by both statutes and by the constitution. It's important to remember, this isn't just a constitutional case. The 1965 Immigration Law, which is really the most important immigration law in the history of the country, said you can't discriminate against people coming into the country on the basis of national origin. HARLOW: Yes.

TOOBIN: That remains the law of the land, and an executive order cannot trump a statute. So this case may be decided just on a statute without even having to reach the constitutional issue.

HARLOW: Because the interesting part about that, Laura, is the fact that, you know, as many have been debating, does a family from Somalia or from Yemen who has never set foot in the United States have a right to any protection under the U.S. constitution? And what Jeffrey is saying is that might not matter.

JARRETT: Right, and that's the tricky argument. You heard Professor Dershowitz talk about that last night. And he pressed the Attorney General of Washington pretty hard on that and said, explain this, how do they have standing?

But as the Attorney General explained, they're really talking about citizens of Washington and Minnesota. Their case is, at the heart, really about people like medical students and faculty, and that's what they're worried, is losing tax revenue from those types of residents.

BERMAN: So, Jeffrey Toobin, this might not be the last step, the federal Appeals court. But with a four-four split in Supreme Court, it may be the decisive step.

HARLOW: Yes, good point.

TOOBIN: Right. I mean, that's the thing that's so interesting about that, is, usually, you know, the Supreme Court is always the last word. But here, as I think everyone knows, we only have eight members of the Supreme Court, four Republican appointees, four Democratic appointees.

If one side wins in the 9th Circuit, as one side will win, and the Supreme Court splits, four to four, the 9th Circuit becomes the law of the land. You know, we're getting ahead of ourselves a little bit, but that's just something to keep in mind.


BERMAN: We got a big phone call, first, tonight.

TOOBIN: You know, it is very weird that they're doing this by phone. I mean, it's not unprecedented --

HARLOW: And live streaming it.

TOOBIN: Well, live streaming, federal Appeals courts have been much better --

HARLOW: And that's great. That's fascinating.

TOOBIN: -- than the Supreme Court about live streaming.

HARLOW: Yes. TOOBIN: So that's good. But you know what, this is a big deal. I

think they could have gotten plane tickets to get to Sacramento or San Francisco where they usually argue these cases, but they're doing it over the phone.

HARLOW: So it is.

BERMAN: Let's hope they use landlines.

TOOBIN: It's just weird.

BERMAN: Let's hope they use landlines.

TOOBIN: Exactly.

BERMAN: Jeffrey Toobin, Laura Jarrett, thanks for being with us.

So that's the battle over executive action. What about the battle over facts? The President is now accusing the media of not reporting terror attacks, which isn't true, but take a look.


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


HARLOW: After that, the White House released a list of 78 attacks that it claims were, quote, "under reported." Now, for the truth, CNN, many other news networks as well, were on the ground covering many of those attacks as you see right here on your screen. Just a few of them, Orlando, Brussels, Paris, Ottawa, Nice, San Bernardino, and right here in New York City not very long ago.

We should note, all of these attacks are on the list. It was released yesterday from the White House.

Our panel is here. David Swerdlick, CNN political commentator and assistant editor for "The Washington Post" and Rebecca Berg, CNN political analyst and national reporter for "Real Clear Politics."

David, to you, first. Where do you think the President is getting that information?

DAVID SWERDLICK, ASSISTANT EDITOR, THE WASHINGTON POST: You know, the President has a way, Poppy, of saying -- he said this throughout the campaign, he has said it throughout the transition, he says it now -- that I'm hearing things, or people are saying, and then doesn't back that up by explaining the news source that he gets it from or the internal source that he gets it from or the data set that he gets it from. And so he gives himself just enough room to say that, yes, this is a conversation that's sort of floating out there. [09:10:00] I don't want to speculate on what's going on in his mind,

but as you guys pointed out, all these terrorists attacks -- Orlando, Brussels, Paris, San Bernardino, the list goes on and on -- have been covered. The White House, I think, is just simply over reaching in this case, instead of initially saying, you know, these attacks were under reported as they later clarified, or just simply saying, we think the press could cover these in a different way.

When the President goes out and makes that over broad statement, these attacks aren't being reported, it's feeding a narrative that he fed during the campaign and wants to continue to feed but it's simply not accurate.

BERMAN: Let's be clear. We're more often criticized for over reporting terrorist attacks --

HARLOW: Right.


BERMAN: -- for focusing on them too much. And so, Rebecca, when the President says things like this, I think, first, you have to report what he says, you have to report whether it's true -- in this case it's not -- and then you have to get to the why.

HARLOW: To what end?

BERMAN: Why might he be saying this? So, Rebecca, what do you think? Why might he be saying this?

REBECCA BERG, NATIONAL POLITICAL REPORTER, REAL CLEAR POLITICS: Well, you know, Jennifer Palmieri, the former White House communications director, actually tweeted a theory of her own just about 30 minutes ago, and she knows how this game works/worked in the White House -- the Democratic White House, but the White House nevertheless.

Her theory is that the White House knew that we, in the media, would need to refute this claim. These reports were obviously out there, was easy to disprove. But by doing so, we would revisit some of these terrorist attacks, and the Trump administration could use this as a tactic to remind Americans of the terror threat that's out there.

That's just one theory that's out there. And as David said, it's impossible for us to know, at this stage, exactly what Donald Trump was thinking when he said that and exactly what the White House is thinking. But it could be a useful tool, as they're going through these legal proceedings, to remind Americans that there have been, you know, dozens of attacks over the years, and maybe they had forgotten about those.

HARLOW: I think that's a very interesting point. And, David, to build on that, do you believe, you know, that there's merit to the argument that perhaps Democrats, in fighting this travel ban so much, could look weak to some and could look like they are not, instead, proposing an alternative? SWERDLICK: Yes, that's possible down the road. I don't think

Democrats are in danger just yet of looking like that. I think Democrats are actually cheering that these state Attorneys General are going out and pushing back and not letting the Trump administration just sort of enact these executive orders without any resistance from the Democratic or from the anti-Trump side, if you will.

But, yes, down the road, as we get toward the 2018 mid-term elections, it potentially could give Republican candidates a campaign issue. If you look at the CNN/ORC poll from the other day, almost nine in 10 Trump supporters liked the Muslim ban. Almost nine in 10 who opposed Trump didn't like the Muslim ban. So, right now, both sides are playing to their base.

BERMAN: So, guys, on a much different note, if you'll bear with us for one moment, we just got a look at some photos that both of us thought were pretty extraordinary.

HARLOW: They made our morning, let's just say that.

BERMAN: The former President of the United States -- well, that's not him. That's Richard Branson. But there is former President Barack Obama who's visiting with Richard Branson, you know, the Virgin empire leader.

HARLOW: Learning how to kite surf.

BERMAN: Yes, down at Necker Island. And these two guys are just having a blast. Apparently, the President went there after he went to Palm Springs. And if you could see these photos, there's Richard Necker kite surfing, but pretty soon, you're going to see the former president trying it.

And I don't know if there's deeper meaning here other than it's --

HARLOW: But I think said -- didn't Branson say that the President won? Maybe he let the President win in their kite surfing competition. Rebecca Berg, what do you think?

BERG: Well, I think any of us could agree that a two-term president deserves a little bit of break after he is finished with that stressful, taxing job. George W. Bush, of course, had his painting as his hobby. This is a little bit more extreme, but it looks like they're having fun out there.

BERMAN: And it's a heck of a smile from the former president.

HARLOW: Right.

BERMAN: He seems to be enjoying his retirement.

HARLOW: And I had read that he told Branson about the security, "They didn't let me. I couldn't surf at all for eight years." Couldn't endanger himself, you know, so now he gets to hang loose.

BERMAN: That looks plenty of years. I couldn't do it. HARLOW: Yes, yes, yes. I could. I could definitely do stuff like


BERMAN: He had the balance. I like the balance.

HARLOW: Guys, thank you very much, David Swerdlick --

BERG: Thank you.

HARLOW: -- Rebecca Berg.

BERMAN: All right. Straight ahead for us, it's the Democrats' Hail Mary, their final chance to stop maybe any of the President's Cabinet nominees. They've been fighting all night on the floor with the key vote just hours away.

HARLOW: Also, it's not the only battle the White House is facing on Capitol Hill. Senator Marco Rubio telling CNN he has a new warning if there is any attempt to try to end those sanctions on Russia, straight ahead.


[19:18:45] JOHN BERMAN, CNN ANCHOR: All right. We have some live pictures to show you on the Senate floor. That is Democratic Senator Chris Coons of Delaware. He's one of several Democrats who pretty much been up all night in the Senate. They are trying to tank the nomination of Betsy DeVos to be education secretary.

As of now we believe the vote in the Senate is split 50/50.

POPPY HARLOW, CNN ANCHOR: And if it is, indeed that, the vice president, Mike Pence, would have to cast a tie-breaking vote, something never before seen in history for a cabinet pick.

But one Democrat on CNN last night said there may be another Republican defector willing to vote against DeVos in a few hours and that will completely change the game. We will see.

Our Sunlen Serfaty joins us this morning with the latest.

Good morning.


That would certainly change the game and that optimism was expressed by the senator from Michigan, and she said maybe we will be able to find another Republican to sink DeVos's confirmation, but the reality at this moment at this time is that they still have not found another Republican to come around and break ranks, meaning this is headed towards Betsy DeVos being confirmed as the next education secretary. This after over 20 hours and counting of debate on the Senate floor overnight, Democrats taking one by one, launching broad attacks against Betsy DeVos.

[09:20:11] But the reality is starting to set in a bit I should say, because we are hearing from some Democrats who say, look, the writing is on the wall. They haven't picked up these additional Republican support.

That's something we heard from Senator Murphy say earlier this morning on NEW DAY.


SEN. CHRIS MURPHY (D), CONNECTICUT: I think Republicans are very reluctant to break with Donald Trump the first few weeks. They haven't been willing to challenge him on this reckless, illegal Muslim ban. They're not willing to challenge him on nominees that I think even they know in their heart of hearts aren't qualified. I think it's because they are trying to co-opt him to sort of get their agenda done. They want to repeal the Affordable Care Act. They want a trickle down tax cut down. So, I think they don't want to risk upsetting him so that they can get their sort of right-wing economic agenda through later in the year.


SERFATY: Now, the vote will happen around noon today, and the Republican leadership -- they are very confident that DeVos will be confirmed and go on through.

But, of course, they do need the support of Vice President Mike Pence who will be headed up at some point here to Capitol Hill to cast a tie-breaking vote. And this is a first, guys. Never before has the vice president casts the deciding vote on a cabinet nominee.

BERMAN: And that happen in a couple of hours, Sunlen, obviously. You will want to watch CNN for that because it will be something to see when the vice president votes --

HARLOW: Absolutely, we will carry it live here.


BERMAN: -- he does cast that vote on the Senate floor.

All right. Sunlen, thanks so much.

The president is also facing new pressure this morning from the Senate on Russia and that coming from within his own party. Senator Marco Rubio from Florida issuing somewhat of a threat.

CNN's senior congressional reporter Manu Raju has the scoop for us from Capitol Hill.

Manu, what did he tell you?


Yes, this is a real flash point between Republicans on Capitol Hill and the administration. Republicans want to take a much firmer line on Russia and Putin than, say, Donald Trump does. Particularly in the aftermath of this weekend's comments in which Donald Trump seems to equate what Vladimir Putin has done in Russia with what United States has done in its military operations overseas.

Now, Marco Rubio who is a member of the Senate Foreign Relations Committee supports stiffer sanctions on Russia and is warning Donald Trump and the White House if they were to roll back those sanctions if Russia does not pull out of Ukraine, then Congress may rollover at the White House.

Here's what he had to say.


SEN. MARCO RUBIO (R), FLORIDA: There's a real threat of lifting sanctions, minus the respect for Ukrainian sovereignty and sort of -- and Putin meeting those conditions. My sense is that we would have the votes to pass that in the Senate that we would be able to pass with a veto-proof majority.


RAJU: Now, the question is, when does that happen? Right now, the Republican leadership in the House and Senate have not scheduled the votes on any sanctions legislation, and I am told by senators, one reason why is they want to continue those investigations that are happening behind the scenes, particularly in the Senate Intelligence Committee, which is looking through the Russia hacking and allegations of Russia manipulating the United States elections, and those investigations happening in a classified setting.

But I am told they are trying to move rather quickly. So, we'll see if they decide to move quickly on sanctions as well -- John and Poppy.

HARLOW: All right. Manu, thank you very much. Great reporting as always.

Also this, making headlines. President Trump says he may not, actually, tax companies to pay for the Mexican border wall. He said this in his interview with FOX's Bill O'Reilly. This is a big change.

We're joined by CNN Money's Christine Romans, our business chief correspondent.

I think we have the sound. I love to play it so people can hear.


BILL O'REILLY, FOX NEWS HOST: Have you figured out what kind of tariff you're going to levy on Mexico to pay for the wall?

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Well, we might not have to do that. They want to negotiate a deal. I want to negotiate a deal. We'll see what happens.

But we can always do a tariff or tax if necessary, and we'll do that if necessary. (END VIDEO CLIP)


You know, there's a lot of parsing of what exactly he meant and whether he'll stick to that, quite frankly. How he would impose tariffs on Mexico to pay for the border wall or impose tariffs in general for companies that shipped overseas and produce overseas. That's still needs to be worked out.

HARLOW: Is that an about-face to you?

ROMANS: Look, I am not going to hold him literally to those words right now, and I'll tell you why? Because Wall Street hasn't. They pressed the pause button on this. They, quite frankly, are looking at immigration stuff, the wall stuff, the tariff stuff, and they're saying that that's taking away from the pro-growth policies.

It's why you see if you look at futures today, they're barely moving. You know, you've got Goldman Sachs putting out a report saying the Trump rally may have peaked here because of things like uncertainty over what tariffs are going to look like and also this travel ban stuff.

BERMAN: Where are the markets today?

ROMANS: Markets, I think they're a little higher right now. They're above 20,000, but frankly, I'm going to be watching GM. GM just posted their best years of car sales ever, 10 million cars.

[09:25:04] And GM workers, by the way, are getting a $12,000 profit sharing for the 52,000 GM UAW workers in the U.S.

So, that's sort of a big GM story, which is interesting I think in the world of, you know, the president criticizing Mary Barra and GM for its overseas expansion and the like. That's something interesting for those autoworkers.

BERMAN: Maybe they have more flexibility. The companies do, than previously thought.

It's also interesting on the tariff, you know, tax flip-flop, it's hard to know because he said, you know, every variation of it over time. Yes, he's going to issue a tariff and a tax --

ROMANS: Absolutely. Look, I think that he's been using those words in my view, it looks almost interchangeably.

BERMAN: Right.

ROMANS: And when he says border adjustment tax, that's different than a tariff, which is a different than a tax --

HARLOW: But just remember, if it happens, if there is any tariff or tax, it's not Mexico paying for the wall. ROMANS: That's right.

HARLOW: It's American companies and they're going to pass on to you, folks.

ROMANS: American consumers, absolutely.

HARLOW: Remember that.

BERMAN: All right, Christine Romans, star of "EARLY START", great to have you here with us.

Still to come, President Trump's travel ban faces a big test today as attorneys general from more than a dozen states team to have a huge hearing coming up. We're going to speak to the attorney general of Virginia, next.

HARLOW: Also tonight, right here on CNN, the future of your health care with Senators Bernie Sanders and Ted Cruz, a heated debate no doubt ahead. Hosted by our very own Jake Tapper and Dana Bash tonight, at 9:00 p.m. Eastern, only right here.

BERMAN: Maybe they can do something for my throat to give me my throat back. Dr. Cruz, paging --