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Federal Judges to Hear Travel Ban Arguments; Travel Ban Fight Reaches 9th Circuit Tonight; Trump Falsely Accuses Media of Ignoring Terror; House GOP Leaders Hold Weekly News Conference; Homeland Security Secretary Testifies on Hill. Aired 10-10:30a ET

Aired February 7, 2017 - 10:00   ET



JOHN BERMAN, CNN ANCHOR: Good morning everyone. I'm John Berman.

POPPY HARLOW, CNN ANCHOR: I'm Poppy Harlow. So glad you're with us, 10:00 a.m. Eastern and the president today, facing critical tests in both policy and personnel. Later today, three federal judges will hear arguments on whether or not to reinstate the travel ban on individuals from seven Muslim majority countries. Today's hearing to be conducted a little bit oddly over the phone may well set the stage for a fight at the Supreme Court level.

President Trump, again lashing out at the media, falsely claiming that the media did not report on a number of terror attacks. But as you see on your screen there, CNN covered many of those attacks listed on the White House printout.

BERMAN: Yes, we did.

All right, in the Senate, right now, Democrats are wrapping up 24-hour offensive against Betsy DeVos, the nominee for Education Secretary. They spoke all night. That's not what you're looking at right here but the senators have been on the floor all night. Democrats have, arguing the case against Betsy DeVos.

As of now, Vice President Pence, he will need to break a tie. It's 50- 50. He would need to break a tie and that will make history when he casts his vote.

Also on Capitol Hill, you're looking at live pictures right now from the Homeland Security Committee. This is on the House side. The secretary of Homeland Security, General Kelly, is expected to testify any minute right now. The question is will he talk about these Executive Orders that are so controversial. Will he talk about the border wall? We will get to all of this in this jam-packed hour.

But first, let's talk about this telephone hearing tonight on the president's Executive Order on the travel ban, joining us, CNN justice reporter Laura Jarrett and Page Pate, constitutional attorney. Laura, first to you, help us understand how this will work this evening.

LAURA JARRETT, CNN JUSTICE REPORTER: So, later tonight, around 6:00 p.m. Eastern, we will have a hearing that is held by phone. The judges will hear argument for about 30 minutes per side. And then, they could either rule from the bench, which will send everybody into a tizzy, or they'll do a written opinion later tonight or even maybe tomorrow.

We've got a mixed panel of judges here. One was appointed by a Republican president and two were appointed by Democratic presidents. Judge William Canby, an appointee of Jimmy Carter. He's out of Phoenix. We've also got Judge Michelle Friedland, who is appointed by President Obama. She's in San Francisco. And then, finally, we've got Richard Clifton, an appointee of George Bush. He's a senior judge who sits in Honolulu.

HARLOW: We also have - Page Kate, let me bring you in here, 16 states attorneys general who have filed. Basically, they agree with the State of Washington and Minnesota. And they are saying, we agree with you that this is in violation of the Constitution. Interesting but does it do anything to bend the mind of these justices?

PAGE PATE, CRIMINAL DEFENSE ATTORNEY: Well, we'll find out. I mean, it is very unusual for states to try to join a lawsuit that they didn't bring in the first place. --

HARLOW: Are they joining it or they're just saying we support it -

PATE: They're trying to intervene. At least, Hawaii is trying to intervene. The other states have filed a brief supporting the arguments. But eventually, this decision is going to affect every state. So, it doesn't surprise me at all that you would have other states step in to try to support the arguments that are being made by Washington and Minnesota that this ban affects our people and nobody else is here to speak up for them except the states.

BERMAN: In making its ruling, will this three-judge panel weigh in on whether or not there is, in fact, a threat from the types of people of this travel ban keeps out?

PATE: That's certainly possible, but I really think we need to be cautious about our expectations here. The Ninth Circuit right now is only trying to determine if this temporary restraining order should stay in place.

BERMAN: -- How would they decide that?

PATE: Well, they're first going to ask about standing. We've talked a lot about standing. It's a legal concept. Do the states have the right to sue? And that may take up most of the hour of the argument because if the states can't bring this lawsuit then we never reach the constitutional question. --

HARLOW: It is a great point. So Laura, to Page's point, I mean, does Washington, Minnesota have to say that we as a state and states have been irreparably harmed? That is a high bar for them to prove. Usually, it's just individuals who would have standing. How difficult will this be for them?

JARRETT: Well, we'll have to wait and see what the court thinks. Their argument kind of rests on this idea that, look, they have a number of public universities and medical students and faculty who are abroad or want to travel back and forth between the U.S. and home. And so their tax revenue is affected if they are prevented from coming in the U.S. We'll have to see whether that stands up for the Ninth Circuit.

BERMAN: You know it was interesting with the Attorney General of Virginia, Mark Herring, on with us the last hour, Page. And every question we asked, he turned it around to say, this is hurting us in Virginia. We're losing money. We're losing business. We're losing people at our schools. And the reason he's doing that is because of this issue of standing.

[10:05:00] PATE: Yes. But it's still speculative. I mean, everybody looks back to the case where Texas was able to show standing to challenge President Obama's immigration order. --

BERMAN: That's right. This just happened a few years ago.

PATE: That's right. But it was very thin. I mean, in that case, Texas was saying if you keep these in place, we're going to have to spend more money on driver's licenses, supporting these folks. Here it's even more speculative because they can't point to specific dollar amounts that the state is going to lose.

But there's another way they can have standing. They can say that we're the only people who can make this argument. We need to represent the people of our states, and that's an argument that frankly has not been decided on by the Supreme Court.

HARLOW: Right. That will make it even more fascinating. And obviously, we'll be covering it all live. That phone call they're going to live stream it, so everyone can see it happening a little bit later today. Laura, thank you very much and Page, thank you as well.

PATE: Thank you.

HARLOW: President Trump meeting behind closed doors this hour with county sheriffs from across the country. He will face a pretty friendly audience as he focuses on hot-button issues like border security, illegal immigration, and drug related violence.

BERMAN: All right. But the president is also being questioned for statements he has made. False statements, he has made about the media which he says ignores terror attacks. The White House has walked back that claim, a little bit. Not really. CNN's Joe Johns at the White House. Joe, what are you hearing?

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: Well, they have walked it back, John, when you think about it. The point, according to aides, if you listen to them, that the president was trying to make is that terror attacks have lost or are losing their perceived news value because of their frequency. But the problem is that's not what the president said.

He said news media organizations are not reporting certain terror attacks. He implied there were reasons for that, but he didn't articulate the reasons. And President Trump has been accused before of allowing his words to sort of get in front of this message. And some say that's a good example. Listen.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: 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: And it's just not true, of course. CNN has reported on many of these terrorist attacks, and the list of something like 78 that the White House put out and many other news organizations have reported on them as well. So, it's just another example, perhaps, of the animosity, if you will, between the administration and some in the news media. John and Poppy?

HARLOW: Joe Johns, thank you very much. We appreciate the reporting.

A lot to talk about and as the White House finds itself in this battle over Executive Orders, another war is raging. This one, over facts the president is now accusing the media, as we just said, of not covering these terror attacks. Take a moment and take a look because CNN was there and many, many other networks were there for a number of the attacks that were on the list that came out from the White House. Also listen to this.


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.


BERMAN: So, as Joe Johns just reported, after the president said that, the White House released a list of 78 attacks it claims were underreported. The fact is CNN was on the ground. Look at these pictures, for a great many of these attacks. These are just a few of the scenes from Orlando, Brussels, Paris, Nice -- you know, San Bernardino, Paris twice, I should add. And right here in New York. And, look, we're not trying to say, I told you so here. It's just a fact that the media has covered a lot of what the president said we did not.

All right, we're going to discuss right now. Ryan Lizza, CNN political commentator, Washington correspondent for "The New Yorker" and Lynn Sweet, Washington bureau chief for the "Chicago Sun-Times." Ryan, you know first to you, we are more often criticized for over reporting terrorist attacks, for sensationalizing them. I think this is the first time that I've heard - well, certainly from the President of the United States, saying that we're not reporting them enough. RYAN LIZZA, CNN POLITICAL COMMENTATOR AND WASHINGTON CORRESPONDENT "THE NEW YORKER": I think that shock with the eight screens, as what the kids call bringing receipts. I mean, there's no doubt about it that CNN as other news networks have made terror attacks, one of the highest priorities. I'm probably a little bit more on the side of we don't do enough to put terrorism in the proper context, actually, at least in the United States since 9/11, under 100 Americans have been killed in terrorist attacks inside the U.S. in ten attacksm right? You're more likely to die in the United States from slipping in the bathtub than terrorism, thank God. Now that's -

BERMAN: Why are these guys saying we're over reporting it essentially?

LIZZA: Look, it's incredibly important issue. Terrorism worldwide has spiked since 2013. There's no doubt about it. Since the Syrian Civil War and the rise of ISIS, it's important.

[10:10:02] But since 9/11, we have put together anti-terrorism infrastructure in this country that has, by and large, protected us. And that's important to note. To me, the question is, why is the White House making terrorism such a priority? --

HARLOW: To that point, as we discussed in the last hour, Jennifer Palmieri, formerly with the Obama administration, Lynn, made this point conjectures. She said one of the reasons maybe why is the president this bringing this up, that he wants to, in a way, in a round-about way highlight the number of global terror attacks in recent years and say, look, the past administration and world leaders did not do enough to stop them. Do you think that argument has merit?

LYNN SWEET, WASHINGTON BUREAU CHIEF "CHICAGO SUN-TIMES": It has merit if you want to go down that route, which is different than accusing the news media of just ignoring horrific situations that happened, which is a staple of what cable news does, for better or worse, as you've just said in the examples. And you have talked about.

I'm kind of thinking that this is comfortable territory for President Trump to look at what happened. He bashed the media. He's comfortable with that. And he talked about the threat of terrorists. You can do that at this stage early in the administration where you're still aren't responsible for having a budget, for having programs, for having details as to how exactly you want to execute your program.

And just one other word about accusing the press of not reporting terrorist attacks. We have a robust network of all kinds of news organizations in this country, and I cannot see any local outlet not reporting on a horrible situation in their backyard.

BERMAN: Lynn Sweet, Ryan Lizza, stand by. House Speaker Paul Ryan is taking some questions here. Let's listen in.


REP. PAUL RYAN (R), HOUSE SPEAKER: Over or under reporting something, that's your job. I'll stick with doing mine. Yes?

UNIDENTIFIED FEMALE: Over the weekend, President Trump twitted about (INAUDIBLE)


UNIDENTIFIED FEMALE: -- appropriate for the Speaker of the House to say -- it is important to respect other branches of government?

RYAN: We respect an independent judiciary. This is a separate branch of government. Look, he's not the first president to get frustrated with the ruling from a court. I think what's most important are the actions. This administration is honoring the ruling, and this administration is going through the proper procedures to deal with the ruling, to try and get the ruling overturned. They are going through the appeals process. They are respecting the separation of powers and the process. Look, I know he's an unconventional president. He gets frustrated with judges. We get frustrated of judges. But he's respecting the process and I think that's what counts at the end of the day.

UNIDENTIFIED FEMALE: The president also talked about a timeline for changing the current health care system. He put that at a year. Is that a time you're comfortable with? Is he getting that from you or -

RYAN: No, no, I think there's a little confusion here. The legislating is going to be done this year. We are going to be done legislating with respect to health care and Obamacare this year. The question is how long does it take to implement the full replacement of Obamacare? And that's why, honestly, we have to get Tom Price over at HHS, Seema Verma confirmed at CMS, so they can get to work with replacing this collapsing law. So the question about how long it takes to effectuate the change, how long it takes to put these things in place. That is a question that the HHS can answer. But as far as legislating is concern, we're going to do our legislating this year.

UNIDENTIFIED FEMALE: On that thing as you know, over the weekend we saw a fair amount of backlash from Americans voicing their concerns, directing it to Republican members about this. Are you concerned that you need to not just present a plan but sell it to the American people quickly?

RYAN: Look, I think it's important for people to speak their minds in this country. We cherish the first amendment and people who are concerned and anxious, we want them to know we want to listen to their concerns and that peaceful protests are something we honor in this country. I just hope people keep it peaceful, respect private property, no violence. And so, this is something that we cherish. We've been doing this in Wisconsin for many, many years. We're used to this where I come from. But the point that we cannot escape, Obamacare is collapsing. It's not working. Premiums are going up double-digits, deductibles are so high, doesn't even feel like you got insurance.

So, the law is in the middle of a collapse and it's our duty and obligation to replace it with something better. The good news is we actually ran on a plan to replace Obamacare. And now, our committees are in the midst of actually putting that plan together. And so, yes, this year, we're going to be going out and talking about what our plan is. The one we ran on in 2016 and why it's going to be better. And so, that's what I think you should take a look at. Take a look at our plan for pre-existing conditions with high risk pulls. Do you think it's far superior, take a look at our plans for refundable tax credits so people get affordable health care insurances? Take a look at our plan for more insurance competition, so that we can actually have competition in the marketplace, so that we can get prices down.

[10:15:00] That is the beautiful thing about the American health care system that we want restored. And so, we do have plans. Our committees are busy underway doing this and yes, we're going to have a great conversation with our fellow citizens, about how it is our mission to rescue the health care system from its imminent collapse and to give people something better. And we hope to get this done as fast as possible because families are counting on us.


RYAN: Where are you from?

UNIDENTIFIED FEMALE: (INAUDIBLE) When do you expect that? How much do you expect and what vehicle do you expect on bringing that to the House?

RYAN: Sooner or it's better than later. But I don't know the answer to the size and scope of it because they haven't sent it to us yet. But we've always long anticipated that we would get a supplemental from the administration on defense issues, on national security issues, and we expect that. Thank you very much.


BERMAN: You are listening to House Speaker Paul Ryan there. Ryan Lizza and Lynn Sweet back with us now. Little cleanup on aisle three, Ryan, right there, you know the House Speaker right out of the gate, saying, I'm not going to comment on whether the media over reports or under reports terrorism. Right out of the gate, the House Speaker essentially saying that you know, Obamacare, we're going to pass legislation sometime this year, despite what the president said, maybe next year, and then right out of the gate, Paul Ryan, saying well I am not so sure the president was criticizing federal judges the way he was.

LIZZA: Yes. I mean, he's asked about the three things Trump has been - it's criticizing recently, we in the media, federal judges, people's right to protest and Paul Ryan gives the - can I answer that frankly any politician normally gives, right? Don't attack the judiciary. They are independent. He gave the sort of normal politic response to all of those. Look, every Republican press conference for the last two years has been the same thing, right? Donald Trump said this outrageous thing. What do you think? So this is just the way it's going to be.

HARLOW: Yes, I just wonder, Lynn, what you think that does overall to the party, you know, big picture. I mean, is it going to be four years of clean up on aisle three as John puts it?

SWEET: I like that term. I think it's also going to be three years of Paul Ryan saying Trump is an unconventional president. I like that term, as if that explains everything. Well, he's unconventional, but so, implied when Paul Ryan says he's unconventional, you kind of think implied in that, so we cut him some slack. That's what I don't know is going to last when you talk about the next four years.

I think after a while, I just have this sense that once you've got a State of the Union, once you get a Trump budget, this will change because then he is in the thick of legislating, having to work within his own party without -- he has to get through that before he can even think about going across the aisle. So, I don't think it will stay the same. I think it will change and the first thing I've looked at is when he has to actually do a budget because he has to actually make all kinds of decisions and it will open up other conversation streams and the big three, Ryan Lizza, that you talked about.

HARLOW: Of course, there were moments during the campaign, -- to a sitting president when Paul Ryan would differ from him and say things like that's the textbook definition of racism in a few rare moments, he'd do that. Thank you. Nice to have you both on, Ryan Lizza and Lynn Sweet.

Still ahead for us, Homeland Security Secretary John Kelly about to testify in front of the House, Homeland Security Committee, they're going be talking about the border wall and U.S./Mexico security. When it starts, we'll bring it to you live.


[10:22:28] (BEGIN VIDEO CLIP)

SEN. CORY BOOKER (D), NEW JERSEY: Sadly, there still is a need for an office for civil rights in the Department of Education that is aggressive when it comes to the defense of freedom and our rights. I did not hear such a commitment from this nominee.


BERMAN: That was Senator Cory Booker from New Jersey, one of the Senate Democrats who's up all night on the Senate floor and an action that's really still going on. They're trying to stop the nomination of Betsy DeVos to be Education Secretary. Right now, we've been counting votes. It's 50/50. It's a 50/50 split. If that holds, it means that Vice President Pence would have to cast that tie-breaking vote later today which would be a story.

HARLOW: Yes. It never happened when it comes to a cabinet pick.

Soon, Democratic leaders are going to hold a press conference to talk about the DeVos vote. Our Manu Raju and Sunlen Serfaty are live for us on Capitol Hill. And Sunlen let me begin with you because the Democratic senator from Michigan, Debbie Stabenow, said on this - on CNN last night on this network, look, we think we might have that one extra Republican needed to come to our side to block her. Are you getting any sense that they do have it, and who would that be?

SUNLEN SERFATY, CNN NATIONAL CORRESPONDENT: No, the reality at the moment, up here on Capitol Hill, Poppy, is that Republicans are still standing firm and that we haven't seen an additional defection as was predicted last night by the Michigan senator. And that was the point of this Democratic protest all night on the Senate floor, now going on 20-plus hours of debate in back-to-back speeches. They hope that they could ratchet up the pressure and pick up just one Republican vote. But as of now, that has not happened. Poppy?

HARLOW: All right. Sunlen, stand by. Also stand by, Manu. We're going to jump in to listen to Homeland Security Secretary General John Kelly who is speaking now. Let's listen.


JOHN KELLY, HOMELAND SECURITY SECRETARY: I have recently had the opportunity to witness first-hand the pride, experience and professionalism of the DHS workforce. And I am proud of our men and women as the nation should be as well. As secretary, you have my commitment to vigorously protect our country, secure our borders and enforce our laws, all the while facilitating lawful trade and travel. In doing so, know that I take seriously our responsibility to balance security with the protections afforded by law, privacy rights and our civil rights and liberties.

Securing the nation's borders is one of the primary responsibilities of any sovereign nation, including ours. Under my leadership and the direction of President Trump, we will finally do so. We will build appropriate physical barriers which will be monitored and supported by trained professionals within the Department of Homeland Security.

[10:25:05] We will work to prevent illegal immigration, drug and human trafficking and terrorists, and I include here Narco terrorists, from entering our nation. We'll enforce our immigration laws in an efficient and effective manner. We'll work closely with state and local law enforcement partners, some of whom are here today, all of this in consistent with of course federal law.

It's our duty to protect our citizens from terrorism and to prevent the admission of foreign nationals who intend to exploit our generous immigration laws. The president's Executive Orders on border security and immigration enforcement will enhance public safety for all of our citizens. The president's recent Executive Order to temporarily suspend entry for foreign nationals from seven countries, we believe, is lawful and constitutional and the review ordered by the president is necessary and appropriate.

It will enable us to assess the adequacy and availability of information we need from all countries to adjudicate all visa applications. Other benefits under our existing immigration laws and to determine if the person seeking the benefit is, in fact, who they say they are and would not present as a threat. -- While some of the core tenets of this order are the subject of ongoing litigation, it's my belief that we will prevail and be able to take the steps necessary to protect our nation.

Americans must feel safe to walk down the street, go to the mall or to a nightclub, anywhere and any time. Fear must not become the status quo as it has in so many parts of the world. My responsibility and that of the tremendous men and women of the department is to carry out those lawful measures in a manner that best protects the safety of all Americans. The safety of American lives is and will always be my foremost concern.

Before I conclude, I'd like to thank the committee for its continued leadership notably in seeking to reauthorize the department. I appreciate your reference especially in securing the memorandum of understanding which will help facilitate the reauthorization we currently need. The threats and challenges have changed since Congress created DHS some 15 years ago. We need to update the authorities to successfully complete our mission today. I look forward, sir, to answering your questions.

UNIDENTIFIED MALE: Thank you, Mr. Secretary. I now recognize myself for questioning. We look forward to working with you on the authorization, which is long overdue. Let me say first, I agree with the policy of the Executive Order. It's consistent with a memo I drafted with -- to then candidate Trump with Mayor Giuliani, Attorney General Mukasey.


BERMAN: You're listening to Homeland Security Secretary John Kelly there, testifying before the Homeland Security Committee in the House. Interesting in the opening statements he talked about the travel ban, which, of course, is up before the Ninth Circuit Court of Appeals this afternoon -

HARLOW: Today.

BERMAN: Today. He said he does believe it's legal and he also said, he does believe it's important. Want to bring in Manu Raju on Capitol Hill. Manu, it's interesting because Secretary Kelly, since last week, has been tasked, I think, by this White House, to sort of fix some of the perception problem with the implementation of the travel ban. That means the public perception and also the perception on Capitol Hill where there has been a lot of criticism.

MANU RAJU, CNN SENIOR CONGRESSIONAL REPORTER: Yes. There's no doubt about that, guys, actually. One of the things that you're hearing from a lot of Republican lawmakers is that -- well, John, we had concerns initially when this came out. We had concerns about the way this is rolled out. But now that Secretary Kelly is involved, now that he's trying to clean it up and make some changes, deal with things in terms of green card holders, ensuring that they can come back to the United States, they feel a little better now.

And Kelly's testimony today, important in that regard, the question is whether or not he can alleviate enough concerns among Republicans to prevent them from pushing legislation that would actually rescind that Executive Order. We are getting a sense from most of that. These Democrats are pushing very hard for that -- for legislation to rescind the Executive Order but not from Republicans. Even Republican critics don't want to go there because of the assurances that Secretary Kelly is making publicly and privately right now on the Hill. So, his testimony today is very important as well. What he's saying to members of Congress, at least keeping Republicans at bay for the time being, even as public criticism over the Executive Order continues to grow, guys.

BERMAN: All right, Manu Raju on Capitol Hill. Thanks so much.

We should say the president just spoke moments ago at the White House about the travel ban and the fight and how far he is willing to take this fight. We'll play that sound for you right after the break.