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ERIN BURNETT OUTFRONT

Live: Attorneys Arguing Travel Ban Case; Appeals Court Hears Oral Arguments In Travel Ban; Appeals Court Hears Arguments Over Trump Travel Ban. Aired: 7-8p ET

Aired February 7, 2017 - 19:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


NOAH PURCELL, WASHINGTON STATE SOLICITOR GENERAL: -- children, to grandmothers, to people who pose no plausible threat whatsoever to this country. So I guess I just ask the court not to lose sight of that statutory claim especially because I do think it goes -- it helps drive home that the court can review this order, the court should review this order, and should give it the constitutional and statutory scrutiny that it deserves.

If the court has no further questions we would ask that you -- well, first we'd ask that you treat this as a mandamus writ and deny it but if you're going to treat it as motion for stay we'd ask you deny it and if you have reason opinion doing so. Thank you.

JUDGE MICHELLE FRIEDLAND, UNITED STATES CIRCUIT JUDGE OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT: Thank you. Mr. Flentje, we let Mr. Purcell go a little bit over, so I'll give you five minutes for rebuttal.

AUGUST FLENTJE, LONGTIME JUSTICE DEPARTMENT LAWYERTHANK: Thank you very much, your honor. I just want to address a couple quick points. First Din. You know, whatever Din says about looking at counselor decision making does not suggest that we look behind a National Security determination made by the president where that determination, at the four corners of that determination are explicitly based on the congressional determination that the countries at issue are of concern and does not go beyond that.

FRIEDLAND: I thought you were using Din and Mandell as or your main authority for the unreview ability. And so, now you're saying those are distinguishable. I'm a little confused whether you're relying on those cases or not.

FLENTJE: We are definitely relying on them for the limits that courts review these types of issues. I'm adding that when you have the document itself -- and that's the best evidence of the intent of the president, it relies exclusively on the calls made by congress and the administration 2016 about the safety concerns presented by the specific countries at issue, that is the end of the inquiry and should be.

In fact, I, you know, counsel for the other side started -- cited this court's recent Cardenas' decision and their -- in describing the state of the law, the court very clearly said the congress could have enacted a blanket prohibition on -- I think it was describing Mandel on communist aliens and that is -- and here, we have the president making a categorical determination based on the identification of countries of concern. And there's nothing --

FRIEDLAND: I don't think you answered the question that was asked earlier about what if the order said no Muslims. You've been analogizing to cases that were about people who were communists who advocated overthrow of the U.S. Government. And are you saying that the external evidence here that is alleged, that the intent here was to ban Muslims, is equivalent to that?

FLENTJE: If there were an executive order that prevented the entry of Muslims, that -- there would be people withstanding to challenge that. And I think that would raise establishment cause, first amendment issues. But that's not the order we have here. This order is limited to the countries defined by congress and let me -- on the refugee --

FRIEDLAND: But the allegations are that that was the motivation and plaintiffs have submitted evidence that they suggest shows that that was the motivation, so why shouldn't the case proceed perhaps to discovery to see if that really was the motivation or not?

FLENTJE: We're not saying the case shouldn't proceed. But it is extraordinary for a court to enjoin the president's National Security determination based on some newspaper articles. And that's what has happened here. That is not -- that is a very troubling second guessing of the National Security decision made by the president. And the notion that we are going to go back and --

JUDGE RICHARD CLIFTON, SENIOR FEDERAL JUDGE ON THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT: Stop. Stop. This is Judge Clifton. You deny that in fact the statements attributed to then candidate Trump and to his political advisers and most recently Mr. Giuliani, do you deny those statements were made?

FLENTJE: Judge Clifton, I -- no. I would note that Judge Robart himself said that he wasn't going to look at campaign statements. I do -- and I think what we --

CLIFTON: That's a different point. I mean, I understand the argument they shouldn't be given much weight, but when you say we shouldn't be looking at newspaper articles, it's -- we're all in the fast track here. Both sides have told us it's moving too fast. Either those kind of statements were made or they're not. No. If they were made but they were made not to be a serious policy principle, I can understand that. But if it were made, it is potential evidence, it is a basis for an argument. So, I just want to make sure I know what's on the table.

FLENTJE: Well, those were in the record but I think my point is a little narrower that in the expedited procedure of a TRO, taking this extraordinary action of halting this order that the president determined was in the National Security interest of the United States is an unwise course and it should be stayed.

FRIEDLAND: If you thought there was a problem that this is too preliminary, if we let it go forward to preliminary injunction hearing, do you have evidence that you would present?

FLENTJE: I think we definitely would like the opportunity to present evidence back in the district court and we also think that the scope of this loss really needs to be --

FRIEDLAND: Can you -- can you tell us anything about the type of evidence you would present so that we can consider that whether further proceedings are needed?

FLENTJE: Not yet but I do -- another point is the scope of the suit and the injunction would really need to be narrowed as the parties focus in on the actual harms. The harms that Washington has cited focus on residents of Washington. But the order goes way beyond that to the arias of the most concern of the president, people who have never been to this country yet and have no connection to Washington, no connection to the United States, and no claim of constitutional rights either on their own or through Washington.

CLIFTON: If I can ask my colleagues to indulge me for a moment, that does raise a serious concern on my part and the scope of the order, most obviously having to do with the lawful permanent residents which the government's position now is they're not included within the scope of the order, I have to say is there any legal authority for the council of the president to have power to instruct the other departments or instruct us as to what the order means?

I mean, the president can amend the order but I'm not sure the council to the president has that authority. So, why is it we should be looking at this reconceived order and why is it we should rather than try to narrowly carve out the injunction you're asking for, those are practical problems, I don't know how I'd write such an order. Why shouldn't we look to the executive branch to more clearly define what the order means rather than have to look through the lens of subsequent interpretations?

FLENTJE: Let me make two points there. One, the guidance from the White House counsel is the definitive interpretation of the order and the White House Counsel speaks for the president in this context. Second, in our reply brief at the very end on page 11, we had our kind of suggestion for the kind of order that would actually address the harms identified by Washington. And there, I'm going to read that.

At most the injunction should be limited to the class of individuals on who the states' claims rest. Previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future. That is the core of the harm they've identified. When we're talking about an injunction entered on such a preliminary basis, it should be limited to the claims that the state is making and not issued more broadly. If there are no further questions, I encourage the court to stay the injunction or to limit it to the presentation of the State of Washington. Thank you.

FRIEDLAND: Thank you, counsel, for your very helpful arguments. This matter is submitted. We appreciate the importance and the time- sensitive nature of this matter and will endeavor to issue our decision as soon as possible. Thank you again for appearing on such short notice. We are adjourned. Court for this session stands adjourned.

WOLF BLITZER, CNN ANCHOR: I'm Wolf Blitzer in Washington. You've just heard the live oral arguments on whether or not to immediately restore the president's travel ban. Erin Burnett is in New York with full analysis of the hearing.

ERIN BURNETT, ERIN BURNETT OUTFRONT HOST: Good evening. Welcome to our viewers across the country around the world. I'm Erin Burnett. You've been listening to the oral arguments on the fate of President Trump's travel ban. And let's talk about what we have just heard. Jeffrey Toobin is with me, Former Federal Prosecutor Paul Callum, Former Prosecutor Alan Dershowitz, Professor Emeritus at Harvard Law School, Arian de Vogue, our Supreme Court reporter, Tony Blinken who is deputy secretary of state, and National Security adviser in the Obama administration, and David Urban, former Trump campaign strategist. All of you with me. Let me go to the lawyers first. What did you hear, Jeffrey?

JEFFREY TOOBIN, FORMER FEDERAL PROSECUTOR: Well, let me preface this by saying that I am the world's foremost authority on being wrong based on just listening to oral argument. I mean, you cannot pretend that oral argument is exactly what you will get in the decision. However, just in a general way, you certainly seem to have two judges on opposite sides. Judge Friedland seemed very sympathetic to the Washington Attorney General. She's the Obama appointee.

BURNETT: She is of course the 44-year-old Obama appointee.

TOOBIN: Judge Clifton seemed more sympathetic to the Trump administration, the republican appointee from Hawaii. Judge Camby in general who is the much older, 85-year-old --

BURNETT: Cater appointee.

TOOBIN: Carter appointee, brother-in-law, he seemed more sympathetic to the Washington Attorney General but was a little harder to read. That's my take. But it's very tentative.

BURNETT: What do you say, Paul?

PAUL CALLAN, FORMER PROSECUTOR: I have to agree with Jeffrey. Very, very similar take. I thought that you're going to have Friedland voting for Washington State, Clifton is going to vote for the government and Camby is on the fence. I suspect that in the end he's going to go with the government because the tenor of the argument seemed to suggest concern that this is a presidential prerogative and also a lot of concern that maybe the record isn't complete here. Maybe we need a hearing in the lower court before we're going to make such an important ruling. Of course if they vacate the stay and send it back they'll have a bigger record to look at.

BURNETT: Alan?

ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: Well, I have predicted right from the beginning that this court is not going to upset the current stay because that would create chaos. I do think that the government was not well represented on this appeal, that the lawyer for the government did not have answers to the hard questions. He could have made a much, much more compelling argument. He didn't begin well and he didn't really focus on what the court's concerns were.

I think he could have made a much stronger argument on the whole establishment clause issue. Here you have the United States government taking the position that this is Islamic terrorism as distinguished in the prior administration. That's their position. It's Islamic terrorism. Why should anybody be surprised that the seven nations are neighs of Islam? Consider what was one of the greatest successes in American history, the war refugee board in 1944.

That was focused on specifically rescuing Jews because Jews were the victims of Nazism. And here you have a statute that's specifically focused on rescuing minority religions, that could be Sunnis in Shia countries, it could be Kurds, it can be -- this is not an establishment clause violation. And I'm shocked that the government did not make a stronger argument for that.

BURNETT: Well, in fact, Arian, the Washington State Attorney, the Solicitor General Noah Purcell, when he was asked about the issue of religion, and there were back and forth on. But one of the things he said even though it was is the same seven countries, the congress under Barack Obama had designated as troubled countries with a different remedy but troubled countries in terms of entrance to the United States, it was all about intent because President Obama hadn't said that he wanted to ban Muslims and Donald Trump had during the campaign, that that is the standing for there being religious discrimination.

ARIAN DE VOGUE, CNN SUPREME COURT REPORTER: Well, and you saw that issue of intent, we saw it in the breeze and it was brought up that comments that the president made before about Muslim bans. You saw that, it's a big part at one point when one of the judges was saying what about these comments that were made outside? Do those count? Do we take those into consideration?

BURNETT: So, let me play a couple of exchanges here that I think are important and get your understanding of where this is going to come out. Because this is such an issue of national and international frankly focused an importance at this moment. This is an exchange, Jeffrey between Noah Purcell arguing for Washington State and the State of Minnesota and Judge Clifton. And in this, Judge Clifton makes it very clear he does not think that Noah Purcell has made his argument. Here is the exchange.

(BEGIN VIDEO CLIP)

PURCELL: WE have presented an enormous amount of evidence especially considering again that we -- the time between our filing -- our complaint was filed a week ago Monday together with a temporary restraining order motion together with the declaration. So unlike cases -- well, we had extraordinarily little opportunity to actually gather and present evidence in the district court. CLIFTON: You faulted the government for exactly the same thing.

Don't tell us you need more time because the government brought to stay motion. Although I'll tell you she need more time, you're the one that sought the temporary restraining order. (INAUDIBLE) I mean, that's -- don't tell us maybe you'll gather it later. If you can't demonstrate the likelihood of success what you got in the record so far, and maybe you can, I'm not saying you can't, but 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.

(END VIDEO CLIP)

TOOBIN: That was a very damaging exchange for the Washington State position because, you know, it's important to remember here, this is a very extraordinary remedy that Washington received here. I mean, this is an executive order of the President of the United States that is invalidated across the entire country on the basis of the say-so of one judge and Judge Clifton is saying, well, what's your evidence?

Where -- why should we do this if you don't have any evidence? And Mr. Purcell, the lawyer for Washington State is saying we haven't had time, we don't have enough evidence so far. And he said, well then go to court and then come back here and prove your case but you haven't proved it yet.

BURNETT: You know, and -- go ahead.

CALLAN: I think it's -- he makes a compelling case that we need a better record here. This is something if you send it back to the trial court they can develop the record. And later on now, I -- you know, I don't know if we're going to be playing this clip but there's an exchange also that I think is a critical exchange about the Obama administration designating these seven countries as requiring extra scrutiny and yet when the Trump administration focuses on the same seven countries it's called discrimination against Muslims.

And one of the judges says, well, why wasn't that discrimination against Muslims when the Obama administration did it? And I think that was one of the more compelling arguments that was made for the government's position.

TOOBIN: I think the key issue here is the very narrow one, are they going to now say that we withdraw the Washington State injunction and create chaos at the airport, not telling people whether they can stay or go before we decide this issue. When the United States government decided to act and say to the people coming into the country and to the airport people, act as if this order had never been issued, they sealed their fate. It was over. No court is going to overturn that and create chaos. So I will bet you anything that this court is going to uphold that injunction.

How do they decide on the merits? How they decide on the merits I don't know. But no court, conservative, liberal, republican, democrat is going to throw it back and say chaos, chaos, chaos. That's just not the way courts behave. BURNETT: So, Tony, let me ask you about these issues though because

there were a couple crucial issues. One of it which was did Washington State have the standing to bring this -- to begin with, I have to go ahead with the restraining order. The other is of course the fundamental issue here of whether Muslims are being targeted or not. And let me play this exchange. I believe this is what Paul was referring to, this is an exchange between Noah Purcell and Judge Clifton.

(BEGIN VIDEO CLIP)

CLIFTON: Do you have any information as to what percentage or what proportion of adherents to Islam worldwide are citizens or residents of those countries? My quick penciling suggests is something less than 15 percent.

PURCELL: I have not done that math, your honor, but to be clear --

CLIFTON: And given that all those countries are countries that have been previously tagged as subjects of concern about terrorism, granted it's -- as of perhaps radical Islam sects, so there might be a religious motivation behind the terrorism, but I have trouble understanding why we're supposed to infer religious animus when in fact the vast majority of Muslims would not be affected as residents of those nations, and where the concern for terrorism with those connected with radical Islamic sects is kind of hard to deny.

PURCELL: Your honor, the case law from this court and the Supreme Court is very clear that to prove religious discrimination we do not need to prove that these were -- harms only Muslims or that it harms every Muslim. We just need to prove it was motivated in part by a desire to harm Muslims. And we have alleged that --

CLIFTON: How do 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've quoted in our complaint that are rather shocking evidence of intent to discriminate against Muslims given we haven't had discovery yet to find out what else might have been said in private. I mean, the public statements from the president and his top advisers reflecting that intent are strong evidence --

(END VIDEO CLIP)

BURNETT: Tony, this obviously goes to the crucial issue again, the same seven countries were identified by the Obama administration. Your state department executed that. It was different but it was the same seven countries. And it seems that they're really honing their whole argument on Donald Trump at one point during the campaign talked specifically about banning Muslims, so his intent is different.

TONY BLINKEN, FORMER DEPUTY SECRETARY OF STATE: Well, two things, Erin. First, yes, he talked throughout the campaign about banning Muslims. Then as president, his counterterrorism adviser, Former Mayor Giuliani told us that the president came to him and said, "OK. How do I do this but in a way that doesn't violate the law?" So there's a real concern about intent. Back going back to what the Obama administration did, after San Bernardino, congress sought to impose further restrictions and indeed there were some in congress who were looking at actually shutting down immigration, shutting down refugees.

The administration had to work with congress and we -- we're trying to keep this in check. And we focused on four countries out of the seven and there was no ban. What we did do was take away the possibility of people who had passports in those countries and other countries who could come in without a visa under the previous law, we took that right away, requiring a visa. But there was never any ban imposed by the Obama administration.

DERSHOWITZ: But think back the establishment argument. The constitution says congress shall make no law respecting an establishment of religion. It is such an incredible stretch to apply that to an anti-terrorism regulation that focuses on countries where there's a history of terrorism even if there are other countries that have a history of terrorism. And then to say the other additional argument is that because it rescues people who are the victims of religious discrimination.

That's just not an establishment argument. I'm sorry. The Supreme Court is not going to find an establishment violation based on that statute no matter what the intent is. I think there are other arguments, there are some equal prediction arguments, there are other arguments that I think the establishment argument is just trivial and frivolous.

BURNETT: So -- go ahead.

DAVID URBAN, FORMER TRUMP CAMPAIGN STRATEGIST: Erin, I think it's important to note that a district court judge in Boston has already examined the issue on the establishment clause on the religion and said this was not a Muslim ban. He's already spoken to this and we seem to be forgetting that that district court judge ruled exactly the opposite as the -- as the lower court in the Ninth Circuit.

BURNETT: Right. No, that was of course regarding two green card holders professors in Massachusetts. David, let me ask you a question about the August Flentje who was a 19-year veteran of the justice department, career civil servant who made the case on behalf of the Trump Administration. He was a bit at loss for words I think it's safe to say in a couple of the exchange and questions. Let me play one of them for you, David. Give you a chance to respond.

(BEGIN VIDEO CLIP)

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 are having that discussion, it should be acknowledged that if the president is the official that is charged with making those judgments. I'd also like to -- FRIEDLAND: So are we -- you -- are you arguing then that the

president's decision in that regard is unreviewable?

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

(END VIDEO CLIP)

BURNETT: David, did that exchange concern you?

URBAN: No, Erin. I think the president has the authority. The president is given wide latitude on matters of National Security. I think he not only has the authority but the duty to issue an E.O. like he did in this case.

BURNETT: Now, the other issue that kept coming up repeatedly, Paul, they kept referencing other cases, and these other cases basically boiled down to whether people who are American citizens were allowed to basically appeal on the behalf of non-American citizens for restitution in U.S. Courts. And they kept referencing this. Now, Flentje wasn't totally prepared for a lot of those questions but it kept coming up a couple of specific cases.

CALLAN: It's an important issue the lawyers talk about which is standing, do you have a right to go into court and bring the lawsuit. Because obviously most of the people affected by this live in other countries and they don't have U.S. constitutional protection.

BURNETT: Not U.S. citizens, we don't have U.S. citizens.

CALLAN: So they talked about two cases, the Mandel case which a free speech case, it involved a socialist Belgian professor who wanted to come into the United States, this was during the Nixon administration and wasn't allowed to because he was a Marxist. And the claim in that suit was, hey, American citizens are being deprived of their right to hear free speech. The other case that was cited frequently was a case involving a woman who married a foreign national and he wasn't allowed in and could the wife bring a lawsuit. So that -- those had to do with standing issues.

TOOBIN: I think the standing argument went very well for the State of Washington. I would be very surprised --

BURNETT: Yes. I mean, they brought those cases up. I'm bringing them up because there was a significant amount of time devoted --

TOOBIN: I would be very surprised if this case was thrown out that the Washington state does not have the right to bring it. However, that doesn't win -- but that doesn't win the case for Washington. That only gets them in court and I think on the merits about whether this stay is appropriate it was a much closer case. I'm sorry, Alan --

CALLAN: Jeffrey, I agree -- I agree with you, Jeffrey, on the issue of the Ninth Circuit. But when you get to the United States Supreme Court, Chief Justice Roberts is not going to find standing here for the State of Washington and he very well may have at least three or four other people. This is going to be a very hard sell to the United States Supreme Court for standing, which tries to avoid these kinds of issues like the plague.

And I think they will probably find a lack of standing but on the merits, I -- you know, they may win. They're going win this injunction, they may win in the Ninth Circuit, even on the merits or part of the merits. Once they get to the Supreme Court it's a much harder sell even with only eight justices.

BURNETT: So, David, one of the questions though that kept coming up was the issue of whether there was an immediate risk. You know, why had the Trump administration, Donald Trump gone ahead with this executive order, did he have evidence, right? Because they had to as part of this proof that this case would have, you know, kind of likelihood of proceeding. Here's how that exchange went down. This is with the Government Lawyer August Flentje.

(BEGIN VIDEO CLIP)

FLENTJE: In 2015 and 2016 both congress and the administration made determinations that these seven countries posed the greatest risk of terrorism. And in doing so restricted visa waiver to people who would even travel to those countries over the last five or six years. The executive order relies on that determination.

CLIFTON: But let's -- I understand the concept of that but it's pretty abstract and it's not like there haven't been processes in place to take some care with people coming from those countries. Indeed, those are the determinations in the statute and by the prior administration you're pointing to. Is there any reason for us to think that there's a real risk or the circumstances have changed such that there would be a real risk if existing procedures weren't allowed to stay in place while the administration -- the new administration conducts its review?

FLENTJE: Well, the president determined that there was a real risk. That's why the president determined that the best course was a temporary -- it's a short halt in entry for 90 days while these procedures are looked at.

(END VIDEO CLIP)

BURNETT: Now David, obviously they didn't have any specific reasons. And it's not required that he would need to, but they certainly seem to want that. He didn't have any specific threats.

URBAN: Well, Erin, I'm not privy to the classified briefings that the president gets on daily basis. But I would again just state that the president has not only the duty but the obligation in these instances and his duty is paramount to keep Americans safe. And if the president deems and his adviser deem that this in the best interest American's National Security, he has wide latitude act in that -- in that manner, I believe this E.O. will stand.

BURNETT: And Arian, I want to just ask you a question though about the importance here, the Supreme Court I would imagine, were the justices watching this live as we all were tonight?

DE VOGUE: Well, that's what's interesting, right? That's what makes this hearing so potentially important because there's only eight justices right now. So, if this were to go with the loser, were to go to the Supreme Court and if it were to divide 4-4 then whatever the Ninth Circuit held is what would hold for now. And that gives a lot more to the Ninth Circuit court of appeals then it would have if they were nine justices.

BURNETT: So, Tony --

Well, it's interesting because the Massachusetts court, you know, the (INAUDIBLE) that plaintiffs could have sued but they're smart. The ACLU figured out that if they appeal this, they might lose in the first circuit but they're better off relying on the Washington stay and that would probably give them a better opportunity to win the case than if they appealed. So we might not get two cases coming to the Supreme Court at the same time.

BURNETT: So, Tony, let me ask you one fundamental question here that kind of gets at the heart of this and it's this, right? This -- what we're fundamentally talking about is whether Donald Trump can temporarily halt visas from these countries for 90 days, right? Ban for 90 days while they go through the processes and see what they want to add back in. Would you say from your position at the state department that there's no need for looking at that vetting? It's absolutely perfect. There's absolutely nothing that need to be changed? Or does he have a point that the -- that it needs to be looked at?

BLINKEN: Look, you're always looking to see if you can improve things and make them better. But as you're doing that, you don't take a step that far from advancing the security of Americans is actually going to undermine it. Because what this has broadcast to the entire world whether intended or not is that it's a Muslim ban and we are somehow at war with Islam. That is the biggest recruiting bonanza for ISIL that it could possibly ask for at the very time when he have ISIL on its heels in Iraq and in Syria.

And top the extent, we have a problem, it's not refugees coming in, it takes two years to get in as a refugee or even immigrants for these countries, not a single one of them committed a terrorist attack against Americans since 9/11. It's home-grown terrorists and home- grown terrorist who feel are more likely to sign on if they feel alienated, discriminated against and they will become recruiting prey for ISIL as a result of this kind of action.

BURNETT: David, what's your final word?

URBAN: I disagree with Tony, obviously. I don't believe ISIS -- ISIL need any encouragement to rise up against the United States. So I don't believe that's --

BLINKEN: David is right. They don't need any encouragement. But what they do need are tools and arguments and this is handing them on a silver platter. An argument to recruit more people. URBAN: I don't believe that. I don't believe they need any

encouragement to recruit people.

BURNETT: All right. Well, we're going to be talking to a former undercover CIA agent now. Republican member of Congress. His point of view on that very issue in just a moment. Thanks so much to all of you.

I want to go to Jim Acosta now OUTFRONT at the White House.

Jim, of course, don't know whether the president was watching. He very may well could have been watching that live himself. We are waiting for a formal response.

JIM ACOSTA, CNN SENIOR WHITE HOUSE CORRESPONDENT: That's right, Erin. I just had a brief moment to ask a senior White House official about that and this person did not know whether or not the president was watching those oral arguments.

He is an avid watcher of cable news so it's possible that he might have dipped in. Who knows. But what the senior White House official just said a few moments ago is that they do expect to have some kind of comment when this decision comes down from the Ninth Circuit. And so, you know, they fully expect to put something out as soon as that decision comes down. The question, though, this official said is whether or not we hear that decision later on tonight or whether it takes a day or even longer.

So that part is still up in the air. But what you have heard from this White House over the last couple of days, Erin, is not only do they feel very confident about this executive order and, you know, all of the legal arguments in favor of it. They feel like it's within the president's authority to defend the nation's borders, but they also have been executing a pretty consistent public relations strategy over the last 48 hours to sort of ramp up this rhetoric on national security, on terrorism.

There was that whole back and forth between the president and the news media over whether the media was adequately covering terrorist attacks and so forth. And then earlier today as the president was meeting with law enforcement officials, a group of sheriffs here at the White House, the president said he is willing to take this case all the way to the Supreme Court. Here's what he said.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We're going to take it through the system. It's very important -- it's very important for the country, regardless of me or whoever succeeds at a later date. I mean, we have to have security in our country.

UNIDENTIFIED REPORTER: Is it going to go to the Supreme Court, do you think?

TRUMP: We'll see. Hopefully it doesn't have to. It's common sense. You know, some things are law, and I'm all in favor of that. And some things are common sense. This is common sense.

(END VIDEO CLIP)

ACOSTA: And we should mention that White House press secretary Sean Spicer, when asked, you know, what would happen if they get their way at the appellate level, he said that this executive order, the travel ban, all of the extreme vetting measures that are in that executive order would go right back into place.

So, Erin, they are looking to get this started all over again, reinstating this travel ban if this appellate court rules in their favor. And so, you know, they feel very confident that this is going to be decided in their favor. They were asked -- Sean Spicer was asked today, well, what happens if this gets all the way to the Supreme Court. You have a Supreme Court that is deadlocked 4-4, that temporary restraining order from the state of Washington.

BURNETT: Yes.

ACOSTA: In federal court could potentially stay in place. And they did not have a thought-out answer to that. So I think that is something we'll have to keep watching.

BURNETT: All right. Thank you very much, Jim Acosta.

I want to go to Congressman Will Hurd but first just a quick moment here with Paul and Jeffrey.

Jeffrey, you -- how quickly will this come? You just heard them say, OK, we're now adjourned.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Wednesday -- Wednesday or Thursday. I mean, this could be --

BURNETT: So could be tomorrow -- they're going to go fast. Right?

TOOBIN: This is going to be this week, no question.

BURNETT: And in terms of what Jim just said, that worry about a 4-4 split Supreme Court. You don't see that because you think that this is of utmost importance. They want a decision.

PAUL CALLAN, CNN LEGAL ANALYST: Well, first, I have to disagree with Professor Dershowitz. I think it's going to sent back for a trial in the trial court. I don't think it's going to go to the Supreme Court. If it does go I think there's a possibility that John Roberts will sit down, knock heads together and say, we have to have a decision on this. It's too important for the country. So I don't think it will be a split decision.

BURNETT: All right. Thank you both very much.

And I do want to go now to the Republican congressman from Texas, Will Hurd. He sits on the Homeland Security and Intelligence Committee. He's also a former undercover CIA officer. And I want to begin there, Congressman, because I don't know if you

just heard the debate there between former Trump campaign strategist and a former deputy secretary of State, talking about whether this executive order would provide tools, recruitment, a message that the United States is against Muslims to those who wish to do us harm.

You were an undercover CIA agent. How do you see this?

REP. WILL HURD (R), INTELLIGENCE AND HOMELAND SECURITY COMMITTEES: Well, I think it's a sign of distrust to many of our allies in that region. We have about 10,000 Americans in those seven countries. You know, our men and women that are on an army -- on a military base in Iraq. Who's protecting that military base? It's Iraqis.

[19:35:03] We have special forces in Syria, and they're shoulder to shoulder with who? Syrians. And this is -- this is an issue that is going to cause friction with many of our partners. We've seen in Iraq that there were the opponents of the current administration in Iraq trying to use this as an example to kick U.S. forces out and to not cooperate.

We have to remember that we do live in a dangerous world and we -- to fight Islamic terrorism we need allies and we need partners. And in a place like Iraq many Iraqi men and women have given their ultimate life to put ISIS and al Qaeda on the run in order to keep them off of our shores.

BURNETT: So the Trump administration, you know, has obviously picked the seven countries, by the way same ones that Congress had identified as risks under President Obama but handled it differently. Right? They didn't do an outright ban. They certainly didn't talk rhetorically anywhere like how the Trump administration is talking. You're a member of the House Intelligence Committee. Are you aware of any intelligence suggesting terror plots from these countries right now that would show this was a real and present danger necessary for a ban?

HURD: There are no credible real threats on the homeland as of two days ago. But one of the things I sat on -- this past Congress I sat on a task force that looked at foreign fighters. These are -- you know, there's over 200 Americans that have gone into Iraq and Syria to fight with ISIS. And one of the problems that we saw was that our European allies weren't vetting known travelers against watch lists, information we were providing about people connected to terrorism.

There are visa loopholes and issues that need to be tightened up and we've passed legislation in the last Congress looking at some of those issues. And we're looking to reintroduce those in the House. They passed in an overwhelmingly bipartisan way. We had some problems in the Senate.

BURNETT: So -- yes. So I just want to understand. So it sounds like what you're saying is that the threats such as they are, as you see them now, are much more likely to come from Europe, whether it be, you know, people who've gained access to Europe as by way we've seen -- Europeans with European passports able to go ahead and perpetrate acts. That's what you're saying, not these seven countries.

HURD: It's a lot quicker to slip in -- you know, to be fighting in a place like Iraq or Syria, slip into Turkey, get into Europe, find a fake European passport, and come through one of our ports of entry. That is something that will take a significant less amount of time. And these are the folks that we have to tried against are people that are smart, that are committed. And, you know, having spent 9 1/2 years as an undercover officer, you know, I recognize the threats that we're facing.

The reality is the world that we live in is more dangerous than our parents' and our kids are likely to inherit a world that's more dangerous than ours. And so doing everything we can to fight Islamic terrorism is important but we've got to have allies.

BURNETT: So you would hope from where you see right now obviously given your view on this ban that Washington state's temporary restraining order is upheld.

HURD: Well, I think we need to pass legislation here in the House and the Senate that deals with some of these visa loopholes that do things like help provide resource to doing countering violent extremism. The threat of ISIS, their ability to inspire people even if they're 7,000 miles away, is unprecedented. And we need to be -- we need to be taking the fight there and dealing with those issues.

BURNETT: Before we go, House Republicans I know held a closed door meeting today on how to protect themselves at town halls, and your offices, from protests who are rallying against the repeal of Obamacare, police monitoring town halls. Some things I know were talked having a backdoor congressional offices to be able to exit from.

I mean, these are pretty serious things to contemplate. Are you concerned about your safety because of GOP efforts to repeal Obamacare?

HURD: Well, I think any member that is doing public -- going public and doing town halls should be mindful of their security. We've had examples over the years of threats against members of Congress and not just members of Congress, any elected officials. So making sure that you're focused on security not only of yourself and your staff but the individuals that are coming there. That's something that's important.

BURNETT: All right. Congressman Hurd, thank you so much for your time tonight.

HURD: Thank you, Erin.

BURNETT: Tonight on CNN, Senator Bernie Sanders, Senator Ted Cruz will develop the future of healthcare. That is a live debate for this tonight at 9:00.

And next, breaking news, Senate Democrats threatening yet another all- nighter tonight. Wait till you hear why. We're going to go live to Capitol Hill for the breaking news. And on a much lighter note this evening, Jeanne Moos on billionaire businessman Richard Branson's splashy challenge to President Obama. We'll be back.

(COMMERCIAL BREAK)

[19:43:44] BURNETT: Tonight breaking news, President Trump's Education secretary sworn in after one of the most contentious confirmations. The Senate split 50-50 on Betsy DeVos. For the first time a vice president had to cast the tiebreaker. Tonight Democrats holding the Senate floor again another all-nighter trying to stop the attorney general nominee Jeff Sessions.

Manu Raju is out front.

(BEGIN VIDEOTAPE)

MANU RAJU, CNN SENIOR POLITICAL CORRESPONDENT (voice-over): Tonight President Donald Trump gets his secretary of education.

MIKE PENCE, TRUMP, PRESIDENT OF THE UNITED STATES: The nays are 50.

RAJU: But only after Mike Pence made history by becoming the first vice president ever to break a tie in the Senate for Cabinet nominee.

PENCE: The vice president note votes in the affirmative and the nomination is confirmed.

RAJU: The new Secretary Betsy DeVos came under fire after last month's rocky confirmation hearings.

UNIDENTIFIED MALE: Thank you for the call today.

RAJU: Prompting liberal activists to flood Republican offices with phone calls and hold rallies on Capitol Hill questioning her fitness for the job. After two GOP senators announced their opposition. Democrats staged an all-night Session, hoping to convince one other Republican to block the nomination.

SEN. AL FRANKEN (D), WISCONSIN: It was the most embarrassing confirmation hearing I have ever seen. She could not answer the most basic questions about education.

[19:45:06] RAJU: But Republicans held firm and are furious at the slow pace of confirmations. Since Trump has more unconfirmed nominees at this point in his presidency. That the past 11 presidents combined . The Democrats are clearly sore losers and they refuse to listen to the American people who on Election Day said we're sick and tired of the delays that we've been having in Washington.

RAJU: This week three more Trump nominees could be confirmed including Jeff Sessions to be attorney general, Steven Mnuchin as Treasury secretary, and Tom Price for Health and Human Services.

SEN. CHUCK SCHUMER (D). MINORITY HOUSE LEADER: We're going to have long debates on Sessions and we're going to have debates on Price.

RAJU: But now Trump's Labor nominee, Andy Puzder, is facing controversy after revealing this week that he had hired a housekeeper who was an undocumented immigrant from Guatemala, saying he has since paid back taxes. Similar controversies have sunk nominees in the past including Bill Clinton's choice for attorney general, Zoe Baird, in 1993.

UNIDENTIFIED MALE: For all of my Republican colleague who say that we should be treating Trump's nominees just like we treated Democratic nominees, well, then this nominee should withdraw because similar conduct forced Obama nominees and Clinton nominees to withdraw their candidacies.

RAJU: The revelations are giving pause to some key Republicans.

SEN. JOHNNY ISAKSON (R), GEORGIA: When he knew, how he knew, how he found out, what he did afterwards. You take them all in context. And I'm not prepared to make a definitive statement until I've seen all the facts.

RAJU: But GOP leaders are downplaying the matter.

(On camera): Will this sink his nomination?