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Legal Limbo for Trump's Travel Ban; Dems Mount 24-Hour Blitz Against DeVos; Yemen Raid Stunner; Patriots Super Bowl Parade Today. Aired 5-5:30a ET

Aired February 7, 2017 - 05:00   ET


JOHN BERMAN, CNN ANCHOR: The fate of the president's travel ban in court with the high stakes phone hearing. Is this just a stepping stone, though, to the Supreme Court?

CHRISTINE ROMANS, CNN ANCHOR: Right now, Democrats protesting on the Senate floor for all night long, into the wee hours, against the president's pick for education secretary. Is this enough to derail Betsy DeVos before a scheduled confirmation vote today?

BERMAN: And new details about the U.S. raid in Yemen that cost a Navy SEAL his life. The real target of the mission revealed.

Good morning, everyone. Welcome to EARLY START. I'm John Berman.

ROMANS: And I'm Christine Romans. Nice to see you this morning, everybody.

It is Tuesday, February 7th. It's 5:00 a.m. in the East.

Up first, three federal judges set to hear arguments to determine the near term fate of President Trump's controversial travel ban, a one hour hearing conducted by telephone among three West Coast judges is scheduled for 6:00 p.m. Eastern tonight.

[05:00:04] BERMAN: Justice Department lawyers are urging the Ninth Circuit panel to restore the president's immigration order after the Washington state judge put it on hold. Many now believe this case will end up in the divided Supreme Court.

Let's get the latest on this case. I want to bring CNN justice reporter Laura Jarrett live in Washington.

Laura, what do we expect to see? Or I guess, Laura, precisely hear today?

LAURA JARRETT, CNN JUSTICE REPORTER: Well, I think we will see everybody's eyes and ears squarely focused on this oral argument later tonight. We saw a flurry of court filings yesterday. But the Justice Department filed a legal brief last night basically doubling down on their previous arguments that we had seen before saying you can't second-guess the president in the immigration context like this. But they also come up with the new fallback position that we hadn't

seen before, saying if you are going to uphold the Seattle district court, then at least limit it in some way to the people who have been previously admitted to the U.S. Think of someone on student visa traveling back and forth home to the U.S. for example. So, the travel ban would no longer apply to them, the Justice Department says.

And we'll have to see, you know, what happens here because the plaintiffs say you just unleash chaos if you tried to put the travel ban back in place. So, the appellate court has several options for how it could rule. But we'll have to see after tonight's hearing -- John.

BERMAN: And when do we expect a ruling from the Ninth Circuit, Laura?

JARRETT: I would say pretty fast. You know, they moved very quickly over the weekend, just in three hours denying that emergency stay. And so, my guess is we could see a ruling tonight or even tomorrow.

BERMAN: All right. We will stay tuned. Laura Jarrett for us in Washington, thanks so much.

ROMANS: All right. So, the president -- President Trump officially addressed the military for the very first time as commander-in-chief. His visit to U.S. Central Command in Tampa featured a series of attacks against the press for supposedly downplaying or even he said covering up terror attacks. He said we don't report them for our own reasons.

We get more this morning from CNN's Jim Acosta at the White House.


JIM ACOSTA, CNN SENIOR WHITE HOUSE CORRESPONDENT: John and Christine, President Trump is once again lashing out at the news media, this time in front of a military audience, at the U.S. Central Command in Florida. The president accused the press of intentionally downplaying terrorist attacks. The president did not specify which attacks he was referring to in his remarks, but here's what he had to say.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: You've seen what happened in Paris and Nice. All over Europe, it's happening. It's gotten to a point where it is not reported. And in many cases, the very, very dishonest press doesn't want to report it. They have their reasons and you understand that.

ACOSTA: Ask for an explanation of the president's comments, the White House produced a list of 78 terrorist attacks that have occurred since 2014. The White House claims most of these attacks did not receive enough coverage. But on the list are some of the worst acts of terrorism in the last two years, including attacks in Paris, Nice, France, San Bernardino, California, and the Orlando nightclub shooting. The White House did not explain what the president meant when he said the press has its reasons for why it doesn't report on terror attacks -- John and Christine.


BERMAN: Jim Acosta at the White House.

Senate Democrats launched an all night blitz against Education Secretary nominee Betsy DeVos. The confirmation vote is scheduled for noon today. At least one Democratic senator is saying she hopes that somehow they can get another Republican defection which would mean that the nomination would essentially go down, but that maybe wishful thinking.

CNN's Sunlen Serfaty joins us live from the Capitol Hill this morning.

Two Republicans have split. If they get one more, Betsy DeVos will not be confirmed. But Democrats have been trying all night in this show, and I'm not sure they convinced anyone new, Sunlen.

SUNLEN SERFATY, CNN NATIONAL CORRESPONDENT: That's right, John, and that's the reality of the situation up here on Capitol Hill for the Democrats is that they're so close to potentially sinking Betsy DeVos' nomination with those two Republicans, Senator Murkowski and Senator Collins, notably coming out last week and saying they will not support her.

But they still need one more Republican to come out and break ranks to sink her nomination. And they have not found that support. So, that is what led to this marathon, talk-a-thon. You have them now in hour 18 of this 24-hour floor protest, where many of the senators took shifts overnight blasting and speaking out against Betsy DeVos.


SEN. CORY BOOKER (D), NEW JERSEY: I feel a personal responsibility to ensure that if I cast my vote as a senator, that whoever takes that office will be tireless in the defense of all the rights and privileges and liberties of our students.

SEN. BRIAN SCHATZ (D), HAWAII: So, you have people left, right and center. I mean, you can ask the Senate Republicans whether they're getting phone calls too. They are getting phone calls too.

[05:05:01] This is not a Democratic strategy. What's happening is, we have the wrong person who may be confirmed as a secretary of education.


SERFATY: Despite the effort, Republican officials say they are very confident today that you will see Betsy DeVos confirmed as the nominee for education secretary here in the Senate. They do not expect any other Republicans to break ranks. And that would usher in Vice President Mike Pence up here on Capitol Hill, in his capacity as the person in the Senate to cast the tie breaking vote, likely to be 50-51 in the end.

Of course, this is making history here, John and Christine, because this is the first time a sitting vice president has ever had to cast and to make the fate of a cabinet nominee.

ROMANS: The process is fascinating. But the reason why is fascinating is always fascinating. You have teacher unions, you have parents around the country who are flooding the phone lines because they think that she just is not qualified to speak for and represent public school students, a woman who -- a billionaire who spent her career kind of talking about choice outside of the public schools.

So, Sunlen Serfaty, so nice to see you there. Thank you bright and early, or late for you. You've been up all night, I bet. Thank you so much.

Let's bring in our guest this morning, political analyst and now author of "The Trump's America" column for the Metro papers, Ellis Henican.

Nice to see you this morning.

ELLIS HENICAN, POLITICAL ANALYST: Good morning, guys. Hello.

ROMANS: I mean, some of that in Washington is process. They're just opposing this president. The Betsy DeVos thing, though, is sort of a real movement. If she gets it, though, even if it's history, and she becomes education secretary, is she kind of dead in the water? Or she's got the job? She'll be able to do what she wants?

HENICAN: No, she's got the job.

Now, don't forget -- confirmation battles are often not necessarily about stopping the person, but about influencing their options once they get the job. I mean , she has been pushed around aggressively and maybe it will narrow what she can do.

BERMAN: Now the president yesterday suggested that the media somehow under reports or under-covers terrorist attacks which I find odd considering --

ROMANS: I think suggested is a nice word.

BERMAN: He flat out said it.

Listen to Sean Spicer trying to explain it way to reporters after.


SEAN SPICER, WHITE HOUSE PRESS SECRETARY: Look, I think the president's comments were clear at the time. He felt as though members of the media don't always cover some of those events to the extent that other events might get covered. A protest will get blown out of the water, and yet an attack or a foiled attack doesn't necessarily get the same coverage.


BERMAN: I mean, as somebody who spent a week in Orlando, a week in Charlie Hebdo, Paris, Nice -- HENICAN: 9/11, remember that?

BERMAN: We report on terror attacks.

So given that it is not true what the president said exactly, there may be reason he said it, because look, we started talking about the number of terrorist attacks last night. We didn't start listing them again and again. Maybe that helps him with his argument for the travel ban.

HENICAN: You know, that is a subtle bank shot I'm not sure theses guys are playing here. I think it's a different narrative.

I think it's -- you hate the media, don't you, so let me say something else bad about the media and find some kind of way to -- listen, I spent 20 years of being accused of sensationalizing terrorist attack. You get off this thing already.

ROMANS: I know. It's a really confounding position, I think, for the White House.

So, they're not attacking the news media.

HENICAN: It plays well. We're not popular, you know?

ROMANS: Absolutely, but then there's attacking the courts, the judiciary. This attack against individual judges.

HENICAN: So-called.

ROMANS: Exactly. "The New York Times" has editorial this morning that is it's pretty compelling. "Coming from a candidate, this was merely outrageous; coming from the president, it's a threat to the rule of law. Mr. Trump's repeated attacks on the judiciary are all the more ominous given his efforts to intimidate and undermine the news media and Congress's willingness to neutralize itself, rather than hold him to account."

I mean, if you believe some folks, this is a president who is trying to undermine pillars of democracy.

HENICAN: Good point. It's also strategically dumb, right? I mean, I understand the rules of evidence say that those appellate judges in San Francisco are not to consider utterances like that. But they're human beings and when they see one of their fellow judges being treated in that way, don't you think it's got to have some kind of emotional effect?

ROMANS: We should remind our viewers, the president of the United States basically there is a terror attacks on American soil, that judge is responsible.

HENICAN: Right. Blame him if anything bad happens.

BERMAN: You know, I talked to Alberto Gonzalez, former attorney general under George W. Bush yesterday. He had an interesting take on this. He did not approve of what President Trump said and he said that, you know, he preferred he did not say those things. But he said this is why we have lifetime appointments for federal judges, so that a federal judge doesn't have to worry about being elected, doesn't have to worry about public opinion.

And in theory, an independent judiciary, you can say yes, you know, the president can say this. No skin off my back.

HENICAN: I think that's right. And in the end, people are rallying around the judiciary. So, they're going to be fine in this. But, boy, it sends a strange message about the division of power in our society and what the role of a president is. It's a whole new way of looking at stuff.

ROMANS: The beginning of the third week and a year and a half of news.

[05:10:03] HENICAN: Are you getting tired?

BERMAN: Invigorated.

HENICAN: That's right, yes, invigorated.

ROMANS: All right. We'll talk to you in a few minutes. Come back. Get a cup of coffee, come back, all right?

Was there a human target in the deadly U.S. military raid in Yemen? CNN has new reporting on not what was being sought, but whom. We are live in Washington, next.


BERMAN: CNN has learned that a leader of al Qaeda in the Arabian Peninsula was an intended target of the recent raid in Yemen that cost a Navy SEAL his life. This comes despite early denials from military officials that the al Qaeda leader was the focus of the operation.

CNN's national security reporter Ryan Browne is live in Washington this morning.

Ryan, what are you learning?

RYAN BROWNE, CNN NATIONAL SECURITY REPORTER: Well, John, that's right. And we are starting to understand from senior military officials is that Qassim al-Rimi, the leader of al Qaeda in the Arabian Peninsula, the local al Qaeda affiliate, was a target in this operation.

[05:15:10] Now, officials from U.S. Central Command, which oversees military forces in the region, has pushed back a little bit, saying that he was a potential target. That this was a primarily intelligence raid against an al Qaeda headquarters, and that they would likely detain any high value leaders they found, including al- Rimi.

Now, al-Rimi released an audio recording shortly after the raid, mocking U.S. military and mocking President Trump, saying the raid's failure to capture him was akin to a slap in the face. Al-Rimi has been sough after for a long time. There is a $5 million bounty on his head.

But military officials say that a lot of the intelligence that was gathered in the raid could potentially lead to al-Rimi's capture down the road. And that's one of the reasons the mission was green lit in order to get that intelligence to kind of paint a better picture about the leadership of al Qaeda in the Arabian Peninsula.

Now, this raid, of course, was a costly one. It cost the life of the Navy SEAL. Additional Navy SEALs were wounded, 14 al Qaeda fighters killed in a firefight and what NGOs are estimating up to 23 civilian casualties. So, it's a very costly operation, but military officials are saying the intelligence gathered during the mission is already yielding valuable insights into the terror group -- John.

BERMAN: All right. Ryan Browne, interesting developments, thanks so much.

BROWNE: You bet.

ROMANS: All right. Time for an early start on your money.

Asian markets closed lower. European markets are up slightly. U.S. futures are flat.

It's kind of like a pause on the Trump rally. Stocks ended lower yesterday. Corporate earnings driving some of the biggest moves.

The fight against President Trump's travel ban just added another voice. Elon Musk, he is the CEO of Tesla and SpaceX. He joined dozens of other tech companies yesterday in that legal fight, declaring that Trump's executive order on immigration violates immigration laws and the Constitution. The brings a total number of companies who have co-signed this friend of the court brief to 127, including mattress startup Casper, the messaging startup Slack, a whole lot of other companies.

Tesla's Musk was one of about a dozen top tech executives who have met with Trump in December. And beyond being unconstitutional, according to these companies, they also say it's just bad for business. It's not a pro-growth policy to be restrictive on immigration.

BERMAN: It's interesting, one of the three arguments now really being made against this policy that will appear before these judges today in this phone hearing this afternoon.

All right. A big moment in New England. The Super Bowl parade gets under way in just a few hours. Andy Scholes has this morning's "Bleacher Report", next.


[05:21:57] BERMAN: Patriots fans bundling up this morning, getting ready to hit the streets of Boston for the big victory parade. ROMANS: Andy Scholes has more in this morning's "Bleacher Report".

Hey, Andy.


Tom Brady declaring today is a holiday in Boston. He posted that message on Instagram to all managers in the city, adding, "Today, we dance in the streets."

Now, Brady and his teammates returning to New England yesterday to a heroes welcome. Thousands of fans greeted the team when they got back at Foxboro last night. It's going to be a very cold parade later today. A wintry mix expected with a wind chill of 25. So, bundle up if you are heading out there. The team is going to ride through downtown on duck boats, just like they did in 2015.

All right. Patriots running back James White meanwhile is enjoying his very own parade at Disneyworld yesterday. This is usually reserved for the Super Bowl MVP. But Tom Brady has made a ritual of designating a stand-in. White said the whole experience for him was surreal.

All right. Texas Rangers are now on the case of Tom Brady's missing jersey. Brady said when he put his jersey in his bag in the locker after taking it off. He came back to it later and it was gone. Brady searched high and low for it, but then came up empty. The lieutenant governor of Texas says they are on the trail as the state places a high value of hospitality and football.

A collector says the Super Bowl MVP's game-worn jersey could be worth as much as half million dollars.

All right. Finally, Cavs and Wizards playing an absolute thriller last night. Cavs is down three for three seconds left in the clock. LeBron hit an incredible fade away three to send the game to overtime. Not sure he called glass. It went in.

In the extra period, Kyrie Irving in his favorite spot. Pretty much the same shot that won the NBA finals and Olympics there. Cavs win in OT 140-135.

And, Berman, when are you taking off and head over to Boston and be there for the parade?

BERMAN: You know, I already lost my voice nearly just watching the game. I think the parade might do me in forever. But we'll be celebrating here on our way, Andy Scholes.

SCHOLES: All right.

ROMANS: He won't let us check out his bag, though.


BERMAN: Come on. Come on. I actually didn't like the white shirts. I like the blue shirts.

ROMANS: All right. There you go.

All right. Thanks so much. Nice to see you, Andy Scholes.

The future of the president's travel ban, it will be argued in federal court later today. Oh, this is really interesting process. We'll break it down for you.


[05:28:38] ROMANS: For now, the gates are open, the president's travel ban on hold. But a new panel of judges has said to take up the controversial ban today and this battle is likely headed for the Supreme Court.

BERMAN: Democrats up all night in the Senate trying to block the nomination of Betsy DeVos to be education secretary. But can they peel off the one more Republican vote that they need?

ROMANS: And brand new details about the deadly U.S. military raid in Yemen. Was the SEAL team targeting intelligence or something or someone else?

Welcome back to EARLY START. I'm Christine Romans.

BERMAN: I'm John Berman. About 30 minutes after the hour right now.

This morning, the fate of the president's travel ban hangs in the balance. That as the federal appeals court, three judges out west, have scheduled a telephone hearing. They will hear arguments by telephone at 6:00 p.m. tonight.

ROMANS: Justice Department lawyers urging the Ninth Circuit panel to restore the president's immigration order after a Washington state judge placed it on hold. Many now believe this case will end up in the divided Supreme Court.

For more on the steps in the case, CNN's justice reporter Laura Jarrett is up early for us live in Washington.

Good morning, Laura.

JARRETT: Good morning, Christine.

Well, everybody is anxiously awaiting the oral argument later tonight. We saw a number of court filings yesterday. And the Justice Department filed a legal brief last night, basically doubling down on their previous arguments we've seen before about the problems with a federal judger in Seattle second-guessing the president on immigration like this.