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GOP Senators Silence Elizabeth Warren During Debate; Appeals Court Weighs Trump's Travel Ban. Aired 7-7:30a ET

Aired February 8, 2017 - 07:00   ET


[07:00:05] SEN. ELIZABETH WARREN (I), VERMONT: Senator Sessions obviously isn't going to stand up to the president's campaign of bigotry.

ALISYN CAMEROTA, CNN ANCHOR: President Trump blasts Democrats for obstruction. Only a handful of his nominees confirmed.

AUGUST FLETJE, JUSTICE DEPARTMENT: I'm not sure I'm convincing the court.

UNIDENTIFIED MALE: I don't think allegations (UNINTELLIGIBLE) at this stage.

SEN. TED CRUZ (R), TEXAS: What is a right is access to health care.

SEN. BERNIE SANDERS (I), VERMONT: You want to buy one of Donald Trump's mansions, you have access to do that, as well. Access doesn't mean a damn thing.


ANNOUNCER: This is NEW DAY with Chris Cuomo and Alisyn Camerota.


Welcome to your NEW DAY. It was a stunning rebuke of Senator Elizabeth Warren. Republican senators invoking a seldom used rule to silence Warren during a contentious confirmation hearing for attorney general nominee Jeff Sessions.

CUOMO: Senator Warren was cut off while reading a letter written decades ago by Martin Luther King's widow.

It comes as President Trump is blasting Democrats for instructing his cabinet nominees. Only a handful have been confirmed 20 days into the Trump presidency.

We have it all covered. Let's begin with CNN's Sunlen Serfaty, live on Capitol Hill -- Sunlen.

SUNLEN SERFATY, CNN CORRESPONDENT: Good morning to you, Chris.

Democrats are staging an all-night talk-a-thon again, which continues at this moment on the Senate floor in protest against Senator Jeff Sessions to be the next attorney general. But it was really that moment, just a remarkable confrontation between Senator Elizabeth Warren and Senate Majority Leader Mitch McConnell which signifies just how hostile the debate and the battle over Trump's cabinet nominees have become.


SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER: The senator's impugned the motives and conduct of our colleague from Alabama.

SERFATY (voice-over): A stunning moment on the Senate floor.

WARREN: I am surprised that the words of Coretta Scott King are not suitable for debate in the United States Senate.

SERFATY: Democratic Senator Elizabeth Warren formally silenced by her Republican colleagues.

UNIDENTIFIED MALE: The senator will take her seat.

SERFATY: The incredibly rare dressing down stemming from this statement.

WARREN: Mr. Sessions has used the awesome power of his office to chill the free exercise of the vote by black citizens.

SERFATY: Warren quoting a scathing 1986 letter from Martin Luther King Jr.'s widow, opposing Senator Jeff Sessions's failed nomination to a federal judgeship, to explain why she is against Sessions's current bid to be attorney general.

UNIDENTIFIED MALE: The senator is reminded that it is a violation of Rule 19 of the standing rules of the Senate to impute to another senator or senators any conduct or motive unworthy or becoming a senator.

SERFATY: Republicans arguing Warren violated Senate rules by demeaning a sitting senator.

UNIDENTIFIED MALE: You stated that -- that a sitting senator is a disgrace to the Department of Justice.

MCCONNELL: She was warned. She was given an explanation. Nevertheless, she persisted.

SERFATY: At issue, whether quoting Coretta Scott King should be exempted from the rules.

WARREN: I appeal the ruling of the chair.

SERFATY: But the Senate voted strictly down party lines to reprimand Warren, prohibiting her from speaking on the floor for the remainder of the Sessions debate.

WARREN (via phone): The truth hurts, but that's all the more reason to hear it. SERFATY: Refusing to be silenced, Warren taking to social media,

continuing to read Scott King's letter on Facebook Live and calling into CNN.

WARREN: They can shut me up, but they can't change the truth.


SERFATY: And despite all these fireworks, Senator Sessions' confirmation is not in question. He will be up for a final vote in the Senate later tonight and will be confirmed, this after Betsy DeVos was confirmed last night for education secretary with that historic high-breaking vote by Vice President Pence. Donald Trump, though, clearly getting a little impatient, calling Democrats out overnight for the pace of slow walking many of these nominees, Chris. Trump saying that Democrats' actions here are a disgrace.

CUOMO: So our government is engaged in battles on multiple levels. You see what's going on on the political level. There's also a big battle on the legal level over President Trump's controversial travel ban. The federal appeals court for the 9th Circuit. We're focusing very intently on what this order is really about and who has a right to challenge it, OK, especially in cases of national security.

CNN senior Washington correspondent Joe Johns live with the White House with more. This is not as simple as the politics that led to it when it comes to the law.

JOE JOHNS, CNN ANCHOR: That's right. And a very unusual hearing last night. Three judges, a number of lawyers on the phone. An emergency hearing to talk about all of this, and a lot of skepticism expressed, quite frankly. A decision could come today or tomorrow on whether to lift the temporary hold on President Trump's ban of travel.


JOHNS (voice-over): Three federal judges of the 9th Circuit Court of Appeals grilling lawyers from the Justice Department and Washington state in a hearing by phone Tuesday night. Both sides fighting back skepticism from the court.

JUDGE RICHARD CLIFTON, 9TH CIRCUIT Court OF APPEALS (via phone): Either you have the evidence presented in the record or you don't.

JOHNS: The Justice Department attorney, August Flentje, arguing President Trump has the legal authority to impose a travel ban without court review, citing national security.

JUDGE MICHELLE FRIEDLAND, 9TH CIRCUIT COURT OF APPEALS (via phone): Are you arguing then that the president's decision, in that regard, is unreviewable?


JOHNS: Judge William Canby pushing back on Flentje's logic. JUDGE WILLIAM CANBY, 9TH CIRCUIT COURT OF APPEALS (via phone): Could

the president simply say in the order, "We're not going to let any Muslims in"?

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

CANBY: Could he do that? Could he do that?

FLENTJE: That's not what the order does.

CANBY: Would anybody be able to challenge that?

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

JOHNS: Flentje acknowledging his argument might not be working.

FLENTJE: I'm not sure I'm convincing the court.

JOHNS: Judge Richard Clinton questioning Washington state's claim shows a direct intent to discriminate against Muslims.

CLIFTON: 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.

NOAH PURCELL, WASHINGTON STATE ATTORNEY GENERAL: Your honor, the case law for this court and Supreme Court is very clear, that to prove religious discrimination, we do not need to prove that this order harms only Muslims or that it harms every Muslim. We just need to prove that it was motivated, in part, by a desire to harm Muslims.

CLINTON: Do I have to believe everything you allege and say, "Well, that must be right?" That's not the standard.

JOHNS: President Trump continues defending his hastily-implemented ban.

DONALD TRUMP (R), PRESIDENT OF THE UNITED STATES: Some things are law, and I'm all in favor of that. And some things are common sense. This is common sense.

JOHNS: While the president's new homeland security secretary told a House committee he regrets how the presidential order was rolled out.

GENERAL JOHN KELLY (RET.), HOMELAND SECURITY SECRETARY: I should have delayed it a bit so that I could talk to members of Congress. Particularly the leadership of committees like this to prepare them for what was coming.


JOHNS: It goes without saying the White House is closely watching how the 9th Circuit Court of appeals rules this case is likely to end up at the Supreme Court -- Alisyn.

CAMEROTA: Joe, thank you very much for all of that background. Joining us now is Alberto Gonzales, former attorney general and author

of "Truth, Faith and Allegiance." He is also the dean of Belmont University College of Law.

Mr. Gonzales, thanks so much for being here.


CAMEROTA: OK, before we get to the travel ban, let's talk about what happened on the Senate floor. Jeff Sessions, as you know, wants your old job of attorney general. And Senator Elizabeth Warren took to reading Coretta Scott King's letter back from 1986 about why she did not feel that she was the right person and temperament for that; and then other senators shut her down and basically silenced her. What do you make of what happened?

GONZALES: Well, there are Senate rules. I mean, there are internal procedures, and as a general matter, the executive would not comment upon the, you know, the decisions based upon internal Senate rules.

What I worry about, however, it may reflect sort of a breakdown of comedy and good will between senators within the Senate.


GONZALES: There's so much work to be done for the American people, including the confirmation of a Supreme Court justice, so I think this is just another example of the deterioration of relationships among members of the Senate.

CAMEROTA: I mean, yes, there are Senate rules, but this is an obscure one. Have you never heard any senator use heated language about another one?

GONZALES: Well, perhaps not about -- specifically about the character of another sitting senator. And it's a rule that I was not aware of. But again, every senator is -- is presumed to know the rules of the Senate and to abide by those rules and to suffer the consequences if those rules are not followed.

You know, you and I may have a different opinion about whether or not shutting off debate is a good thing within a deliberative body like the Senate, but the rules are the rules.

CAMEROTA: Well, Elizabeth Warren believes that this is about Senator Sessions' record. What do you think? I mean, shouldn't that be part of this debate?

GONZALES: Absolutely. And there was a thorough vetting of Senator Sessions's record. There's been a long record established with respect to the work of the Judiciary Committee and -- and the vote that came out of the Judiciary Committee. And now the Senate will have the opportunity to press its will through the confirmation vote of Senator Sessions.

Clearly, everything in someone's background, if you're up for a candidate position like the attorney general of the United States, everything in your background is fair game, and but again, my perspective is this has been carefully vetted. And now the senators have the obligation of responsibility to the American people and to the Department of Justice to make a decision up or down with respect to this confirmation.

[07:10:21] CAMEROTA: Do you think Jeff Sessions should be confirmed?

GONZALES: I do believe he should be confirmed. I think the president, as a general matter, is entitled to his team. I think General Sessions accorded himself very well in his confirmation hearing. I have confidence about his ability to do the job as attorney general. He knows the department well. He's been a former U.S. attorney, a former attorney general in the state of Alabama. I think he's well-qualified and understands the challenges that confront the attorney general, and I think he'll do a good job.

CAMEROTA: Let's talk about Mr. Trump's travel ban. Do you believe it is legal?

GONZALES: I think the government's arguments are probably stronger here and that the president of the United States has both statutory authority and, I would argue, constitutional authority in terms of protecting entry (ph) of our country, to issue this kind of order.

Obviously, the question is whether or not -- you know, what was the basis of the motivation of the order and the state of Washington will have to prove that, in fact, it was motivated in order to discriminate against Muslims. Of course, the text of the ban says nothing about that.

Critics have looked at comments and major in the campaigns against Muslims, supposedly.

But I would remind everyone that, you know, there's a lot of political rhetoric that is said during a campaign, and oftentimes campaign rhetoric does not translate into presidential policy.

And so I think the judges may take a second look in terms of reliance upon campaign comments in order to determine what the order really is intended to do. It's not -- there's no language about a Muslim ban in the order.

CAMEROTA: But the judges yesterday did seem to zero in on that, and they wanted some answers from the Justice Department's attorneys. So let me play for you a little portion of their exchange.


JUDGE WILLIAM CANBY, 9TH CIRCUIT COURT OF APPEALS (via phone): Could the president simply say in the order, "We're not going to let any Muslims in"?

AUGUST FLENTJE, JUSTICE DEPARTMENT SPECIAL COUNSEL (via phone): That's not what the order does here.

CANBY: Could he do that? Could he do that?

FLENTJE: That's not what the order does.

CANBY: Would anybody be able to challenge that?

FLENTJE: That's not what the order does here. Get to one key point.

JUDGE RICHARD CLIFTON, 9TH CIRCUIT COURT OF APPEALS: We'd like to get an answer to that question, because it speaks back to the standing issue. If the order said Muslims cannot be admitted, would anybody have standing to challenge that?

CAMEROTA: What did you think about that, Mr. Gonzales, that they want to know could it extend to Muslims if, in other words, the Justice Department to me was trying to make the argument, if the president says something is for national security, then the president should be able to make that executive order. But the justices seem to be pushing back a little bit.

GONZALES: Yes. I think -- I think the judges were right to pose that question. From my perspective, I think it is a decision by the president, in the national security context, is reviewable. But the thing is, that there is a great deal of deference, traditionally paid by the judiciary to the president in making his decisions that affect national security.

But of course, you know, the president, in making decisions that affect the lives of individuals, that power has to be checked by the courts. And so I think it is reviewable, but I think there's a great deal of deference paid traditionally by the courts with respect to this kind of thing.

Now with respect to whether or not, you know, could he simply outlaw all Muslims, I think if the president could show, if the government could demonstrate that all Muslims were terrorists, then I think that the president could do that. Obviously, that's not what's going on here. And I don't think that's what the order was intended to do.

CAMEROTA: Following that logic, how can the president show that all immigrants or all refugees pose a threat to national security?

GONZALES: Well, again, that is a challenge to the government. And the government did not do itself any favors, or the president did not do himself any favors by comments that were made during the campaign. Although, as I said earlier, I think this should be this category, but it has given ammunition, has given some level of evidence. We give evidence to the critics who say the motivation behind this order is to discriminate against Muslims, even though the text doesn't say that.

CAMEROTA: What do you think these three judges, federal judges, what do you think they're going to rule, based on what you heard yesterday?

GONZALES: I think that there are arguments that could be made on both sides again. This is not really a decision to be made on the merits, and there hasn't been full briefing on this. The district court judge has asked for expedited briefing on the merits. And so it is very possible all kinds of scenarios are possible. The 9th Circuit may take it back and defer decision until there's -- there's further briefing at the district court level or the 9th Circuit may simply lift the stay partially and let the stay remain in place.

For example, if we're talking about the people who have been in this country and have some kind of legal basis that you perhaps, you know, lift the ban as to them. But for those people that have never set foot in America, have no ties in America, the court may say a ban may be appropriate.

[07:15:14] CAMEROTA: Sounded like that was the compromise that they'd left it on.

Alberto Gonzales, thank you very much for being on NEW DAY. We appreciate it.

GONZALES: Thanks for having me.


CUOMO: So what's going on with President Trump's cabinet picks? You have a lot of them who have yet to be voted on. Is there blame in this situation? We know the Democrats don't want to have the votes. Is that wrong? Facts ahead. You decide.


CAMEROTA: So it was a pretty stunning moment on the Senate floor last night. Senator Elizabeth Warren was told to take her seat at the Senate debate of the nomination of Senator Jeff Sessions for attorney general. Watch this.


WARREN: This is what it said. "They are mothers daughters, sisters, fathers, sons and brothers. They are...

MCCONNELL: Mr. President -- Mr. President...

UNIDENTIFIED MALE: The majority leader.

MCCONNELL: Senator's impugned the motive of our colleague from Alabama, as warned by the chair. Senator Warren, quote, said Senator Sessions has used the awesome power of his office to chill the pre- exercise of the vote about black citizens, I call the senator into order under the provisions of Rule 19.

[07:20:17] Well, President Trump's team is blaming Democrats for obstructing his cabinet nominees. Let's discuss this and more with CNN senior political commentator Rick Santorum.

Also, welcome to the show new CNN political commentator and former White House communications director, good timing for today. Jennifer Psaki, great to have you.

JEN PSAKI, CNN POLITICAL COMMENTATOR: Great to be here. CAMEROTA: Welcome to the family.

Rick, in your time as senator, did you ever see something like that happen? What happened to Elizabeth Warren last night?

RICK SANTORUM, CNN POLITICAL COMMENTATOR: As a matter of fact I did, and I would say that, on one or two occasions, Rule 19 was brought up when I was up on the floor going after some folks.

Rule 19 is there like other rules. For example, you can't refer to a senator directly by their name. You have to refer to them as a gentle lady or gentleman from a particular state.

The whole reason for these rules is to keep the temperature down and to keep decorum in the Senate, to make it a deliberate body so you don't have personal attacks. You're not directly addressing the senator, accusing them of something. So all of this is -- has been in place for hundreds of years.

CAMEROTA: What did you say -- what did you say that made you have to take a seat?

SANTORUM: I'm not necessarily going to revisit those days, but no, look, sometimes you get a little heated when you get up on the floor and you directly address a senator. You call them out directly on something and they say, you know, you can't do that. And then you back off. And in -- and in the case of Elizabeth Warren, she didn't back off. I mean, she -- she made those comments.

CUOMO: Right.

SANTORUM: She said that she agreed with those comments. And she suffered the consequences.

CUOMO: She wasn't just tearing into him, and they weren't comments. She was reading from a letter from Coretta Scott King.

Rick makes an interesting point. He doesn't want to revisit what happened to him with Rule 19. We understand that. That happens in the right -- and that's exactly the problem McConnell had, is that when you try to stifle something, you wind up giving it even more attention.

I'm not saying I'm going to chase after Rick's Rule 19 debacle, but what I'm say as good what is going on with the Democrats right now, the Republicans don't want to remember from whence it comes. But it was McConnell in 2010 who said, "We're going to obstruct at every turn. That's what we're going to do." And that's what they did. Now they seem like they don't understand why the Democrats are doing what they're doing.

Is turnabout fair play?

PSAKI: Look, I think in this case, the events that happened last night are a rallying cry for Democrats, and Democrats across the country are much more energized and excited than I think anyone thought they'd be in the tough days after the election.

So turnabout, I wouldn't compare it in exactly the same way. You're talking about a situation where a female senator was reading the words of the widow of a civil rights leader last night.

CAMEROTA: But I'm talking -- we're talking in general, the Democrats do seem now designed for...

CUOMO: Not allowing votes.

CAMEROTA: They do seem that they're not showing up for votes, and they seem to be almost relishing their role as obstructionist, they think, if that's what their base wants. Is that why they were sent to Washington?

PSAKI: Look, it's a good question. I think they were sent to Washington to represent the American people, and I'm not sure that debate or defending the actions with an obscure Senate rule is a good example of what the American people are looking for.

So you look at the Betsy DeVos site. That was not focus on what was happening on the Senate floor. That was teachers and moms and people in communities across the country, writing letters, having postcard parties.

CUOMO: And two Republicans.

PSAKI: And two Republicans. That's true.

CUOMO: Otherwise, it wouldn't have worked out that way.

Rick, let me ask you something. When we talked about this with your party back there in 2009, 2010, 2011, the point was, you weren't sent to Washington to obstruct, and the answer was, "Yes, we were. This is about principled opposition. We will not let the White House and the president do things that we know that are inimical to the cause of the American people."

Doesn't that apply now for the Democrats and how they see Trump in his White House?

SANTORUM: Absolutely. They're just picking -- they're just picking a wrong fight. The idea that we're going to make those fights on appointments to cabinet positions is frankly unprecedented. The -- I served during the Clinton administration. I don't recall. Maybe I voted against a cabinet official or two.

But I don't recall doing that. And the reason I didn't is because the president wins the election. He can put his own people in place. He may not agree with the policies of the president, but you don't obstruct qualified people to do the job that the president has set out to do.

CUOMO: Are they all qualified?

SANTORUM: You pick your fights. CUOMO: Was Betsy DeVos qualified?

SANTORUM: Look, Betsy DeVos has been an activist on education reform for a long, long time. Is she someone who knows the department inside and out? No. But we're bringing on outsiders. And that's nothing new. Other presidents have brought in outsiders who didn't know the nuts and the bolts of the particular department. They're picking the wrong fight, and they're picking it purely for politics.

[07:25:07] So this is the difference. It's not about policy. It's about politics at this point.

CAMEROTA: That's an interesting point, Jen, that he makes. That -- that they're digging in on cabinet positions, not legislation, not policy.

PSAKI: Well, I'm sure they'll dig in on policy, as well. I think they are on zooming in on whether individuals are qualified or not, and there's a disagreement on that, or a disagreement on whether they're the right picks.

CUOMO: Quick follow for you. You know communications better than anybody in this conversation right now. What's going on at the White House through reports is that they want to find someone to help hold the director of communications job. They don't want Spicer to have both hats.

PSAKI: Well, look, it's impossible to do both jobs at the same time. The job of the press secretary is to be the fireman or the firewoman and take the incoming questions from everything happening in the world. That takes up your entire day.

The job of the communications director is to have a seat at the table, have discussions with the policy leaders, with the president and be a part of the decision making. And right now, they're giving up that seat at the table. That makes Sean Spicer's job incredibly difficult.

CAMEROTA: What's your advice to Sean Spicer?

PSAKI: Find a communications director that you want to work with and can be a partner with you and focus on your job and repairing your relationship with the press.

CUOMO: Most dangerous job in the administration, given what they're trying to control.

PSAKI: Dangerous is a hard thing to define. But yes, I think he has the most -- one of the most difficult jobs is the press secretary in probably decades.

CAMEROTA: Jen, Rick, thank you very much.

CUOMO: All right. Up next he's a Washington insider who worked for two Republican presidents. Now James Baker is weighing in on the first two weeks of the Trump administration. What does he think is working? What is not working? Next. (COMMERCIAL BREAK)