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Trump Loses Bid to Get Travel Ban Reinstated; Justice Department Reviewing Court Ruling; Pres. Trump Responds to Ruling Against the Travel Ban; Court Rules 3-0 to Keep Travel Ban on Hold; Trump Tweets "See You in Court" After Losing Appeal on Travel Ban; Hillary Clinton Tweets "3-0"; Conway Pushes Back at Clinton Court Ruling Tweet; WH: Conway "Counseled" After Plugging Ivanka Trump's Brand. Aired 9-10p ET

Aired February 9, 2017 - 21:00   ET



[21:01:01] ANDERSON COOPER, CNN HOST: Hey, welcome to another hour of "360". It is 9:00 p.m. here in New York. If you're tuning in, hoping to see "The Messy Truth" with Van Jones, I apologize, I'm not Van Jones. That is now going to air tomorrow at 9:00 Eastern because of the breaking news that's been pushed back because there so much going on today.

A major loss for President Trump. His travel ban is not being reinstated. The Ninth Circuit Court of Appeals ruled two or three hours ago unanimously that the ban will remain blocked. Let's get the latest now from CNN justice correspondent Pamela Brown.

So, talk about the details now of the ruling.

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: So these three federal judges from the Ninth Circuit repudiated the travel ban in this 29- page opinion tonight saying that the government failed to provide enough evidence to show why the travel ban was necessary as an urgent national security matter saying, "That the government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all. We disagree."

So basically there, the court is saying that while it does give difference to political braches on immigration and national security issues, it has every right to review this case unlike what the government argued.

And the court also rejected the Justice Department's argument that the states didn't have the legal right to bring this lawsuit because many of the people impacted by the ban have never been to the U.S. In fact, it even rejected DOJ's compromise option to limit the temporary restraining order to people who have already legally been to the U.S. from the seven countries in the executive order. What the judges saying that, "That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well. That would also omit claims by citizens who have an interest in specific non-citizen's ability to travel to the United States."

So the court is saying even a more narrow version of the travel ban to apply only to people who have never been to the U.S. could be problematic and that's worth noting if the administration wants to rewrite its executive order, Anderson.

COOPER: So what happens next, I mean, now that the Ninth Circuit Court has ruled?

BROWN: So, today's decision is basically one step in what could be a very long legal battle. Right now, Department of Justice is basically looking at the opinion and reviewing its options. It could appeal to on bank or on bunk in the Ninth Circuit Court, which means more judges, 11 out of the 40 judges in the Ninth Circuit could review this case or it could appeal up to the Supreme Court. But remember, there are only eight justices on the Supreme Court. And so, if there's a 4- 4 split there, then whatever the Ninth Circuit ruled in this case, which is to keep the ban halted during the appeals process would stand.

And again, I want to just emphasize this. This is not an opinion on the merits --

COOPER: Right.

BROWN: -- of this ban, although, it was strongly worded. This is basically to say look, we're going to put the travel ban on hold while the appeals process goes through the court system. Anderson?

COOPER: All right, Pamela Brown. Pamela, thanks.

With me again is senior legal analyst Jeffrey Toobin, also with us, CNN Supreme Court reporter Arian de Vogue and Harvard Law School professor emeritus, Alan Dershowitz.

Jeff, the -- in terms of what happens now, I mean, the White House does have a number of options.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: They do. As Pamela just said, they could go on bank.

COOPER: On bank.

TOOBIN: On bank, which is, you know, more judges on the Ninth Circuit. They would be 11, a panel of 11 to review what the three judges did or they could go directly to the Supreme Court. The problem that the Trump administration has is that this is a preliminary order. This is not a final judgment in this case.

COOPER: Right. This is not about the constitutional merits of the actual executive order. TOOBIN: Yeah, it's related to the merits because the decision talks about the likelihood of success on the merits but it is not a final judgment on the merits. The Supreme Court in particular does not like to hear cases that are not final. They don't like to get involved in the middle of cases.

[21:05:01] So even judges who might agree ultimately with the Trump administration's position might say, "Look, we want to see all the evidence in the case. We want all the judges who deal with this to deal with the full case." So they are playing a very weak hand in further appeals.

COOPER: So if it went directly to the Supreme Court, would the Supreme Court be ruling on the constitutionality of the ban it self?

TOOBIN: No. They would just be deciding to stay.

COOPER: OK. So that's why they're not interested in doing that.

TOOBIN: Exactly. They would not have the full record yet because there is no full record yet and it is -- and they don't even have the usual procedure of filing for a writ of certiorari. The way appeals of emergency orders work is it goes to the circuit justice, the justice who was responsible for the Ninth Circuit --

COOPER: So if they wanted to argue the actual merits of the case, they would do that before, what, a larger -- the embanked Ninth Circuit?


TOOBIN: No. That would also be about the stay.


TOOBIN: The only way they could argue the ultimate merits of the case is to go back to the district court --


TOOBIN: -- and basically say, "OK, the preliminary proceedings are over and now we're going to have a trial."

COOPER: In Washington.

TOOBIN: In Seattle, Washington, yeah. And then that would then be appealed to the --

COOPER: But the president points out that look, the judge in Massachusetts ruled differently.

TOOBIN: That's -- and the president is right about that and that's often the case in legal issues. It's known as a split in the circuit. That's why we have a Supreme Court. The decision by the Boston court is not binding in the Seattle court. It's a different circuit. But judges often disagree and that's why cases wind up in the Supreme Court.

COOPER: Ariane, if this does in fact end up in a Supreme Court and there split down the middle in a 4-4 decision, they have to uphold the Ninth Circuit Court ruling. So I mean it underscores how much weight this ruling actually holds?

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: Right. That's why this ruling is so important. What's really fascinating is this is such a young administration, right? Only a few weeks old and it could already be going to the Supreme Court. There's not even a confirmed solicitor general there. But as Jeff said, Justice Kennedy, he has jurisdiction over the Ninth Circuit. He would take it. If it goes to the Supreme Court, he would likely refer it to the other members of the court and then these eight members would look at it but if they split 4-4, then they're left simply with having to uphold the lower court decision. And you'll remember that when the Obama administration's orders went to the Supreme Court, it split 4-4.

Again, though, it's just so striking that administration is already contemplating having to go to the Supreme Court.

COOPER: Yeah. We were having trouble reestablishing connection with Professor Dershowitz. So obviously, we'll bring him in the conversation as soon as possible.

Jeff Toobin, you know, we talked to Professor Dershowitz before. He raised a third way, which you have doubts about based on the personality of Donald Trump. His suggestion was that Donald Trump essentially admit defeat in this and just issue a new executive order that's more focused.

TOOBIN: Well, as a technical legal matter, Alan is completely right. I mean you could rewrite this order in a way that is more likely to get the approval of the courts.

COOPER: Not including green card holders and others but focus on things which are more clearer.

TOOBIN: Exactly. But, you know, I think the personalities matter a lot. We already have the president tweeting see you in court, again. That he's not backing down. He's not going --

COOPER: Right, but I mean, just in his -- you know, in his past, he doesn't back down until he backs down. I mean he says he never settles but he settles all the time in his business life. The Trump University case, you know, he said how many times the campaign, "I'm not going to settle" and he settles.

TOOBIN: That's true. Given the way he has handled this litigation, given the aggressiveness that he's pursued it with, given the way he's attacked the judges who has ruled against him, it strikes me as very unlikely that he will back down and rewrite the order but, you know, far be it for me to know what's in Donald Trump's head.

COOPER: Ariane? DE VOUGE: Well, I -- you know, I think another thing that's interesting is that Donald Trump in his attacks has done absolutely no favors, not only for the DOJ lawyers having to argue in front of judges but also to his Supreme Court nominee, Neil Gorsuch. So Gorsuch is going to face hearings and already these hearings were going to be about his record and about the fact that Democrats say that the seat is about to taken -- take was stolen from Merrick Garland. But now he's also going to be grilled about his independence from Trump, as well as Trump's attacks on judges.

So here you've got Neil Gorsuch going through these endless courtesy meetings being asked all about these attacks. It's an interesting attack that Donald Trump has taken here.

[21:09:56] TOOBIN: But in a funny way, this has helped Gorsuch to get confirmed. I mean, he is in an awkward position with regard to Donald Trump, but he has shown through his statements to Senator Blumenthal and others that he is unhappy about this -- these statements with -- that Donald Trump has made and he's also shown a measure of independence --

COOPER: Although there some Democrats who are arguing that's a tactic that to kind of show that he can be independent, that it help him get confirmed by Democrats.


TOOBIN: And you know the thing about tactics is they sometimes work in the fact that, you know, whether it's tactic or whether it's sincere, it strikes me that he is more likely to be confirmed today than he was three days ago because of this controversy.

COOPER: We -- Professor Dershowitz, we have him now on the phone. We couldn't get the link up.

Professor Dershowitz, we talked about your third option idea with Jeff Toobin who, you know, as you thinks the personality of the president argues otherwise. Where do you see this heading now?

ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: You know, there are so many options. They can appeal to the Supreme Court. I think that would be a mistake if that would lock in the Ninth Circuit. The Ninth Circuit is likely to rule against them. So if there is a 4- 4 decision they lose. They could decline appealing, waiting for a case to come from another circuit that's more favorable.

But I think the smart thing to do would be to simply issue a new order. He doesn't have to resend the old order. Keep that case on the back burner but issue a new order which is narrow and apply it and wait for somebody to come in and try to challenge that order and then litigate a second time. He is not precluded from doing that as president.

COOPER: Professor Dershowitz, in terms of the specifics, though, of this ruling, the states had argued this order was intended to disfavor Muslims, something the Department of Justice claim was not the case. I want to read that part of the ruling on that notion. It says, "The states have offered evidence of numerous statements by the president about his intent to implement a Muslim ban as well as evidence they claim suggests that the executive order was intended to be that ban."

I mean, it's interesting, they took statements of his from the campaign trail and other places, is that allowed? Is that unusual?

DERSHOWITZ: It's very unusual and it won't be sustained by the Supreme Court. He did not impose a Muslim ban because 85 percent of Muslims are not covered by the ban and he imposed the ban on countries that do engage in Islamic terrorism and he's entitled to do that and use to a campaign slogan or statement made by Rudy Giuliani. And even the statement made by Rudy Giuliani suggests that the president asked Giuliani to help him write a ban that would be constitutional, not a Muslim ban.

So, I think they're going to lose on that. I think this decision is way, way over broad, but if it goes to the Supreme Court from the Ninth Circuit and gets affirmed 4-4, the president loses. If it comes from the First Circuit or some other circuit where the lower court rules in favor of the president then the same 4-4 vote he wins. And so I think smart lawyers have to start thinking of options other than the obvious option of simply appealing this stay to the Supreme Court where I think they would lose.

COOPER: All right, we're going to continue the conversation after a quick break. Much more to get to over the next hour including the latest reaction from the White House. We'll also be joined by the Washington State Attorney General who brought the case and the lawyer who successfully argued it. We'll be right back.


[21:17:27] COOPER: Well, the breaking news tonight, appeals court ruling again reinstating President Trump's travel ban, Washington State and Minnesota filed the lawsuit that led to the temporary restraining order that was in upheld in today's ruling by the Ninth Circuit.

Joining me very shortly is Washington State Attorney General Bob Ferguson as well as Washington State Solicitor General Noah Purcell, who argued the case before the appeals court on Tuesday, but I want to continue the conversation with Jeffrey Toobin and Professor Dershowitz.

Jeff, Professor Dershowitz had raised questions about, you know, saying look, this is not a banning against Muslims because 85 percent of the world's Muslims are not affected by this because they're in countries other than the seven countries noted. Do you agree with that?

TOOBIN: No, I don't, actually and I -- I mean I'm not saying Alan is wrong that the courts won't agree but I do think there is an argument that this is a Muslim ban and a court would see it that way.

The fact that you discriminated against a group of Muslims but not all Muslims doesn't mean you aren't discriminating against Muslims. And the fact that Rudy Giuliani was told by Donald Trump to help me find a Muslim ban and someway to dress it up in a way that doesn't look like a Muslim ban, I don't think that helps the administration's position. I don't know how the courts would ultimately see it come out on that -- on this issue of whether this order is religious discrimination. But I do think there is a real argument here that it is religious discrimination, even though it doesn't say we will not let Muslims in the country.

COOPER: Professor Dershowitz? Sorry, we don't have. Ariane, I mean, that is central to the argument made by -- certainly by Washington State and upheld by this court.

DE VOGUE: Yeah, but it came up in court, right? And the states that one judge was really questioning it and the states came back and they said look, all we have to do is prove intent here and that's why they brought back in those comments during the campaign from Trump, as well as Rudy Giuliani's comments about it. They said look, this shows intent. Right. The executive order may not say it but that's why that's important and it got some traction in court here.

COOPER: I want to bring on the Washington State Attorney General Bob Ferguson and Washington State Solicitor General Noah Purcell who argued the case before the appeals court on Tuesday.

Mr. Attorney General, you -- we've talked to you over the last several nights. You obviously feel very good tonight. You're now 2 for 2 in your litigation against the president's executive order. Where do you expect this to go from here because I'm sure you saw President Trump tweeted, "See you in court."

[21:19:58] BEN FERGUSON, WASHINGTON STATE ATTORNEY GENERAL: Yeah, we have seen the president in court as you know and as you mentioned, we are a 2 for 2. And so the next step is really in the federal government's up to them. I anticipate they'll seek review with the U.S. Supreme Court but I think Noah and I agree that there's little doubt this is going to go ultimately back to Judge Robart, the trial court judge who ruled in our favor for proceedings on the merits and we anticipate that happening relatively soon.

COOPER: So from your perspective, would you rather see it stay at the circuit or district court level?

FERGUSON: I'm not sure that we have a preference but at the end of the day it needs to get back to Judge Robart because although he granted us a temporary restraining order as you know, he still need to reach a decision on the merits of our claims under the Constitution and statutory claims and there will be a process for that. So that in our view is undoubtedly where it's headed ultimately.

COOPER: Mr. Purcell, the White House, you know, President Trump also saying tonight that this is political, basically a political decision.

NOAH PURCELL, WASHINGTON STATE SOLICITOR GENERAL: Well, I guess I just don't know what that's based on. I mean we've won before. Judges of widely different backgrounds, ideological backgrounds and otherwise and we really believe that our claims have merit and all the judges so far have agreed. So I don't know -- I really don't know what that's based on.

COOPER: Attorney -- Mr. Attorney General, you continue to argue that this is in essence a discriminating against Muslims and Professor Dershowitz has raised the point and others have as well that, look, 85 percent of the world's Muslims are not affected by the president's ban because they're not from the seven nations and therefore it's not a ban of Muslims.

FERGUSON: Yes, and I hear that argument despite that of course, four judges at the federal level have agreed with us and granted the temporary restraining order and upheld it. And more importantly, as Noah pointed out in his oral arguments at the trial court level, Anderson, and the Court of Appeals, one does not in trying to show a discriminatory intent or motivation, applies to everybody in a class. It can be a portion of a class and the law is very, very clear on that and that is why frankly we've been prevailing at the federal trial court level and Court of Appeals level. That's the bottom line. That's the law and that's why we're very focused on that aspect of it.

COOPER: And Mr. Purcell, the White House argued that this is all just temporary, that the full scope of the executive order will obviously wasn't argued, as you pointed out, and they seem very confident about how that will go for them. The president himself is pointing to his authority under the Immigration and Nationality Act. How do you respond to that?

PURCELL: Well, this is temporary, that's true but of course, the trial court judge and the Court of Appeals had to assess the likelihood that we would win on the merits and both found that it was likely that we would win on the merits. And we think that's accurate.

Of course, the president does have broad authority to protect national security but we believe the president should be able to do that without violating the Constitution or the laws passed by Congress, and so far, the president has not managed to do that.


TOOBIN: Mr. Ferguson, let's say you go back to the district court. Is it your position there that you don't need to have any evidence, you don't need to have any more proceedings, you can just go right to a decision on the merits?

FERGUSON: No, it's our anticipation, Noah may want to add to this, but it's our anticipation that once we get back, Jeff, to the trial court to the judge that there will be proceedings on the merits. In other words, we look forward to discovery for your viewers, not lawyers, I mean we can ask for e-mails and take depositions of administration officials to get up the motivation, the true motivation behind this executive order. We anticipate the judge allowing that to happen and have a process to get the discovery done.

TOOBIN: And just to be clear, since the President Trump's position is -- his statements are referred to already in the Ninth Circuit, would you want to take a deposition of President Trump?

FERGUSON: I'm not going to get out ahead of my team. We need to have some time to work through our strategy of how we want to proceed with this litigation. But -- because I want to be crystal clear --

TOOBIN: Why wouldn't you -- his intent --

FERGUSON: Jeff, I'm not -- Jeff, I'm not precluding anything, I'm not saying we're doing anything. We've been very busy working around the clock as you can imagine, so I'm not going to make any decisions here on national T.V. without talking to Noah and the team.

But I will say, I want to be crystal clear, is that I will use every tool in my toolbox as attorney general of the state of Washington as I have so far to make sure the president is accountable to the rule of law.

TOOBIN: How about Rudy Giuliani? Want to take his deposition?

FERGUSON: We'll be having those conversations at the appropriate time once we get back before Judge Robart.

COOPER: I want to bring in also Professor Dershowitz because I know he has some questions, as well. Professor?


COOPER: Yeah, Professor Dershowitz, go ahead. You're on with the Attorney General and Mr. Purcell.

DERSHOWITZ: Well, first of all, I want to congratulate them. They have out lawyered the other side considerably. The decisions they have made have turned out to be right and the decisions made by the Trump administration have turned out to be self-defeating, many of the answers given by the lawyer for the other side played into the hands of the Ninth Circuit. But I do think that the Attorney General is overstating or over evaluating his position when it comes to the United States Supreme Court.

[21:25:00] I think the standing argument is a stretch. I think the application of the unconstitutionality ruling to people who have never been in the country under any circumstances is a stretch but I think, you know, you're going to win on all the stay orders and the only, I think, the fear is that when it gets up to the United States Supreme Court, if it does on the merits, that they won't give as much weight as the lower court did to motive, to statements made by the president, to statements made by Rudy Giuliani and they'll just look mostly at the face of the regulation.

The question I would really ask you is, what would you do if the president now issued a new order, which was narrowly drawn and didn't apply to green card holders, it didn't apply to people who are in the country legitimately? How would you continue to litigate the case if the issue is a new order based on this decision?

FERGUSON: Sure. So first, Professor Dershowitz, I realized I haven't quite persuade you yet on our overall case. I'm going to keep adding, keep coming back on this show until I do, but it's worth pointing out that the federal judges are with us so far --

DERSHOWITZ: You're doing a good job.

FERGUSON: -- but we'll keep at it. We'll keep at it. But look, if the -- frankly, I think the president should tear up the current executive order and start over. Now, what that might look like if he does that and frankly, I doubt that he will, but if he does, obviously, we would examine that and make our decisions at that time.

Again, I'm not going to prejudge or litigate that now but frankly, I think to your point, I think you raised a really important one, I think that's frankly the course of action that the president and this administration should take. They are suffering defeat after defeat in the courts right now. The courts being very clear about what they think about this executive order and I think that's the course of action the president should seriously consider.

PURCELL: And can I just add one thing on that? I mean, I guess, I feel like there's a lot of sort of nose counting going on about the Supreme Court, but we really feel like there's -- we've sited opinions written by justices of every stripe. I mean one of the main opinions that we're relying on is the controlling opinion that Justice Kennedy wrote with Justice Alito in the den (ph) case and the federal government just is -- has no response to that. And so it's not as though we're just hoping to get four votes at the Supreme Court. I mean we really believe that president is on our side in this case.

DERSHOWITZ: And you may and, you know, my headline is President Trump's President Trump and I think that's what happened in this case, is that the president really had trumped his point of view and you get the better of that argument but, you know, I think it's risky. But you have no choice. You have to go forward and litigate and you may win, you may lose, the president has a choice, and he's following a foolish path by appealing this to the United States Supreme Court or the Ninth Circuit embank instead of either withdrawing the order and coming up with a new one or simply coming up with a new order, a supplementary order that would narrow this order and you have to challenge it again and, you know, you might or might not win on the second the challenge.

COOPER: Mr. Attorney General, when you hear the president say that this was politics, this was a political decision, I asked Mr. Purcell this, what do you think?

FERGUSON: Look, in the last few years, I twice through the Obama administration, right? The fact that I deeply respect and admire former President Obama and I'm a Democrat and he's a Democrat, was he irrelevant to my decision to sue his administration when it adversely impacted the people of my state and we felt is unlawful.

So from our perspective, my job is go where the law takes me, Anderson, and that's my rule, who the acumen of my house is does not make any difference to me. What matters intensely to me is whether the administration, any administration, is acting unlawful or unconstitutional way that harms the people that I represent, and if they do, I will hold them accountable and use all the tools I have to make sure I'm successful.

COOPER: Bob Ferguson, Noah Purcell, I appreciate both of you spending the evening with us. I'm sure you want to go have a drink and get dinner or get some sleep or something. We'll talk to you again in the future. Thank you very much. We're going to take a short break. We're going to look at the politics of all this when we come back.


[21:33:29] COOPER: The breaking news tonight, a loss for President Trump in appeals court ruling 3-0 against reinstating his travel ban. I want to get latest reaction now from the White House. Jim Acosta is there.

So, we saw that President Trump tweeted. We also saw comments made by Kellyanne Conway. How are -- what are they saying tonight?

JIM ACOSTA, CNN SENIOR WHITE HOUSE CORRESPONDENT: Well, normally, Anderson, by now you would have an official White House statement from the Press Secretary responding to what happened at the Ninth Circuit Court of Appeals. We have not gotten any such statement from the White House at this point but you did have the president go up to reporters in the hallway shortly after the decision was announced. He called this decision political and he said that the nation's security is at stake and that he expects the administration to prevail.

I had a chance to catch up with the counselor to the president, Kellyanne Conway who essentially echoed those comments but also said she hopes that the merits of the case will be considered at the next level, whatever level that might be. Here's what she had to say.


ACOSTA: Do you see this as a setback?

KELLYANNE CONWAY, COUNSELOR TO THE PRESIDENT: He sees it as -- he always see it as which is a statute provides a president, if this case, President Trump, with great latitude and authority to protect the citizens and check the nation's national security.

This was not argued on the merits. Now that we'll have an opportunity to argue on the merits we look forward to doing that. We look forward to prevailing. I think his tweet was perfect when he said "We'll see you in court."


ACOSTA: And of course, you heard Kellyanne Conway restate what we've heard from this administration all along, which is they believe the president has a broad power here to defend the nation's borders with immigration policies. But, Anderson, that is the case they've been making all along, it has not been successful with a federal judge in Washington and the Ninth Circuit Court of Appeals. And I supposed they'll be taking that same argument to the next level whether it's at the Supreme Court or perhaps the expanded Ninth Circuit Court of Appeals.

[21:35:09] But, Anderson, this is no doubt a setback for this administration. This is by far the most controversial policy that they've rolled out in the early weeks of this administration and spent a great deal of political capital on it getting criticism from both Democrats and Republicans and at this point, they're just showing no signs of backing down. They want, as the president said, to have that day in court.

COOPER: Yeah, I mean, it certainly amplifies the criticism of how they rolled this out, whether or not you agree with the executive order itself. It just how it was -- the speed with which was brought out and, you know, how they have to come back the next day and kind of try to correct the focus of it.

ACOSTA: That's right. And at this point, there is no indication I've heard several guests and this is all over social media tonight that perhaps the president should rescind the executive order, rewrite the executive order. But in that Ninth Circuit Court of Appeals ruling that we saw, which is pretty scathing in terms of its rejection of the administration's arguments, there is a concern that has been expressed in the judiciary that there is some sort of religious test baked into this executive order and that is going to be a question that they're going to face at the next level.

If they take this all the way to the Supreme Court, that is going to be something that is going to be asked of the government's lawyers at that level. And I think the other very interesting thing to look out for, Anderson, is just how the president responds to all of this. Yes, he's suffered the setback. Does he take to social media and try to taunt the Supreme Court? He taunted the judges at this level. It's never a good idea to taunt judges before they rule on your case. That's what he did here and it didn't turn out so well.

COOPER: All right, Jim Acosta. Jim, thanks.

Back with the panel. Dana Bash, insofar as the fallout from this -- is now being debated in real time on Twitter, Hillary Clinton tonight tweeted "3-0" referencing the court ruling, White House adviser Kellyanne Conway then responded with the state abbreviations for Pennsylvania, Wisconsin and Michigan, obviously states Hillary Clinton lost in the general election. What would a big story be without political opponents throwing shade on Twitter?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Nothing. Absolutely nothing. I have to say, I'm actually a little bit surprised that Hillary Clinton tweeted what she did. She has been, you know, relatively low profile, understandably so but this seems to be something that she just couldn't help herself on. And she only tweeted with, you know, with two characters, I guess maybe three if you count the dash. And once she did that, it was only a matter of time before Kellyanne Conway tweeted something along the lines of what she did trying to, you know, kind of push her -- push Hillary Clinton back down or put her in her place by saying yeah, 3-0, the three states that the Democrats needed to win should have won in the presidential election and didn't win because Donald Trump did. COOPER: It's always interesting to see how folks in Washington view this and also how folks in the Trump White House view this. For that I'll turn to Jeff Lord. In your opinion, I mean, how -- is this a big setback for them in your opinion?

JEFFREY LORD, TRUMP SUPPORTER: I'm not sure it is at all. I mean I think this sets --

COOPER: I knew you were going to say that.


LORD: I just think that the president has a very well honed instinct here of how to position the establishment versus himself to go after.

I want to read two sentences if I can. One from Newt Gingrich when he was running for president in 2011. He was talking about the Hamdan versus Rumsfeld case, and there was another case both of them involving Guantanamo and the rights of prisoners. And he Speaker Gingrich said, "I would instruct the national security officials in the Gingrich administration to ignore the recent decisions of the Supreme Court on national security matters and I would interpose the presidency in saying as the commander in chief, we will not enforce this."

And this is called departmentalism. And this goes back to Thomas Jefferson, who wrote in 1890, "Each department" -- he's talking about the national government, "Each department of the national government is truly independent of the others and has an equal right to decide for itself the meaning of the Constitution and the cases submitted to its action." Now --

TOOBIN: For god sake, Jeffrey, that's ridiculous. The idea --

LORD: Jeff --

TOOBIN: -- the president of the United States can ignore judgments of the court, you know, Andrew Jackson did it regarding --

LORD: Abraham Lincoln did it.

TOOBIN: Yes, Abraham Lincoln did it during the civil war which is a little different from what's going on now.

LORD: We're --

TOOBIN: The idea --


TOOBIN: The idea that a president -- I mean, you know, much credit to Donald Trump, frankly, for saying see you in court rather than saying I'm ignoring the court. Newt Gingrich's lunacy is not something that anyone should look up to.

LORD: I'm not advocating this. All I'm saying is that there is a school of thought out there that you can do this and it has in fact been done by other presidents, notably Abraham Lincoln. So --

COOPER: Because the school of thought that the moon is made of cheese, it doesn't mean anything --

[21:40:02] LORD: But it is, Anderson.

COOPER: Of course. Why not?

KIRSTEN POWERS, USA TODAY COLUMNIST: Isn't there a more mainstream argument though that you might make that there is -- this is a responsibility of the executive branch. I think that that would be actually what the Trump administration's position would be and now would be a lot of conservatives' position. And what a lot of conservatives are saying is, of course, the Ninth Circuit would do this. It's, you know, such a liberal court and they get overturned all the time. And this is a power that resides with the president. That's the conservative argument.

COOPER: We got to take a quick break. We're going to continue the conversation right after. We'll be right back.


COOPER: President Trump has loss the bid to get his travel ban reinstated. He says it's a political ruling and tweeted, "See you in court." The ruling from the court was unanimous bipartisan.

Back now with the panel. Errol Louis, I mean, this is going to suck up a lot of oxygen. It already has. But even moving forward, it's going to take up a lot of attention, not just for the White House but also even for the Supreme Court nominee.

[21:45:01] ERROL LOUIS, POLITICAL ANCHOR, NY1: Well that's right. And that's in part because this is a political promise that he's trying to keep. Though, as the court noted, there is no sort of pressing national security urgent need that he's made a case for. And without that, the only reason that he's pressing it as hard as he is -- I understand that he genuinely believes it personally but it's a political promise. And that's really all it is. And it was a political promise to have a Muslim ban.

So, that's going to get him in all kinds of trouble in court. It's going to be something that he probably should walk away from, down play. I think his supporters know how he feels. We understand where he's coming from. At a minimum they have to go back to the -- to scratch and write a legal executive order that can pass some kind of scrutiny and that has that crucial ingredient which are facts about where the danger is.

COOPER: Although, you can make the counter argument which -- and Jeff eluded to this, that maybe this works for Donald Trump in terms of his going against the establishment. If there is, God forbid, if there's a terror attack in the United States he then says, well, look, these judges, you know, ruled this way. It would have been different had my extreme vetting been underway. And, you know, this is what we get. KAYLEIGH MCENANY, CNN POLITICAL COMMENTATOR: No, I think that definitely makes sense, you know, a fight against the establishment. But that being said, you know, there were a lot of other things today that I think would have been a more positive message. He's vowed to give the biggest tax reduction plan since the 1980s. He put out executive orders on crime reduction. We could be talking about that.

Engage in a counterfactual. Had he not appealed the temporary restraining order, we would have all forgotten about the fact it's temporarily restrained while we let this play out on the merit. He probably will win on the merits. And then we could focus on a lot that's being done proactively on the part of the President which is why I would urge him, don't repeal the restraining order, but let this play out. I think he will win in the end on the merits but don't take breath and life out of the things that are going on in the White House, right?

ANGELA RYE, CNN POLITICAL COMMENTATOR: And, Anderson, I think that the challenge with the establishment argument is that 70 percent or, I'm sorry, 60 percent of Americans according to a Quinnipiac poll do not support this ban. I think that's another problem. This -- like, it's one of the few instances where popular opinion is really not on his side here.

COOPER: I accept, but among Republicans, I think it's overwhelming.

RYE: Oh, sure. But Republicans aren't all who are here. In fact, you know, when, again, when we look at the popular vote in this election that they are clearly other voices that matter, 46 million of them, in fact. That I think the other real challenge you have is in this particular executive order, the countries that he's banning. There has not been a single attack on U.S. soil by anyone from those countries from the '70s to 2015. That's a fact.

MCENANY: That's not true. Somalia -- there were three night attacks last year.

RYE: No, but this is about foreign nationals. So we were talking about foreign nationals, no one was killed.

MCENANY: Somalia refugees, 25 were wounded though.

RYE: No, no one was killed --


RYE: -- on American soil.


RYE: I'm not saying that we should undermine that but I do think that we should. If we're going to use 9/11 as the bait, then we should talk about the 9/11 countries. I think that if we're going to talk about these other countries then we need to look at the data that actually exists.

LORD: The security ratings change constantly everyday.

RYE: Sure. But I think that we still have to be honest about the fact that America's mayor, Rudy Giuliani, has been out counting this if it's an answer to 9/11 and that this in --


COOPER: The question though, just politically, is, I mean, what happens? What does the White House do? And also what does this mean for the Supreme Court nominee?

POWERS: I think that they're going to probably treat it as what Jeffrey said is that they see it as them against the establishment and that, especially because of the Ninth Circuit. And I know that if they are sort of relieved that it is the Ninth Circuit and that they will, you know, continue to play this out.

But the problem is that Donald Trump's rhetoric is catching up with him. Because there -- I actually personally don't support the ban but I can make some arguments in defense of it from a constitutional perspective. It gets a lot harder when you consider the things that he has said.

So, there are actually a lot of people, human rights people, who have advocated to prioritize religious -- people who are being persecuted for religion. There's nothing wrong with that in itself if you're fleeing a genocide, for example, in Syria and Iraq. They've been designated genocide victims by Secretary of State Kerry. That's an argument. But then when you enter in the ban comments, you have a problem.

COOPER: All right. I want to thank everybody in the panel.

During a lot of television interview White House Counselor Kellyanne Conway tells Americans to buy Ivanka Trump's products or sales. But it appears to violate the federal ethics rules. The details in the fallout ahead.


[21:53:25] COOPER: Well, it's really been a busy day for the White House, starting with a firestorm ignited by Kellyanne Conway. The White House says she has been counseled, their words, after urging shoppers to buy Ivanka Trump's products during a live interview on Fox News. Here's what she said.


CONWAY: Go buy Ivanka's stuff is what I would tell you. I'm going to -- I hate shopping and I'm going to go get some myself today. It's wonderful line. I own some of it. I fully-- I'm going to just give a -- I'm going to give a free commercial here. Go buy it today, everybody. You can find it online.

(END VIDEO CLIP) COOPER: That is the White House insignia behind her. Well, Conway, herself, called a free commercial appears to violate federal ethics rules, that's according to House Oversight Committee Chairman Jason Chaffetz there. Republican in Ranking Committee member Elijah Cummings are asking the Office of Government Ethics to recommend a penalty for Conway.

Short time ago, Conway was asked about all of this in another Fox News interview.


MARTHA MACCALLUM, FOX NEWS ANCHOR: I do want to ask you about what happened this morning with your comment about, you know, doing a free commercial and encouraging people to buy Ivanka Trump's products. It got a lot of pushback and Sean Spicer spoke about it at the press briefing today and said that you had been counseled on the matter and that he had nothing more to say. How were you counseled?

CONWAY: I'm not going to comment on that, Martha. I actually had nothing more to say about it.

MACCALLUM: What about the letter that has come from Chaffetz and Cummings in the House that has gone to the Government Ethics Board and they say that they consider that to be a very serious -- potentially, a serious violation of the government ethics code?

CONWAY: Well, we're aware of that letter and we're reviewing that internally. I'm just really happy that I spent enough -- lot of time with the president of the United States this afternoon and that he supports me 100 percent.

[21:55:04] MACCALLUM: So you spoke about that matter and he is not -- doesn't have any intention to suspend you?

CONWAY: We spoke about a range of matters and he supports me 100 percent. In fact it was a very heartening moment. All I can say to America's women is at some point in your life you ought to have a boss who treated me the way that the president of the United States treated me today.


COOPER: Joining me now is Tim O'Brien, author of "Trump Nation: The Art of Being the Donald," and executive editor of "Bloomberg View". He was also once sued, unsuccessful, by Donald Trump for defamation for pointing out Mr. Donald Trump worth far less than he claims. Also back with me, CNN Political Commentator Kayleigh McEnany.

Tim, we'll start with you. I mean, you know, for all the reporting and all the focus that's been done about conflicts of interest, I -- it is pretty stunning that she would have stood there at the White House giving an infomercial for Ivanka Trump's products. I mean, does it surprise you? I don't know for sure --

TIMOTHY O'BRIEN, "TRUMP NATION, THE ART OF BEING THE DONALD" AUTHOR: Well, you know, I -- Kellyanne Conway is an excellent spokeswoman. She's very fast on her feet. She's a smart person. She's gotten caught up on a couple of things lately. I think maybe she's overexposed and she needs a break.

But I also think this got blown up a little bit beyond what could have been a casual flip mistake. But what we have to focus on is why it got blown up. And it got blown up because there's all of these looming conflicts of interest issues floating around this White House and this is sort of the latest event in all of that.

And it starts with the President's own unwillingness to really observe, I think, more stringent conflict guidelines, the litigation in which Melania Trump since she saw her tenure in the White House as a multimillion dollar money-making opportunity, Ivanka Trump's presence on Economic Advisory Boards within the White House while she still hasn't clearly separated herself from her own businesses. And in the wake of all of that, you have Kellyanne Conway turning a Fox News interview into an advertorial for Ivanka Trump's products. And I think that's why it's problematic.

COOPER: Kayleigh, I mean, is it problematic?

MCENANCY: Yes and no. And here's why. You know, first of all let's be clear, the President is exempt from conflict of interest laws. And he has gone through extraordinary measures to take precautions despite not having to take any whatsoever. He's going to donate any profits from foreign governments that his company receives to the U.S. Treasury. Eric condoned her and controlled. He's resigned his position. He doesn't have to think about --

COOPER: He's tweeting though about Nordstrom's.

MCENANY: Sure, he did, to defend his daughter. And I have no problem with that.

That being said, the Democrats are trying to set a trap here. They want desperately to say at end of these four years the Trump brand has enriched themselves on the U.S. government's dime. That's the narrative they're going to try to put forth even if it's not true, which means the Trump administration and people like Kellyanne Conway have to be perfect and very careful not to let things like what happened today, the violation of federal ethics rules, happen because it's going to give fodder in four years to Democrats even if the substance of what they're trying to say is not true.

COOPER: But, I mean, it just does seem the -- it just seems incredibly short-sighted for her to have said that.

MCENANY: Yes, she shouldn't have said it. No doubt about it. I think you could see in her voice that she was upset over it. I think she is probably very sorry that that happened. She didn't realize what she was doing. I think she did not intend to go on "Fox and Friends" and violate federal ethics rules. She just didn't.

That being said, you've got to be perfect. You can't make mistakes like that. And the administration needs to be very careful going forward that this is not repeated.

COOPER: The -- Tim, I mean, how serious do you think this thing by Chaffetz, the idea of looking -- is this going to go anywhere?

O'BRIEN: Well, remember --

COOPER: I mean, we should also point out this is not a criminal statute. Kellyanne Conway didn't break any actual law. It's anything that this is what draws rebuke from both sides of the aisle.

O'BRIEN: That's correct. And remember that Jason Chaffetz is the congressman who was trying to slap down the Office of Government Ethics after it raised concerns about the President's ethics plan. So, to have Chaffetz himself now stepping up is interesting.

I really have to take issue with Kayleigh, however, to conceive of what the President has done, his extraordinary measures is just not true. It's a very weak in fact. It's not tight with what his predecessors have done. This isn't a partisan issue, it's about good government.

COOPER: Right. I mean, there's no blind trust. They talked about a blind trust during the thing that it's not a blind trust. We're going to leave it there.

O'BRIEN: There's no meaningful separation from the businesses.

COOPER: Right, yeah, and so his ownership. We'll leave it there.

Tim O'Brien, thank you. Kayleigh McEnancy as well. To be continued.

Tonight's breaking news, of course, again, President Trump's travel ban remains blocked after unanimous ruling by the Ninth Circuit Court of Appeals. CNN has full coverage throughout the night.

"CNN Tonight with Don Lemon" starts at 11:00 p.m. Eastern tonight. One hour from now, right now the premier of the CNN Original Series "The History of Comedy" starts.