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Ninth Circuit Upholds Suspension of Trump Travel Ban; Interview with Governor Jay Inslee; Flynn Talked Sanctions with Russia Despite Denials; Kellyanne Conway Apologizes to President Trump; Aired 10- 10:30a ET

Aired February 10, 2017 - 10:00   ET


[10:00:07] POPPY HARLOW, CNN ANCHOR: Good morning, everyone. Top of the hour. I'm Poppy Harlow.

JOHN BERMAN, CNN ANCHOR: I'm John Berman. Great to see you this morning. And this morning, the White House is trying to figure out how to push back on the pushback.

In a unanimous ruling that was about as direct as can be, three federal judges refused to reinstate the president's travel ban on seven Muslim-majority countries.

HARLOW: The president not giving up an inch, immediate posting this on Twitter, in all caps, "See you in court. The security of our nation is at stake." He had a brand new reaction this morning, also on Twitter, calling it a disgraceful decision. And in between those tweets, here is what he said.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: It's a political decision that we're going to see them in court and I look forward to doing it.

UNIDENTIFIED REPORTER: So you believe the judges made a political decision?

TRUMP: We have a situation where the security of our country is at stake and it's a very, very serious situation so we look forward, as I just said, to seeing them in court.


HARLOW: A dizzying night at the White House, to be sure. Because on top of all of that, new reports this morning that the National Security adviser flat out lied about contacts with Russia before the Trump administration was in office, a move that would not only be against the law, it would be a falsehood, and a major foreign policy retreat on China by the president three weeks into office.

We will speak with the governor of Washington about his state's victory in court in just a moment. But first let's go to CNN Supreme Court reporter Ariane De Vogue who joins us from Washington.

This was an incredibly, incredibly detailed, unanimous decision that struck down essentially all of the White House's arguments here.

ARIANE DE VOGUE, CNN SUPREME COURT CORRESPONDENT: Right, it was a sweeping victory for the states. It was a 29-page order. And they got almost everything they wanted. Keep in mind it wasn't on whether the executive order is legal, just whether it should be reinstated pending appeal. And this court declined to do so and it was a unified court.

There were some key takeaways. The government, the court said, didn't provide the national security evidenced that would have been necessary to justify this ban. The court said, look, no terrorist attack has ever occurred on U.S. soil from these seven countries. The judges also say the public has a right to freedom from discrimination. And it says that the states, especially public universities and students, have a right to be in court to bring this challenge.

So what's next? The government could go to a larger panel of judges on the same appeals court and hope to get a different panel. They could go to the Supreme Court. They could go back to the district court to present more evidence or maybe they could just try to rewrite the executive order.

And as you said, the president has already weighed in this morning, and he quoted a very scholarly law blog saying that the opinion hadn't mentioned a key law that allows him to suspend entry.

The gist of the blog is something that's important to Trump, because it says, look, this is all still at the early stages. And that's right, there are a lot more challenges to come here.

HARLOW: Ariane De Vogue, thank you for the reporting, we appreciate it.

BERMAN: So as you just heard the president is vowing to, in the words of his tweets, see opponents of the travel ban in court. In remarks to reporters after the ruling was announced, the attorney general of the state of Washington signaled that he is ready for that challenge.


BEN FERGUSON, WASHINGTON STATE ATTORNEY GENERAL: We have seen him in court twice. And we're two for two. That's number one. And in my view, the future of the constitution is at stake.


HARLOW: Joining us now is Governor Jay Inslee of Washington. Nice to have you on.


HARLOW: I know you've probably gotten very little sleep because we saw you all over the place last night. The president says this is political, he's not making any indication that he'll give an inch or rewrite this, he said we'll see you in court. What's your response? INSLEE: Well, he said he's see us in court. Well, we just saw him in

court, twice, and he lost. And he lost in a very decisive measure. He said that what he did would never be reviewed by the judicial system. He lost. He said there was a national security basis for this. He presented no evidence to support that. He lost. He said that he had the right to discriminate against anyone at any time. He lost.

And I think the power of these decisions perhaps is not so much that it was two for two, but it was four for four. There are four judges who have now reviewed this. Two of whom were appointed by Republican -- Republican presidents.

Now the president, frankly, it's very disappointing to me that his response to this is instead of actually reading the decision and evaluating this, he goes off on his tweet war. That's not what we expect from our presidents. Calling these people "so-called judges," trying to intimidate them, saying it's political. What are the odds Donald Trump actually read this before he got to his tweet button?

BERMAN: Governor, on the issue -- on the issue of discrimination, Governor.

[10:05:05] On the issue of discrimination, the court did not rule on whether or not it was a Muslim ban.

HARLOW: Right.

BERMAN: Or whether a Muslim ban would be illegal or not.

HARLOW: It wasn't an argument on the merits.

BERMAN: This was just a procedural thing. And I appreciate that.

INSLEE: Right.

BERMAN: But let me ask you this, Governor. One of the possibilities is that the president will go back and rewrite this executive order, we don't know if he will, but he could. Is there a version of it which you would be OK with?

INSLEE: Well, we have no idea, obviously, what could be written. I suspect --

BERMAN: Well, for instance, for instance, if you took these seven nations, you still included the seven nations but put conditions, saying, we will look at certain people from these seven nations, maybe people with political connections from these seven nations, is that something you could -- you could support?

INSLEE: Yes. Yes, it seems to me that if you don't discriminate against people based on their religion, if you don't make randomly selected governments, if you will, if you don't pick one nation and totally prohibit refugees, of course we can consider doing things to increase our vetting our national security. We're open to ideas like that. But that's not fundamentally what this was. And the court did find that basically we have the right to review these things to find out if there was discrimination. And the court very specifically alluded several times to what President Trump has said very publicly, which is he intended to discriminate against Muslims, he intended to tell them they should go to the back of the line.

And I'm glad we have this order because it's already helping my state, my businesses are selling products again, we had a researcher who got back into the University of Washington three days ago to start studying HIV. We had a World Health Organization, a very prestigious person came out and was able to give the keynote speech at the University of Washington Global Health tenth year anniversary. Melinda Gates was there. We're now getting back in business so I'm glad we have this.

BERMAN: And Governor -- Governor, just as John pointed out, I think it's important for the viewers to know this was not an argument on the merits of the case overall. I mean, it will likely go to the Supreme Court unless we get an indication from the White House that they will step back and rewrite this and not pursue this further in the courts. But I do want you to listen to -- needless to say, you've heard this before, this is back in 2015. Just listen to James Clapper and what he said about vetting.


JAMES COMEY, FBI DIRECTOR: Yes, and so I can't sit here and offer anybody an absolute assurance that there's no risk associated with this.

JAMES CLAPPER, FORMER DNI DIRECTOR: I don't obviously put it past the likes of ISIL to infiltration operatives among these refugees. So that is a huge concern of ours.


HARLOW: All right. So James Clapper, director of national intelligence, former, and also James Comey, head of the FBI. They both said, and this is what the administration points to a lot, look, there are some holes in the vetting process. What say you?

INSLEE: Well, listen. If there are holes, close them. If we need to get a particular new intelligence report or new document or additional period of time, then we should do that. There's no problem with that. But what we presented in evidence, and that's what we can support, was the testimony by affidavit of about 12 national security experts, former secretaries of State, former directors of the Central Intelligence Agency who were appointed by George Bush, former Department of Homeland Security, who said quite categorically and directly that the way this very improperly vetted, if you will, policy decreases our national security.

And this was very powerful evidence that the court considered. It did find, I realize this may not be the final decision, but we now have four judges who did find a likelihood of success on this lawsuit. And I think that that's powerful. So we want to protect our national security. And the way to do that is not to inflame the Muslim world against the United States of America.

You just had a segment of people in Iran holding signs saying some of these people like American people. We would like that to be the case around the world, rather than drive a wedge between us and our Muslims allies against terror. We do not need a recruiting poster for ISIS right now.

HARLOW: Governor --

INSLEE: And we eliminated one with this appellate decision.

HARLOW: Governor, it's nice to have you on. Thank you very much.

INSLEE: You bet.

HARLOW: All right. Stunning new claims and new reporting this morning over National Security adviser Michael Flynn. "The New York Times" and "The Washington Post" reporting privately discussed sanctions or sanctions being lifted with the Russian ambassador before the Trump administration took office.

BERMAN: Joining us now is Matthew Rosenberg. Matthew covers intelligence and national security for "The New York Times," some of this is his reporting.

Matthew, thank you so much for being with us. I think what's important here that your reporting is your reporting and the reporting in "The Post" says that the now National Security adviser, then he was working for the president-elect, Michael Flynn, spoke to the Russians. You all say that he spoke to the Russians about the sanctions that were in place. And then afterwards he lied about it. He said he didn't. The vice president said he didn't. Explain what happened here.

[10:10:01] MICHAEL ROSENBERG, REPORTER, THE NEW YORK TIMES: So we understand there were multiple conversations. And what's crucial was a crucial conversation a few days after Christmas. It was the day before the Obama administration imposed sanctions for the election hacking. Now those sanctions were an open secret at that point. And what we've been told is that Flynn's message in that phone call was don't retaliate against these sanctions, don't overreact, whatever is done can be you be undone. You know, the Obama administration is your adversary, not the United States, and we will be in office soon.

You know, we're told they didn't really get into specifics, they didn't promise specific sanctions relief, but that message was certainly there, and certainly conveyed. And were seeming to reassure the Russian ambassador and the Russian government at that point that the Trump administration wanted different, probably better relations.

You know, this is -- there's a law against diplomacy in these situations which is rarely enforced and is complicated, but at the very least this is a huge breach of etiquette. Administrations tend to stick to the one president rule. You don't do this kind of thing until you're in office.

HARLOW: That's right.

ROSENBERG: And to discussing this kind of issue with an adversary is considered particularly galling.

HARLOW: As you know, this would be a violation of the Logan Act, something no one has been successfully prosecuted on before.


HARLOW: But, I mean, John tried to bring the bigger is, you know, did Michael Flynn lie. Did Vice President Pence lie. The White House pushing back this morning. His office is saying that look, Pence was relying on the comments and the conversations he had with General Flynn. I'm wondering in your reporting, what have you heard from the White House?

ROSENBERG: We're getting mixed signals on that. And, you know, it can be hard to tell with this White House kind of what's accurate, I guess, for lack of a better term. It certainly does seem that Pence was unaware. At this point that's the line and that's been the line throughout. And this wouldn't be the first time he's caught unaware in a situation that involved General Flynn. And, you know, I think we're going to see the fallout from that kind of --


BERMAN: And Matthew, there's a lot of talk right now, we heard from Kimberly Dozier before in our last hour now about Michael Flynn and his role in the administration, and is he in favor, is he out of favor? Are you getting any sense from inside or from outside in Washington what people are saying?

ROSENBERG: I mean, yes, we're getting a sense that he is -- he's not -- his access to the inner circle isn't what it once was. I think it's dangerous to get into the who's up, who's down game, because ultimately this is up to President Trump, and, you know, there may be people in Trump's inner circle who aren't fond of Flynn but President Trump still does seem to think he is a worthwhile adviser.

HARLOW: Thank you very much, Matthew, on your reporting and joining us this morning.

BERMAN: All right. Still to come for us, we have much more to come on this story. Michael Flynn, what he said, what he did. Plus there's some backlash over senior counselor Kellyanne Conway and her sales pitch for Ivanka Trump goods. New reporting about what she said to the president, coming up.


[10:16:57] BERMAN: So is it OK to pitch clothes and accessories, however nice they might be, from the White House? Senior counsel to the president Kellyanne Conway being hit with bipartisan criticism this morning for seeming to be trying to sell Ivanka Trump's clothes during an interview.

And now we're getting new information about what happened between Conway and President Trump after those comments.

HARLOW: That's exactly right. A senior administration official telling us that Conway apologized to the president for doing this and that he backed her up, quote, "completely." Just this morning she tweeted, "POTUS supports me."

Here to discuss, David Gergen, former presidential adviser to Nixon, Ford, Reagan, and Clinton, Tamara Keith, White House correspondent for NPR, and Laura Coates, CNN legal analyst and former federal prosecutor.

Let me begin with you, David Gergen, because I was schooled, I suppose, by Jeffrey Lord in the last hour who told me that I am wrong and that the American people don't care about this at all and that we shouldn't be talking about this. But apparently Republicans and Democrats in Congress on the House Oversight Committee think it is important and they think that Kellyanne Conway violated a part of the law as it relates to ethics and government employees. How do you see it?

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: It's a story, isn't it? Listen, she -- there is a clear ethics rule that if you're working in the government, especially in the White House, you can't hawk the goods commercially of somebody else. Here she did it on behalf of the president's daughter. And I think it's pretty clear there's a violation. The question is what do you do about it.

What's significant is that Jason Chaffetz, who is the chair of the House Oversight Committee and a big Republican, a rising star in the party, is sufficiently concerned that he has send letters -- co- authored a letter to the Justice Department asking, you know, for action over there. Whether there's going to be an investigation or what have you.

And I do think the American people care about -- not about the person, everybody wants to see her succeed in life, but they care about conflicts of interest, and whether the first family overall is putting himself in a position to gain financially from the president's days in office.

What we now have -- listen, we have Ivanka, we have Kellyanne Conway hawking Ivanka's goods. We have President Trump himself tweeting, and attacking Nordstrom for the way they've handled her brands. We talked about this yesterday. We have stories about Melania, the first lady, a lawsuit filed on her behalf saying an article in a particular publication harmed her chances of making basically a bonanza with her line of goods while the president is in office.

You take all that together, and whether they're violations or not, violations of rules, I think most Americans agree that it's tacky.

BERMAN: You know, and Tamara, now we have this added intrigue, our reporting that Kellyanne Conway apologized to the president, he was apparently incredibly gracious, stood by here. Apparently also not at all happy with how Sean Spicer, the press secretary responded to the whole thing when he said that Kellyanne Conway had been counseled about those comments. It almost seems like internally, you know, Sean Spicer gets hit with everything.

[10:20:09] TAMARA KEITH, WHITE HOUSE CORRESPONDENT, NPR: This White House is a leaky, leaky sieve, and often Sean Spicer is the target of some of the criticism. You know, the interesting thing about that letter that the Oversight Committee, both Chaffetz and Elijah Cummings, sent to the Office of Government Ethics, they asked the Office of Government Ethics to look into this because the ethics violations are handled by the agencies where the person works.

Well, the head of the agency or office where Kellyanne Conway works is the president of the United States. And that letter says that the president has an inherent conflict of interest, which is why they're asking the Office of Government Ethics to consider what the disciplinary action if there is any should be, because of that inherent conflict of interest, that Conway was promoting the goods of the president's daughter.

HARLOW: All right. Switching gears here to a huge story this morning, and Laura, to you as the legal expert on the panel, the -- General Michael Flynn, the National Security adviser, according to the "Washington Post" and "New York Times" lied, according to their reporting about calls that he had with the Russian ambassador before the Trump administration officially took over at the White House.

If he did have these calls about potentially lifting sanctions against Russia, that would violate the Logan Act. Now the interesting thing here, though, is the Logan Act is very, very old. It's from the end of the 1700s, but it has not been applied before.

LAURA COATES, CNN LEGAL ANALYST: That's true. And in fact timing is what's the most important, considering the Logan Act. The fact that you're talking about him doing it before he was in an official capacity on behalf of the United States is very key.

The Logan Act essentially says, listen, we do not want private citizens dipping their fingers into foreign policy or trying to undermine the administration in any way. But largely it's been used as a political weapon. In fact no one has ever been convicted under the Logan Act mostly because it's unclear as to whether or not or who can give the authority to act on behalf of the United States. But it's been wielded many times in the recent past. I mean, Pelosi was accused of using it when she was dealing with Al-Assad.

You had Senator Cotton being accused of violating the Logan Act when he wrote the letter to Iran about the nuclear uranium compound issues. And you have Boehner being accused of violating it as well, talking about Netanyahu, inviting him to speak. So this is a political weapon that's often used, and it's rarely ever used as an actual criminal act. And in fact we have no direction as to how to actually enforce this law. So it's a little bit murky.

BERMAN: Yes. You know, and it may not be the law that's the issue here, David Gergen. It's the statements that were made and by whom they were made. You know, Vice President Pence when he was vice president-elect, he went on TBS defending Michael Flynn. I think we have that sound or a shorter version of that. Can we play that? All right. I don't think we have that. Mike Pence went on CBS, essentially, David Gergen, and said, you know -- oh, wait. Here we go.


MIKE PENCE, VICE PRESIDENT OF THE UNITED STATES: Look, what I can confirm, having spoken to him about it, is that those conversations that happened to occur around the time that the United States took action to expel diplomats had nothing whatsoever to do with those sanctions.


BERMAN: Now both "The Post" and "The Times" are reporting flat out, David, that they did discuss sanctions. So Vice President-elect Pence never said what he said.


GERGEN: John --

BERMAN: Go ahead.

GERGEN: Yes, sure, John, I'd seriously doubt that there's going to be any legal action against Ivanka or to Kellyanne Conway, especially Kellyanne Conway, or just Michael Flynn under the Logan Act. But these kind of episodes do matter. In particular, if the National Security adviser has publicly represented himself as having public conversations that he describes, that hurts him with the public and with the general respect that he commands outside.

But very importantly here, if he lied to the vice president, that is a huge issue within the White House.

HARLOW: Right.

GERGEN: You know, this White House has already reportedly had -- there are various stories, Politico is going to be one out today, about the tensions and the distrust within the White House already. To have --


HARLOW: Well, David -- David, the White House --

GERGEN: -- a National Security adviser advises the vice president today, I just can't emphasize how serious that is.

HARLOW: -- is backing up the vice president. The White House is back up the vice president this morning saying his comments were based on his conversations with General Flynn.


HARLOW: No support of Flynn in that. GERGEN: No support of Flynn in that. And Flynn was already under a

cloud so this -- we'll see, this is going to be -- interesting story to watch. Mike Pence by nature I think is a forgiving person. But still you don't -- your National Security adviser doesn't lie to the vice president.

BERMAN: David Gergen, Tamara Keith, Laura Coates, Thanks all for being with us. We appreciate it, guys.

HARLOW: We appreciate it, guys. Have a great weekend.

BERMAN: Still to come for us, a change -- retreat, perhaps, from the White House and the president on his policy toward China.

[10:25:09] He talked tough during the transition. But now a big switch. That's next.


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

HARLOW: I'm Poppy Harlow. So glad you're with us. After months of suggesting America's long standing adherence to the "One China" policy was up for negotiation. A reversal, of course, completely from President Trump this morning.

BERMAN: Also overnight after a conversation between President Trump and Chinese leader Xi Jinping, the White House said President Trump agreed at the request of President Xi to honor our "One China" policy. So why the shift? The big shift.

David McKenzie is live with reaction from Beijing but we're going to start with Michelle Kosinsky at the State Department.