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Maryland Judge Rules Against Trump Travel Ban. Aired 7-7:30a ET

Aired March 16, 2017 - 07:00   ET

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


POPPY HARLOW, CNN: -- viewers here in the United States. Our breaking news coverage on the second time that Trump has tried to implement the travel ban being shot down. That continues right now.

[07:00:12]

(BEGIN VIDEOTAPE)

DONALD TRUMP (R), PRESIDENT OF THE UNITED STATES: This ruling makes us look weak. We longer are, believe me.

UNIDENTIFIED MALE: The second federal judge has blocked the federal's new travel ban.

UNIDENTIFIED MALE: The president's order is an overreach.

UNIDENTIFIED MALE: We want to be free of Obamacare completely.

TRUMP: I will make health care better for you. The time for talk is over. Failure is not an option.

TRUMP: Our budget calls for one of the single largest increases in defense spending history.

MICK MULVANEY, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET: The budget takes the policy that President Trump laid out and turns them into numbers.

REP. DEVIN NUNES (R-CA), INTELLIGENCE COMMITTEE CHAIRMAN: I don't think there was an actual tap of Trump Tower. We don't have any evidence.

TRUMP: I think you're going to find some very interesting items coming to the forefront.

(END VIDEOTAPE)

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

CHRIS CUOMO, CNN ANCHOR: Good morning. Welcome to your NEW DAY. Alisyn is off. Poppy Harlow is here with me once again. We have breaking news this morning.

A federal judge now in Maryland becoming the second to block President Trump's revised travel ban. We told you about the new ruling in our last hour. This is the second defeat in court in just a few hours. A federal judge in Hawaii set the tone last night, putting the new ban on hold nationwide.

HARLOW: The president calling this Hawaii ruling a, quote, "unprecedented judicial overreach," vowing to appeal it to the Supreme Court. All of this as the president's budget is officially unveiled. It slashes billions of dollars from federal departments and boosts defense spending a lot.

We've got a lot going on on day 56 of the Trump presidency. Let's begin with our justice reporter Laura Jarrett, live in Washington with the breaking details. Look, Hawaii federal judge blocked it. Now Maryland is doubling down. The key in these decisions when you read through them: the president's own word choice when he was running really hurting him.

LAURA JARRETT, CNN JUSTICE CORRESPONDENT: That's exactly right. This federal judge in Maryland was laser-focused on the constitutional arguments about the executive order disfavoring Muslims over non- Muslims. And the judge says, "Look, I simply can't ignore the unrebutted evidence of the president's own statements from the campaign."

He writes in part in this decision this morning, "Significantly, the record also includes specific statements directly establishing Trump intended to effectuate a partial Muslim ban by banning entry by citizens of specific, predominantly Muslim countries deemed to be dangerous as a means to avoid for political reasons and action specifically directed at Muslims," Poppy.

Now the practical import of this decision is obviously limited, given Hawaii's nationwide ruling yesterday blocking the ban, as well. But this is another blow from another federal court on the legality of this new order.

And I should mention, we haven't heard word from the White House or the Justice Department about this latest ruling yet, but my guess is these cases are going to be destined for a swift appeal -- Chris.

CUOMO: All right. Appreciate it. Thank you very much for getting us the scoop on that Maryland decision.

The Trump White House suffering a second defeat, therefore, on this revised travel ban. The president calling the first ruling by a judge in Hawaii an unprecedented case of judicial overreach. He also said, questioned jokingly, "Was this politically motivated?" Clearly, he believes it was.

CNN's Joe Johns live at the White House with more. Now two judges but the same problem.

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: That's right, Chris, and the president making it clear he plans to fight this out in court, even expressing regrets that he didn't press harder for it during the first go-around. Last night when all we had was the Hawaii ruling, the president was also making it quite clear he plans to take this all the way to the Supreme Court if necessary.

(BEGIN VIDEOTAPE)

JOHNS (voice-over): New this morning, another blow to one of President Trump's key policy proposals. A federal judge in Maryland becoming the second judge to rule against President Trump's revised travel ban.

TRUMP: You don't think this was done by a judge for political reasons, do you? No. This ruling makes us look weak.

JOHNS (voice-over): The president talking tough after the ruling last night.

TRUMP: This is, the opinion of many, an unprecedented judicial overreach.

JOHNS: A Hawaii judge blocking the bam nationwide just hours before it was scheduled to take effect, ruling that the state had reasonable grounds to challenge the order as religious discrimination, and then pointing to the president's own words as proof.

TRUMP: I think Islam hates us.

ANDERSON COOPER, CNN ANCHOR: Is there war between the west and radical Islam? Or is there war between the west and Islam?

TRUMP: It's radical, but it's very hard to define. It's very hard to separate, because you don't know who is who.

JOHNS: The judge also citing statements from some of Mr. Trump's top advisers.

[07:05:00] RUDY GIULIANI, TRUMP ADVISOR, FORMER NEW YORK CITY MAYOR: When he first announced it, he said Muslim ban. He called me up. He said, "Put a commission together. Show me the right way to do it legally."

JOHNS: And policy adviser Steven Miller, who argued last month that the new ban would have the same impact as the old one, which was also blocked by the courts.

STEVEN MILLER, TRUMP POLICY ADVISOR: Mostly minor technical differences. Fundamentally, you're still going to have the same basic policy outcome for the country, but you're going to respond to a lot of technical issues were brought up by the court.

JOHNS: The commander in chief arguing that the Constitution grants him the power to suspend immigration when national security is concerned.

TRUMP: This is a watered-down version of the first one.

I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place. JOHNS: This setback comes as President Trump unveils his first budget

proposal, calling for a $54 billion increase in defense spending, offset by massive cuts to the EPA, State Department, Agriculture and Labor Departments.

MICK MULVANEY, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET (via phone): The president very clearly wants to send a message to our allies and our potential adversaries that this is a strong power administration.

(END VIDEOTAPE)

JOHNS: And just now, that first Trump administration budget has just posted online. It's a wish list and only a partial list of priorities for this president and this administration. The full wish list is expected to go up in about a month -- Chris and Poppy.

CUOMO: Joe, appreciate it.

Let's bring back Laura Jarrett. She got the scoop on that Maryland decision. Also joining us, Alan Dershowitz, professor emeritus at Harvard Law School. Along with CNN senior legal analyst Jeffrey Toobin.

Twice the beating for the price of one I'll be looking at here this morning. Professor Dershowitz, you made a very good point that people have to get this morning, which is you have to separate politics and law here. Yes, you can go after the president for what he said about Muslims in the past politically, but doing so legally is unusual. Why?

ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: This case raises a fundamental and profound issue that we'll be studying in law school for years. And that is, "Can you use the words of a presidential candidate to strike down a law, an order that would otherwise be constitutional"?

If you take this argument to its logical conclusion of these two judges, the same order issued by President Obama would be Constitutional. The precise same words issued by President Trump are unconstitutional, because of what he said as a candidate and what some of his associates said now. That's going to be a hard sell to the United States Supreme Court, particularly since the court generally says you look at the words of a statute.

Now there is one case, a case down in Florida where they struck down a prohibition on the slaughter of chickens, because they found evidence in the record that it was clearly intended to discriminate against a small religious group in Florida. That case will be relied on by the opponents of the ban.

But this is going to be very very important case in the Supreme Court. I predict the court will uphold most of this ban, though they may, at the edges, strike down parts of it.

HARLOW: So here's the question. You're talking about the language that is cited in both of these rulings, Hawaii and Maryland. For example, the president's interview with Anderson Cooper, when he was running talking about Islam. Listen.

(BEGIN VIDEO CLIP)

TRUMP: I think Islam hates us. There is a tremendous hatred, and we have to be very vigilant and we have to be very careful. And we can't allow people coming into this country who have this hatred of the United States and of people that are not Muslim.

COOPER: I guess, though, the question is is there war between the west and radical Islam or is there war between the west and Islam itself?

TRUMP: Well, but it's very hard to define. It's very hard to separate, because you don't know who's who.

(END VIDEO CLIP)

HARLOW: That was last March, but Jeffrey Toobin, even if the high court does decide, you know, that that can't be considered in this legally, they couldn't -- couldn't they? -- consider what the president said last night as sitting president saying the order the judge blocked was a watered-down version of the first order that was also blocked. Doesn't that hold through legally?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: You know, I'm not sure how significant that is. Remember, the Supreme Court has not evaluated the first order either. So it's not like they view the first order -- they have found the first order unconstitutional. Other lower -- lower courts did that.

I think the really problematic issue here is that it wasn't, you know, yes, you can consider what president -- you know, what candidate Trump said, but you also have the secretary of state, the secretary of homeland security, the attorney general of the United States all saying that this ban is in the national security interests of the United States.

[07:10:04] For a court simply to reject that on the basis of words said during the campaign, I just think, you know, as Alan pointed out, it's unprecedented. And I think other courts are going to have a hard time with that.

CUOMO: All right. So Jarrett, let's bring you in here. One legal pushback point that we'll say for professor is that Obama's ban was different. It was about people who travelled to these countries, not just nationalities in general. That will be one significant legal issue.

But in terms of the record here and what we're seeing, how do you think this plays out in terms of the appeal process? Because the DOJ will have a different set of judges to deal with, right?

JARRETT: Well, that's exactly right. So the DOJ is essentially going to be litigating two cases at once if they appeal both in Hawaii and in Maryland. And in Hawaii, the case will go to the 9th Circuit, just as it did a month ago, when we saw in front of Judge Robard it got appealed to that three-judge panel, who decided not to reinstate the ban.

But this time around, it will go to an entirely different set of judges. Two appointed by President Obama, one appointed by President George W. Bush. And in the 4th Circuit, it will also go to a randomly assorted panel of judges. And the question is what happens if the two of those panels come out differently. That's when I think you can see the Supreme Court come into play and decide how to reconcile the two appellate courts.

HARLOW: So one thing...

DERSHOWITZ: That brings Congress in, too. That brings Congress in, because the Senate may very well try to delay the nomination, Judge Gorsuch, in order to keep him from being on the court when this case comes before the currently eight justices. Because if the court splits four to four, they then affirm the lower court opinion so we're going to see the interplay of senatorial politics and litigation tactics by the Justice Department.

HARLOW: And those confirmation hearings begin early next week.

Here's something that's cited at the end of the Maryland decision, Jeffrey Toobin, that's interesting. It refers to Secretary of Homeland Security Kelly's comments to Wolf Blitzer on this network as part of the decision to block this. Let's listen to those comments.

(BEGIN VIDEO CLIP)

JOHN KELLY, SECRETARY OF HOMELAND SECURITY: These countries represent six or seven that we knew about. We're now looking at other countries, and when we come up with additional vetting to protect the nation better than it's been protected, there will probably be other countries we will look at and say, "OK, we want you to improve."

I don't want to speculate. But there's 13 or 14 other countries, not all of them Muslim countries, not all of them in the Middle East, that have very questionable vetting procedures that we can rely on.

(END VIDEO CLIP)

HARLOW: So the judge in this, at the end of this decision, Jeffrey Toobin, saying that matters, because this decision is still only those six Muslim-majority countries.

TOOBIN: I don't really get that at all. What's wrong with the secretary of homeland security saying, "We are evaluating the evolving threats to the country, and we may add or subtract countries based on what we find out about national security." I mean, that's why we have a Department of Homeland Security, is to evaluate these threats and respond to them. I don't see why that is damning of the executive order.

CUOMO: Professor, the argument that would be issued would be because we are giving you latitude as president on a matter of national security because of your understanding of specific threat. How is it specific, if you don't know how many countries are involved?

How is it specific, if you had two different reports from one of your security agencies, saying that these countries do not present an imminent threat and that people from there aren't a threat, because they immigrate to this country? It's radicalization within the United States that's the concern.

DERSHOWITZ: Well, I don't want to get technical on you, but it really depends on what standard the Supreme Court applies. If it applies the most rigorous standard, that it applies when you have religious discrimination, all these issues will come into play. Because it probably wouldn't pass that most rigorous standard.

If it applies the more general standard, does the president have the authority. Is there a reasonable relationship between the six countries and national security, it will survive.

So this is going to be a major jurisprudential concern going up to the United States Supreme Court. It's a long way from being over. I think the court will also give some deference to the fact that, although the president calls it just some technical watering down, it really went through a process of the Justice Department and the State Department, White House counsel, they took their time. They thought about this carefully.

I think the quote will give some deference to the executive, to the fact that it went through this carefully, that it's a work in process, that it may add countries; it may subtract countries. In the end, if the president just stops talking, I think there's a good chance this will be sustained on appeal.

HARLOW: Thank you very much.

[07:15:00] Also this hour, the White House just released the president's first budget proposal. We're seeing huge cuts for a dozen departments and agencies and a big boost to defense spending. What do Democrats think about all of this? We will ask Senator Chris Coons next.

(COMMERCIAL BREAK)

CUOMO: We are following breaking news. A second blow to President Trump's revised travel ban. First you had Hawaii. Now you had a Maryland federal judge in district court temporarily block the 90-day ban on immigrants for citizens of six Muslim majority countries.

This comes just hours, again, after Hawaii that halted that nationwide executive order from going into effect. The president didn't like it. Blasted it as unprecedented judicial overreach and suggested this was about a judge being political.

All right. So one of the interesting legal aspects will be that it seems to both of these judges that what the president said politically wound up influencing their reckoning of the constitutionality of the executive order. Unusual.

Let's discuss with Democratic Senator Chris Coons of Delaware.

Senator, several things I want to get out of you this morning, but let's start with the executive order. Unusual for a court, a federal court to say, "I'm going to look at what you said, not just what you wrote in this executive order." How you feel about that?

[07:20:15] SEN. CHRIS COONS (D), DELAWARE: Well, I think President Trump is struggling to make the transition from campaigning to governing, and he's beginning to learn that words matter. How he describes something is going to be taken into account by members of Congress when we look at his deep budget cuts, and by members of federal courts, now a federal court from Hawaii and one from Maryland as they review the intentions behind his actions.

I think it's striking, Chris, that last night at a campaign-style rally in Nashville, President Trump said that this decision makes us weaker. I actually think it makes us stronger when the world sees that the most powerful man in our country, our president, can have his executive orders restrained by federal judges.

None of us, I think, can predict exactly what higher courts will do with these judicial decisions by two district courts; but I think it's important to remember that President Trump challenging sitting federal judges as being politically motivated doesn't help his cause.

CUOMO: The -- politics are at play here. And again, you know, we just had Professor Dershowitz on. And he is in the community of a lot of lawyers who feel that this was an unusual basis to evaluate legislation. What was said about it by a politician on the side, as opposed to what is in the actual order.

But to the extent that this is politics at play, the knock on your side of the position is you guys just want to let people in; and you want to ignore the threat of radical Islamism. And you basically want to wait for something bad to happen here, and that's not keeping us safe. Keeping us safe is avoiding threat, not waiting for threat to manifest.

COONS: Well, Chris, that's a good summary of the position of folks who support President Trump. I'll tell you that as a sitting member of the Senate who has participated in hearings where we reviewed the vetting procedures for refugees, very, very few refugees are coming into the United States from countries where we perceive there is a threat, as you mentioned in the previous section.

The Department of Homeland Security recently released a report saying that these seven countries, now six countries, that are part of the new Muslim ban by the Trump administration, the refugees from those countries engaging in terrorist acts against the United States.

So part of these judicial barriers to proceeding with the ban, part of these decisions rests on not just words said by President Trump and his senior aides, but also the assessment of risk from these countries and the process by which these countries were chosen.

I'd say, in counter to your main point there, Chris, that we've already got thorough vetting in place for the countries from which refugees might come to the United States. And the extreme vetting and anti-Muslim ban proposals that President Trump made such a big deal of in his campaign is now carrying over into how he is governing.

CUOMO: Right. On the political side, it's going to be a calculation about winning this battle over the executive order but the larger war about making Americans feel safe. This is about feelings, not facts when it comes to refugees. The president playing on that to advantage so far. We'll see what the courts say.

Let me ask you about the budget proposal. We have a graphic here for where the president wants to put money and where he wants cuts to take it away. What is your feeling? I know that you have a particular sensitivity to foreign policy spending and that you feel the cuts there are wrong. Why? Make the case.

COONS: Well, President Trump's own secretary of defense, Secretary Mattis, when he was a general, said if you significantly cut funding for the State Department and foreign assistance, you'll have to give the military more bullets, because it will simply make the world a more dangerous place. And to dramatically increase spending on defense and significantly cut spending on the diplomats and development professionals who often work hand and glove with our Defense Department in difficult and dangerous parts of the world, like Iraq and Afghanistan, is unwise.

I think it shows an overreliance on the military and an underappreciation of the power and the effectiveness of diplomacy. Chris, I'm also really concerned about deep cuts to the Department of Agriculture, the Department of EPA, of programs that helped make sure that our water is clean and our air is clear. Things that protect the health of average American families all over the country.

CUOMO: What do you make of a Republican president putting out a budget wish list of cuts, and there are no entitlements mentioned in there? I know you Democrats are no fan of cutting entitlements either, but if you want to cut from the federal budget, why ignore the place where most of the spending is done?

COONS: Well, it's striking. That is a real departure from Republican orthodoxy, but you do see moving its way through the House an ACA repeal and replace plan from Speaker Ryan that does include significant cuts to Medicaid. So there may be entitlement cuts coming from the Republican leadership in the House to match up with these significant spending cuts on domestic priorities and programs.

[07:25:17] CUOMO: All right. Let me ask you about something else while I have you. The wiretapping claim. The president is now redefining wiretapping to basically mean anything that gets him out of a jam.

But while yesterday seemed to be a big day for those on your side of the aisle and those who believe there's nothing to the allegation, do you think there is a chance -- the president said, "Wait a couple of weeks." We've heard him say that before. But do you think that there is a chance that something will come out, maybe in this classified letter from Jim Comey that was promised to Lindsey Graham there in the Senate Judiciary Committee maybe next week sometime, that's going to say we were doing some kind of surveillance that somehow may have caught up some Trump operative somewhere at some point, and that that will justify what the president said, and this will come out being a victory for him?

COONS: I mean, Chris, of course, there's a chance. But I just want to compliment Republican leaders on the Judiciary Committee, both Senator Lindsey Graham and Senator Chuck Grassley.

President Trump made this unfounded dramatic charge against his predecessor, President Obama, that he was wiretapped during the campaign, in a 6 a.m. tweet a number of weeks ago, right after Attorney General Sessions was revealed to have testified untruthfully to the Judiciary Committee. And he had been compelled to recuse himself from an ongoing investigation.

I personally think that President Trump was trying to change the subject. And now several senior Republicans in the House and the Senate have said there's nothing to these allegations.

But the president challenged the Congress to step up and investigate this. And so that's what we're doing on a bipartisan basis. And the insistence, the rigor and the persistence with which both Republicans and Democrats on the Senate Judiciary Committee and the House Intelligence Committee have pursued this, I think is important, because it means we're going to get to the bottom of it.

It is possible that there's something that neither President Trump nor the relevant agencies have produced so far. But I think we need to get to the bottom of this so that we can move forward. Same thing with the allegations of Russian interference in the campaign through collusion with the Trump campaign. We need to get to the bottom of this. There's a lot of smoke, but there's no clear evidence yet of any fire. And I think we need to resolve these issues so we can move forward.

It's just one more example, Chris, of President Trump learning that words matter. That you shouldn't throw out dramatic accusations in an early morning tweet without backing it up.

CUOMO: Well, it will be interesting to see if this spirit of cooperation that this wiretapping gambit developed will remain on these tougher questions of what Russia did with this interference, how it did it, and whether there was any unacceptable coordination or contact with the Trump administration.

Senator, we look forward to having those conversations as you develop more evidence going forward.

COONS: Thank you, Chris.

CUOMO: Be well.

Coming up in our next hour, we're going to get the Republican reaction to the health care battle with Senator Bill Cassidy. He said this is not what the GOP was promised in a repeal and replace. Why? He'll come on and he'll make the case.

Also have the Democrat on the House Intelligence Committee, Adam Schiff, is going to be here to discuss the president's latest wiretap comments -- Poppy.

HARLOW: All right, Chris.

But before that, the future of health care in this country is pretty uncertain right now. Health Secretary Tom Price working to try to sell the Republican plan at CNN's town hall last night. But can the party even get enough of its own members on board. We're going to talk about that next.

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