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Supreme Court Agrees to Heat Trump Travel Ban Case. Aired 10:30-11a ET

Aired June 26, 2017 - 10:30   ET



ANNOUNCER: This is CNN Breaking News.

[10:32:33] POPPY HARLOW, CNN ANCHOR: A major development this morning out of the Supreme Court. The justices have agreed to take up the president's travel ban case.

With us, Jeffrey Toobin, CNN senior legal analyst, as well as Michael Zeldin, CNN legal analyst and former federal prosecutor.

OK, a few things first to you, Jeffrey Toobin. What do we know about whether or not the Supreme Court granted the stay here? Meaning, will the travel ban take effect or is it still basically held off?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Partial. Split the difference. It upheld the stay in part but invalidated the stay, let the order go into effect in part.

HARLOW: What does that mean in practical terms?

TOOBIN: In practical terms, I was worried you were going to ask that.

HARLOW: Really?


TOOBIN: And the answer is, it's not clear to me.


TOOBIN: I don't want to give a wrong answer. This is a very unusual situation. I'm just trying to -- the court usually issues a one- paragraph order when it grants review of a case. This is a 16-page opinion, which I think indicates the complexity of the travel ban case.

The other thing that the court did is they put it down for argument in October. So this stay will remain in effect through October, at least.

HARLOW: Partially.

TOOBIN: Partially. Yes, the partial stay will remain in effect through October but this case will be argued at the beginning of the term. Again, the three justices who wanted the stay invalidated completely were Justice Thomas, Justice Alito and Justice Gorsuch, indicating as we saw throughout the day today that Justice Gorsuch is aligning himself with Justice Thomas, the most conservative member of the court, and giving a very clear signal of where Justice Gorsuch is going to be over the future of all these cases. Yes.

HARLOW: On all of these -- opinions that we've seen come forth today, this is incredibly significant.

Michael Zeldin, as you continue, Jeffrey, to read this 16-page order that has come down, also to the team in the control room, if we can get that map ready to show people the countries that are affected where this travel ban was affecting people coming into the United States. We'll bring that up and remind you in just a moment. But what also complicates this -- there you go, right there.

Michael Zeldin, to you, is the fact that this was not established law. Meaning, sort of that 90-day review period was still in place and that complicates things. This is taking up what the Fourth Circuit and the Ninth Circuit appellate courts had ruled against the administration on.

[10:35:05] But yet it is still sort of up in the air and still complex and still being worked through. That is different from cases that the Supreme Court usually hears.

MICHAEL ZELDIN, CNN LEGAL ANALYST: Well, that's right. It's alive, if you will.


ZELDIN: And there's still immigration ongoing. There's still acts of terrorism ongoing. There is vetting that's ongoing because of the way the Ninth Circuit ruled in its case, the Fourth Circuit. Time is passing, though. And in some sense that doesn't necessarily help the administration's position, which was that they needed this travel ban immediately so as to prevent a terrorist attack occurring in the United States.

Well, tick, tick, tick, we're moving forward in time from that emergency need for this. So that seems to maybe undermine the argument this is really national security based as opposed to religious base as it goes toward to argument.

HARLOW: That's a very interesting point. Yes?

TOOBIN: If I can just -- I think I figured out about the stay here. Basically, the stay applies if the person seeking to come into the country has a bone fide relationship with someone who is already here, a relative, family member, business, perhaps relationship. The stay does not -- that the ban is intact for people who don't have any sort of relationship with someone in the United States. So they can be kept out for the 90 days. People who have no relationship with someone in the United States.

HARLOW: For many of these -- for many of these -- TOOBIN: Those six countries.

HARLOW: Those six countries.

TOOBIN: But --

HARLOW: Of course Iraq was taken off.

TOOBIN: Right.

HARLOW: Version 2.0. Jeffrey, that is a partial win for the Trump administration.

TOOBIN: It is certainly a partial win for the Trump administration. But it is also a partial win for the state attorney's general and the civil rights groups that are challenging the travel ban. So they can say the people who have relationships with people in the United States, family --

HARLOW: The question, it further complicates things because the question becomes to what extent, to what degree? Second cousin, third cousin? Is it immediate families? I know you agree.

TOOBIN: Well, I mean, it says a bona fide relationship.


TOOBIN: It means like a real relationship.


TOOBIN: Not protects your sexual one. But, you know, how that works out in the real world is going to be up to lower court judges.

HARLOW: The president's own words, and Michael, I'll get to you in just one moment. But the president's own words in the Ninth Circuit and in the Fourth Circuit when his team was arguing this came back to haunt him, talking about a Muslim ban. And surrogates of his like Rudy Giuliani talking about it in that way. That has to be a concern for the administration as this case is heard again in the high court.

TOOBIN: It is. And I think this is something that the president may be in pretty good shape on. I have been surprised throughout this whole process how much courts have used campaign language in deciding the merits of this case. I have always thought that the Trump administration has a better chance of winning in the Supreme Court than it did in the lower courts.

The Supreme Court has traditionally been very reluctant to use the president's words as opposed to the text of an order, the text of a statute, in evaluating its constitutionality.

HARLOW: And Michael Zeldin, this is a president who promised, repeatedly, through tweets and as he spoke, you know, we'll see you in court. We'll take this all the way to the Supreme Court. And now he essentially has his wish granted on that front. ZELDIN: Well, that's right. And we'll see how it turns out.

Sometimes you have to be careful what you wish for. I think, Jeffrey, though, what will be interesting as you read through this is what is the pre-existing relationship. Does all the -- do all the universities and other businesses who have visa plans for employment and student applications constitute a relationship that is not prohibited by the stay if there's no relationship.

Also it seems like it's a win for the individual plaintiff in Hawaii, who was claiming that his mother-in-law couldn't come in. And it seems now that she'll not be covered by the state. Is that how you read it as well, Jeff?

TOOBIN: Yes, absolutely. And in fact the Hawaii plaintiff is mentioned by name as someone who will benefit from the stay that is still in effect. But mother-in-law, I mean, that is a classic family relationship. The --

ZELDIN: Whether you want it to be or not?

TOOBIN: Right. Yes. I refrain from mother-in-law jokes. An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can claim concrete harm and thus is covered by the state.

HARLOW: But, Jeffrey, the point out there as you just read it as a refugee.

TOOBIN: Right. Well, that -- I mean, that's part of the story. But it also says entity.


TOOBIN: Which suggests to answer Michael's question.

HARLOW: A bit --

[10:40:08] TOOBIN: Michael's question that students who have a relationship with the university --

HARLOW: With the university.

TOOBIN: -- would be able to claim hardship.

HARLOW: Which was a big part of --


HARLOW: Washington attorney general -- attorneys general argument.

TOOBIN: Right.

HARLOW: I should also note when, you know, part of the argument, as Michael rightly brought up, that the Trump administration has made, Jeffrey, is we need this in effect immediately to protect this country against terror. However, critics pointed to the fact that none of the four countries where the 9/11 hijackers were from are included in this ban, UAE, Saudi Arabia, Lebanon and Egypt. Is that going to hurt? Is that part of the argument going to be difficult for them to overcome in front of the Supreme Court?

TOOBIN: You know, one of the -- it's part of the mix. I don't know if it is the key argument. One of the -- the Trump administration has said, just because -- just because we don't ban immigration from all dangerous countries doesn't mean we can't ban immigration from the most dangerous countries. I mean, it's -- so I don't think it's a necessarily the dispositive, the winning argument in the case, but it will certainly be part of the mix, just as the president's words in the campaign, his repeated implication of a Muslim ban.

The fact that Rudy Giuliani was recruited to sort of clean this up, make it into a respectable Muslim ban. How much the Supreme Court will deal with that is a very interesting question. Historically they don't. Historically they don't get into the motivation of this case -- behind these decisions.

HARLOW: I am hearing Jessica Schneider who is outside of the Supreme Court with more on this ruling. As we are dissecting it page by page of the 16-page order that has come down.

Jessica, what else are you hearing?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Well, Poppy, I think it's fair to say, this is somewhat of an unexpected opinion decision by the Supreme Court and also somewhat intricate. So first of all the Supreme Court has in fact agreed to take up arguments on this travel ban. The president's executive order. His second executive order. Those arguments will be happening next term.

But in addition, the Supreme Court also allowing part of this travel ban to go into effect. It's sort of a win-win in parts for both the people who filed these lawsuits as well as the Trump administration. So the Supreme Court saying that yes, you can, in fact, ban some foreign nationals from the United States as we await arguments on this.

However, as it pertains to the people who filed these lawsuits, those people, their relatives can, in fact, come into the United States. The particular language that the Supreme Court used in this is saying that the travel ban cannot be applied to foreign nationals who have a credible claim of a bona fide relationship with the person or entity in the United States.

The Supreme Court then went on to cite the particular plaintiffs in this case who in fact do have that bona fide relationship, that familial relationship. Of course in Hawaii, the plaintiff was suing to get his mother-in-law a visa to get into this country. What's interesting about that case however is that that plaintiff's mother- in-law was actually granted a visa to come into this country over the weekend. So perhaps a bit of a moot point there. But yes, in fact, somewhat of a victory for the people who filed these claims.

But of course the Trump administration will also claim victory in this, saying that yes, we can continue to keep people out of this country who do not have a relationship with anyone or any institution here. Interestingly, the court also mentioned people who do have a relationship with an institution. They mentioned specifically students at the University of Hawaii who do have that close relationship. So it doesn't just extend to the familial realm. It also extends to institutions and people who might come here to work or go to school.

So it will be interesting to see how exactly this is applied, how exactly the government will determine whether or not you have that bona fide relationship, and also noted, the Ninth Circuit had previously said that the Trump administration could go forward with those vetting procedures in analyzing how foreign governments actually vet people who might come over here or that visa process.

The Supreme Court once again alluded to that. So a bit of a mixed bag here at the Supreme Court.


SCHNEIDER: And fair to say, Poppy, something that a lot of court watchers didn't necessarily expect. We expected perhaps it would be a blanket denial or a blanket denial of the stay and then we just wait for arguments. But now it turns out the Trump administration can go forward of parts of this travel ban.

HARLOW: They -- and let me bring in the man patiently standing to your side, who I failed to introduce at the beginning, CNN contributor Steve Vladeck.

Essentially what the court did hear is they split the baby when it comes to the stay, which is Jeffrey Toobin rightly pointed out is rare. Now the question that Jessica brought up that is asked, is so who decides what a bona fide relationship is?

STEVE VLADECK, CNN CONTRIBUTOR: Yes, I mean, this is the real question, Poppy. And I think in his dissent, Justice Thomas, joined by Justice Gorsuch and Justice Alito, made a big deal out of how hard it is going to be for the Trump administration to actually implement this ruling between now and October when the Supreme Court hears argument on the case.

[10:45:06] You know, you're going to have individual government officers deciding which kinds of connections are sufficient and which kinds of connections are not sufficient that may be a satisfying compromise among the six justices in the majority. It's going to be pretty hard to implement on the ground.

HARLOW: So, Jeffrey Toobin, those government officers, many of them officials of the Trump administration, making this decision so prepare for more lawsuits about whether this is a bona fide relationship or not, whether you can come to the U.S. or not?

TOOBIN: That's true. But, you know, immigration officers have to make decisions like this all the time, so it's not.

HARLOW: Yes, it is.

TOOBIN: I mean, yes, it will be difficult and yes, there will be controversy. But it is not like they are giving immigration officials a job to which they are not suited or in which they don't have experience.

HARLOW: Right.

TOOBIN: This is something that they do.

HARLOW: What do you think, Jeffrey, the attorneys for the Trump administration who argued these cases, which we heard the audio from, at least, from the Fourth Circuit and the Ninth Circuit? What can be learned from the failures in those courts and applied to their arguments in front of the Supreme Court?

TOOBIN: Well, I think the winning argument for the Trump administration if it's going to win is that this area of responsibility, immigration, is one that is reserved to all presidents of the United States.

HARLOW: 11-86.

TOOBIN: The law -- the Congress has said immigration deciding quotas, deciding standards is given to the executive branch. So this case is not about Donald Trump. It's about separation of powers. It's about whether presidents can continue to exercise the power that Congress has given them.

HARLOW: But that statute has also been amended if you will over time to also say but you cannot use it to discrimination.

TOOBIN: Correct. And under the law, the words of the executive order, there is no reference to Muslim. There is no reference to any religion. There is no preference for Christians as there was in the earlier executive order. So they will argue for analyzing simply the text of the executive order and the powers of all presidents, not just Donald Trump, that try to disengage the human being Donald Trump from the institution of the presidency, that will likely help.

HARLOW: This is, to be clear for everyone watching, travel ban 2.0 if you will. That is the unofficial name of it. Right?

TOOBIN: Correct.

HARLOW: But you bring up the first travel ban, which did separate, you know, religion.

TOOBIN: It's special privileges to --

HARLOW: Christians.

TOOBIN: -- Christians coming into the country.

HARLOW: Christians. Exactly. Can that bear, at all, on what the court weighs in deciding on the travel ban? Can they look at all to the first travel ban for intent?

TOOBIN: They can decide to do what they want. I mean, it is -- there's a lot of play in the joints. You know, this will be one of the issues that's argued in the case is, do you look at intent? The Trump administration will say, you don't need to look at intent. Just look at the order. The order says nothing about religion. The order refers only to six countries and that's all that you need to know.

The plaintiffs will argue, you can't look at those countries in isolation and you can't look at this case without identifying the president's and Candidate Trump's motivation.

HARLOW: The ACLU, the American Civil Liberties Union, just tweeted this. "Breaking SCOTUS to take up Trump's Muslim ban, we'll see him in court, #noMuslimbanever."

Steve, back to you. Where do you fall on what the administration can learn from its failure in the Fourth Circuit and in the Ninth Circuit? What is to be learned here in terms of the strongest case that can be made by the Trump administration on this?

VLADECK: Yes, well, Poppy, I think we're going to see the administration actually move quickly to embrace the reasoning and the opinion handed down by the Supreme Court to today and to try to argue that indeed it's goal all along was to draw this very distinction between foreign nationals with no connections to the United States and those who have family members, who have university relationships, who have other relationship with entities in the United States. I think we'll hear them say, this is exactly what they meant. You know, whether folks buy that I think is up to them.

And then, Poppy, the real question becomes what happens between now and October. You know, the travel ban was originally meant to be a temporary pause, a 90-day wait while the government reviewed the vetting procedure for non-citizens to enter the United States from these six countries. Now that those procedures can go into effect, now that the ban is going to go into force with regard to at least some foreign nationals, that 90-day period is going to end at the end of September before oral arguments in this case.

So I think there's now a big question about whether, by the time the Supreme Court next considers this case, it's going to be over. And the executive order might have run its course.

[10:50:01] TOOBIN: Well, that's one of the things that I have found bizarre about this whole litigation is that it's been treated as if this were a permanent executive order. It is explicitly, by its own terms, 90 days. I somehow doubt this is going to happen but you could envision a scenario where the Supreme Court just dismisses the whole thing as moot because this period has expired.

HARLOW: It's a very important point.

Michael Zeldin, to you, I want to get your take and just read you what some of those who were in the dissenting and wrote the dissenting opinion, Justice Thomas, Alito and Gorsuch, wrote. Justice Thomas pointed out that the government is, quote, in his terms, "likely to succeed on the merit," and he expressed with concern the court's remedy, meaning to basically split the baby on the stay. He fears that it will prove unworkable.

They also wrote that today's compromise -- this is about, I believe, the stay -- will burden executive officials with the task of deciding on peril of contempt whether individuals from these six affected nations who wish to enter the U.S. have a sufficient connection to a person or entity in this country, as Jeffrey and I were talking about. This is a major concern of those who dissented in this opinion.

ZELDIN: Well, but, as Jeffrey said as well, this is the day-to-day job of immigration officials. This is what they do. They receive applications and they make decisions. Now they just have a different calculus to make their decision with. And so I don't see how that is more burdensome than it was the day before this order.

With respect to whether or not they are likely to succeed on the merits, it really depends, again as Jeffrey said, how do they view the order? Do they look at it as the black letter on the paper with no context? Or do they view it in context? The Fourth Circuit and the Ninth Circuit viewed it in context and they said that it had a discriminatory intent, not withstanding what was written on the black letters of that white page.

And that's how it will be shaped in the court. One is going to look in context and one is going to look, you know, sort of narrowly and the court will have to figure that out. But the fact that the vetting will go forward and that the 90 days will pass, I think does in some respect undermine the urgency that undergirded the order in the first place. And Jeffrey is right, it may end up that it is booted out. They have done the vetting they said they needed to do, the 90-day pause, and now come up with some permanent, long lasting solution.

TOOBIN: And that permanent, long lasting solution will be subject to a whole new round of litigation.

HARLOW: I was just going to say --


HARLOW: All again. I do want to go straight to the White House because I believe we have our Joe Johns there who is trying to get some reaction from the Trump administration on this.

Are you hearing anything? Because this is a partial win for the travel ban. It can go partly into effect. That it, you know, cannot go into effect for other people. What are you hearing?

JOE JOHNS, CNN SENIOR WASHINGTON CORRESPONDENT: We have asked the White House communications staff and some others for any type of response we could get from them and so far nothing. But it is important to say that this administration, including the president, have said several times on previous occasions that they believe the Supreme Court would take the case once it got there and they also believe that they will be vindicated on the merits once the Supreme Court actually hears this case. So nothing yet.

The other thing I think is important to say is that President Trump has said before that he wishes the second travel ban had not been sent through the courts to the Supreme Court. He would have preferred to have seen the first version, he called the second version, the second writing a watered down version. He thinks that the first version would prevail on the merits essentially because the president believes he has broad powers on immigration and broad powers to do this in the interest, he says, of national security, despite all the corollary questions about religion and whether it's a Muslim ban. So still waiting to hear from the White House and hopefully soon.

HARLOW: Which he does have those broad powers. The question that will be decided is when can those be checked.

Final thoughts to you, Jessica Schneider, and then Jeffrey Toobin, very quickly. A huge day, Jess, at the court.

SCHNEIDER: It has been, Poppy. We've seen a flurry of orders as well as opinions. We have been out here since about 9:00 a.m. Of course, this being the final day of the term. So some of those orders came down at 9:30 this morning, opinions at 10:00 a.m.

We saw really a mixed bag out here. The court declining to hear several important cases on the Second Amendment. But also taking up a religious liberty case out of Colorado where they will hear next term the case of a Colorado cake maker who refused to make a cake for a same-sex couple and their wedding reception. But of course also a victory for a church in Missouri that will be able to get some state funding for a playground. So really a mixed bag.

[10:55:04] Of course the headline here, Poppy, the travel ban, parts of it will go into effect. Perhaps somewhat of a win for the Trump administration -- Poppy.


HARLOW: Final thoughts. Final thoughts, Jeffrey Toobin.

TOOBIN: And with all respect to Justice Kennedy, the real big story is the dog that didn't bark. Not that Justice Kennedy is a dog. He's a very distinguished man. He did not announce his retirement, which is not to say he couldn't do it tomorrow or later, but he remains on the court as far as we know.

HARLOW: Which is why you cannot go on vacation anytime soon.

TOOBIN: Well, we'll debate that.

HARLOW: Jeffrey Toobin, thank you.

Again, the breaking news, the Supreme Court will take up President Trump's travel ban. We'll have much more straight ahead "AT THIS HOUR" with Kate Bolduan, stay with us.


KATE BOLDUAN, CNN ANCHOR: Hello, everyone. I'm Kate Bolduan. We are following breaking news AT THIS HOUR.