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Anderson Cooper 360 Degrees
Federal Judge Temporarily Halts Travel Ban Nationwide. Aired 8- 9p ET
Aired February 03, 2017 - 20:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[20:00:10] ANDERSON COOPER, CNN HOST: Thanks for joining us. Hope you had a good day.
You could not imagine a more dramatic way to end the week. A constitutional showdown on one side, a federal district court judge in Washington state. On the other side, the White House. And in the middle, all the people affected by President Trump's temporary pause on the travel to the U.S., the executive order, trying to figure out exactly what's going on right now. This broke just a short time ago.
CNN justice reporter Laura Jarrett has been looking at all of the details. She joins us now.
So, bring us up to speed.
LAURA JARRETT, CNN JUSTICE REPORTER: Well, Anderson, a lot has happened in the past couple hours. We have to take it back to Monday when the Washington attorney general filed a lawsuit in federal court asking the court to determine that the travel ban was unconstitutional.
Now, the judge tonight did not rule on the constitutionality, but what we're seeing from reports tonight is that he put in a temporary restraining order, in order to make sure that the provisions of the order that we've been talking about for a week now -- so deportations and the like -- will not happen anymore, and it's a ban nationwide.
COOPER: And does a federal judge in Washington have the authority to institute a freeze nationwide?
JARRETT: Yes. A federal court has the ability to do that, and that's exactly what the attorney general asked for.
Now, what we don't know is what the White House will say to this. We've heard -- our reporting has shown that customs officials plan to follow this order, but we don't know exactly how this will play out. In other words, the government could decide to appeal it in an emergency filing tonight. So, it's too soon to tell exactly what the implications are.
COOPER: All right. Laura Jarrett, appreciate that.
Joining us by phone, the individual at the center of all this, Washington Attorney General Bob Ferguson. Mr. Attorney General, I appreciate you joining us.
BOB FERGUSON, WASHINGTON STATE ATTORNEY GENERAL (via telephone): Thank you, Anderson.
COOPER: Can you just explain, first of all, exactly what the judge's ruling has been?
FERGUSON: It's pretty straightforward. Judge Robart here in the western district of Washington granted our request for what's called a TRO, a temporary restraining order, which as you just heard, has the effect of shutting down the president's executive action nationwide, and that's effective as of right now. That's immediate.
So, we asked for that relief and the judge granted it.
COOPER: Were you asking for a ruling on the constitutionality of the executive order, or was this exactly what you were looking for?
FERGUSON: Well, this is exactly what we were looking for was immediate relief, to be clear, to grant a temporary restraining order, the judge has to balance some different factors. Those include the likelihood that the state would ultimately prevail when he weighs in on the merits, OK, as well as looking at the public interest.
So, it's tough to get a TRO because you have to show you are likely to prevail when the judge gets around to making a final decision. The judge reached that conclusion, that we are likely to prevail when he reaches the merits in the coming days, and also that the public interest weighed in favor of issuing the TRO. So, that is now in place immediately. Our claims, though, Anderson, to be direct, we have constitutional claims, as well as statutory claims of violation of a Nationality and Immigration Act, for example, in addition to the constitutional claims. The judge granted the TRO, and then again, that goes into effect right away.
COOPER: Can you just explain essentially what your arguments are on the constitutionality of the executive order?
FERGUSON: You bet. There are multiple, but I'll keep it short and brief in the interests of time. So, we have a variety of constitutional arguments that include, for example, violations of due process, equal protection, violation of the First Amendment Establishment Clause in relation to religion.
So, we have a bucket of constitutional claims that were discussed in court today. In addition, we allege violations of statutes like -- it may sound technical, but the Administrative Procedures Act. Well, that's not technical -- for example, President Obama's, the DREAMers Act that he put into place was shut down because of a claim based on that act, for example, when Republican A.G.s sued the Obama administration.
So we have two different buckets of claims, and the judge felt we were likely to prevail on the merits when he ultimately decides on that, and that is part of why he granted our temporary restraining order this evening.
COOPER: So, does -- this is a dumb question -- but does your case then continue in front of this judge?
FERGUSON: No, it's not a dumb question at all, Anderson. This can be a little confusing. Yes, eventually, the judge will reach what we call the merits, make a final decision. But I think it's fair to say, most lawyers would say that if a judge grants you that temporary restraining order, because one of the requirements to do it is the judge concluding you are ultimately likely to prevail on the merits, that is -- that bodes well for our case, as you might imagine.
I want to say, look in a courtroom, it is not the loudest voice that prevails, Anderson, it's the Constitution. And Judge Robart is an appointee of George W. Bush, and he took the, you know, extraordinary step of granting a TRO to shut down implementation of this executive order because of the adverse impact to people in my state, businesses in my state.
[20:05:12] Businesses like Expedia and Amazon wrote declarations in support of my motion before the court, talking about the harm done to their employees and their businesses as a result of this unconstitutional executive order.
COOPER: So that's an interesting point that you just made, because one of the potential responses to this from the White House -- and again, we haven't heard the White House response -- might be, well, this is an activist judge making a political decision. You're saying this judge was actually appointed by George W. Bush.
FERGUSON: He was appointed by George W. Bush. That's exactly right.
And look, this is -- I understand some folks want to make it about politics. It's not. As attorney general, I have twice filed lawsuits against the Obama administration, even though I'm a Democrat and I deeply admire President Obama. We prevailed on one and the other is still ongoing.
For me, it's not about who occupies the White House. What matters to me is the rule of law, Anderson. We're a nation of laws, and I don't care if it's President Obama or President Trump, if you violate the Constitution and it harms my constituents and the people in my state, I'm not going to put up with it. I'm going to hold you accountable. And that's the power of the law. You can walk into a courtroom in Seattle and a judge can issue a decision like this that shuts down a blatantly unconstitutional and unlawful executive action that President Trump executed last week.
COOPER: And I just wanted to amplify this. This now affects nationwide. This is not just affecting Washington state, correct?
FERGUSON: A hundred percent, that this rule is of nationwide impact. Now, we saw some folks can be surprised, like, hey, how can a judge out in Seattle have that kind of power?
COOPER: Right. FERGUSON: We saw similar decisions by judges when there were challenges to President Obama's actions, where a district court judge could have that same authority nationwide. That's the power they have.
Now, hey, I expect an appeal process from the federal government. I hope they don't appeal. I hope they recognize that this executive order is unconstitutional.
But obviously, we're prepared for an appeal up to the 9th Circuit, if that's what it comes down to. But the bottom line, is in our country, Anderson, no one is above the law, and that includes the president, and that's what went to heart of our case here today.
COOPER: So, in terms of that possible appeal by the federal government, by the White House, how quickly could that -- I mean, can they go for an emergency appeal tonight? Can they get in front of a judge tonight?
FERGUSON: You know, you'd really have to ask the federal government, Anderson. The whole executive order itself was put together in such -- I mean, it was Keystone Cops the way that was put together. That's not a reflection on their lawyers, right, who are doing their best, but I can't say what they will do or how.
But all we know right now is Judge Robart issue his decision, and that means that the executive order is not in effect right now. That means people can fly into our country right now. They can board a flight and land in our country and proceed as they intend.
COOPER: When you say the way this executive order was executed, it was Keystone Cops -- what was your term -- what do you mean?
FERGUSON: Well, hey, I'm not just saying that. We've seen Republican members of Congress talking about the way in which they thing was put together. After they've rolled it out, they have had contrary statements saying, well, the executive order didn't mean this or didn't mean that. They didn't consult -- I think it's pretty clear to say -- with the kinds of folks you should consult with before you issue an executive order of this magnitude that impacts people all around our country and businesses all around our country.
Hey, Expedia and Amazon are not small entities, right? Yet, they rallied over a weekend. I called up their legal counsel over last weekend as we, my legal team worked around the clock to file our motion on Monday. I called up their corporate counsel on Saturday last weekend and they put together a declaration that weekend to talk about the adverse impacts President Trump's executive order has on their employees and on their business operations.
I mean, this executive order, it's stunning in its breadth and the lack of detail that went on to it, frankly, was demonstrated by the judge's decision today.
COOPER: Let me ask you, just for -- now, for people who are overseas, who had a visa that then got rescinded, and we're told the numbers are in dispute, it seems, but tens of thousands of people at the very least. Because now of the judge's actions in Washington state, those people can, what, reapply? Those visas are suddenly valid again?
FERGUSON: I guess I don't know that level of detail, Anderson. I don't want to get that wrong, right, but certainly, they are able to obtain a visa and travel back to the country. But I don't want to guess on that level of detail. I'm sorry. I don't want to get that wrong.
COOPER: OK, fair enough, and that's not your purview. That's for Immigration and Customs Enforcement, who we'll obviously reach out to.
We've got two also legal analysts smarter than I am who are here, who I know just want to ask you some questions, if you have time, Mr. Attorney General.
FERGUSON: Sure.
COOPER: Danny Cevallos and also Paul Callan.
Danny, do you want to start?
DANNY CEVALLOS, CNN LEGAL ANALYST: Yes. Mr. Ferguson, did the judge give any indication which of your constitutional claims or other claims, your Establishment Clause claim, your Equal Protection claim, which of those were substantially likely for you to prevail on and which maybe he didn't think you were as likely to prevail on?
[20:10:05] FERGUSON: That's a good question. It was an oral ruling. We expect a written opinion from the judge this weekend is what he said, in part to allow the federal government to appeal quickly, if they wanted to. So, I'm working off memory from what was, as you might imagine, a pretty dramatic moment as he read his statement. But my recollection is that he did not specify which constitutional arguments were the ones that he felt were most likely to be successful on the merits, ultimately.
He did rule that the state had standing, the federal government had made the argument that as attorney general, I could not bring a case on behalf of the state of Washington, that we didn't have standing for the court. He was very clear that the state of Washington had standing to bring this case. That was a key claim of the federal government to try to kick this out was we did not have standing. For those who are watching who are not lawyers, that meant we didn't eve have the ability to stand before the court and make our case.
So, he was clear on that, but my recollection is he did not specify which aspects of our claim was the one that led him to his conclusion. And that's why a written order is expected very shortly.
PAUL CALLAN, CNN LEGAL ANALYST: Mr. Ferguson, Paul Callan here. I just wanted to jump in on two issues. The first, usually when a federal judge issues an order, it's got to be typed up, he's got to sign it, it's got to be served on various parties before it is effective. Now, you've just indicated that he hasn't even issued a written order
yet, and yet, at the same time, you've said it's in effect right now. How can it be in effect right now if the judge hasn't even ordered -- issued a written order, a written, signed order?
FERGUSON: My understanding is that he was going to issue a very brief, two-sentence or so order.
CALLAN: But you're not aware --
(CROSSTALK)
FERGUSON: But he made it clear --
CALLAN: But are you aware as to whether --
(CROSSTALK)
FERGUSON: -- going to effect immediately.
CALLAN: But are you aware, sir, as to whether that has been done as we speak?
FERGUSON: I have not seen it, but the judge was crystal clear in his oral ruling today. He did say that he would have a more extensive, written order subsequently this weekend.
CALLAN: This weekend, all right. And --
FERGUSON: Yes, it could be as soon as tonight, but yes, he made it clear that he was going to be executing this tonight. It may be short in terms of the execution tonight.
My apologies if I wasn't clear, but a more extensive ruling. My understanding -- again, I'm working off memory from what you can imagine was a pretty dramatic moment, that something more extensive may be coming out this weekend, a more extensive written order may be coming from the judge.
CALLAN: The second question I have -- and your office undoubtedly has handled many appeals that have gone up to the 9th Circuit. How fast can the 9th Circuit get involved in this if the Justice Department puts together papers quickly, seeking to stay or postpone enforcement of the judge's ruling?
I mean, could they -- could they be in action tomorrow seeking relief from the 9th Circuit and preventing it from applying to the entire nation? What's your opinion on that?
FERGUSON: I think that's possible. It's a question best directed to them of how they want to proceed.
But, obviously, as I've said from the beginning, before we received this opinion, this decision from Judge Robart, that I expected win, lose or draw, this thing was going to move fairly quickly through up to the 9th Circuit just because of the magnitude of the executive order and whichever the judge went, I anticipate there would be an appeal relatively soon, but really, it's up for the federal government to decide.
But it would not surprise me if we found ourselves before the 9th Circuit relatively soon. That said, I feel confident that we will prevail and this will go up to the 9th Circuit Court of Appeals.
COOPER: Attorney General Ferguson, just my last question, just for you on a personal basis, when you heard the judge's ruling -- I mean, as somebody who brought this case, who argued this, you've been living this now for the week at the very least -- what did you think? What went through your mind? Were you surprised?
FERGUSON: Hard to put into words, to be honest, Anderson. I guess -- I'm very proud of my team. They have literally worked around the clock the past six days. And I mean that quite literally. Attorneys have been in my office around the clock for six days to make this happen.
So, you know, as a lawyer, it's why you go to law school, to do something that benefits the people you serve, that upholds the rule of law and the Constitution. So, you know, to say it was the best day of my professional life would be an understatement.
COOPER: And to those who supported the executive order and say that they felt safer after the executive order, what do you say?
FERGUSON: I say we're a nation of laws, Anderson, right? And I understand that sentiment, but things have to be done in accordance with our Constitution. That is the bottom line. And it is central to who we are as a people.
And the president simply did not meet that obligation, which is central to his responsibilities. And one, to be crystal clear, as we wrap up, I will hold him to, throughout his administration, frankly in the same way that I filed two lawsuits against the Obama administration when I felt they were acting in an unlawful fashion. And we prevailed in first and are litigating the second. That's my duty and responsibility as a lawyer and as attorney general for the people of this state.
[20:15:03] COOPER: I do have one more question from David Gergen, who's standing by.
DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Mr. Attorney General, help us understand, if the 9th Circuit were to reverse, will you then appeal to the Supreme Court?
FERGUSON: Oh, I'm prepared, David, for this case to go all the way to the Supreme Court, whichever way the 9th Circuit Court of Appeals goes. It's a case of that magnitude. It's a case that, frankly, I think will ultimately end up before the U.S. Supreme Court. And so, that would not surprise me one way or the other if we end up before the U.S. Supreme Court.
COOPER: Mr. Attorney General, we do appreciate your time. I know it's been a very busy night for you. I appreciate that.
I want to go now to the White House and CNN's Jim Acosta.
Jim, any public reaction? What are your sources telling you?
JIM ACOSTA, CNN SENIOR WHITE HOUSE CORRESPONDENT: Not yet, Anderson. We do know that the White House is aware of this ruling out in Washington state. We understand that a statement could be coming, that they're working on a statement, but no word yet as to when that is going to come. But we should point out, the Trump administration is very confident that this is going to hold up in court. The office of legal counsel with the Trump administration put out a guidance saying that they felt this executive order was legal.
But keep in mind, from a legal standpoint, this has been very controversial all week. You'll recall the acting attorney general, Sally Yates, was fired personally by the president because she would not carry out this order, and she found that it was not legal. And so, once again, you may have a situation this weekend, Anderson, where this is all sort of up in the air legally, and you might have, again, chaos and confusion at these airports because you may have people in some of these countries wanting to figure out -- well, can they come to the United States?
And so, my guess is that we're going to get a statement from the White House and we're going to get some kind of guidance from homeland security as to whether or not people can get on planes and come to the United States. My sense of it is that it's unlikely that that's going to happen. But once again, we're sort of in this legal limbo as to what's going to happen with this very controversial executive order.
COOPER: We should point out, Jim, in terms of people getting on planes coming to the United States, those would only be people who already had a visa, who had already been approved and then had had those visas, I guess rescinded would be the word, if I'm not incorrect. This is not new people who are suddenly going to be applying for a visa which in many of these countries, in practically I think all of the countries in this ban, it takes many weeks and/or months to actually get a visa.
ACOSTA: That's right. That's right. And that was part of the reason why the Trump administration brought this forward. They wanted extreme vetting. They wanted tighter vetting practices for people coming from these seven predominantly Muslim countries.
But at the same time, you know, what we saw over the weekend, where you had Iraqi interpreters who were working with the U.S. military, where you had green card holders and so on, there was just so much confusion with the rollout of this, you know, you had so many Republicans up on Capitol Hill who have been pretty supportive of this president all along scratching their heads and saying, hey, wait a minute, this was just not handled properly.
And so, with this ruling, this temporary restraining order out in Washington state, I would imagine the White House is going to act fairly quickly here to get this appealed, because this could once again result in some chaos and confusion over the weekend.
COOPER: Jim Acosta, no doubt, we'll be checking in with you throughout the next two hours and into the evening.
We've put together our legal dream team. Here is, you've seen, CNN legal analyst Laura Coates is joining us from Washington, Jeff Toobin is on the phone. Harvard constitutional -- well, David Gergen and our other political analysts are here as well.
Is Professor Turley here? Do I have that right? Is he here? Nobody? All right. Jeff Toobin is on the phone. All right, Jeff --
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST (via telephone): I'm here.
COOPER: Let's start with you.
TOOBIN: Yes, sir.
COOPER: What do you make of this? Are you surprised?
TOOBIN: Well, I am surprised at the nationwide aspect of it, but this is not unprecedented even recently. It's important to remember that during the Obama administration, a federal district court judge in Texas ended President Obama's attempt to protect the DREAMers, the people who were brought to the United States as children. That executive order was overturned on a national basis by a federal district judge in Texas, and that was the end of it. The federal appeals court, the 5th Circuit upheld that, and the Supreme Court never had a chance to act on it.
That is precisely what's happened here, a federal district judge in Washington has said this is an unconstitutional act, but we are now at the middle stages of a long legal drama. This is very likely to go to the 9th Circuit this weekend, and it is undoubtedly going to wind up in the Supreme Court.
One other fact to keep in mind, though, is that this executive order is something of a moving target. What it means has not been clear.
[20:20:03] And just on the question, for example, of whether it applies to people with green cards. The administration is now saying it doesn't, after it appeared that it did. So, how the courts rule on it will in part be affected by what it means, because even that is just not clear at this point.
COOPER: But I mean, I thought the White House tried to clarify that this did not apply to green card holders.
TOOBIN: Well, they did try to clarify that, but that -- the order says what it says, and it has to be evaluated in terms of what it says. And we now have reports that there are tens of thousands of visas that are now in jeopardy because of this. And just in the very practical sense, I have a great deal of sympathy for the people at the airports, whether they are with the immigration service or with homeland security, you know, trying to interpret what to do in their jobs. You know, today, because this law is -- this executive order is
currently no longer the law of the land, but what does that mean for people standing on line at airports? I think, you know, there is going to have to be some guidance sent to them very quickly, and we don't have -- and none has been forthcoming yet, which is not surprising since this order came down about a half an hour ago.
COOPER: I want to also bring in Harvard University's Laurence Tribe.
Professor Tribe, your thoughts on what has happened, what it means, and what happens next.
LAURENCE TRIBE, HARVARD UNIVERSITY (via telephone): Repeat the question? I didn't hear it.
COOPER: Professor Tribe, just your thoughts on what has happened tonight and also what happens next.
TRIBE: What happened tonight was historic and very important. And I do think that clarification is in order. First of all, the court held against the arguments of the attorney general of the United States, or at least the Justice Department, that the states of Minnesota and Washington had standing to represent universities -- be affected by this unconstitutional order. Secondly, the only practical impact of what the judge did would have to be the reinstatement of the 60,000 to 100,000 visas that were arbitrarily and secretly canceled at the same time that the matter was pending before the courts.
I mean, that's one of the more extraordinary things. Lawyers were in court arguing that people -- detained -- the government pretended that that was a trivial matter, it was 107 people. And behind the back of the court, arguably in contempt, what they did was to suspend without hearings, without notice, without notice to the people involved or without notice to the public or to the lawyers involved, they just canceled the visas, reported to cancel them.
What this judge did clearly has got to mean those cancellations -- but airlines may be confused about what it means in terms of people trying to board those planes to come back to the United States from the seven blacklisted countries. The individuals involved may be afraid to get on the planes because they don't know if they'll be allowed to get off. I think that the attorneys general of Minnesota and Washington should ask the judge for immediate clarification, and I hope he will clarify that the visas are just as good as they were before this -- the Trump administration was issued.
COOPER: Right. From what we hear from the attorney general in Washington tonight, this was a verbal ruling by the judge. They are awaiting either a short, written judgment and a longer one perhaps this weekend. But just in terms of the timing, Professor Tribe, if the Department of Justice decides to bring this to the 9th Circuit, how quickly can they go about doing that and get a ruling?
TRIBE: If I had a crystal ball, I would be hesitant to whip it out for this purpose. It's pretty clear that the moves that are next made could be by the Trump administration, or they could be by the states of Minnesota and Washington, asking the court in the process of reducing its oral ruling to something written and clear, to make exactly clear what it means for visa-holders who are in a kind of unjust and unconstitutional limbo at the moment.
COOPER: Jeffrey Toobin, do you have a sense of how quickly things can move forward?
[20:25:06] TOOBIN: Oh, this could go really fast, Anderson. I mean, they could go over the weekend, you know. When I say that, they can ask for emergency relief over the weekend. There's no guarantee they'll get it, but certainly, the Justice Department can be in court tonight, asking the 9th Circuit to overturn this stay.
Remember also that the 9th Circuit is one of the more liberal circuits, where the opponents of this executive order are very likely to have a better chance than in, say, the 5th Circuit, which ruled against the Obama immigration plan. So, it is not a guarantee that just because the Justice Department gets back into court that they will win. There is, you know, this -- many judges have already had shown deep reservations about this executive order, so it doesn't mean just because the Justice Department asks for this to be reversed that it will be.
COOPER: Laura Coates, was any of this argument that was made to the judge in Washington, was any of it affected by the then acting attorney general giving instruction as instructions, I guess last Friday, I don't know, it all blends together, or Monday, to a Department of Justice lawyer not to defend this. She was then fired that night and replaced.
Would the government's ability to argue this been affected by that at all?
LAURA COATES, FORMER FEDERAL PROSECUTOR: It would have been, because you have to have a consistent kind of party line here, what we're going to be arguing in courts going forward as to how to defend this. And the incoming acting A.G., Boente, when he said he would defend it, had to put forward arguments that could be used universally.
But remember, people have to remember, a few hours before this Washington ruling happened in Massachusetts, a court ruled exactly the opposite. They found that the government was likely to prevail in the same sort of context and that people didn't even have a property right to a visa and they were not going to extend the temporary injunction that was given to people through Sunday.
So, this case is not only possibly going to go to the Supreme Court, it is guaranteed to, because you're going to have a conflict between two circuits, the 9th in the West Coast, very liberal, versus the 1st Circuit. So, you have competing arguments. And you'd better believe, if the DOJ goes into court this weekend before the 9th Circuit, they're going to have in their hand the 21-page ruling from that Massachusetts court in contrast to the oral opinion and oral statement given by the judge today, saying, excuse me, this is actually not a guarantee that they will prevail in court. We actually might. And the number one reason they gave, Anderson, is the presidential
prerogative to be able to have great deference to say who can come in the country when national security is an issue. This is a really, really difficult case still.
COOPER: I also want to bring in our panelist here, Paul Callan, you heard from earlier, Danny Cevallos as well, Maggie Haberman from "The New York Times", David Gergen, Ron Brownstein as well.
Just -- I mean, I think the bottom line for a lot of people watching overseas and wondering in the United States of all political stripes is what actually, beyond the court battle that looms ahead, what does this actually mean for all those people who thought they had visas, then were told their visas were no longer valid? At this stage, until we hear from I guess Immigration Customs and Enforcement, we don't really know.
CEVALLOS: It's less a legal question and more of an administrative- type question, because as Paul pointed out earlier, all we have at this point is an oral order from the bench that sort of relayed to us by the litigants. We haven't seen any paper yet. And this is a government not only of laws but of paper, and they're going to need that paper to enact or carry through on any judge's order. Right now, all of this order is apocryphal.
CALLAN: Anderson, I think people would be foolish to jump on airplanes to come to the United States when over the weekend, this order could be reversed. And although everybody has said things like this have happened before, it's very, very rare. Usually in the federal courts, we like to have these things percolate up with -- and the Supreme Court likes to see how the different districts and circuits are handling a major issue, laying down the law of the land. So, I think this is going to be in flux and people should move precipitously.
RON BROWNSTEIN, CNN SENIOR POLITICIAL ANALYST: But the Texas analogy is very apt here. I mean, this is really the reverse of the Obama administration, where you saw state attorney generals led by Texas going to court, in conservative district courts in Texas, knowing that then go up through the 5th Circuit that was a conservative court.
And it was -- I don't believe -- it was not the dreamers themselves. It was the adults. It was President Obama's attempt to extend the protection to adults who are here in an undocumented status that was blocked by the district court, upheld by the 5th Circuit and then reached a dead-end at the Supreme Court.
[20:30:11] Now here, you know, you have the possibility of the 9th circuit, which I believe is the most Democratic appointed, about two to one, potentially upholding, and then again, hitting a tied Supreme Court. And I guess the question -- first of all, this is very indicative of how our politics is changing.
As president, you're not only fighting the other party in Congress and kind of, you know, a horizontal way, you have a vertical fight where the other party pursues you again from the states, very clear pattern under Pres. Obama clearly replicating here under Pres. Trump.
The question will be from the legal side, if you have this struck down by one circuit -- by one appellate court and upheld by another and a tied Supreme Court, what happens then?
PAUL CALLAN, CRIMINAL DEFENSE ATTORNEY: Now that's a fascinating question, because if the 9th circuit rules against the Trump administration it goes to the Supreme Court. The 9th circuit's ruling will be the first one that gets there. That would become, technically, the law of the land. So people are going to come to realize pretty quickly, having a four - four split ideologically on the Supreme Court as we currently do, can have a big impact on the nation.
DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY: And speaking of splits, I mean this is exactly the kind of thing that the Supreme Court looks for in deciding to take cases. So you'll have not only a circuit split, but a simultaneous circuit split, which is really something amazing.
DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Paul, what are the options for the Supreme Court? What are the different options the country might be looking at?
CALLAN: Well, I think the Supreme Court -- before the Supreme Court decides this, one option is that the Trump administration will take a second look at redrafting this executive order. I would think that from a pragmatic standpoint, that would be the way for them to approach it.
Now, if it gets to the Supreme Court, it's interesting, because Anthony Kennedy is a swing vote on the Supreme Court. He could go over on to the side of people who are considered to be more liberal and rule against the Obama administration. So, it's going to be really hard to predict how this plays out in the Supreme Court, ultimately.
GERGEN: What a mess.
BROWNSTEIN: But just -- this is incredibly indicative of how divided the country is. I mean this is what we saw, you know, in the 1990s, you did not see John Engler and Tommy Thompson suing Bill Clinton all the time. It became routine under Pres. Obama, where he was fighting not only the Republicans in Congress, but essentially every Republican Attorney General sued him on the medicaid expansion, on the DACA expansion to the parents and on a clean (ph) power plant. And would find a conservative court, run it up through a conservative appellate review and then either the Supreme Court would stalemate or I'll take it.
Now we're seeing it again. It really just shows you how -- in many functional ways, we are talking about a functional civil war between blue and red America.
CALLAN: You know the thing that should scare us all, though? Mr. Trump put a picture of Andrew Jackson up in the Oval Office recently. BROWNSTEIN: Yes.
CALLAN: Well, in 1832, in a case called Worcester versus Georgia, the court, John Marshall, ruled against Andrew Johnson. And he stated --
CEVALLOS: Jackson.
CALLAN: -- and for Jackson. And Jackson stated, Marshall has issued his opinion. Now let him enforce it, and it almost led to a constitutional crisis in the United States when Jackson refused to go along with --
GERGEN: That is one thing they will not do. I cannot believe the Trump administration will say they -- will ignore this. I think they'll say tonight they're confident they're going to prevail in the end.
CALLAN: I hope so.
COOPER: And Maggie, we do expect that we would get some word from the White House tonight. I mean, if we know, you know, Pres. Trump at all, they are quick to react, they are, you know, their punch they like to counter punch quickly.
MAGGIE HABERMAN, NEW YORK TIMES WHITE HOUSE CORRESPONDENT: They're quick to reaction, like to counterpunch quickly, but they also have gotten a bit dinged up over the last week and a half for moving a little quickly without necessarily checking everything. So I think they're going to be little more thorough than we have seen since he took office in responding to this.
COOPER: As I said, we are waiting for a response from the White House as well as other authorities. We're going to take a quick break. We'll have more on this dramatic decision ahead.
(COMMERCIAL BREAK)
[20:37:03] COOPER: Well, if you are just tuning in, the breaking news, a federal judge in Washington State ordering a temporary halt to Pres. Trump's executive order on immigration, otherwise known as the travel ban. The ruling for now just two sentences long, quoting from the court docket, "For the reasons stated on the record, the court grants plaintiffs emergency motion for temporary restraining order. A written order will follow." Unclear if that written order is going to come tonight or tomorrow.
Joining us now is CNN Rene Marsh with new information about potential, and I want to say potential impact on people seeking to come into this country, some of them had visas and were told their visas were no longer valid. So, what is the latest? What do we know?
MARSH: So, Anderson, this big question is what exactly does this court order mean and what is it telling both CBP and the airlines as well as the federal government --
COOPER: CBP is customs and border protection. MARSH: Right. So, here's the question that's being raised by many people that we're talking to. Does this order essentially say anyone with a valid visa is allowed to come to the United States? If that is the case, it really doesn't move the needle all that much. Here's why. If you remember, last week the State Department revoked all of the visas, or hundreds -- about 100,000 visas from individuals.
So, in essence, these people would need to reapply for visas, so we wouldn't have a situation where tomorrow people can just hop on planes. This seems like this is a process that will have to play out, Anderson.
COOPER: But when they say that those visas were revoked -- and I haven't seen a U.S. visa, obviously, because I've never needed one. But, I mean don't most people that have a visa already in their passports, so when they revoke them, is it just electronically revoked? I mean it's not like the visa is taken away from them, I assume.
So theoretically, would some believe that they could then get on an airplane with the visa they already have in their passport, even though technically it was potentially revoked?
MARSH: So no. Because, as far as U.S. carriers go, if you, you know, if you go to the airport and you swipe either your passport or even show your visa, a lot of that is done automatically. And so, unless CBP changes the parameters within the technology, within the computer system, that officer will see a no board or a board sign.
So, unless this all lies within CBP, if they do not change the parameters within the computer system to essentially reflect who can board and who cannot board, if they don't change it from what it is now, then individuals would not be able to board, even though they had that visa in their hand, because again, this is all done electronically.
And again, if CBP does not go in and change those parameters, that no- board message will come up and they would not be allowed to board that aircraft.
[20:40:02] COOPER: So then -- then theoretically, if this order is upheld and people are told that they are allowed to come to the United States, from what it sounds like you're saying is they, people who did have visas that were rescinded would have to go back, I guess to the U.S. embassy or consulate and try to either reapply or just get new visas?
MARSH: That is our understanding right now, that they would indeed have to reapply. And not only that, Anderson, CBP, obviously, has to be on board here and change the parameters so that when an individual does show up at an airport and this electronic system is used and they swipe their documents, it will say that this individual is allowed to board. So it really does come down to CBP also going along with whatever this court says. If they don't, then you can show up at that airport, but you will not be getting on a plane.
COOPER: And have airlines responded at all to this? Have they made any statements?
MARSH: I am aware that many of the majors here in the United States, they're watching all of this. But really, the decision of who gets on board a plane and who does not does not lie within the airlines. It lies within CBP. And the airlines follow the lead of whatever guidance they receive from CBP. If they do not, they are fined.
So, they're waiting to see, is there going to be an adjustment in the guidance? Unless there is an adjustment in the guidance from CBP, the airlines will continue to do what they have been doing, which is operate under that executive order.
COOPER: OK. Rene Marsh, we're going to check in with you throughout the night. Obviously, actually, Rene, though, you know, right before we went on air, just to be clear, the customs and border protection did say that they would comply. The agency said that they would review and comply with all court orders, but just in terms of immediate action, you're saying we're not sure exactly what that means at this stage because we haven't seen the full court order, frankly.
MARSH: Right. And let's put that in context. Yeah, they're saying that they will, you know, comply with all court orders, but keeping in mind, when we spoke to them, they hadn't even received it yet, they hadn't digested it yet, so they weren't speaking about this specific order. They're saying, in general terms. You know, obviously, if it's valid and it has standing, they would comply. But as it relates to this specific one out of Seattle, they are simply just digesting it now and have not said either yea or nay as far as whether they'll follow.
COOPER: David, do you want to ask question?
GERGEN: I do. I just wanted to say Anderson, -- and maybe this is a good question now. Larry Tribe was arguing that the State of Washington should go back into the same judge and get these visas reinstated and that ought to be part of the order. And I assume customs would then follow that out, but I just wonder if that were in the mix among the experts she's talking to.
COOPER: Yeah, have you heard anything on that, I mean that if the State of Washington did go back to the judge, or at this point, they're just waiting to hear to actually read the full order from the judge which has not been issued?
MARSH: So, the people that we've been speaking to, many of these officials who are now, you know, trying to digest all of this, they do say that it would be a lot more effective if the judge's order was that specific, and not just to lift the travel ban, but to specifically reinstate right away those visas. Then obviously, then you have a valid visa in hand, and then you can get on a plane. But if the judge did not make that ruling and just simply lifted the ban, well, that's a different story.
COOPER: And we're going to talk -- we talked to Bob Ferguson, the Attorney General who argued this in court, who brought this case to the judge at the top of the 8:00. We're bringing him back at the top of the 9:00 because this is so fast moving. There's much we're going to talk (inaudible) we'll surely ask him that. We'll also check back in with Rene.
I want to bring in our new panel now. Joining us as well as our regulars who are here earlier, Margaret Hoover, Jonathan Tasini, Jack Kingston and Jeffrey Lord as well is joining us by Remote. Margaret Hoover, you're just joining us. How does this play out for the Trump administration in terms of the politics of all of this?
MARGARET HOOVER, CNN POLITICAL COMMENTATOR: I think in terms of the politics, there's a lot of Republicans right now who are quietly, silently nodding their heads this entire week. They were either biting their tongues or they were saying I wish this had been more properly vetted. I wish the procedures -- I think Rob Portman said that, Tim Scott and Marco Rubio said they were deeply uneasy --
COOPER: They wish -- the executive order had, in fact, than extremely vetted.
HOOVER: Yeah, yeah. That extreme vetting hasn't applied uniformly --
COOPER: OK.
HOOVER: -- precisely. So now a lot of Republicans who feel that the way this was rolled out -- forget they, a, don't like the substance. More than 20 Republicans on the record saying they don't like the substance. Many, many more saying that the botched rollout of this actually impedes their ability to get a domestic agenda through because this is slowing down the Trump administration.
[20:45:05] COOPER: But Jack Kingston, from the Trump administration side, I mean they could go to court this weekend, get this overturned possibly, and continue on.
JACK KINGSTON, (R) FORMER U.S. CONGRESSMAN: Look, they can. As I understand it, the ruling is not public yet, so we don't know what's in it. Certainly, the White House is looking at it and they're going to make a decision. But I think, you know, if you take a step back, what is the point here? The point is to keep the interior borders protected from people who are coming into the country that you don't know that much about.
The ruling, as I understand it, and all this learned panel can correct me if I'm wrong, but it affects people with visas or with or without visas, so you're looking at 60,000 people. You still have millions of people in these countries, these seven countries designated by the Obama administration as countries of concern, and they're still going to be affected by this 90-day moratorium.
And so, I think in the greater vision of National Security, what the Trump administration has done is still successful. They have done what they wanted to do.
COOPER: Does it look good for the Trump administration, though, to have a judge overturn this so quickly? KINGSTON: I don't think -- I think right now things are a little bit messy. And, you know, a new administration. But I also say, you know, one of the things, to get back to a point that you discussed earlier about blue versus red nation, the Democrats, the left has never accepted the results of this election. It started out with, you know, riots in L.A. and Seattle right after the election, a recounts --
(CROSSTALK)
KINGSTON: Two hundred and seventy people arrested --
JONATHAN TASINI, POLITICAL STRATEGIST: It's called free expressions.
(CROSSTALK)
COOPER: Let's keep -- all right, there's a lot of people tuning in for this story. Let's keep on this.
KINGSTON: A lot of -- to get back to your question, a lot of Republicans are saying, well, of course the left is going to use the streets, they're going to use the courts, do whatever they can to undermine --
COOPER: Right.
KINGSTON: -- this administration and this is one more --
COOPER: This is a Republican judge, though, appointed by George W. Bush.
(CROSSTALK)
HOOVER: Republicans are against the courts unless, you know, unless we're not against the courts, if they rule in our favor.
TASINI: I just want -- off your point of --
JEFFREY LORD, TRUMP SUPPORTER: Anderson --
COOPER: Jonathan, and then we'll have Jeffrey.
TASINI: Just want to say about the street in fact. Judges are great human beings and in my opinion great thanks and applause goes to the tens of thousands of people who streamed (ph) to the airports and stood out there and the lawyers who worked around the clock to try to get the people who were trapped in the airports, the customs and border protection didn't know what to do with them, they were trapped. And applause goes to them. And to the future, though, I think now what happens is if the Trump administration tries to reinstitute that, you will have five and 10 times that number of people going to the airports and protesting this.
COOPER: Jeffrey Lord, your comment.
LORD: And they should. Anderson, I just -- you know, Abraham Lincoln famously suspended the writ of habeas corpus, which is a basic constitutional right. I just want to read you two short sentences from the late Lincoln historian James G. Randall, "No president has carried the power of presidential edict and executive order independently of Congress so far as Lincoln did. It would not be easy to state what Lincoln conceived to be the limit of his powers." In other words, there is plenty of historical precedent here for what Donald Trump is doing.
And over my shoulder, Anderson, I heard a negative reference to putting a portrait of Andrew Jackson in the Oval Office. Over my shoulder is the portrait of my mom and dad and myself in the Oval Office with Ronald Reagan. And right behind my dad's shoulder is that portrait of Andrew Jackson, which was hung there by Ronald --
HOOVER: I just have a push back on that --
(CROSSTALK)
HOOVER: Hold on, Jeffrey, we just have to take a minute to push back on that Lincoln's suspension of the habeas corpus.
LORD: You want to push back against Lincoln? Oh, my goodness, Margaret.
(CROSSTALK)
HOOVER: Yeah, that's what you did, that's your (inaudible), you say, oh, you're a Republican, you're going to pushing back against Lincoln. You know, that's not what I'm saying. And everybody listening, you know, because that's -- and that is not what I'm saying.
LORD: What are you saying?
HOOVER: What you were saying, Jeffrey, you are likening this to an American civil war, to throwing people in jail and not giving them the right of their lawyers. That is not what was happening in these airports. To suggest that this is a direct parallel with Lincoln and the American civil war, it just belies --
(CROSSTALK)
TASINI: -- raised by one of our legal analysts. Because you were saying this might only affect the people who already have visas. I mean is there any indication that this would not affect the broader idea of a 90-day ban on entry? Is there any reason why this would only be the people who already had visas that are affected?
KINGSTON: Let me say, I did say that as a question.
COOPER: Paul?
CALLAN: Yes. You know, one of the things I was concerned about at the very beginning is we don't have a written order here.
(CROSSTALK) CALLAN: But if the effect of this order is to vacate the executive
order, it certainly would suggest that the 90-day and 120-day rules would be out --
COOPER: Yes.
CALLAN: -- and that people could apply for visas again, but this is such a complicated thing. You apply for a visa, it's going to take a while before a visa gets issued. If you have a visa already and it's expired, that's not going to be any good. That's why you need a really detailed order from this federal judge, so we know what he's talking about.
[20:50:00] COOPER: The other question is, if the administration wanted to -- I mean again, this is now getting to the realm of very hypothetical, but if that order did apply to people and allow them to then apply for visas without having this temporary ban, could be an executive order be done to change what the visa requirements are, which would make it more difficult?
CALLAN: I think you're going see them go back to the drawing boards and try to redraft this order so that it's likely to be upheld in the --
GERGEN: I don't know how --
COOPER: David, what do you -- I mean, what do you think --
CALLAN: Anderson --
(CROSSTALK)
COOPER: David?
GERGEN: Listen, this is a single most important initiative that Donald Trump has put on the table since he became president.
COOPER: All right, for Donald Trump supporters, this was a fulfillment of promises.
GERGEN: Absolutely, Anderson. And drawn the most attention, and it's had repercussions worldwide. And I think tonight is a bad night for the Trump administration. But if this is overturned from (ph) because it's unconstitutional at the Supreme Court level, I think that would be a huge party (ph) point. Because what the Republican to get Margaret Hoover's point has been is, where was the lawyering (ph) that went into this up front? Who were the people who were consulted on this? It was -- nobody at the Justice Department obviously was consulted. I mean that's where a lot of the legal talent is in the administration. What legal team did they have at the White House? They depend on a few people on Capitol Hill.
(CROSSTALK)
GERGEN: But this -- for this big debate done in this sort of haphazard (ph) way without vetting and everything like that, and then have a question during another night, I think it's best -- I think it's a blow to the reputation. Can they recover? Of course they can, resilient, of course.
COOPER: Jeffrey, do you agree with David?
LORD: No.
COOPER: That this was done haphazardly?
LORD: Anderson, here is what I think. Maybe -- I mean, I'm not a lawyer. So maybe they've made a mistake until here. The point is --
COOPER: Because, they did have to come out immediately and try to clarify, which doesn't seems like a best vetting.
LORD: Donald Trump's entire career is about getting things done.
COOPER: Right.
LORD: He will adjust to whatever the circumstances are to get them done.
(CROSSTALK)
COOPER: But Jeffrey, if the whole thing was about -- but guys, Jeffrey, if the whole -- one of Donald Trump's big arguments was, I'm a great manager, I know how to get things done, I know how to run corporations. If you can't run an executive order without the next day coming out and saying, actually, you know what? Well, actually doesn't really mean this and --
LORD: Anderson, this is government. This is government. This is what happens every day.
GERGEN: It's not what happens every day.
(CROSSTALK)
GERGEN: Jeffrey, if this was Donald Trump --
COOPER: One at time. OK, David you're saying this is not what happens every day.
GERGEN: Oh, No. No, no, no. Listen, every administration -- every new administration has, you know, has bumps.
LORD: Sure.
GERGEN: You got to say to the Trump administration, they don't have their team in place, so it's harder to do things like this. But when you're in that situation that means you have to be more thoughtful, because you realize you don't have a full team of players on the field. But, you know?
LORD: David? GERGEN: But other administrations have made mistakes in the first months. Jack Kennedy had his Bay of Pigs, you know, in the first 100 days. So, bad things happen and they recover. Jack Kennedy became a much better president after his Bay of Pigs. So, you know -- but to sort of flip this way --
LORD: This is not --
GERGEN: -- these things happen, they do not happen like this. This was a big, big deal.
KINGSTON: But again, again, if his point is to say, we have seven countries of concern, Sec. Kerry designated these countries, I'm focusing on the fact that we can't vet people coming in on this. And maybe it's going to be limited to 60,000 to 100,000 people. Maybe it's all of them.
And if that's the case, we'll know by the end of this weekend, but we really don't know at this point. But I do believe in Washington, D.C., David, and you've seen it, and I had the honor of serving under three different presidents, but they all make mistakes at the first, out of the box, but that's also when they have the best goodwill and the best opportunity to seize the moment and get things done.
HABERMAN: Well, he doesn't have a whole lot of goodwill that he's working from, which is part of the problem.
KINGSTON: Well, Ashleigh, he does.
(CROSSTALK)
HABERMAN: There's no honeymoon, that's --
KINGSTON: There's no honeymoon, but I'm saying that's -- he needs to go ahead and get things done, and I think we're seeing that with Obamacare, we're seeing that with tax proposals, with trade.
HOOVER: Jack, that's exactly my concern, though, because, you know, as a Republican who at least is optimistic about the plausibility of some real reforms that need to getting done, missteps like this hamper the inertia.
KINGSTON: But, you know, actually, it does. And I know that you've talked to a lot of members. Well, I've been with a whole lot of members this week, and I've asked moderates and conservatives, what do you think? And they're all saying, you know what, we're so happy. And we're happy because of, number one, we're going to get our calls returned by the executive branch, we haven't had that happen in eight years. And number two, we're getting things done.
You know, we're like a ball players who are training for the big game. The big game is coming in here. We expect to get a little bit bloody, but now we're passing things. We're having legislation. There's a new step in their walk.
[20:55:04] COOPER: Ron? KINGSTON: And this is what they're excited.
(CROSSTALK)
BROWNSTEIN: -- the politics of this. This is really indicative of I think, the Trump effect, which is to accelerate and intensify all of the differences and polarizations that we've been having. You look at the polling, the CNN poll today on this executive order, 62 percent of non-college whites is core constituency support the idea. 59 percent of college whites oppose it, 67 percent of millennials oppose it, 70 percent of non-white voters oppose it, same thing on his approval. What Donald Trump is doing is pushing at the deepest fault line in American politics and widening the divide in a way that they hope will leave them with the majority but also leave the Republicans facing some real serious resistance among groups in the electorate that are all growing.
COOPER: We got to take a quick break. The panel is going to continue. We have a very fast moving night here on 360, much more ahead in the next hour as we bring you the latest in a constitutional showdown planning out tonight. We're going to talk to the Attorney General who brought this to the judge in Washington. For the latest on this, we'll be right back.
(COMMERCIAL BREAK)
COOPER: Good evening, thanks for joining us, topping this hour of 360, tonight shocker from a federal judge in Washington State being felt all the way to Washington, D.C. and Mar-a-Lago in Florida where we will go to in a moment and potentially around the world. The judge ordering a temporary halt to Pres. Trump's travel ban, the details of the halt we don't have yet, the case brought by Washington's Attorney General now on the national stage. The order now, the focus potentially of a constitutional showdown between the executive and judicial branches. We've got extensive reporting tonight as new details coming. We're going to talk to the Attorney General from Washington in a few minutes.
We want to start with CNN's Jessica Schneider who is at Mar-a-Lago where the president is. Jessica, any response yet from Pres. Trump?
JESSICA SCHNEIDER, CNN NATIONAL CORRESPONDENT: No response yet from the White House or Pres. Trump, Anderson. Of course, this was supposed to be somewhat of a quiet, festive weekend here at Mar-a- Lago.
President Trump did arrive here around 5:00 p.m. He is at Mar-a-lago now. It was supposed to be a weekend working with some of his staff, his advisers.
