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Erin Burnett Outfront
Judges Rule Trump's Travel Ban Remains Suspended; Wash AG Holds News Conference After Trump Loses Court Battle; Trump On Ruling Against Ban: See You In Court; President Trump Responds To Ruling Against Travel Ban; Court Rules 3-0 Against Restoring Trump's Travel Ban; Aired 7-8p ET
Aired February 09, 2016 - 19:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
WOLF BLITZER, CNN ANCHOR But our special breaking news coverage continues right now with Erin Burnett OutFront.
UNIDENTIFIED MALE: This is CNN Breaking News.
ERIN BURNETT, ERIN BURNETT OUTFRONT HOST: Good evening. I'm Erin Burnett. OutFront tonight, breaking news, a ruling on President Trump's highly controversial travel ban. San Francisco's Ninth Circuit Court of Appeals moments ago deciding against President Trump and the government against reinstating his travel ban. A three-judge panel reaching a unanimous decision moments ago, unanimous and keep in mind these judges, one appointed by a republican, two by democrats, this decision unanimous.
It is 29 pages, a complete repudiation of the government's request to reinstate the ban and of the constitutionality of the ban itself. Trump just moments ago responding, see you in court. The security of our nation is at stake. he wrote that in all caps. The Washington Attorney General meantime victorious tweeting also in all caps, denied, unanimous, per curium. Our justice correspondent Pamela Brown is OutFront tonight. And I just want everyone to know we are waiting momentarily a press conference from the attorney general and the solicitor general for the State of Washington.
Obviously they are victorious tonight. And Pamela, when we say complete repudiation, it wasn't just 3-0, it wasn't just OK, this temporary stay here is upheld. This was a repudiation of the entire concept of the travel ban itself.
PAMELA BROWN, SUPREME COURT CORRESPONDENT: it was. And what's interesting here is you'll recall, Erin that the government had actually proposed a compromise saying that the travel ban temporarily should just apply to perhaps those who have never set foot in the U.S. because in the government's view those people don't have any constitutional rights, but as you point out, this was a repudiation of even that idea, that the three judges made it clear in the Ninth Circuit that the travel ban should still be halted and this is a huge blow to the Trump administration on what was seen by the administration as a signature executive order.
What Donald Trump talked about repeatedly on the campaign trail and the three judges in this order say that the government didn't meet its burden in showing why the seven countries listed in that travel ban pose such a threat, why the individual citizens of those countries should not be able to come to United States for at least 90 days. And this is what it says, it says, the government has not offered any evidence of how the National Security concerns that justify those designations which triggered visa requirements can be extrapolated to justify an urgent need for the executive order to be immediately reinstated.
In contrast, the judges say the states offered ample evidence that this executive order offered -- would substantially injured the states, separating families, stranding state residents abroad and harming universities and so essentially the judges said that they believe the states could be successful in arguing these merits down the road. Now we're learning that the Department of Justice is reviewing this and deciding what to do next. Weighing options as you know, Jeff Sessions as the new attorney general, this is his first day on the job and this is certainly a huge deal for him to be dealing with as they try to figure out what the next step is, whether to appeal to the Supreme Court or ask for an en banc, which would be more judges in the Ninth Circuit to look at this case. We'll have to sit, wait and see what happens. Erin?
BURNETT: All right. Obviously a crucial decision facing the president and his new attorney general tonight. Our Senior White House Correspondent Jim Acosta is at the White House. Jim, and now not just the tweet from Donald Trump but just moments ago, you heard him say something off-camera but a huge thing to say he's just saying now.
JIM ACOSTA, CNN SENIOR WHITE HOUSE CORRESPONDENT: That's right, Erin. Some reaction to reporters who were gathered in the west wing just a few moments ago, the president was making his way to the residence and told reporters that he believes that this decision from the Ninth Circuit is political, he called it political and predicted that the administration will prevail in court. He also said that he believes the security of the nation is at stake. So you can hear how they're framing the argument over here at the White House and you heard the president say earlier this week that he believes that these judges who were handle this case are quote political.
He again said that with respect to this ruling although we should point out one of the judges who heard this on the Ninth Circuit was a Bush appointee, a republican but nevertheless, they're also framing this as a National Security decision for the next stage in this process, presumably the Supreme Court, but Erin, we are only three weeks into this administration and you are having a very big pushback coming from the judiciary, the judicial branch of this government against the executive branch saying you can't go any farther then where you're trying to go right now. So far, this is a pretty big defeat for this president, Erin.
BURNETT: All right. Thank you very much, Jim Acosta. And as I said, any moment here, seconds away from this very important press conference out of the State of Washington. We're going to bring that to you live. I want to bring in our legal experts though as we're getting ready for that. You can see it up on your screen, Attorney General for Washington, Bob Ferguson, Solicitor General Noah Purcell will be speaking. Now though, Laura Coates is with us, former federal prosecutor, Alan Dershowitz, Professor Emeritus in Harvard Law School Arian de Vough who covers the Supreme Court, Paul Callan, former prosecutor and Jeffrey Toobin, former federal prosecutor. As we await that press conference, let me just ask you here, the President of the United States has now come out and said that he thinks that they will win. See you in court. And moreover that he thinks this decision was political.
JEFFREY TOOBIN, FORMER FEDERAL PROSECUTOR: Well, four judges have looked at this case so far and all four have come out the same way. Two republican appointees, the district court judge and one of the three appellate court judges and two democratically appointed judges. So, for a -- you know, in a world where democrats and republicans often see things differently we have two republican judges, two democratic judges seeing this case the same way.
Doesn't mean they're right, doesn't mean the ultimate result of this case will turn out the same way, but it's a pretty tough argument to make at this point that they are all just simply opponents of the Trump administration rather than judges doing their jobs.
BURNETT: And as we await this Washington State Press, Paul, I want to point out, right? That they -- we are days away from arguments in the underlying constitutionality of the ban itself, right? This was a restraining order essentially, right? But this ruling was not just a ruling on a restraining order. They were very clear. They laid out, they had to say, do you have a chance of having this upheld on the constitutional basis and they seem to find again and again and again. No, they really ripped it apart.
PAUL CALLAN, FORMER PROSECUTOR: This was a stunningly detailed decision by the appellate court which really kind of sends a message I think to the district court on the preliminary injunction that the appellate court is strongly against the government. And I wanted to say one of the things, on just --
BURNETT: Hold on. I just want to interrupt you because this press conference is starting with Attorney General of the State of Washington. Let's listen in.
BOB FERGUSON, ATTORNEY GENERAL OF THE STATE OF WASHINGTON: Good afternoon, everybody. Thank you so much for being here. I'll say a few words followed by Noah Purcell, my solicitor general, followed by Colleen Melody, who the head of our Wing Luke Civil Rights Unit. And then we're happy to take your questions. For those on the phone we'll try and get your questions after we take some from the room. Bottom line, this is a complete victory for the State of Washington.
The Ninth Circuit Court of Appeals in a unanimous decision effectively granted everything we sought. We are a nation of laws. As I have said, as we have said, from day one, those laws apply to everybody in our country, and that includes the President of the United States. We've had a chance to look at the opinion. And one thing I just want to mention if I (INAUDIBLE) then we'll take your question is throughout this litigation the president has asserted that his actions in signing this executive order are unreviewable and you heard the question posed by the Ninth Circuit judges in the oral argument this week, the question was asked is it the view of the justice department that those actions are unreviewable?
And after a lengthy pause, the answer was yes. Here's what the Ninth Circuit had to say about that. There is no precedent to support this claimed unreviewability which runs contrary to the fundamental structure of our constitutional democracy. I'm so proud of our team. As many of you know they've been working literally around the clock on behalf of the people of the state this -- on behalf of the people of this state.
It's the folks you see here who we'll be introducing shortly but also attorneys and professional staff around our office in different offices spread out across the state. All working in different ways to assist us with this filing. These filings which have been done under intense time constraints as you might imagine. So I want to emphasize this has been a team effort from this law firm. I'm just very proud indeed for this law office. And I couldn't be more proud of the teamwork that's been involved.
With that, I'm going to turn to Noah, who will -- I'll ask him to say a few words and also summarize essentially what the Ninth Circuit Court of Appeals did here today and then we'll have a few words from Colleen. Noah?
NOAH PURCELL, WASHINGTON STATE SOLICITOR GENERAL: Thank you, Bob. What we argued to the court yesterday is that it's the role of the courts to say what the law is and to serve as a check on the executive branch, and that's what the court has done in this opinion, in this excellent opinion, this well-reasoned, careful, thoughtful opinion that seriously considered all of the government's arguments and rejected them. And it's important to recognize the real impact this has already been having on people's lives.
We've been hearing from people all over the state and all over the country about what differences has made and we're so thrilled for that. And I want to thank Attorney General Ferguson for having the bravery to bring this case in the first place and to -- and to authorize us to do all this. I think the governor and the people of the state for all their support in bringing this case and most especially I want to thank the people across our office as the attorney general is saying.
People in my office like Ann Eggler, Kelly Paredes, Kelly Wood, Kristen, Wendy -- anyway, I'm going to forget people but the bottom line is we have an outstanding office here in the AG's office. People will do public service every day. We're not usually in the limelight like this and we're not really used to it, but we're proud to have been able to play this role. Just briefly about the opinion, it is as the attorney general said a complete -- a complete victory. It upholds the district court's injunction in every respect.
And we couldn't be more pleased with how careful and thoughtful the opinion is. The judges did their jobs carefully and well and we appreciate their work and thank them for their careful attention that they gave to this case. That's all I'm going to say for now. I'll turn it over to Colleen.
FERGUSON: And so, no, I think I mentioned of course is our solicitor general who argued at the hearings before Judge Robart at the trial court level and at the Court of Appeals. And one thing I appreciate is the fact that this case had a -- there's been opportunity to -- for the public to see people who work on these cases, folks like the team you see here today, and Noah's a brilliant lawyer. He's doing an excellent job leading this team. Next I want to introduce Colleen Melody.
Colleen is the head of our Wing Luke Civil Rights Unit. I created that unit a couple years ago, two years ago, and as you may know up until then if somebody called our office with a civil rights complaint, despite the fact that we have close to 600 attorneys, we did not handle civil rights complaints on behalf of people of the State of Washington in an affirmative way, which struck me as something that need to be remedied. So we created a civil rights unit.
You're seeing folks who Colleen will introduce as part of that team. And I did not anticipate at that time that a case the main to the case like this where that team would be pressed into service. I'm so glad and proud that we had a team of excellent attorneys and excellent professional staff in that civil rights unit with the background, the expertise, and the work ethic who really were prepared for this moment in time to bring this case to the successful results we've had so far. So Colleen Melody, last name spelled M-E-L-O-D-Y. Colleen?
COLLEEN MELODY, HEAD OF WING LUKE CIVIL RIGHTS UNIT: Thanks Bob. I'll pick up sort of right where he left off at -- from the beginning on a -- on a early Saturday morning when we started talking about how were are going to respond to this case. The people on my team recognized it instantly as a fairness -- basic fairness, social justice, and civil rights issue. And so I'm proud of them for stepping up to sort of do whatever was necessary to help get this result that we're -- that we're talking about today. So I wanted to introduce Marsha Chen who's an assistant attorney general in our civil rights team. Patricio Marquez who's on the end there. Mitch Reese, he's over here. And (INAUDIBLE)
BURNETT: All right. We're going to keep monitoring this and we'll go back in as needed. You just did hear the solicitor general who led the team, Noah Purcell, and the Attorney General for Washington, Bob Ferguson speaking there. Alan Dershowitz, you heard the attorney general, he said basically -- we got everything we wanted and then they went on to talk about how well-written and fantastic this is of course in their view and absolutely they did get everything they wanted.
ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: Yes, they did, but it doesn't mean they can win ultimately on the merits. They still a very, very uphill fight to persuade the Supreme Court, that aide the State of Washington has standing. Be that you can apply the constitution of people who've never been in the country who are simply seeking a visa for the first time. Look, there's a way around this that's a win-win for everybody. The president has lost, so he is now in a state of limbo.
For weeks perhaps even months, his order is going to be stayed. He claims that this is a threat to the National Security of the United States. If he's right, then he has only one option, rescind the order, start from scratch, write a new order with his new attorney general with the cooperation perhaps of members of congress that will both protect the security of the United States and avoid constitutional challenge. That's his best option right now. But it would require him to admit he was wrong.
So now there's a clash between the ego of the president and the National Security of the United States. And he has to resolve it in terms of the National Security of the United States by rescinding this state order and coming up with an order that won't be stayed. That's what he ought to do.
BURNETT: Well, it's pretty important how you put that because, Ariane, what Alan is saying is that president says this is so crucial. If this was so urgent and crucial for Security, right? He would say, OK, forget it. I'm going to throw this out and write a new one and that's going to be done perfectly and it's going to -- it's going to into place and there's not going to be an issue. But he's already tweeted out in all caps, see you in court. He's going to fight over the one he already did.
ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: Exactly. And -- but he said the DOJ hasn't responded but he said I'll see you in court, and maybe that means the Supreme Court. But I have to say one thing about this opinion that I think is so interesting, remember during oral arguments and Judge Friedland asked the government, she said, is this unreviewable? And then there was this long pause. And the government said, yes. And that sure didn't sit well that night and tonight, it's the strongest language I think in his opinion, they wrote, there is no precedent to support this claim of unreviewability which runs contrary to the fundamental structure of our constitutional democracy. That is really a strong language and you can see that it bothered the judges during oral argument and it's reflected in his opinion.
BURNETT: All right. So, you mentioned that moment. And I want to read what this -- what this court has ruled on that issue. This unreviewability but that moment When August Flentje who is The Career Justice lawyer made the case, Paul, when he argued this, I just want to play for everybody, when the --when the judge said, are you arguing in the president's decision is unreviewable. Here's exactly how it played out.
(BEGIN AUDIO CLIP)
JUDGE MICHELLE FRIEDLAND, NINTH CIRCUIT COURT OF APPEALS: Are you arguing then the president's decision in that regard is unreviewable?
AUGUST FLENTJE, JUSTICE DEPARTMENT SPECIAL COUNSEL: The -- yes. What we -- there are obviously constitutional limitations, but we're discussing the risk assessment. (END AUDIO CLIP)
BURNETT: OK. That was the painful pause and that became a core of what we're seeing here. They are citing, Paul, a 1967 case saying, national defense cannot be deemed and end it of itself, it would indeed be ironic if in the name of national defense we would sanction this version of one of those liberties which make the defense of the nation so worthwhile. They're citing a previous case, they're saying absolutely not. This -- the president's decision on this is reviewable. Completely rejecting that argument.
CALLAN: And this is critical because this whole thing was the president saying I'm the only one who's in charge of National Security under the constitution of the United States and the local judges have no right to interfere in my decision-making. And here, they throw that concept in the judicial trash barrel and say essentially, we can review even National Security issues. You don't have exclusive authority in this area.
TOOBIN: And the cases they cite to make that point that no National Security issue is above the constitution are to go in (INAUDIBLE) the cases where the Supreme Court said to the Bush administration, you have to abide by the constitution even when it involves terrorism, even when it involves some of the worst people we've ever encountered, and even when it's in Cuba, where Guantanamo prison is, not inside the United States. So the idea that National Security decisions are somehow outside the review of the courts is one that's going to be ejected again --
CALLAN: Well, and I think that's get -- if you get back to the standing issue that Professor Dershowitz had talked about earlier, this is such a sweeping decision. They essentially say that because aliens and that's the term used in the statutory wording, from other places who normally don't have rights under U.S. law, can be represented by the State of Washington because some of them are students or maybe could be students in the State of Washington.
BURNETT: Eventually, yes.
CALLAN: It's a broad grant of standing and U.S. constitutional rights to people in other countries.
BURNETT: And Alan, there was a -- there was a compromise that was -- during the oral arguments we all heard, August Flentje put forward a compromise, right? That would have said, well, this only applies to people who have never been to the United States before. So we're giving them an out, right? For things like green cards or already granted visas. They also very explicitly hear say they don't -- they're not buying that either. I mean, they didn't give a millimeter.
DERSOWITCH: Oh, I think they were right not to buy for the purposes to stay because to create -- to undo this day now would have created chaos, especially if they have two months from now or a month from now reinstate it. But I think when -- the case gets to the Supreme Court, Chief Justice Roberts is very, very tough on standing. He has used standing often to avoid reaching these kinds of difficult constitutional issues. And this is the most extreme case of standing that I had ever seen in my 53 years of litigation having the State of Washington have standing to assert the rights of people who have no contact with the United States and never been in the United States.
There are two possible ways of making there. One, as an establishment of religion where, remember the constitution doesn't just grant a right there, it says congress shall make no law. It's a restriction on the federal government. That's one way of doing it. The other way -- it is to say that, look, we really have an interest. Our tax base, students, et cetera, it's going to be a hard, hard road in the Supreme Court. There's no way of predicting outcome of this case on the merits if it gets to the Supreme Court.
BURNETT: Laura, what do you think?
LAURA COATES, FORMER FEDERAL PROSECUTOR: Well, you know, what's so striking to me is the fact that the court does concede the President of the United States, it does should -- could get deference when it comes to National Security, but the reason National Security interests were of paramount concern to this particular court is because of procedure. Look, the lower court said we're going to suspend this ban.
In order for this court to reverse that ban, they asked the department of justice to explain to them why returning to the pre-travel ban status quo of the vetting process would somehow hurt the federal government and its citizens. Tell us what you know. What is it about our new perhaps novel National Security risk that require us to go back to or have a new system of vetting. And unfortunately, they had no response and that's also one of the main components of this order.
The court is saying we agree there is deference although we can review it and we did when it came to Japanese internments and the day when they came to give (INAUDIBLE) or denying communist passports, but if you have a valid reason, now is the time to tell us and now came and went.
BURNETT: All right. We just -- as you finished speaking, got in the audio of the President of the United States responding to this. Let me play it for you. Here's Donald Trump.
(BEGIN AUDIO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Just a decision that came down, but we're going to win the case.
UNIDENTIFIED FEMALE: And have you conferred with your new attorney general on this tonight?
TRUMP: No, I haven't. We just heard the decision.
UNIDENTIFIED FEMALE: How did you find out about the decision, Mr. President?
TRUMP: Just saw it. We just saw it just like you did. (END AUDIO CLIP)
BURNETT: All right. Obviously a little of an issue there at the end but this was -- that was his immediate reaction. Of course he said also went on to say that he thought this was political. David Gergen is also here with me right now, and also with me Mark Preston, our senior political analyst, Bill Kristol, editor at large of the Weekly Standard and Kayleigh McEnany contributor at the Hill, joining our legal experts. When you hear the president's response saying that this is political, saying they're going to fight it, tweeting, see you in court in all caps.
David Gergen, it's clear where he stands on this. He's not going to revoke the order and try to write a better one. That's not what at least Kelly is talking tonight.
GERGEN: It sure not, although Alan Dershowitz has a useful point. I mean, his whole notion -- Alan's notion of repeal and replace, you know, has some resonance here. And the fact that may be the best way out for the president ultimately. But he is going to fight in the meantime. I, you know, he's going to hurt himself if he continues tweeting and challenging the court and challenging the judicial system. But I must say it's a surprise to everyone just how broad and sweeping this opinion is written by including one judge appointed by George W.
I mean, they reject the standing argument, the rejected reviewability argument put forward by the -- by the government. They said they rejected the argument that there was no likelihood of success. Citing Donald Trump is very important. So I think what he have been saying all through the campaign that he wanted a ban on Muslims and that there's evidence with Rudy GiulianI's conversation that this was the way to start down that path toward a Muslim ban.
That's very important (INAUDIBLE) and finally, they just rejected the notion that administration has been putting forward that this would do enormous harm to leave us in place. They just said, you haven't presented any evidence. If you'll present some evidence, we might be persuaded but the government failed to do that. I think it was sloppily argued by the federal government. Stinging the tape for the administration. We'll see where we go from here though and maybe right ultimately the administration may prevail on the substance.
BURNETT: All right. So let me just play -- I believe we now have that full audio and I want everyone to hear exactly what he had to say about the politics here, so here again, Donald Trump.
(BEGIN VIDEO CLIP)
TRUMP: Decision that came down but we're going to win the case.
UNIDENTIFIED FEMALE: And have you conferred with your new attorney general on this tonight? Is he --
TRUMP: No, I haven't. We just heard the decision.
UNIDENTIFIED FEMALE: How did you find out about the decision, Mr. President?
TRUMP: We just saw it we just saw it, just like you did.
UNIDENTIFIED FEMALE: Via the news, et cetera, media?
TRUMP: But it's a decision that we'll win in my opinion very easily.
UNIDENTIFIED FEMALE: And are you --
TRUMP: And by the way, we won that decision in Boston.
UNIDENTIFIED FEMALE: Are you any closer to the solicitor general who would --
UNIDENTIFIED FEMALE: (INAUDIBLE)
TRUMP: We'll be making the decision over the next week with solicitor general.
UNIDENTIFIED FEMALE: OK.
(END VIDEO CLIP)
BURNETT: Bill Kristol, you hear the president's response and obviously hadn't had much time to think about it. What's your takeaway? Because obviously the key thing here is just what everyone using the word stinging, repudiation, complete and total loss for his argument.
BILL KRISTOL, EDITOR AT LARGE, THE WEEKLY STANDARD: I think this could be a big day, three weeks into the Trump administration. He loses the case, he loses at the very broad decision. You know, federal judges are human. I've got to think some at least might have wanted to really send a message to Donald Trump. He personally attacked their college a district judge over the weekend in a very unusual way.
And I, you know, they made the legal arguments obviously, they probably made more broadly than they need to be as Alan suggested, but I've got to think they were not -- and going forward instantly I think his chances in the federal courts are hurt by the attitude he's taking for his federal judges. They're human and they want to be treated with respect. The government -- the executive branch is utterly and fully entitled to appeal of course but usually they do so in a respectful tone.
Put that together today though for a second, Erin with his -- Trump's attack on John McCain this morning, his attack on Senator Blumenthal. I mean, he is spending an awful lot of political capital attacking people who he's going to need some cooperation from, right? If you lose every case in federal court, if you can't -- if you -- if you attack a republican senator that's chairman of a committee, when you have 52 republicans on the senate, it's simple, you need to get legislation through, I think they're in some campaign where they can just can beat up everyone and steam wall their way to victory and that is not how governing works in the United States of America. BURNETT: So, we have just got a tweet from Hillary Clinton. Hillary
Clinton responding to the ruling, and all she tweeted was, 3-0, which of course is the ruling, three judges to zero, and that is a unanimous ruling in this particular case. But, you know, Mark, let me ask you about this though because Donald Trump coming out and saying it's political decision and we will see them in court. What, you know, what does it mean -- for Donald Trump to stay George W. Bush appointees, he may view those as completely political. He gets them as well, right? I mean, from his point of view.
PRESTON: Yes. No doubt. I mean, it's certainly predictable as well that we would expect Donald Trump to come out and say something like that and to continue on fighting. You know, it's also the reaction we're seeing from those who were against the ban and knows for the ban is very predictable but there's two statements that I think are noteworthy to mention here. One is from Tom Cotton, he's the Arkansas Senator. In fact he was under consideration at one point to be defense secretary.
He described the Ninth Circuit as the most notoriously left-wing circuit in America and the most reversed court at the Supreme Court and I'm confident the administration's position will ultimately prevail. So we're already seeing now some of Donald Trump's allies come out and to add onto the politicization even though it was a (INAUDIBLE) ruling. But this isn't just a democrat versus republican fight. We had the National Restaurant Association immediately come out with a statement where they said they hope that Donald Trump in the administration when they're going forward takes into account, the economy and takes in to account how important that this could hurt small business if they continue going down a similar path. So, this is a fight that isn't as easy, it's not as black and white as we can talk about it and hear on T.V. There's a lot of gray areas in it.
BURNETT: Great. And Kayleigh, it does beg the question here of, will Donald Trump stop attacking judges? Look, tonight all he said on twitter is, "I'll see you in court." He did though say, we just heard him -- his audio, it's a political decision. This comes on top of tweets about Judge Robart who is now of course going to be -- was the -- originally did the ruling here as this continues in district court and the constitutionality where Trump said, just cannot believe a judge would put our country in such peril.
If something happens, blame him. And in the opinion of this so-called judge. And now here he is again tonight saying it's a political decision. Do you think he understands that that kind of talk might have really just backfired on him? And that's why partially this could have been 3-0?
KAYLEIGH MCENANY, CONTRIBUTOR, THE HILL: Well, I think he realizes and hopes as we all do that judges would rule based on the law, not based on the fact that they were criticized by a co-equal branch of government that is to say, the president. But, you know, I do have to say, I think it's a very smart point by Professor Dershowitz. If you look at this ruling, they basically ruled on two things. They looked at due process rights and said legal permanent residence have due process rights and also aliens who have been in the country, leave, and try to come back.
So, Donald Trump could easily rewrite this and I think he'd have better success going to the Supreme Court because as we know you've got three right-wing justices, four liberals justices and Justice Kennedy, who could go either way. So just practically speaking and politically speaking he can continue criticizing the judiciary all he wants, I have no problem with that. But practically looking at the legal landscape going forward, rewriting it might not be a bad idea.
TOOBIN: I mean, rewriting it makes all the sense in the world.
BURNETT: But this is such a thorough repudiation of the whole concept.
TOOBIN: But isn't everything we know about Donald Trump that he is not going to rewrite this? Isn't he going to say I was right from the start and I am going to push this as hard as I can and the judges are wrong? Yes, it makes all the sense in the world to rewrite it but he's never going to do it.
CALLAN: I think we have to remember something very important too. And the president has said another judge, we are talking about four judges in the west said were unanimous on this but the president keeps citing the Boston Judge, Judge Gorton who wrote a 20-something odd page decision totally opposite to this, saying there were standing problems, saying that no due process violations occurred, no equal protections --
BURNETT: This was regarding two professors --
CALLAN: Different people involved. But we're talking about the same executive order and we're talking about whether the president has primacy in the area of National Security.
BURNETT: Are you betting too, you think he can win?
CALLAN: I'm not sure that he'll rewrite it. I agree with Jeff that -- yes. That would be on Professor Dersowitch, that's the sensible way to go. But the president keeps citing the Boston Judge, he was angry, there's lawyers, remember? Because they didn't spend time invoking the Boston Judge, Judge Gorton and I think he's going to fight this to the wall in the Supreme Court.
BURNETT: Allan?
DERSOWITCH: The big --
1930
PAUL CALLAN, CNN LEGAL ANALYST: -- but the president keeps citing the Boston judge.
[19:30:03] He was angry at his lawyers, remember, because they didn't spend time invoking the Boston judge, Judge Gorton. I think he's going to fight this to the wall in the Supreme Court.
ERIN BURNETT, CNN ANCHOR: Alan?
ALAN DERSHOWITZ, HARVARD LAW SCHOOL: That would be a big mistake because he can use the Boston judge to his advantage. If he goes the Ninth Circuit route, he is likely to have to appeal from a Ninth Circuit opinion that's unfavorable to him. If he doesn't appeal this order, which he will lose in the Supreme Court on a stay, and he waits for some decisions to come from other courts with more favorable circuits, the case he brings to the Supreme Court could come from a circuit that rules in his favor. So, then if there is a 4-4 split, he wins.
CALLAN: Alan, now you're talking logic. Now you're talking logic on the part of the president. The president has been a gut instinct player with the American people throughout the campaign.
BURNETT: Also, Laura, you have the state of Virginia that is trying to proceed had ahead with a case. You have 17 other states that have filed amicus brief in that particular -- I mean, there are states across the country now. They were ready to lose today so they would have others behind it.
LAURA COATES, CNN LEGAL ANALYST: And there will be more cases coming along. When we talk about going to the Supreme Court, that's going to happen in this case, but when it does, it will still be bounced back to the original district court in Seattle, because remember, there has been no record. There has been no full deposition.
We are told in this new order that you can look behind the intent of the ban. You can figure out there was a really secular purpose or whether it was really a pretext for discrimination. If that's the case, you have to develop it. We talked a lot in the oral argument. The Washington state attorney general said, look, I need opportunity to have discovery, I need to have the opportunity.
And the courts will likely bounce it back and forth for that. So, we're not talking about the full merits in front of the Supreme Court. So, it's a little bit prospective to figure out the rule.
DERSHOWITZ: In the meantime, the order stayed and the country is at risk according to Donald Trump. If the country is at risk because this order stayed and will remain stayed for at least a period of months almost certainly, his only option to protect the country is to withdraw the order, write a new order that protects the country while at the same time --
COATES: Alan, your answer presupposes --
(CROSSTALK)
BURNETT: -- because I'm trying to understand what, Jeff, that would be. I mean, obviously, that you're going to have other districts, et cetera, et cetera, that would challenge it. But this is a wide- sweeping repudiation. It says that whatever he said about Muslims on the campaign trail is good enough to show his intent. It says it doesn't matter if no one has ever been in the United States before, they have the right as a state to constitutionally protect those individuals. What executive order could accomplish what Trump wants to accomplish that doesn't run into the same problems that this repudiates?
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: It's difficult, but --
(CROSSTALK)
BURNETT: Go ahead, Jeff.
TOOBIN: One way you could do it is you could say people from these seven countries who have some connection to political activity, they're the ones who are -- who will not be allowed in the country. You can narrow it.
BURNETT: So, you're much more --
TOOBIN: Exactly. It's not just -- it's not just the majority Muslim countries, it's a subcategory within those people. That would certainly be much more likely upheld by the court.
CALLAN: You could change the minority religion section as well and not refer to that and you might sell some of those Establishment Clause --
TOOBIN: It's not that, too. I mean, he's not going to do that. He's going to fight this executive order because it's his executive order.
BURNETT: And that's what he says he's going to do.
All right. Everyone stay with me. I want to go right now, though, on the phone to governor of Washington, Jay Inslee, who joins me.
Governor, thank you very much for your time.
Obviously, you're thrilled with this, I would imagine. You're completely thrilled. The president of the United States is saying he's going to see you in court. He says this is a political decision.
What's your response to that?
GOV. JAY INSLEE (D), WASHINGTON (via telephone): Well, the president, I saw a tweet that he'd see us in court. We just saw him in court and he got beat. He got thumped. And these were very solid decisions. They were robust, well-considered decisions. Four judges have now made them in effect. Two of them were appointed by Republican presidents.
This is checks and balances in operation. The president needs to understand that the Constitution rules supreme. He needs to understand there are checks and balances.
And I'm a lawyer. I got to tell you, these were very powerful decisions both at the district court level with Judge Robart and at the circuit court level. There was clearly a favoritism shown to one religion over another, there is clearly an effort in the executive order to put Muslims at the back of the bus. There is no rational basis for picking these seven countries when none
of these people, repeat, zero, and both the circuit court and the district court made reference to this, that anyone has caused the fatal terrorist attacks from these seven countries.
[19:35:11] You've got to have some rationale basis for decision making in this nature.
So, the president would be well-advised to actually read these decisions, listen to his lawyers and go back to the drawing board if he is interested in these issues. Now, he doesn't indicate so far he's going to, I think that's regrettable. We're going to continue to fight this. We will not be intimidated.
BURNETT: All right. So, Governor, I just want to play for you -- obviously, I told you what the president said. Trump's senior adviser Kellyanne Conway also has just responded and I want to play for you. She was just on FOX News. Here's what she said.
(BEGIN VIDEO CLIP)
KELLYANNE CONWAY, TRUMP SENIOR ADVISER: You see that president's initial reaction in his tweets. He said, "We'll see you in court and the nation's safety is at risk."
That's what this has always been about from the beginning, Martha, keeping the country safe. It's not just a promise he made as a candidate, it's his duty and responsibility as president of the United States and commander-in-chief. And, in fact, he has already tried to do that under the statute.
This ruling does not affect the merits at all. It is an interim ruling and we are fully confident that now we will get our day in court and have an opportunity to argue this on the merits, that we will prevail.
(END VIDEO CLIP)
BURNETT: What's your response to her? Obviously, this does now go to oral arguments when it goes back to the Washington state next week.
INSLEE: Well, I think the power of both the district court and the court of appeals here was they found a likelihood of success. And when you find a likelihood of success for a president who says he wanted to ban Muslims, who put in his ban that Muslims would be given a second class role vis-a-vis other religions who said he wanted to get Christians in and keep Muslims out himself, who has no rational basis to say that national security would be jeopardized, it's the opposite, the evidence that was before these courts was pretty amazing. There were at least a dozen affidavits filed by former secretaries of the Central Intelligence Agency who worked for Republican presidents, former secretaries of state, former Homeland Security people.
Just today, the CIA director said the president would decrease our national security by creating a poster -- a recruiting poster for ISIS. All of those things were in evidence and in court the Constitution prevails not in the evidence prevails, not just who tweets the most. They concluded the evidence was essentially on a basis for this harm.
And, by the way, Judge Robart already helped my state. Last night, for instance, I went to the University of Washington, Global Health Alliance, Melinda Gates was there, and one of the keynote speakers was a World Health Organization expert, the president tried to keep him out of this conference, from coming to the university to speak about global health for instance. We got the guy in. I'm glad we have a judicial system that can do checks and balances over a president who is running roughshod over our rights.
BURNETT: All right. Governor Inslee, I appreciate your time. Thank you very much for being with me.
Paul Ryan, the speaker, is now responding. And I want to go to Manu Raju.
Manu, what is he saying?
MANU RAJU, CNN SENIOR CONGRESSIONAL REPORTER: Well, not much, no really reaction from the speaker, saying we will defer to the White House on this. That's from a spokesperson.
And when I asked for the reaction to this ruling, really, Erin, underscoring the unusual predicament that Republicans are in on Capitol Hill. A lot of them do not support this travel ban. A lot of them came out against it, said they believe it's a religious ban that's counter to American values, that it needs to be pulled back, needs to be amended.
But the Republican leadership, including Paul Ryan, including Mitch McConnell, have voiced some level of support for this and believe it should go forward. But they know that their parties of the respect active conferences are divided over this which puts them in this unusual spot.
Right now, Erin, I can tell you I'm not hearing a lot from Republicans. The House is out of session. The Senate is in session, and they're not really blasting out statements because of this position, not necessarily wanting to poke a finger in the eye of the White House but also not wanting to come out in support of this very controversial policy.
So, we're not hearing a lot of arguments from some of the hard-core supporters of the travel ban, including Tom Cotton of Arkansas, saying that he believes that it should be appealed to the Supreme Court, but for the most part, a mostly muted reaction from Republicans on Capitol Hill.
BURNETT: All right. Manu, thank you very much.
My panel is with me right now, though. I do also want to bring in the Democratic congressman from Texas, Joaquin Castro, member of the Foreign Affairs and Intelligence Committees. Congressman, you've spoken out against this ban. I'm sure you're obviously very happy with the ruling. I don't know if you had a chance to read it in full, but it does more than just talk about the temporary ban, the temporary restraining order on the ban. It goes through the underlying constitutionality and finds very much in favor of Washington State.
REP. JOAQUIN CASTRO (D-TX), INTELLIGENCE & FOREIGN AFFAIRS COMMITTEE: No, I think that's right. And most of all, President Trump and his administration couldn't show any evidence of harm.
[19:40:01] The fact is that nobody, refugees, for example, from these seven countries, have perpetrated a terrorist act in the United States. So, I'm sure when the court was trying to weigh the harm that the government was describing, they could simply show no evidence.
I also think there was a strong message that was sent by the court to the president and also to his administration on that reviewability argument. As everybody knows, the president has been very critical, and frankly, disrespectful of the judiciary since he took office. In fact, I filed a resolution this past week asking for an investigation into whether the president ordered his administration to disobey the first stay that was put on his executive order. Since then, he has obviously been on Twitter and made comments about the judge in Washington, about the judge if any terrorist action occurred. So, it's been very disturbing behavior.
BURNETT: So, do you think that's why they did what they did, that they went into such detail, that they were unanimous? Do you think that they felt pressure to be unanimous because they were sort of fighting back at him because of what he said about judges?
CASTRO: Well, I think that they looked at the case on the merits, but it's certainly possible, you know? I don't think that his rhetoric and being so disrespectful to a co-equal branch of government was helpful to him.
BURNETT: On the underlying merits, do you think the discussion that everyone has been saying here is that he should get rid of this, revoke the ban and go ahead and write a new one. Obviously, that's not what he's indicated he's going to do. He could change his mind but he said "see you in court". Hasn't indicated he's going to go in that way.
But is there some way he could write this that you would get behind him? After all, you sit on foreign affairs. You sit on intelligence. You are aware of risks and you're aware of risks that people who want to do this country harm are planning to do this country harm. They're trying to find ways to get in.
Is there some sort of a ban, an order, that he could write that you would support?
CASTRO: An across the board ban, that's very doubtful there's something they could write that I would support. I think it's always fair to be considering and assessing national security threats to our nation. But, look, Donald Trump, almost from the beginning of his campaign, started talking about how he could exclude people from the United States. He spoke very specifically about a Muslim ban even after the executive order was put into place.
As you mentioned, Rudy Giuliani went on television and said that the president called him and asked him how he could accomplish a Muslim ban.
BURNETT: Yes.
CASTRO: And so, with those kinds of intentions, I think it's going to be very hard to find middle ground or agreement.
BURNETT: So, you mentioned that when it comes to enforcing the travel ban, when it first came down against the president, that you thought he may have been trying to instruct border control to go against the actual ruling. You were looking into whether he violated the Constitution at that time.
You then -- what you said was, "I hope President Trump obeyed the law, but if he didn't, Congress should censure him. If after censure, the president again acts unconstitutionally, Congress should take steps to remove him from office."
So, are you really -- are you looking down that path? Are you trying to find ways already talking impeachment?
CASTRO: Well, you know, I said if it's determined either by the inspector general who has said that he will investigate or hopefully the Justice Department will investigate, if it's determined that he asked CVP to disregard or disobey that order, then at a minimum, the Congress should censure the president as a clear warning not to do it again.
And at that point, the choice is his. If he continues to disregard the judiciary -- and the judiciary is a way that we settle our disagreements. So, what you're basically saying as a president is that not only am I president, but I'm also going to usurp the power of the courts or the referees in this case.
So, the Congress would have no choice if any president, and this president, decides that he's going to completely usurp the power of the courts then to move for his removal.
BURNETT: All right. Congressman Castro, thank you very much. I appreciate talking to you again. Thanks for your time.
I want to go back to this unreviewability issue with our panel both on the legal side and on the political side. Let's start with the legal side, though, because obviously it's crucial and it's at the core.
Your perspective following this, and looking at the context, which is Donald Trump has said, if something bad happens to the country, it's going to be the judge's fault for the ruling against me. Do you think that's part of what they did here, that they wanted to speak as judges to this president? TOOBIN: Well, there is no more value -- no value that is more central
to what our constitutional democracy means, which is -- more than the courts get the final word on what's legal and what's legal, that there are no decisions that are completely outside the Constitution. It was 1803, Marbury versus Madison, when Chief Justice John Marshall said, it was the province and duty of the court to say what the law is. Which means as of that moment, it was the court's right to overturn acts of Congress, to overturn acts by the president.
[19:45:07] And that excerpt that you played from the argument was so important because it was Judge Friedland asking, is the president above the law? And there was that horrible, awkward pause. And Judge Friedland and her colleagues wanted to make clear that the answer is no. The president is not above the law.
And that's what this opinion says more clearly than anything.
(CROSSTALK)
CALLAN: Well, I just want to add one thing. While the court made a very strong attack on the idea that only the president has the right to decide issues in this area of national security, there is wording in the decision that suggests that the president may have a zone of national security authority where there is a legitimate threat to the interests of the United States.
Now, what they said here was we asked his lawyers repeatedly, where is the evidence that this ban is responsive to an articulable national threat? And they said, the judges said, they couldn't answer the question. So, we're not going to reach the decision that there are some national security issues that are reserved for the president, but they say here, there is no evidence of a national security threat.
BURNETT: So, now, when we get to the next steps, David Gergen, obviously, we don't know, right? They could go to an en banc, and try to get more judges involved in the Ninth Circuit, they could go to the Supreme Court. They obviously have an on-line argument going on simultaneously.
But all of this really is, at some point, unless he revokes the order, going to come down to the Supreme Court where right now, you have 4-4 and Judge Gorsuch is sitting in complete limbo.
DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: That's correct, and you wonder, had the Republicans gone along and appointed Garland, whether they might have the requisite number of votes on the Supreme Court right now.
But just to be clear, can I ask, Jeffrey, I want to make sure we all understand this. When they go to the Supreme Court on essentially on the temporary restraining order, not on the substance but the temporary restraining order that was before the Court of Appeals, do they need five votes in the Supreme Court in order for the court to take that up?
TOOBIN: You mean -- they need five votes -- you mean to hear it or to decide it?
GERGEN: Well, yes, to bring it to the court now on the question of the procedure and whether to reinstate the ban. Do they need five votes in order to get to the court, or can the court just accept it now?
TOOBIN: The way a stay litigation works at the Supreme Court is that it initially goes to the circuit justice, the justice who is responsible for that circuit. And that's Anthony Kennedy in the Ninth Circuit. What almost always happens in a circumstance when they're asking for a stay on an important issue is that the circuit justice doesn't decide on his or her own but refers it to the full court. It's not a certiorari situation, so they need five votes to overturn this stay.
Now, the other point that is worth making, and I hope it's not too much in the weeds, is that the Supreme Court really prefers to hear final judgments, not intermediate parts of cases. And this is very much a preliminary, not even intermediate judgment.
So, I think the Trump administration has an even more difficult burden than it might otherwise because the Supreme Court, even the justices who are sympathetic to his position, might say, look, let's send this back to the district court, let's let the district court hear all the arguments, get all the testimony, and then we'll review whether this is an inappropriate judgment. That's more likely.
BURNETT: Ariane, I know you want to get in there. Hold on, I just want to get Ariane here quickly.
Ariane?
ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: One thing that's interesting, right, is the Supreme Court also doesn't, and no court sort of likes chaos, and here you have the Ninth Circuit acting this way. The Supreme Court may not want to jump in and have it ping-pong back and forth.
It shows the importance of the Ninth Circuit ruling because if this does come down 4-4, then all the court can do is say, OK, we uphold what the Ninth Circuit did. They're not on the merits here, right, it's just on the reinstatement. Still what happened tonight is very important if the court ends up splitting 4-4.
BURNETT: And, Mark Preston, Judge Gorsuch's role in how this all plays out, in terms of the whole process through the Senate right now becomes absolutely crucial, the timing.
MARK PRESTON, CNN SENIOR POLITICAL ANALYST: Right. So, there is already going to be a very bright light shined on this confirmation process for Judge Gorsuch. As we mentioned earlier, Judge Garland was never given a hearing by Republicans, and now Democrats are trying to do the same thing to Gorsuch. At a court that's decided 4-4, that means obviously it's going to be a very critical time.
[19:50:02] But this is where things could get a little bit messy. I think what you're going to see in the coming hours, if not the coming days, you're going to see both sides try to galvanize behind this, and that's because there's going to be an effort by the left to try to stop Gorsuch as quick as they can and use this issue as the example of why they have to do it. What that could lead Mitch McConnell to do in the United States Senate eventually -- I don't think this will happen necessarily -- but I do think we have to watch it, is that the nuclear option could be invoked a lot sooner than any of us thought in any comedy in Washington, and I have to tell you, there is no comedy where I sit right now in Washington. It's all going to be out the door.
BURNETT: We need to enforce that majority, not a filibuster.
(CROSSTALK)
CALLAN: There is another thing that could happen that nobody is talking about. If the Trump administration wanted to stall to get more time to get their person on the Supreme Court, get Gorsuch on the Supreme Court, they could petition for what's called an en banc review by the Ninth Circuit. They will empanel then 11 judges to review the decision of the three judges.
Now, that would stall this a little bit, a couple weeks, probably by the time -- as a matter of fact, they laid out a briefing schedule in their order if en banc review is sought. So, that could be used to stall the trip to the Supreme Court.
BURNETT: Bill, let me ask you though, because when it comes to Judge Gorsuch, right, he's had the strategy. He's been meeting with senators. He's met with Senator Schumer, Senator Blumenthal, others. And in those meetings, they have asked him about Donald Trump's tweets that have said things about judges, right, where he said "so-called judge" specifically. He said that those things were disheartening, that he found them unacceptable, right?
That is likely to help him with some of those crucial votes. But it may not be enough.
BILL KRISTOL, EDITOR AT LARGE, THE WEEKLY STANDARD: I think it will be enough. I think he'll be fine. But I think the big story here that we may be missing a little, the big political story for me is Donald Trump does not have the support on this issue of a lot of Republicans in Congress. He did not have it when he first announced the ban. He certainly didn't have it when he personally attacked the judge over the weekend.
I don't think, as you reported, I don't think it has it tonight. Very few people are stepping forward. He put that together with Jason Chaffetz's letter today asking for a review with Kellyanne Conway on ethical grounds, Republican chairman of the committee, three weeks into the Republican administration saying, I'm worried about ethics violation on the White House. You put in the attack on McCain. I think today could be the day looking back the judicial decision -- the court decision is one part of a broader narrative, really a broader pattern where Trump is just losing allies, finally. They've bent over backwards to be accommodating to him. I don't think it will hurt Judge Gorsuch. He's also lost his own
appointee, Judge Gorsuch, is going on the Hill saying I'm being made uncomfortable by what Donald Trump is saying about judges. Isn't that amazing?
BURNETT: Kayleigh, does this concern you? I mean, you know, you just heard Manu Raju said Paul Ryan is responding to what he's saying. He says, not much. I defer to the White House.
I mean, that's hardly a ringing endorsement of anything Donald Trump is trying to do or his response tonight where again he came out and said that this ruling is a political decision.
KAYLEIGH MCENANY, CNN POLITICAL COMMENTATOR: Look, I anticipate we'll get a lot of support from Republicans in the coming days. We've seen Tom Cotton come out, a 29-page dense legal decision was just released about an hour ago. So, I think people are taking time to digest this. I think it was smart of Speaker Ryan to defer to the White House.
And also, you look at the latest CNN poll, 90 percent of Republicans approve of the president's job so far. I'm not worried about a complete outflow of Republican support. The support is there, and I'm not concerned with losing a few establishment figures who are never on board from the get-go.
BURNETT: Do you think the state of Washington, Jeffrey, is celebrating too early, right? You saw Governor Inslee and when President Trump said, "We'll see you in court", he goes, hey, we just saw him in court and he got beat.
I mean, you don't get -- look, it's true. But you don't get cockier than that.
TOOBIN: Yes. But I mean, they won. And it is -- courts don't overturn or stay actions of the federal government lightly. And the fact that they have had four judges look at this, two Democratic appointees, two Republican appointees and all four have ruled in Washington's favor, I think Washington is entitled to strut around a little bit.
BURNETT: All right. Well, speaking of that, let's bring in Noah Purcell, the solicitor general of Washington.
Noah, I don't know if you just heard Jeffrey Toobin said you're entitled to strut around a little bit. Is that how you're feeling tonight when you look at this ruling?
(LAUGHTER)
NOAH PURCELL, WASHINGTON STATE SOLICITOR GENERAL (via telephone): I'm proud of the work our office and our team did. I appreciate the bravery of Attorney General Ferguson in bringing this case and I appreciate the careful work that the court did in writing this excellent, thorough, careful opinion.
So, I'm -- I'm happy. But I'm happy on that, but a lot of people did a lot of hard work on this case and (INAUDIBLE) a lot of people in Washington and Minnesota and across the country were helped by it.
BURNETT: So, Noah, we all heard the oral arguments. We -- the whole country heard them.
[19:55:00] You were here on CNN delivering them. You had some moments where they went after you. They asked you some pretty tough questions, Judge Clifton particularly, on the Muslim ban and your argument there.
Were you surprised when it came out and it's 29 pages, and it doesn't just uphold what you asked for, but it went into rather significant detail on the underlying substance of the case? Were you surprised that it did that?
PURCELL: No, I wasn't surprise. My experience is that, and I'm sure Jeff Toobin came in front of this, when judges -- good judges ask hard questions of both sides. And they don't let one side off the hook, even saying mostly things maybe (ph) right. And so, I had no objection to the judgments pushing me about points on our case. I think that's what good judges do. I had the privilege of clerking to two wonderful judges and both of them, you know, they would not let either side to get away without answering some hard questions.
BURNETT: Let me just give Jeffrey Toobin a chance to ask a question. Go ahead. Yes?
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Noah, I wanted to ask you a question about the oral argument, which I thought -- we just played the moment when your adversary was asked the question about is this -- is there any reviewability of this decision? Can any court look at this? And there was this incredibly long pause.
BURNETT: Yes.
TOOBIN: And then he said no. Did you think that was a key moment in the argument as the opinion seems to indicate?
PURCELL: I think it played a role. You know, I think -- look, we were both in a tough position, with very little time to prepare for that argument. And it was a very strange argument experience arguing in the phone, having, you know, far more people listening than is normal. And I think -- I think that was a difficult -- that's a difficulty question for the government to answer. I do not put the blame for on that attorney for the Department of Justice. I think that's the difficulty in the federal government's position, that I don't think there is a particularly good answer to that question the way they have approached this policy. So, I don't blame the attorney for that.
BURNETT: Noah, can I just ask you, in a sense, it's a personal question. But when you bring it up -- I mean, there was thing bizarre about that experience, right? You all are on phones in five different locations. The whole country is listening to you, broadcast on television. How strange was that moment for you? And did it -- I mean, just to be honest -- did it make you a little bit nervous when you were under some of those tough questions? PURCELL: It was extraordinarily strange. That's not a hard question
to answer. It was definitely the strangest argument I have ever had in my life.
But -- well, it's not out of the ordinary. I thought it was wonderful for people to hear. I didn't really in advance that it was going to be broadcast quite so wildly. If I had known, I probably wasn't (INAUDIBLE).
But I think it was wonderful for the country to hear, that they did press both sides very hard for answers to hard questions. They had not -- you know, made assumptions about how this case should come out. They were asking probing questions. And I think it just shows the role that the judiciary is supposed to play in our democracy, which is, as I said in the argument, to say what the law is and to serve as --
(CROSSTALK)
PAUL CALLAN, CNN LEGAL ANALYST: Noah, can I add on behalf of all the lawyers who watched and admired the work of all the lawyers in that court, the fact that all of you have argued this important issue without personally attacking each other but stayed focused on the constitution and the law I think deeply impressed a lot of people in the country -- even those who may disagree with the decision -- that there is a way for reasonable people to argue about important issues that affect the United States.
BURNETT: Everyone was so polite.
And, Noah, when Donald Trump has tweeted now in all caps, "See you in court", obviously, that's his next step. We don't know whether that's en banc, we don't know whether that's to the Supreme Court.
What to you say to him?
PURCELL: Well, I was just talking to our attorney general about that and I guess from our perspective is that we see him in court right now and we've won both times. I guess I feel like we -- it's not like it doesn't count until you get to the Supreme Court. The judicial system involves many stages and -- you know, I heard a lot of commentary from people about who appointed who on the Supreme Court and how they'll think about this.
I mean, I really think this is executive order is so out of the ordinary in so many ways, so unsupported by any rational argument on the administration's part, and I am -- I am extremely hopeful about what will happen if this case does go to the U.S. Supreme Court. Not to say that I -- I don't in any way mean to put any pressure on anyone about how they should rule.
BURNETT: Yes.
PURCELL: I trust them to apply the law as they have in cases in the past and I think we win under that precedent. BURNETT: All right. Noah Purcell, thank you very much. Noah Purcell is solicitor general for the state of Washington. He gave that oral argument with a resounding victory.
And thanks for watching us. Our breaking news coverage continues now with "AC360."
