See You in Court; Another Cabinet Member Confirmed
GEORGE HOWELL, UNIDENTIFIED MALE: This is CNN breaking news.</s>CNN HOST: It is 3 a.m. on the U.S. East Coast. Welcome to our viewers here in the United States and around the world. I'm George Howell at CNN world headquarters in Atlanta.</s>MAX FOSTER, CNN HOST: And I'm Max Foster in London. And we are following breaking news for you this hour.</s>HOWELL: Max, it's good to be with you. A big loss for the U.S. president and his controversial travel ban. The decision came down Thursday. A panel of three judges on a U.S. appeals court ruled to keep the travel ban on hold. And as a result, people from seven mostly Muslim countries can continue coming to the United States. The president signed the executive order two weeks ago. He says it is necessary to keep terrorists out of the United States. Mr. Trump reacted to the decision almost immediately on Twitter. You see the reaction here. "See you in court. The security of our nation is at stake," he says.</s>DONALD TRUMP, PRESIDENT OF THE UNITED STATES: It's a political decision and we will see them in court, and I look forward to doing it.</s>UNIDENTIFIED FEMALE: So you believe the judges made a political decision?</s>TRUMP: We have a situation where the security of our country is at stake. And it's a very, very serious situation, so we look forward - as I just said - to seeing them in court.</s>HOWELL: The background here, Washington State and Minnesota challenged the travel ban. Washington's Attorney General Bob Ferguson called the appeals court ruling a complete victory. Listen.</s>BOB FERGUSON, WASHINGTON STATE ATTORNEY GENERAL: Well, we have seen him in court twice, and we're 2 for 2. That's number one. And in my view, the future of the Constitution is at stake.</s>HOWELL: It is a big decision. Where do we go from here? CNN's Dan Simon is at the 9th Circuit Court of Appeals in San Francisco with this report for us.</s>DAN SIMON, CNN CORRESPONDENT: Following the ruling, we did not see any anti-Donald Trump protesters outside of the 9th circuit, but had the ruling gone the other way, this plaza would be full of protesters. As for the ruling itself, the fact that two of the judges were appointed by democratic presidents should be no surprise what the end result was. But I think what is striking was the tone that this was a clear rebuke of this executive order. In full, there were questions about the constitutionality of the order. There were also questions whether or not there are threats around the world in these seven predominantly Muslim countries that would justify this kind of order. It's almost as if part of the ruling was written by former Secretaries of State John Kerry and Madeleine Albright. They themselves wrote a declaration to this court said, they were not aware of any specific threat anywhere in the world that would justify this kind of executive order. From here, of course, this ruling is most likely going to head to the Supreme Court, but given the ideological split 4-4, what happens there if in fact you have a tie, the 9th Circuit Court of Appeal will be the default ruling that will be the law of the land. Dan Simon, CNN, San Francisco.</s>HOWELL: Dan Simon, thank you so much. Let's get some context now on this big ruling. Bringing in CNN legal analyst and civil rights attorney Areva Martin, live with us in Los Angeles, and former assistant chief deputy at the U.S. Justice Department, Ron Bamieh. It's good to have you both with us this hour. Let's start with the first logical question here, the question that many people will be asking, given this ruling. What will the Trump administration do next given what happened? We saw the tweet that we showed just a few minutes ago, "see you in court," and his adviser Kellyanne Conway had this to say just after the ruling came down. Let's listen to it and we can talk about it on the other side.</s>UNIDENTIFIED MALE: Do you see this as a setback?</s>KELLYANNE CONWAY, DONALD TRUMP SENIOR ADVISER: He sees it as what he's always seen as which is a statute that provides a president, in this case President Trump, with great latitude and authority to protect the citizens and to protect the nation's national security. This was not argued on the merits. Now they'll have an opportunity to argue on the merit, we look forward to do it now. We look forward to (Inaudible) And I think his tweet was perfect when he said "we'll see you in court.".</s>HOWELL: So, the president is saying "we'll see you in court." This is a president who likes to talk about winning. In this case, he certainly lost in court. Ron, you used to work at the Justice Department. Where do you think the administration came up short in this case? What should be their line of attack moving forward if they want to win?</s>RON BAMIEH, DEFENSE ATTORNEY: Well, a couple things. First of all, their only one of attack -- well, there's two possible. One is to go to an en banc hearing which means that bigger panel of the 9th Circuit Court of Appeal would hear the case, but that's a loser because three of those 10 judges who would hear the case on en banc panel are the three that just heard it. And so the odds are you're going to lose there. And that's just to go back the district court the district court litigated there in front of Judge Robart. But that doesn't seem to be a very optimistic result for them. There's also the third option which is to -- and a fourth option. The third option is to appeal to the Supreme Court after Judge Robart makes a final ruling on the TRO. You mentioned that, you know, permanent order. Then you can appeal to the Supreme Court when you have a final ruling. Or you could do what I would recommend, and that's withdraw your executive order as it is now written and rewrite it to address some of the concerns that were raised by the district court and make it more bullet proof for future review.</s>HOWELL: So, Ron laying out a couple of scenarios there. Areva, leaning on your expertise here, what are the risks should the Trump administration take this to the Supreme Court?</s>AREVA MARTIN, CNN LEGAL COMMENTATOR: Well, we know that the Supreme Court is short one justice, so we're talking about an eight-member court at this time. Four of whom are likely to vote in favor of Trump because of their backgrounds, but four who are likely to vote against him. And if he loses at the Supreme Court, there's a tie between these eight justices, then the decision by the ninth circuit becomes the binding decision. Trump is in a very, very difficult position. He's talked about the risks that the country faces from these seven countries, but he hasn't presented one shred of evidence, and the court, the ninth circuit court in its opinion, called Trump out. They called out the administration for failing to present any credible evidence to justify this threat to our national security. And to date, we keep hearing about it in tweets. We keep hearing about it from his representatives. But it wasn't presented as evidence to the court. And courts are very different. You can't make these preposterous statements or these ambiguous statements without backing it up with documentation and evidence. And he failed to do that. His administration failed to do that. And if they don't have that evidence, they're going to continue to lose in court. So, I don't see that he has very many options at this point.</s>HOWELL: The U.S. system set up with checks and balances and we're seeing that play out in this case. The president has gone after judges in the past, calling them "so-called judges," specifically talking about a judge in Washington State who ruled against the travel ban, suggesting that the decisions of those who disagree, these judges who disagree with him, that they could be politically motivated. We heard from the governor of Washington State, and he had this to say. Let's listen.</s>JAY INSLEE, WASHINGTON STATE GOVERNOR: This president has an alarming attribute, if you call it that, or characteristic, that when he loses he tries to undermine respect for the judicial system. I have never seen that in my lifetime. Richard Nixon never even stooped that low. It's very important and there's nothing wrong with disagreeing with a court decision. But to try to undermine it and to call them "so-called judges," to argue that their motivation is political rather than they're judicial decision- making, that's way out of line, and it's dangerous to our democracy where we do have to maintain a separation of powers.</s>HOWELL: So Areva, first to you. Governor Inslee suggesting here that the president trying to delegitimize his opponents, which, in this case is the judicial branch. Is there a danger in what's happening here or does the president have some ground to stand on here?</s>MARTIN: Well, he has no grounds to stand on. And it's absolutely absurd that the president of the United States is issuing statements and making statements to suggest that the judiciary is not doing what it is called upon to do. We've seen this, though, with Donald Trump. Throughout his campaign, if he didn't like something that a judge did, he would make some kind of disparaging remark about that judge. And there was a poll that came out tonight that I think is very interesting. It was a poll amongst Donald Trump supporters, and they said overwhelmingly so that Donald Trump shouldn't have to follow the orders of a judge or decisions that are issued by a court. And the more he undermines the integrity of the judiciary, I think it's throwing red meat to his base. And the more they make statements such as he somehow is above the law and doesn't have to follow legitimate orders from the court, I think this is very dangerous. And hopefully, the new Attorney General, Jeff Sessions, will take a different approach and will start to show the kind of respect for the judiciary that you would expect from the President of the United States.</s>HOWELL: Ron, same question to you. This is a president who has been called a counterpuncher. You punch him, he punches back hard, is what the critics say. But in this case, the punches don't seem to be landing when it comes to the judicial branch.</s>BAMIEH: Well, I just listen here, I think it's Areva to what's her comments. She's totally wrong on everything. First of all, President Obama criticized the Supreme Court in Citizens United Case. Nobody complained about that. The threat or the fear of somehow nobody following the rule of law, well, I don't hear people complaining about the sanctuary cities who are disregarding federal law. So, I don't find those arguments very compelling. The court in this case, when they ask for evidence of the dangers of this country, that's not their place. That's not their role. As a matter of fact, the law is very clear that's not their role. It's the executive branch's decision to make that call, not the courts. And when you have the courts overstepping as the 9th circuit did, and as Judge Robart did, that's when you have chaos. We have risen of power, we have separation of powers. When we try to write laws as judges or when judges try to write laws, people should be speak out. And people should be upset by that. That's not the way the country is supposed to work. The law is clear that the president has this authority over this immigration. The Congress gave it to him. Now they bent over backwards to find ways, to find jurisdiction for the State of Washington, which when you read the opinion it's kind of ridiculous. To say that because of the University of Washington may have some students that would be affected, that gives them standing. That's a big stretch. And only when you get a court that wants to be activists, in this case like this court does, as the 9th circuit, then you get these rulings like this. So, the president has the legal footing. He has all the right in the world for the lack of this, but unfortunately, for him he's in the wrong forum. He's not going to win in this forum.</s>HOWELL: Hey, Ron.</s>MARTIN: George, can I respond to that? First of all, my name is Areva. And to equate what President Obama did with respect to comments about judges with what Donald Trump has done is ridiculous. President Obama never made personal attacks on judges the way that President Trump has. So you can't even equate those two. And to say the court is wrong, we have two decisions by two courts, judges that have been appointed by republicans, saying that the ban basically, although we haven't gotten to the merits, but have not withheld or upheld the ban by President Trump. So when you say that the court's wrong, you're essentially saying that both federal courts got it wrong and there's only one right here is President Trump.</s>BAMIEH: They did, yes.</s>MARTIN: No, there's no evidence to support that.</s>BAMIEH: No, it's both.</s>HOWELL: That is -- I have to stop you both there. Certainly, we've seen the decision of two courts now. If this goes to the Supreme Court, we would have to wait to see what that decision is. Also important to point out to our viewers that the ruling that came down today is not based on the merits of the case. It's simply based on the temporary restraining order. So again, we can certainly get into the conversation about the merits of the case, but that has not been decided by the courts. It's good to have both of you and your opinions on this.</s>MARTIN: Thank you, George.</s>HOWELL: We'll stay in touch with you both.</s>BAMIEH: Thank you.</s>HOWELL: Max, back to you.</s>MARTIN: Thank you, George.</s>FOSTER: Yes. George, we're going to look at some of the politics at play here with Donald Trump's travel ban. Then Peter Conradi is the foreign editor of the Sunday Times. He joins me here in London. So, it's a test, isn't it. It's an interesting test for Donald Trump there. Because he came into office very much on that ticket on immigration, his immigration policy, he's now trying to put it into force and he's facing resistance. So it's an interesting process to see how he responds to this.</s>PETER CONRADI, FOREIGN EDITOR, THE SUNDAY TIMES: It is. I mean, this is really the first reality check, isn't it? This is Donald Trump coming up against the realities of the American political system, the separation of powers, the executives separate from the judiciary. And you know, he's fall on the first test and he's not happy about it as one would expect.</s>FOSTER: But then we got a taste of how he responds to that as well. He's basically going to go all the way to the Supreme Court, obviously.</s>CONRADI: He is going to do that. And I mean, he's going to -- he's going to bluster about it. We've had this very sort of explosive tweet. He's going to go to the Supreme Court. But how long is that going to take and also when he gets to the Supreme Court, is he actually going to win there, because at the moment, we've got -- his nominee for the court hasn't yet come in. So we've got a court that's evenly split before four liberals and four conservatives. There's no guarantee he's going to win there either. And then what does he do if he doesn't win there?</s>FOSTER: Yes, how does he set himself up for a possible loss in that? Because he would have been thinking about that surely?</s>CONRADI: I think so. But I think, I mean, we saw a little bit of an indication of this that he made some comments yesterday, I think, suggesting that he has actually wanted a delay.</s>FOSTER: Ask for delay.</s>CONRADI: He ask for delay. I mean, come on. You know, how plausible is that?</s>FOSTER: Then he complained the rollout of the policy as for its failure.</s>CONRADI: He can. And I think, I mean, in a sense he's in a sort of a win-win situation, I think. Because even though, he as crazy as that sounds, even if he actually loses ultimately in the Supreme Court, he can appeal to his base, he can say look, I wanted to protect your country. These judges, these unelected judges, are not allowing me to do that. If anything bad happens, it's their fault, it's not my fault.</s>FOSTER: It did on theological sense, didn't he say, you know, this idea that America is under threat, I'm trying to protect you. Will he not let his base down, though, if he loses this case? Because it looks as though, he hasn't been able to protect them.</s>CONRADI: I think that will only happen if something terrible happens. You know, if God forbid, there were to be a terrorist incident and it were in the U.S. and it were too, involved someone that came from one of those countries. But then again, you know, what can he do? He will say he will have tried his hardest but the judges stopped him. But I think the reality is no doubt he will move on to another issue. You know, this is the way that Trump works. Something seems to be a huge issue for 12 hours, 24 hours, then thing, another tweet lands and we've moved on to something else.</s>FOSTER: Your expertise obviously international relations. We have this interesting conversation overnight, our times as well between the White House and Donald Trump's Chinese counterpart. He's stepped back from his opposition to the one-China policy it seems. He seems to accept that that's a thing now. You've written a book about you know, U.S.-Russia relations. On the international stage, the big test is going to be how he handles China and Russia, right.</s>CONRADI: He is indeed. It is indeed. Yes, I mean, we're trying to, we've seen this sort of this throwing back. With Russia, we really don't know what's going to happen. Because as ever with this administration, there are just completely contradictory signals coming out. You know, we have this broad impression that Trump likes Putin, as everybody talks about this kind of great 'bromance' between the two of them, even though they've never met. But then you got other people within his administration who are saying we've got to be tough on Russia. You know, Russia is an aggressive power we've got to contain them.</s>FOSTER: And that's going to be tested when?</s>CONRADI: Well, we've got a NATO summit in May that Trump is going to be at. And there's a lot of speculation there's going to be a summit with Putin maybe around that time or maybe in July.</s>FOSTER: OK. Peter, thank you very much, indeed. It's a fascinating process. We are really getting a sense of this new presidency now on how he puts this policy into practice. U.S. Senate confirmed Tom Price as the next Secretary of Health and Human Services a short while ago. Democrats fought to stop Price over hardline, his hardline on repealing Obamacare. And altering Medicare, as well as ethical concerns. Republicans hope that he will be one of the primary architects of the replacement plan for Obamacare. George?</s>HOWELL: And still ahead, as CNN Newsroom rolls on, President Trump agrees to honor the one-China policy. We get reaction from Beijing and a live report. Stay with us.