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Donald Trump Surging in New Hampshire; Trump Doubling Down on Temporary Ban on Muslims Entering the U.S. Aired 10-11p ET

Aired December 8, 2015 - 22:00   ET


[22:00:00] DON LEMON, CNN TONIGHT SHOW HOST: Donald Trump is surging in New Hampshire and the lightning rod for his call to ban Muslims.

This is CNN Tonight. I'm Don Lemon.

A new poll conducted before his call to ban Muslims from entering the United States. Here is Trump ignoring a storm of criticism and doubling down in a combative interview with our very own Chris Cuomo on CNN's New Day.


DONALD TRUMP, (R) U.S. PRESIDENTIAL CANDIDATE: I'm talking about a temporary situation until our country's representatives can figure out what the hell is g going on, Chris.


LEMON: And even the White House taken aback by Trump's call for a ban.


JOSH EARNEST, WHITE HOUSE PRESS SECRETARY: The fact is that what Donald Trump said yesterday is disqualifies him from serving as president.


LEMON: And tonight, Donald Trump hinting that he could bolt from the Republican Party, run as an independent, and take his supporters with him. Very busy day for the GOP front runner, and a lot to talk about in the hour ahead, indeed.

I want to begin though, with Sam Clovis, he is Trump's national campaign co-chairman and policy adviser, and he joins us via Skype from Iowa, joining us again. Thank you so much for coming on. I appreciate you coming. How are you doing, Sam?


LEMON: I'm doing great. Thank you. Listen, first, what can you tell me about Donald Trump, he has a scheduled trip to Israel, and what do you know about it?

CLOVIS: Well, I know that it's a scheduled trip to Israel, and I know -- I know about as much as that is what we want to reveal at this point in time. And I think that we will be enjoying the Christmas holidays, and then we'll likely be heading over to the Holy Land.

LEMON: So, you know more but you just don't want to reveal it? Is that what you're saying?

CLOVIS: No. That's -- we have some security issues involved, we want to be careful about all of that.

LEMON: Can you talk about who you -- talk to us about who you're going to be meeting with, is he's scheduled to meet with any officials there?

CLOVIS: Well, I think it would be a long trip for just to show up at the Wailing Wall. I think that there is probably a lot more involved in that, but again, I think for security reasons we'll probably keep that to ourselves for right now.

LEMON: All right. Well, clearly, this has to do with foreign policy, so let's talk about it. Who is advising him? Did he consult anyone about his plan for a total and complete ban on Muslims entering this country?

CLOVIS: Well, I think let's characterize it properly, Don, I think what he was -- he made a few, if you listen to quote exactly, it was a temporary situation, I think that the implication of what he said is that if he were enforcing our immigration laws appropriately at this point in time, we might have a better handle on this.

And I was really surprised that a lot of the commentary from both the democrats and the republicans today, and then what did they handle in the Congress? I was little bit taken aback by the fact that the very first order of the business today that Speaker Ryan took up was to revisit the waiver program, the visa waiver program.

So, I thought that that was kind of ironic in all of this. I think that what we are really looking for here is to have some confidence given to the American people that the United States government has a good idea of who is coming into this country, and why they're coming into this country, and how long they're going to stay in this country, and for what purpose are they coming into this country.

And I think that this is really, when you take a look at the circumstances that we have right now, we have 525 people killed in five separate incidents by ISIS, it's clearly not contained, and they...


LEMON: But when you look at this, you said that you are surprised, Mr. Clovis, if you will pardon me, you said you're surprised by this. But when you have something that reads, so we can back up, it starts with Donald J -- Donald J. Trump is calling for a total and complete shutdown on Muslims entering the United States until our country, our country's representatives can figure out what is going on.

You're surprised that people are -- people -- that other people may be surprised by this?

CLOVIS: Well, I really am, because I think that what we are really looking at and there is a great deal of ignorance out there about the process of how people come to this country. We have 38 countries that people show up with a passport and they don't have to have a visa, they come into this country, they don't have -- they come in on that, and what -- and what do we have right now today in illegal immigration?

Forty percent of the people there are -- there are here supposedly, illegally in this country are visa overstays. How did they get those visas? We have no way of tracking. We want to go out and track every phone call that's made in the United States, but we can't figure out a way to track people that come here on a visa?


LEMON: And we can't do that while upholding the immigration laws that we already have in the book? We can't walk and chew gum at the same time?

CLOVIS: I think you've been advocating all along the enforcement of the -- of the immigration laws that we have on the books. Right now if we were able to do that, we wouldn't probably be having this conversation, would we?

LEMON: Yes. Well, let's listen. Let me ask you this, because some people are saying because we do have laws on the books now that say, you know, certain people, if you -- if you are a threat to the United States, that you may not be able to enter this country. That already happens.

[22:04:59] But let's talk about the timing, because some people are saying the timing is suspect, right? That it came on the day that Ted Cruz showed a lead in Iowa in the Monmouth poll in the second place in the CNN poll, Trump is first there, was this a political calculation, Mr. Clovis?

CLOVIS: No, not at all. I think it was the time to say it. If you notice that the same day a poll came out that showed Mr. Trump up by 13 points. So, we had the Ben Carson poll several, a couple of months ago that showed him ahead, and then almost immediately other polls came out and showed Mr. Trump is still ahead.

So, the polling issue is not driving this. The circumstances on the ground are driving this, the issue is that we have uncertainty in this country, the government is not enforcing the immigration laws that we have, we'd like to find out if we can hit that reset button that Hillary Clinton talks so much about.

Let's find out where these people are, who they are, where they're coming from, and let's find some way just to be able to able to enforce the laws that exist out there... (CROSSTALK)

LEMON: And you said find out who these people are, you're not talking about all Muslims, right? You're talking -- what are you -- what are you saying?

CLOVIS: Well, I would like to is to take a look at really a screening process that we enforce the laws that we have, and right now because of the circumstances in San Bernardino and the other four attacks that ISIS has had around the world, the fact that they are out there, and we have people coming into the country.

And by the way, I couldn't help but notice in a previous program just before you came on, Don, and I'm not sure you had a chance to see it, but someone come on there and talk about the fact that the visa program is working. Really? It is working?

The young lady that committed those atrocities in San Bernardino came over here on a fiance visa, that worked really well.

LEMON: I'm sorry, say again?

CLOVIS: I think that she came over here on a fiance visa, gave a false address, and it says -- and one of the reports that we had on earlier said that lying is the reason to be denied entry into the United States. That clearly didn't work.

LEMON: Yes. I did not see that program and I don't -- pardon me, I don't know what you're referring to. But I want you to take a look at this. This is from the Philadelphia Daily News today. Does this cover concern you basically equating your candidate to Hitler?

CLOVIS: Well, I feel very sad about the Philadelphia Inquirer. I think that probably as much as I need to say about that, if that's -- if that's the best they can do journalistically, then probably, you know, that's probably their own areas that they have to worry about.

I don't think we're going to be concerned about somebody coming out and characterizing us in such a way. It's absolutely specious, and it has no support. And frankly, it's insulting.

LEMON: All right. Thank you very much, Mr. Clovis. Sam Clovis, we appreciate you joining us tonight.

CLOVIS: All right, Don. Thank you.

LEMON: All right. Thank you. I want to bring in now Frank Gaffney, the founder and president of the Center for Security Policy, and Michael Weiss, who is a co-author of "ISIS: Inside the Army of Terror."

And by the way, gentlemen, I apologize, we will sniffle tonight if you catch me doing that again and to the audience as well.

So, Frank, I want you to explain what the Center for Security Policy since Donald Trump cited your group's poll yesterday. People have said that your group is extremist and Islamophobic (ph), and some people have even equate it to a hate group. Explain to us what your center does?

FRANK GAFFNEY, CENTER FOR SECURITY POLICY FOUNDER & PRESIDENT: I appreciate in having an opportunity Yes, I would like to have an opportunity to actually describe it rather than have it characterize by people who seemed to be determined to silence us.

It's a group that I started with a number of my colleagues back in 1988, essentially to promote what President Reagan, my old boss used to call a strategy of peace through strength.

It is very much needed at the moment, because we seem to be pursuing if there is a strategy to it at all, one hoping that through increasing weakness we will somehow ameliorate our situation, vis-a- vis among others, not exclusively, but among others Jihadists who seek explicitly our destruction.

Now, we oppose to that. And it seems that people who wish to suppress us whether they mean it or not they are nonetheless playing into the hands of those who are in fact, our enemies.

LEMON: OK. Do you agree with Donald Trump statement that there has to be total and complete shutdown of Muslims entering the United States?

GAFFNEY: Well, let me put my view forward. I think that we have enough Jihadists in America at the moment, plenty, actually too many. And the idea of important still more willy-nilly, it seems to me that makes no sense at all.

What exactly one does, and for how long one does it in order to try to ascertain when more people who are coming from the nations notably those that have a tradition of Islamic supremacist and in some cases Jihad seeking to impose what doctrine they call Sharia on the rest of us.

Whether you can discriminate between those who are actually bent on engaging in Jihad. Either of the violent kind or by the way, a kind that the Muslim brotherhood called civilization Jihad, sort of stealthy kind of Jihad rather than the people who are just seeking to come here for a better life or economic opportunity or...


[22:10:12] LEMON: It sounds -- it sounds like a defector agreement with...

GAFFNEY: ... something we have -- we have to get sorted.

LEMON: ... Donald Trump.

GAFFNEY: Well, I think there are points in which we agree.


GAFFNEY: But the point is I think virtually that every American thinks we should not be willy-nilly in importing more Jihadists...


LEMON: Are there any points where you disagree with him?

GAFFNEY: Well, I disagree on perhaps very important distinction. I would argue that there are Muslims who do not embrace this supremacist doctrine of Sharia, who are, at least for the moment not a threat. And those are the people that you probably can bring into this country or you can help become part of the American dream with less concern. But I want to make sure that...


LEMON: But how does one decide that? How does one...

GAFFNEY: Well, I don't know. And this is -- this is I guess basically a point of agreement with Donald Trump, which is our leaders have not made clear how, or indeed, if they are trying to figure that out. There is a lot of evidence that they're not at the moment which is why I think so many Americans are concerned about this.

LEMON: OK. All right. Standby, Mr. Gaffney. Michael Weiss, what do you -- what's your reaction?

MICHAEL WEISS, THE DAILY BEAST SENIOR EDITOR: Well, Mr. Gaffney's organization put out this poll Donald Trump cited as a legitimization of his claim that we should essentially shutdown all Muslim immigration.

I had the chance to read the poll today. And Mr. Gaffney in his press release cited an actual poll conducted by the Pew Research Center in 2001.

Let me give you some statistics from that poll, which I also research. They found that nearly half of Muslim leaders in the United States, or Muslims I should say, believe that Muslim leaders have not done an adequate job of speaking out against Islamic extremism.

So, this is a self-criticism within the American Muslim community. They found that just 1 percent of the American Muslims believe that quote "Suicide bombing and other forms of violence against civilian targets are often justified to defend Islam from its enemies."

The Muslim community in America, Don, is 1 percent of the population. So, this is 1 percent of 1 percent of the entire American population that believes in using violence to further any kind of religious or theoretical.

Another interesting statistic from this poll, 62 percent of Muslim Americans believes Israel has a right to exist with the allowance of the rights for the Palestinian. That tracks with a national average of 67 percent of the general population.

The broad picture here is that Muslim Americans, the polling data and their opinions about the American politics, their own faith and the integration of themselves into the body politic into the United States is overwhelmingly encouraging, particularly when you contrast that to Muslim populations in Europe or in the Middle East.

Mr. Gaffney has said that his organization believes in peace through strength. I think he has confused this with peace through conspiracy theory. This particular guest on your show has called David Petraeus, the general who rescue the Iraq war, a man who submitted to Sharia law, because he said that the burning of the Quran is going to make it more difficult for us to conduct national security policy. He used Grover Norquist, a very conservative right wing...


LEMON: I will let you respond. No, no, no.

GAFFNEY: I have stand by...

WEISS: Excuse me.

LEMON: Mr. Gaffney, I will let you are respond, but please don't worry about it.


GAFFNEY: I would like how much more of this I have to listen to?

LEMON: All right.

WEISS: Grover Norquist is not exactly (Inaudible) on social or cultural issues. He has denounced this man for accusing him of being a closet Islamist. OK. This is a hysterical propagandist.


WEISS: Who is promulgating a doctrine of hatred and bigotry.


LEMON: Let him respond.

WEISS: And I'm addressing to something with statistical data.

LEMON: Go ahead -- go ahead, Mr. Gaffney

GAFFNEY: I thought that we were having a conversation about the actual facts here...

WEISS: These are the facts, sir. I can -- I can refer you to your own quotation.

GAFFNEY: ... and other. You have -- if will permit me to respond.

LEMON: Let him respond.

GAFFNEY: I think what you're repeating is a hectoring that is aimed at silencing of legitimate fact-based discussion of what we are confronting here. You cited one Pew poll; there is another Pew poll in 2013 that talks about 13 percent of Muslims thinking violence is justified in furtherance of Jihad.

This is a selective effort I think to minimize a problem that frankly, Americans think you are nuts, sir, not me, because the evidence that Jihad, you've written about it in connection with the Islamic state.

The fact is the Islamic state is here, and is seeking to wage violent Jihad against us as is Al Qaeda, as is Hamas, as is Hezbollah, as is the Muslim brotherhood. And for anybody to suggest that it's his hysterical or its conspiracy theory to point this out is I think malfeasance. So, reject you -- reject your characterization.


WEISS: Mr. Gaffney, you said that under (Inaudible) the guy who found the massacre in Norway, his manifesto which was blatantly racist, anti-semantic...


GAFFNEY: I have nothing more to do with that and the SPOC had to do with attacks in this country.

WEISS: This is arranged in Syria.

LEMON: Let's not get too far in the weeds. Hey.

GAFFNEY: This is about attacking me or are we attacking the enemy?

WEISS: These are the things that you have said, sir.


LEMON: Hang on. Let's go back on point here.

GAFFNEY: Are you suggesting me that you don't know what I sense for? And now you're just and...

LEMON: Michael -- Michael, Frank, let's get back on track here.

GAFFNEY: I wish we could be on that.

LEMON: When we're talking about -- when we're talking about the poll, the poll that Donald Trump cited when he...


[22:15:00] GAFFNEY: I had nothing to do with him citing that poll, I'm delighted that he pointed out the facts that we determine in that poll.

LEMON: But I want to talk about the poll.

GAFFNEY: It was a legitimate scientifically done poll, and I suggest that -- suggesting otherwise... (CROSSTALK)

LEMON: It was a poll that was conducted online and it doesn't meet the standards of...


GAFFNEY: It is a standard that is applied whenever a pollster, including those used by this network are trying to sample small population, and particularly populations that are concerned about answering questions It is a way that respectfully does it, and I think it does it accurately?

LEMON: Yes. It doesn't, but with all due respect, it doesn't meet...

GAFFNEY: It does. It is the industry standard, sir, you don't know what you're talking about.

LEMON: ... it doesn't meet the guidelines -- no, yes, I do. It doesn't meet the guideline of other network over your...

GAFFNEY: You do not know what you're talking about. I tell Kelly Ann...

LEMON: I work here.

GAFFNEY: ... who did it. You may work here but that doesn't mean you know a damn thing about polling any more than your colleagues than me.

LEMON: You would not put that poll on the air because it does not meet CNN's standard.


GAFFNEY: You have put that poll in the air, we're talking about it right now. And I'm suggesting to you I can show you other examples in which you've used exactly the same methodology.

LEMON: We will agree to disagree on that point. OK. Let's move on.

GAFFNEY: We will agree to look into it further. I hope.

LEMON: Again, it does not meet the CNN standards. But Nihad Awad, who is the executive director of Council on American-Islam Relations...

GAFFNEY: It is, your standards are subject to this question.

LEMON: ... held a press conference today. Let's listen to it, and then we can discuss.


NIHAD AWAD, COUNCIL ON AMERICAN-ISLAM RELATIONS EXECUTIVE DIRECTOR: This is outrageous coming from someone who wants to assume the highest office in the land. It is reckless and simply un-American. Donald Trump sounds more like a leader of a lynch mob than a great nation like ours.


LEMON: Frank, I know that you take great issue with CAIR. Why is that?

GAFFNEY: I take principally great issue with it because it has been established in federal court to be a Muslim brotherhood front organization put in business by its franchise in the Palestinian areas called Hamas, a designated terrorist organization.

The fact that nobody, including your guest recognizes that reality and suggests it's a conspiracy theory or something to sort of try to obscure it is a scandal.

You talked about CNN standards, the fact that you have those guys on and you don't identify them as Muslim brotherhood, when we know that the mission, the stated mission of the Muslim brotherhood in America is to destroy Western civilization from within is a real disservice to your viewers. But the American people had enough of it.


LEMON: There is no direct knowledge that we had that CAIR has anything to do with the Muslim brotherhood.

GAFFNEY: You don't know what you're talking about again, sir.

LEMON: That's yours. Again, we'll agree to disagree.

GAFFNEY: That's been demonstrated in the federal court in the Holy Land Foundation trial.

LEMON: Michael, go ahead.

GAFFNEY: Four general judges have affirmed it.

WEISS: I have said nothing about CAIR. I was referring to what Mr...


GAFFNEY: I didn't say you say anything about CAIR at all. You're saying that you're ignoring this suggesting that there are conspiracy theories.

WEISS: No, look. But one thing we all agree with your guest is the following. This country does face a problem from Jihadist. And I have come on the show, I've gone on many CNN programs and talk about the threat post based by Islamic states and Al Qaeda, and also the intractability of domestic U.S. policy from foreign policy.

Allowing the Syrian population to be barreled bomb and sarin gas and have ethnic cleansing committed against them by the Assad regimes back fire on, back now by Russia. These are things that are radicalizing agents that are making our country less safe. The problem I have is similar to the problem that actually anti-

communists during the Cold War with Joseph McCarthy. Crazy people who make hysterical accusations including against members of the U.S. Armed Services do a disservice to a just and legitimate cause.

Muslims are going to the necessary ingredients to fight Jihadism. You need Muslims on our side. They are on the frontlines, they have been served in Afghanistan and Iraq. They have been some of the ablest diplomats to send to Iraq to sort out that mess of a country, OK?

I'm sorry, but what I'm hearing now is nothing short of 1930 style isolationism and xenophobia, dressed up as this grandiose policy proclamation that this is the way to solve problem America's problem.

Donald Trump is a buffoon, OK. He's a dangerous buffoon. Every passing day he says something that makes this country less and less safe.

LEMON: Frank, is there a danger here that we paint all Muslims with a broad brush. You said clearly, there are Muslims who don't believe in Jihadism that we lump millions of innocent Muslims with terrorists.

GAFFNEY: Of course there is. And that's why I have never done it. Not once. What I want to make clear about what's just been said is, this is a moment where we should be hoping Muslims who are not part of the problem, and Muslims who do not embrace Sharia, who do not embrace the Jihad that it commands, who do not want to impose it on the rest of us, and empower them and not organizations like CAIR.

And others associated with the Muslim brotherhood or Islamic supremacism. Those are not the leaders of the Muslim American community that we want to see succeed.


LEMON: That is -- that's going to be...

GAFFNEY: And I would think this is a point on which we could agree.

LEMON: That's going to be the last. Thank you, gentlemen. I appreciate it.

Make sure you join me tomorrow night, 10 Eastern, I will have a one- on-one sit down interview with Donald Trump on this program.

And still ahead tonight, I'm going to ask the leading imam, if a leading imam, if he fears that Trump's comments will lead to a backlash against Muslims in the United States, and it's Trump's call to block Muslim immigration, is it even legal, is there a precedent for it.

[22:20:07] We're going to get some expert answer. That's next.


LEMON: Donald Trump is defending his call for a temporary ban on Muslims entering the United States. I want you to take a look at the exchange with my colleague Chris Cuomo on CNN's New Day.


CHRIS CUOMO, NEW DAY SHOW HOST: Our security network is the best in the world. If you ask people who are in the business of keeping us safe, they say the idea of banning Muslims does nothing to help and everything to hurt.

They are the experts. That's what they say, they think this idea is stupid.

TRUMP: Well, when you say that, so I spoke before an audience last night of a massive audience last night...

CUOMO: Right.

TRUMP: ... your people were there, thousands of people inside, thousands of people outside and they couldn't even get in, and got standing ovations as soon as this was mentioned. Standing ovation.

CUOMO: Gee -- of course, you did, Mr. Trump, these are your people.

TRUMP: This is -- well, I mean, a standing ovation from very smart people. These are intelligent people, these are great citizens, these are people that are concerned about our country, until our country's representatives can figure it out.


LEMON: To discuss now with Imam Johari Abdul-Malik of the Council of Muslim Organizations in a Greater Washington area. Thank you, Iman for joining us. Are you doing OK?


LEMON: What do you make of this debate, Imam, of going on now about banning Muslims from entering the United States?

[22:24:56] ABDUL-MALIK: You know, I mean, first of all, let's be honest. It's not realistic, it's not a rational response. It is fundamentally a response that is based in fear. Fear mongering has never been anything that has made America great. When we are afraid, often we make the wrong decisions.

My concern is how is it that we can have a nation that is built on the love of immigrants on the engagement of people coming from the other places in the world bringing their skills and talents, and then you have Donald Trump who would speak against the U.S. Constitution while saying that he would like to take the oath of office where he has to uphold the Constitution against the...


LEMON: But you heard -- you heard he's had his defenders coming on here certainly as he had his detractors, but he said people who defended him, you heard people in the crowd cheering him. He just mentioned in the Chris Cuomo interview. He said, listen, I had thousands of cheering people, many, many cheering people.

Can you understand considering what has happened recently, why people are afraid and what would you say to them?

ABDUL-MALIK: You know, I want to be clear. I have been in my life as a Brooklynite, I have been in environments where I have heard people cheer for something that was despicable. This is just another example.

If you people who like a particular kind of song and that group is playing, then all of the people in the crowd will cheer when they hear that particular melody. It might be Islamophobic, it might be homophobic, it might be anti-Semitic.

When I grew up, it used to be OK to call somebody a wop or a spic. And if you were in that group, people would cheer you on. That's not the world that we want to live in anymore.

Unfortunately, I'm afraid that this discourse is dragging us back to an era in America that we thought was long gone.

LEMON: I want you to take a look at this. This a security footage, it's a mosque. It had several pigs' heads thrown at its doorstep, it's in Philadelphia yesterday. And just two weeks ago, in Virginia the zoning meeting on whether to build a new mosque, this happened. Take a look.


UNIDENTIFIED MALE: Let me tell you something, nobody, nobody, nobody wants your evil cult in this county.


UNIDENTIFIED MALE: And I will tell you why -- let me tell you what.

UNIDENTIFIED MALE: All right. We don't want it.

UNIDENTIFIED MALE: I will do everything in my power to make sure that it does not happen. We don't want it, because you are terrorist, and every one of you are terrorist, and I don't care what you say or think, and you can smile at me, you can say whatever you want, but every Muslim is a terrorist.


LEMON: Listen, some applauded, others disagreed there, but are you worried about when you see things like that?

ABDUL-MALIK: Well, a group of us were invited to come down to Fredericksburg to talk to them about how to engage their neighbors. Clearly, these individuals who are at this hearing are not people who live in that neighborhood, who know that mosque.

They've been operating for many years as an Islamic center, they only wanted to expand. And in the climate of fear, of intolerance, and I am going to be honest, if we take this approach of accepting this kind of intolerance, we will be no better than ISIS and the others who are intolerant of other faiths and other ideas.

We have to work together. We have to come through this together. We've survived many, many episodes of racism before, and it is now time for Americans to stand up and say, that we are going to be living by what we believe in.

LEMON: Well, Imam, we thank you for joining us. I appreciate it.

ABDUL-MALIK: Thank you.

LEMON: Thank you. Is Trump's ban legal and is there any precedent for it in American history. We'll look at that next.


[22:30:00] LEMON: Many Americans are asking is Donald Trump's call to block Muslims from entering the United States legal or is there any precedent for such move?

Douglas Brinkley joins me, CNN's presidential historian, and also Defense attorney Alan Dershowitz, the author of "Abraham, the World's First but Certainly Not the Last Jewish Lawyer."

Alan, is this plan by Donald Trump, is it legal, is it constitutional? >

ALAN DERSHOWITZ, HARVARD LAW SCHOOL PROFESSOR: It's probably not constitutional, we've never had a test case excluding a whole group of people based on religion. We've excluded based on nationally, the Chinese exclusion act, we certainly excluded Jews, but we didn't do it that way.

We said that Polish people couldn't come in and people from Eastern European couldn't come in and that cause enormous numbers of them to be killed during the holocaust.

So, we have a very bad history in terms of our welcoming of immigrants. But I would say that today, the Supreme Court would strike down as unconstitutional, a law that prohibited a whole class of people from coming in to the country based on religion.

LEMON: Especially when you consider the religious test or when you consider Article 6, when you consider Freedom of Expression, it makes it that much tougher.

DERSHOWITZ: Although the law generally doesn't apply as vigorously to non-citizens...

LEMON: To foreigner.

DERSHOWITZ: ... who are trying to become citizens...

LEMON: Right. DERSHOWITZ: ... as citizens but still through restriction on government.


DERSHOWITZ: But due process does?


LEMON: OK. So, here is Eric Posner from the University of Chicago, whether his plan is unconstitutional. He says, "As you said, probably not. The Supreme Court has held consistently for more than a century that constitutional protections that normally benefit Americans do not apply when Congress decides who to admit and who to exclude as immigrants." Do you agree with that?

DERSHOWITZ: I agree with that. But when it comes to religion, religion has a special status in the Constitution, and I would think that the Supreme Court would extrapolate and find so broader prohibition unconstitutional.

Look, there are presidents; John Adams in a letter to Thomas Jefferson said that he was hoping to keep all of the Catholics out of this country. He said could any free country survive without Catholics. But then he said, quote, "Nevertheless, we are compelled by our system of religious tolerance to offer them asylum."

[22:35:00] All right. So, here we go. So, Douglas Brinkley, we can argue about what the Constitution says, but isn't religious freedom and the idea that we treat people as individuals and not members of a suspect group woven into the fabric of our nation at this point.

DOUGLAS BRINKLEY, CNN PRESIDENTIAL HISTORIAN: Well, absolutely, Don, and we all know that. I mean, the Puritans came here to escape religious persecution in Europe and so did every other group of Quakers. We all -- all of colonial American history is about how America got formed in our revolution was about this.

And Alan just mentioned Thomas Jefferson, and you know, one of the most moving documents I've ever seen is after the Louisiana Purchase, a nun in New Orleans wrote to Mr. Jefferson and basically said "I speak French and I'm Catholic, will America welcome me?" And he said, you're the exact kind of person we want in America.

You're fully welcome and we really are about religious liberty. But every so often we get this dark underbelly of American politics rising to the forefront. And in the 1840's and '50s, there is the Know- Nothing Party, for example, which was almost exclusively anti- immigration, anti-Catholic, anti-Mormon. And you could march almost every 20 years, at you see the rise of these xenophobia and the kind of anti-religious bigotry.

LEMON: Will you consider, you know, can you stop 1.6 billion Muslims from coming to the U.S., I mean, does international law even allow for that? DERSHOWITZ: No, the international law says nothing about who a

country can admit, and every country has restrictions on immigration. It's the United States Constitution which puts religion in a very, very special category. It's only mentioned three times in the Constitution, no religious test for office, free exercise of religious, and no establishment.

And of course, your guest is right. We were established in order to give religious freedom. And the Statue of Liberty means something. And so, the idea that America would become a country that has a broad prohibition against all Muslims, even people who fight against ISIS would be so inconsistent with the character of this country.

LEMON: I think, gentlemen, both of you, it's interesting that the feedback that you get immediately that, you know, this is a democratic ploy, oh, my gosh, this is liberal, he is getting more criticism of the republicans actually than he is getting from democrats with the idea that this is some sort of liberal agenda is just preposterous.

Gentlemen, stay with me. America has seen anti-foreigner political campaigns before, had they been successful. We'll talk about that next.


LEMON: As a storm of criticism shows, many people find Donald Trump's proposal to ban Muslims from entering the U.S. shocking, but not everyone.

I'm back now with Douglas Brinkley and Alan Dershowitz. Alan, immigrants have been banned from the United States before. We should not pretend that it has not happened.

DERSHOWITZ: N question, and sometimes they've been banned on religious, though, we have pretext. Like during the holocaust, Jews were kept out of this country. And yet, we said, no, no, no, it's not Jews, its people from Poland, its people from Germany, its people from Hungary.

So, we pretended it we were doing it based on nationality, but if you go into the congressional debates, you see Senator Bilbo and others, talking about how we have to keep the Jews out, because they will come into this country and change this country and turn it into a terrible, terrible place. So, we had that kind of bigotry in American history.

LEMON: But haven't we apologized for that?

DERSHOWITZ: We do a lot of apologizing, and we have a lot of apologizing to do when it comes to race and ethnicity and nationality. Let's not have to apologize this time.

LEMON: Go ahead, Doug.

BRINKLEY: Well, I was just going to say, I mean, I heard Donald Trump starting to equate his comments about Muslims to FDR and the Japanese internment camps, somehow equating San Bernardino with the two kind of loose cannons with the Japanese bombing of Pearl Harbor and killing 2,400 Americans.

And frankly, while we were at war then with Japan and we did, the lowest ebb of FDR's entire, largely wonderful presidency was doing those Japanese internment camps, but it was against the Japanese at war time, not Buddhist.

And this is where the religious issue comes in. Donald Trump is not going after the country; he is going after religion when he's banning all Muslims. So, I think Trump has a phony scenario when he is trying to compare what he is doing to FDR.

LEMON: But, Douglas, when you strip away the rhetoric, I mean, Douglas Trump is tapping into something real, isn't he? I mean, voters are angry about, you know, the country -- how the country vets immigrants, the failure to fix the problem allowing this sort of thing to happen, and it's allowing this to be debated.

BRINKLEY: Well, racism is real in the world, Don. If you go back to 1968, George Wallace running for president, and was, you know, he won a lot of the south, he won the southern states, at one point he had 50 percent of white males wanting you, Don Lemon, not to have rights, not to have the right to vote.

So, Trump's, there is a plenty of bigotry and xenophobia and anti- immigration sentiments, it's a strain but it's the dark strain of America...


DERSHOWITZ: And let's remember...

BRINKLEY: ... and that's what Donald Trump is tapping into.

DERSHOWITZ: It's not only a conservative strain. Franklin Delano Roosevelt's plan to confine a 110,000 Japanese and camp was supported by Earl Warren, a great liberal by Hugo Black, by some of the great liberals in the American society.

So, when you get frighten, when you think that a country that just bombed you is going to send fifth columns in to destroy you. This kind of illness affects liberals, conservatives, and people of every background and that's why we have to be so concerned about having a presidential candidate who plays into this great fear.

LEMON: Douglas, you know, even though Donald Trump is running as a republican, he's running was -- it feels like and insurgent campaign. Today he tweeted this, he said "A new poll indicates that 68 percent of my supporters would vote for me if I departed the GOP and ran as an independent."

I think -- do you think that he is referring to the USA Today poll? I think this is it. And there is a precedent for this. Do you think that he can make or run as a third party candidate?

[22:45:00] BRINKLEY: Well, he is blackmailing the Republican Party, threatening them, and yes, Donald Trump is very much like Strom Thurmond and the dixiecrats in 1948 or Wallace in '68.

Those are the kind of supporters and of course, that would elect Hillary Clinton if Trump did that. And so, the republicans are sort in a conundrum, but if there is been a bright shining star in the last 24 hours of the story, it's that the GOP are most of the other candidates, maybe Ted Cruz is in the middle, but all of them have denounced Donald Trump for this.

So, it shows that the Republican Party as a whole has not been corrupted by Trump's pure anti-Muslim bigotry.

DERSHOWITZ: And every American should condemn this, because today it's Muslims and tomorrow, it could be you.

LEMON: Thank you, gentlemen. I appreciate it. And coming up, Trump is surging in New Hampshire. The result of the latest CNN poll, next.


LEMON: A new CNN poll has Donald Trump surging in New Hampshire.

Let's discuss now with Crystal Wright, editor at Conservative Black, republican strategist Brett O'Donnell, and Angela Rye, former executive director of the Congressional Black Caucus.

I'm just going to stick to the numbers, I think it's a safer spot. A safer spot not to get beat up, and everybody else. So, there are the numbers there, everyone. Welcome.

[22:50:01] So, this is a CNN, new CNN MWUR poll out tonight on New Hampshire, Trump is on the top spot, and 32 percent, and Marco Rubio is distant at second place at 14 percent. His support is over double the nearest competitor, he is running away with this thing right now.

So, Crystal, you have been tweeting, you have been talking about this poll, you have been watching, what do you think?

CRYSTAL WRIGHT, CONSERVATIVE BLACK CHICK EDITOR: I'm not surprised. Unlike probably the rest of you, I'm not scratching my head, because I think this election is a referendum on politics as usual. And Donald Trump is saying things that resonate with a broad swath of Americans, not just angry white people. You've got minorities, you've got women, so I'm not surprised at all. And I think...


LEMON: Even his comments on banning Muslim immigrants resonating with a lot of people?

WRIGHT: Absolutely. Abso-fricking-lutely (ph). I'm not going to say a bad word to get thrown off the air.

LEMON: You scared me there.

WRIGHT: But absolutely. Look, Don, Muslims are the predominant members of ISIS. I'm sorry if that offends people. But here is the basic thing that Donald Trump has said by shutting down the border, and you can laugh all you want.


WRIGHT: But what happened in San Bernardino is no laughing matter, Angela. And here is the thing. What Donald Trump was talking...


RYE: That's not what I was laughing at, I was laughing at you.

WRIGHT: ... the question...

LEMON: Let her finish. Let her finish.

WRIGHT: Well, I don't laugh at you.

LEMON: Crystal, go ahead. Go ahead.

WRIGHT: So, I think the question is that Donald Trump is raising, are you more afraid of shutting the borders to Muslims who want to emigrate in or who offended, I should say rather, or you're more offended by more Americans getting killed and slaughtered by ISIS.

LEMON: OK. Let her respond. Angela, go ahead.

RYE: So, there are couple of things, Don, and I think we need to call a spade a spade, and right now the spade is Donald Trump. And by that I'm just simply stating that this is the same man who in the last debate referred to a system that we know from the 1950s implemented by President Eisenhower as Operation Wetback.

And of course, he couldn't say that on the debate stage, one, he probably didn't know it into because of course, it's a racial slur. That is what he was trying to do when it comes to brown people that are trying to come into this country.

This man has talked about whether or not or saying that he could not say definitively whether he would support Japanese interment, and it is 2015, a month away from 2016, this is the man who is talking about banning Muslims where all of the GOP maybe except for Crystal is speaking out against it, because it is terrible, not only for their autopsy plan which, John, at this point is very vet...


WRIGHT: All the GOP, and all of New Hampshire?

RYE: I'm not done. I'm just at the comments. Yes. Because he is speaking to a wing of the party that is so far right, and is so fueled by prejudice, bigotry, and racism, that that is what he is, who he is talking to. He is not talking to...


LEMON: You better get in here if you want to. BRETT O'DONNELL, REPUBLICAN STRATEGIST: I think he is speaking to a minority in the party.

RYE: That's right.

O'DONNELL: And I think what you saw today in reacting to Donald Trump's comments where every republican except for Ted Cruz say this is not what the Republican Party stands for.

WRIGHT: That's right.

O'DONNELL: And actually, I'm beginning to believe that Donald Trump isn't really a republican, he may even be a democratic plant because we were talking about the president and his speech on Sunday night all day on Monday until Trump made his comments. We were talking about...


LEMON: I mentioned that, Brett, last night. I said I was it was the -- White House is probably saying...

WRIGHT: Wait, we were talking -- wait a minute.

LEMON: Hang on, Crystal.

WRIGHT: You were talking about the president?

LEMON: I was saying that the president is probably...

WRIGHT: We were not talking about the president?

LEMON: ... and democrats -- the democrats were saying this is a gift to them because -- yes.


O'DONNELL: Oh, they're rejoicing over Donald Trump's comments, because we've now taken the focus off this president's failed policies in Syria and Iraq and what he is not doing to stop ISIS. And instead of having that conversation, and instead of being on offense, against his Secretary of State who basically wrote these policies, we are talking about Donald Trump's comments all day long.

So, you know, Donald Trump doesn't represent republicans. That was made clear today by almost every republican.


LEMON: But he is the -- listen Brett, he is the front-runner in the republican race for the White House.

O'DONNELL: Well, he is a frontrunner -- but he is the front runner in a race where there are 15 candidates in the race.

WRIGHT: Right.

O'DONNELL: If we were to take that support and consolidate it what you'd have...


LEMON: Behind who, behind which candidate?


WRIGHT: But the thing is -- OK, but the thing is...

LEMON: When you look at his lead, behind which candidate, what, I mean, who would -- I don't see anyone in that mix who will make up the difference.

WRIGHT: Right.

O'DONNELL: I think a couple of candidates who can do that to make up the difference. Marco Rubio. And to be honest with you, you've got, you know, people like Lindsey Graham calling out Trump and talking about national security. But Marco Rubio...


WRIGHT: Lindsey Graham isn't even polling in any kind of...

O'DONNELL: But Marco Rubio is getting stronger, and he's talking about national security.

LEMON: Let Crystal enter. Crystal, I want to let you get in. But I want to read this.


LEMON: I'm surprised, though, Crystal that you, you know, that you see this as -- as a liberal thing. Because here is what you tweeted. Because, I mean, you know, he is getting it from the democrats and the republicans.

WRIGHT: Right.

LEMON: You said, "I wonder if the same libs blasting Trump's Muslim proposal want to live next door to mosque or with Syrian refugees." And then you also said "People more outrage at trump's plan to combat Muslim terrorist and Obama's plan not to as unfathomable -- unfathomable."

[22:55:06] WRIGHT: Right.

LEMON: And you see this as a liberal thing?

WRIGHT: Well, let's go back to something that Brett said, oh, we were talking about Obama and his strategy, and his Sunday night, and his address to the nation. No, we weren't. We weren't talking about that.

The fact is the media, Don, tonight, you have spent your entire show talking about Donald Trump, his double-digit lead in New Hampshire and his plan to shut down the borders -- shutdown America to Muslims who want to immigrate, and we were not...


LEMON: Quickly, Crystal. I'm up against the break.

WRIGHT: And wait a minute. We were not talking about President Obama...

LEMON: No, I'm up against the break so either I'll cut you off or the director does.

WRIGHT: ... no strategy to combat terrorism.

O'DONNELL: So, we're talking about that because...

LEMON: So, listen.

WRIGHT: Why not?

O'DONNELL: ... as Trump continues to say outlandish things.

LEMON: We're talking about that because Donald Trump put out this plan.

WRIGHT: Why not. You have every right to...

LEMON: Otherwise, we will be talking about what the president did.

WRIGHT: ... you're a journalist. You're a journalist, you can talk about whatever you want.

O'DONNELL: Absolutely.

WRIGHT: So, Don, Donald Trump isn't going away.

LEMON: No. We -- here is the thing, we are out of time, and we can talk about what we want, but we have to do the news. New. Donald Trump is newer than the president the night before. We'll be right back. Thank you.