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CNN TONIGHT

Federal Appeals Court Refuses yo Reinstate Travel Ban; President Vowing to Fight Ruling; Kellyanne Conway Counseled Over Free Commercial For Ivanka Trump's Brand; Congressman Jason Chaffetz Facing An Angry Crowd Tonight At Town Hall In Salt Lake City; Aired 11-12p ET

Aired February 9, 2016 - 23:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


(COMMERCIAL BREAK)

[23:00:11] DON LEMON, CNN HOST: Our breaking news on CNN, a huge setback for the Trump White House. The president losing a major decision tonight on his travel ban, but that's not the end of it.

This is CNN TONIGHT. I'm Don Lemon. Thanks for joining us.

A federal appeals court rules 3-0 against the Trump administration. That means that people from seven banned countries can now travel to the U.S. despite the president's executive order last month. The fight likely to go all the way to the Supreme Court. President tweeting quote "see you in court. The security of the nation is at stake."

Plus Kellyanne Conway is counseled over what she herself described as free commercial for Ivanka Trump's brand.

And then there are the president's twitter attacks today on Senators Richard Blumenthal and John McCain.

Is White House running wild or is there a method to the madness? We will discuss all of that.

And here to talk about it, CNN's Pamela Brown, Mark Preston, Ariane de Vogue, Laura Coates, David Gergen, Alan Dershowitz, his latest book by that is called "Electile Dysfunction, a guide for unaroused voters," F. Michael Higginbotham, professor of constitutional law at University of Baltimore and the author of "Ghost of Jim Crow," and constitutional attorney page Pate joins as well.

I wonder if we have enough people to discuss this. It is a little joke. This is a super duper uber panel tonight.

Pamela Brown, I'm going to start with you because I need the latest news. You have been digging into the court documents. This was a complete repudiation of the trump's travel ban. Fill us in on it.

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: It certainly is a big blow to the Trump administration. And as you say, these three judges of the ninth circuit repudiated President Trump's travel ban saying in this 29-page opinion that the government failed to provide enough evidence to support why this travel ban was necessary for national security, the urgency of national security as we have heard from the government and President Trump specifically saying this is about national security. That's why we had to roll this out so quickly. And it talked about the fact that the government failed to show why the seven countries listed in the travel ban pose such a threat.

And at one point in this opinion, Don, the court also says, well, it does give deference to political branches, the executive branch and legislative branch when it comes to national security and immigration, it had every right to review the case. As you may recall during the oral arguments, the justice department argued that this should just be matter left up to the president because it has to do with national security.

And also interesting here is the court basically said even a more narrow version of the travel ban that DOJ gave as sort of a compromise option for the ban only to apply to people who have never stepped foot in the U.S. could be problematic as well, which is important to note if the administration wants to rewrite this executive order. And this is just one step in what could be a very long legal battle -- Don.

LEMON: Yes. And Mark Preston, we have been covering this from the very beginning. You are in Washington. You have lots of sources there. I think it's fair to say, as we have been saying, a major setback for President Trump and his administration. What is your reaction?

MARK PRESTON, CNN POLITICS EXECUTIVE EDITOR: Yes, no doubt. I mean, politically, this has been a terrible week and certainly a terrible day for Donald Trump. And I think we have to note that a lot of this is forced errors on his part and his administration's part. They didn't have their arguments together coherently. We know the travel ban was haphazardly rolled out. The right people were not necessarily clued into it and was written in way that clearly was able to be challenged and successfully challenged. And of course, this is coming on a lot of other things that the Trump administration is dealing with including as we have seen over the past 24 hours where Donald Trump is talking about his daughter's clothing line and attacking a retailer on government account among many other things.

So yes, Don, to your point, very simply, not a good week. Not a good day for the Trump administration.

LEMON: And no surprise, everyone, the president wasted no time responding. Here is what he told reporters tonight.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: It's a political decision and we are going to see them in court and I look forward to do it.

UNIDENTIFIED FEMALE: So you believe the judges made a political decision?

TRUMP: We have a situation where the security of our country is at stake and is a very, very serious situation. So we look forward as I just said to seeing them in court.

(END VIDEO CLIP)

LEMON: And he also tweeted, David, I'm going to ask you the question of this. He also tweeted, see you in court. The security of our nation is at stake. Notice in all caps. What do you think David Gergen

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: well, he has been making that argument and the court said today, 3-0, including one judge appointed by George W. Bush, no liberal. That court unanimously ruled that the administration failed to produce the evidence that was persuasive on that point, on the national security point. So there was nothing that the court could give deference to. And I think that's been a major shortcoming all the way along.

Very importantly, Don, from like political standpoint, too, the court said basically look, you know, we are worried what is behind this ban. It sounds like it might be religious discrimination against Muslims. Now, where did they get it from? They drew that not from what the administration was saying but what Donald Trump had been saying all through the campaign that he wanted the Muslim ban along came to Rudy Giuliani just recently and said after he called for Muslim ban, he called and he said Rudy and he said how do I get this done? Rudy went to work. And he said here is the executive order. And court drew from that the inference this was intentional. So to go back to Mark Preston's point, some of the downfall here is rooted in some things that went on within the administration and what the administration failed to do in producing evidence.

[23:05:51] LEMON: Another unforced error by Rudy Giuliani. He had one during the campaign as well.

Alan to you, you know, we are talking about whether this is political or not. Trump claims at the decision that his quote "is political but I have to point out that this was a unanimous decision, these are from three judges, a Carter appointee, a George W. Bush appointee and an Obama appointee. Is this ruling based on politics do you think?

ALAN DERSHOWITZ, DEFENSE ATTORNEY: No. I don't think so. I don't think it's a particularly strong ruling. I think the court went out of its way to get to the merits and presented a relatively weak argument on the merits.

But look. The Trump administration has been out-lawyered in every court. And they have done a terrible job in presenting their case legally. Now they have several options. They can go to appeal to the Supreme Court. It will probably be denied to stay. They can go to end bank. It will probably be denied. Their best option is either to withdraw this flawed executive order and substitute a new one that has worked on by new attorney general and that has been satisfy constitutional muster.

LEMON: Or leave it.

DERSHOWITZ: Or even better, just leave it in place and bring in a new one. Bring in a new one and then they can start all over again in a different circuit. So that if the case gets affirmed by 4-4, it's more likely affirming a victory to Trump rather than a ninth circuit defeat by Trump.

But I don't think they are going to do this. They have not been subtle or sophisticated and Trump's ego is going to get this the way.

LEMON: Yes. And that's been an issue all along. So far it has been able to get away with it, this particular time. I have a lot of folks to get in here so let's move along.

I want to play what happened when the justice department's lawyer argued that Trump has the authority to make this order. Watch.

(BEGIN VIDEO 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're -- there are obviously constitutional limitations but we are discussing the risk assessment.

(END VIDEO CLIP)

LEMON: So Ariane, this is for you. That was one of their main arguments in Trump's decision about immigration when motivated about national security concerns are unreviewable.

Now, let's read part of their ruling of the ninth circuit and the appeals right. National defense cannot be deemed and in itself justifying any exercise of legislative power designed to promote such a goal. Would indeed be ironic if in the name of national defense we would sanction the subversion of one of those liberties which makes defense of the nation worthwhile.

What does that tell you? Explain those what that means.

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: Well, what you played from oral arguments, that was Judge Friedland. And that was one of the longest pauses I have seen when the government finally said yes. And that - those, at least two judges with arguments, that obviously three at end, really bothered by that question that the administration said no, it's not reviewable. And the administration here had to prove that national security concerns justified reinstating this executive order and they weren't able to.

And even in footnote, the court said you didn't submit classified information. You didn't try there. So that was really one of the strongest part of this opinion. And it did back to that clip in the oral arguments.

LEMON: OK. Page Pate, to you now. What do you think of this opinion? And how does it set up the appeal here?

PAGE PATE, CRIMINAL DEFENSE ATTORNEY: Well, it's difficult to know what the Trump administration is going to do at this point. And I think there must be a lot of some tension between the White House and department of justice because the department of justice was not prepared to make their best argument at ninth circuit.

Question you just played, I can't believe the lawyer was not prepared to answer that question, didn't have something out of the box to explain why this particular order was not few reviewable by the court. But obviously, the judges didn't want to hear that. And that maybe the single most important thing about this order is you now have a unanimous panel of circuit court judges saying that we can review what a president does in the area of immigration even if the claimed reason for the action is based on national security. That's incredibly important concept.

And so I think by taking up to ninth circuit too early without a full record developed in the district court, not only lose and not accomplish what they wanted but shot themselves in the foot. Because now the states Washington and Minnesota have a road map, how to go back, prove standing solid, make your constitutional arguments even more solid and continue the case up through the courts.

[23:10:27] LEMON: All right. Here's what the governor of Washington State Jay Inslee told CNN earlier.

(BEGIN VIDEO CLIP)

GOV. JAY INSLEE (D), NEW YORK (on the phone): I saw a tweet. He said see us in court. We just saw him in court and got beat. He got bumped. And these are very solid decision. It will robust, well- considered decisions. Four judges have now made them. And the fact, two of them were appointed by Republican president. This is checks and balances in operation. The president needs to understand that the constitution rules supreme.

(END VIDEO CLIP)

LEMON: Michael, you are a constitutional lawyer. What is your reaction to the governor? Is he right?

F. MICHAEL HIGGINBOTHAM, PROFESSOR OF CONSTITUTIONAL LAW, UNIVERSITY OF BALTIMORE: I think the governor is absolutely right. And as most speakers have said, it was bad day for the president but good day for America. It was a good day for independent judiciary. It was a good day for the proper balance between security and liberty. And most importantly, it was a good day for nonpartisan interpretation of the constitution.

Let me tell you what I mean by that. You had a very diverse ninth circuit panel. I clerked on the ninth circuit. I know it well. It's big. It is diverse and it leans to the left. This panel, you had a Carter appointee, a George W. Bush appointee and an Obama appointee. They all unanimously agreed. They all rejected the arguments of the federal government, all three arguments rejected. And that coupled with Judge Robart, who is a George W. Bush appointee. You have two judges who are Democrat, two judges who are Republican, that shows nonpartisanship and that's good for the constitution. LEMON: Laura many people called this a ban on Muslim refugees even

though the White House insists that it is focus on seven countries that pose the greatest risk for terrorism. Honorary part of the ruling on that notion it says this.

The states have offered evidence of numerous statements by the president about his intent to implement a Muslim plan as well as evidence they claim suggests that the executive order was intended to be that ban.

That is a critical part of this decision, isn't it?

LAURA COATES, CNN LEGAL ANALYST: It certainly is. And it demonstrate and not only is the president's action reviewable by the court but it is reviewable for things such as discrimination. Remember, they are trying to assess whether or not you can go and look behind the intent of a particular statute or order. And the courts always do this.

Legislative history is often a guide and certainly candidate Trump's statement, would give some indication as to what his motivation was. What they are trying to assess is whether the territorial ban as well as your pretext for discrimination. And if it is, it would violate our established clause. They are trying to establish at this time.

But you know, one of the major hurdles they had to overcome in this particular case, and I think they did successfully, was to show that you could review an order and there is precedent for it. The court even cite cases back to Japanese internment camps and denying passports to communists. This are long history of the different checks and balances being placed on the president of the United States and his orders. This is no different.

But just to one other point here. Let's not get too cocky too fast. Although, this is a huge victory and there has been several victories throughout the country in somebody in that area. The Supreme Court, if it where decides to take this case, ultimately deciding on the constitutionality, standing could still be revisited by the Supreme Court. And just because the ninth circuit found it, doesn't automatically guarantee you the Supreme Court will find it. So we still have to be patient and guard our emotions with such issue.

LEMON: All right. Everyone, standby. I have some breaking news that I need to report right now.

And the breaking news is that the White House says that President Trump spoke at length with China's president Xi Jinping tonight. President Trump agreeing to honor the one China policy that at request of president Xi. The call described as extremely cordial. This is the first time the two leaders have spoken since Trump took office.

Mark Preston, your reaction and then David?

PRESTON: Yes. Big foreign policy news right now given the fact that Donald Trump had actually spoke with Taiwan and the one China policy is something that I know that David can speak to in more detail because he was been in administrations that have to adhere to it. But that is basically the idea that United States recognizes China as one China and not two governments. Taiwan being rival government.

Having said that there is still diplomatic relationships between the U.S. and Taiwan but it is a level of respect that U.S. has afforded China that China has been concerned that Trump was no longer. But I know that David could speak to more details.

LEMON: David, this is a big deal right after the election when he spoke with the leader of Taiwan and China didn't like it.

[23:15:07] DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: Yes. This is a victory for the new secretary of state Rex Tillerson. Background here is that President Xi and Donald Trump had a call back in November after the elections in which the Chinese president congratulated Mr. Trump. But they haven't spoken since and they haven't spoken in large measure apparently because Trump was holding out Taiwan and one China questions as negotiating employs to get the Chinese to do other things. He would back off in support of One China. He would back of on Taiwan in exchange for say, concessions on trade. But Xi essentially has and the Chinese has said no, we not going to talk to Mr. Trump until he publicly backs off or gives us assurances he is not going to abandon the one China policy. And then we will start talking to him.

Rex Tillerson went to the White House today to make that argument, as what's been reported during the day, to make the argument we really - we need to talk to Xi. We can't let this languish. We got to go and affirmatively embrace the one China policy. That's what Tillerson get in his testimony. That's what he got the president to do tonight. And they got the relationship back on track at least to this extent that they are now having, telephone calls with each other. And that's good news I think for the relationship because the tensions have been rising rapidly, Don.

LEMON: Talking more about the breaking news and also the ninth circuit court of appeals withholding the ban. The ban will stand in place, at least the temporary restraining order for the ban will stand in place now until it goes to the Supreme Court. We will continue to discuss that when we come right back.

(COMMERCIAL BREAK)

[23:19:23] LEMON: Federal appeals court in unanimous decision refusing to reinstate the president as travel ban. President vowing to fight the ruling tweeting see you in court.

Back with n now Pamela Brown, Mark Preston, Ariane de Vogue, Laura Coates, David Gergen, Alan Dershowitz, Michael Higginbotham and Page Pate.

Pamela back to you now. Now that the ninth circuit court has ruled, what happens next?

BROWN: Well, couple of things could happen. As we know the department of justice is looking at this opinion that was released by the ninth circuit court and trying to figure out what the next step is. Whether department of justice should appeal to en bank, which essentially would ask more judges of the ninth circuit, 11 out of the 40 judges of the ninth circuit to review this case or the other option, of course, would be to appeal to the Supreme Court.

Now, as you know, there are eight justices in the Supreme Court because Justice Scalia's seat hasn't been filled. So if there was a 4-4 split there, that means what the ninth circuit court ruled today that put this travel ban on hold during the appeal's process would stand.

So there really are a number of options. And of course, as we discussed, the administration could go back to the drawing board essentially with this executive order and rework it or start new. So a number of things could happen from here. But as you heard President Trump say today, he insinuated, you know, look, this legal battle will continue and I will see you in court.

[23:20:38] LEMON: Yes. Jim Acosta caught up with senior advisor Kellyanne Conway. Listen.

(BEGIN VIDEO CLIP)

KELLYANNE CONWAY, WHITE HOUSE COUNSELOR: He sees it as what he has always seen it as, statute provides 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 we'll have the opportunity to argue with the merits. He will afford to do that. And of course, (INAUDIBLE). Look forward to prevailing. Tweet was perfect, see you in court.

(END VIDEO CLIP)

LEMON: So Ariane, the president has made it very clear that he is going to fight this. Do you see the administration taking this to the Supreme Court and how quickly could that happen?

DE VOGUE: Well, they are going to have to make a decision. For instance, they could try as Pamela said, to go on bank. What that means is try to get a larger panel of judges at ninth circuit to look at this. That would mean there would be hope that a larger panel might decide differently. If they decide not to do that, that's true. They go to the Supreme Court.

Justice Anthony Kennedy has jurisdiction over the ninth circuit so what he would do is probably refer to his colleagues and they have look at it pretty quickly. But remember no court has yet ruled whether this is constitutional or not. Nobody said yes it's legal or no it is not. We are still at that preliminary juncture right now.

LEMON: Page, you are shaking your head. Hang on, Page. Why are you?

PATE: I'm absolutely shaking my head. I thought it was too early for the government to take to the ninth circuit. It is way too early for them to take it to the Supreme Court. I would be very surprised if the Supreme Court accepted the case at this point because as we pointed out already, we don't even have a decision on the merits. This is all temporary relief. It is a TRO, a preliminary injunction. The last thing Supreme Court wants to do is review that type of order.

Let it go back to the district court. Let's go ahead and these arguments. If in the meantime the White House wants to draft a better, perhaps a constitutional executive order, let them do that. But it is way too early for the Supreme Court.

LEMON: Alan Dershowitz?

DERSHOWITZ: Look. The Trump administration has a real dilemma. They have a winning argument on the merits ultimately. This court's decision that this is Muslim ban will never stand. The Supreme Court will not give weight to the fact that the president during his campaign talked about a Muslim ban or Rudy Giuliani talked about a Muslim ban. It is just not going to fly in the Supreme Court.

The standing argument probably won't fly. It's most extreme standing argument I have ever seen made. The argument that because you exempt religious minorities establishes a religion is absurd. When the war refugee act in 1944 applied only to Jews because they were the victim of Nazi oppression, that was constitutional. The idea that the president can't.

So I think they have a very, very hard case. But it is going to take months and if president really believes security of the country is at stake, that he has to do something now. He can't wait (INAUDIBLE).

LEMON: Got it. Laura why do you disagree with that?

COATES: I disagree because the first amendment, establishing clause as you well know, says that essentially the United States is denominationally neutral. We don't prefer let alone advocate for a particular religion. And there's a clause within the executive order that says that they will give (INAUDIBLE) to the minority religion in a particular areas.

PATE: And that's the right thing to do.

COATES: That in itself, Alan, may inert the benefit of multiple religions. However, we don't prefer one in our particular constitution. Therefore, that would be issue.

DERSHOWITZ: You prefer victims, persecuted people, right?

COATES: No. I'm going to finish my point and tell you that my preference is Supreme Court would prefer that any executive order comply with the constitution as do I. And you know, the idea that it would be absurd that this the most egregious case of standing issues ever seen is little misleading given the fact that just last year we had a Texas district court that presumed standing when it came to dreamers case and we are all at disadvantage in figuring out whether or not the Supreme Court ultimately would have - can agreed that there was standing because only 4-4 said that, you know, that did allow for us to have a full opinion.

GERGEN: Different case.

LEMON: Yes, David Gergen, go ahead.

GERGEN: let me just say, Don. I think Alan Dershowitz has a compelling point. The President has said it's urgent that we have more control over the borders. We have national security threats. And so, Alan's point about what is basically is calling for is revoke and replace. Very similar to, you know, what they have been talking about on Obamacare -- Republicans.

But we know that the president wants to challenge it in court. So to Alan's argument, I think many of us feel president won't do it on those crowd. But I do think there is an alternative grail. The president could do exactly what he is saying. That is we are going to go to the court on this executive order. In the meantime what we were calling for in this existing executive order was a pause in order to re-examine our policies with regard to our vetting processes. So I'm going to use the next few weeks while the court is, you know, haggling over this over this. I'm going to use the next few weeks to work with Democrats to come up with new executive order. That's would be a long-term executive order, no not a pause, but there should be an answer for the long-term.

[23:25:54] LEMON: You know, you are talking about President Trump. You do realize you're talking about the Trump administration right?

(CROSSTALK)

COATES: Let me be clear, gentlemen. You are absolutely right that the president has the prerogative to decide national security. But that's not without checks and balances. And you are right, there could perhaps be a compelling argument in favor of why we can't return to the pre-travel ban vetting procedures. However, the responsibility of the court is not pull those, you know, responsibly or justifications out of the air, you must present them.

GERGEN: But new executive order could put in provisions that says we cannot discriminate. We will not discriminate.

COATES: That's true. You could do that.

GERGEN: That's what Alan is arguing.

COATES: You could do that. However, that is not happening. That's why to accuse the court of having a bad decision would be premature given that the justice department failed to make those arguments and raise those things.

LEMON: Michael, you have been sitting by patiently. What do you want to add anything to this?

HIGGINBOTHAM: Absolutely. I think what the court has said is that the president has great discretion, particularly in national security area. And that when Congress authorizes the president to act, the courts will give even more deference. That said the courts will make the final determination.

The courts, there were many cases cited by the ninth circuit that talked about how even if it's national security, the court will have the final determination on interpreting the constitution. So it doesn't matter that the president says this is about national security and Congress has authorized it, the court will make that determination. And they made it very clear that if there is discrimination going on, the court will say that is a violation of the constitution.

LEMON: All right. That's going to be the last word for now. You all will be back. I will see you a little bit later on.

In the meantime, there is more controversy with the president's Supreme Court pick. We will discuss that coming up.

(COMMERCIAL BREAK)

[23:31:33] LEMON: More breaking news tonight.

Congress Jason Chaffetz, an influential Republican from Utah facing an angry crowd tonight at town hall in Salt Lake City.

CNN's Kyung Lah is there.

Kyung, hundreds of people, I understand, showed in Salt Lake City for this rally town hall with Representative Chaffetz with more angry protesters outside. Tell us what went on there.

KYUNG LAH, CNN CORRESPONDENT: A thousand people who were inside. There were according to the police a thousand people who couldn't get in. The crowd was angry. It was raucous. They were trying to send a message to the congressman. I'm going to stop talking here just so you can feel what it was like inside that auditorium.

(BEGIN VIDEO CLIP)

REP. JASON CHAFFETZ (R), UTAH: There was no possible way I was ever going to vote for Hillary Clinton. No way.

CROWD: Do your job. Do your job! Do your job! Do your job! Do your job!

(END VIDEO CLIP)

LAH: The congressman had to talk over all of that trying to answer questions.

So what exactly is this? This is the indivisible movement. It started as downloadable spreadsheet cooked up by some congressional staffers in December. Since then we have seen these grassroots groups pop up across the country. There are thousands of them according to the people who made that spreadsheet. And the goal is try to shut down some of these town halls to take their message and their anger about the Trump administration to the front door steps of these Congress persons to the senators and try to affect change in D.C. from their local district, Don.

LEMON: So what they are upset about? Is it Obamacare? What is going on?

LAH: Generally I would say it is not Obamacare, at least what we saw in this particular meeting. It has been Obamacare in other places. But what we saw --.

LEMON: Losing their healthcare, correct?

LAH: Overwhelmingly is there -- some of it is healthcare. They are just angry. That is the overriding sentiment. They are not happy with they are seeing from the executive actions from the Trump administration. They want Chaffetz to investigate Trump. So that's generally what we heard here. It varies according to district.

LEMON: Very interesting. Kyung, thank for that report. Appreciate that.

Let's get back now. Pamela Brown, Mark Preston and David Gergen.

Mark, it is interesting, you know. Kyung is there. She said these protests, they are happening. And these groups, these grassroots groups are coming together. And we saw that happening the day after this president was elected and we continue to see that going on. It is reminiscent of the tea party. What should folks in Washington be looking for? Should they be concerned about this?

PRESTON: Well, if you are Republican no doubt. You only have to go back what is about eight or nine years ago when Barack Obama was trying to get the healthcare bill through and Democrats went home that summer and they couldn't show up at town halls. It was very much similar to what we saw right there. And it proved to be very effective for Republicans and certainly for, you know, those who are against Obamacare. Now, having said that, they were able to get Obamacare through. But there was electoral consequences for that.

I think Jason Chaffetz, showing that picture tonight, I think was a good illustration of what we are going to see across the country. And you know, part of this organized by groups who are opposed to the Republican repeal and replace call. Part of this, though, is very grassroots driven through Facebook and through community organizers. So I think that what we see right here is certainly the lack of civility and anger that we saw in the Republican side that generated so many electoral wins. We are now seeing on the Democratic and liberal side.

[23:35:00] LEMON: Mark, thank you for responding to that. We will keep an eye on that.

Now, let's talk about and that plays into this too, because they are upset what is happening in Washington, and, according to Kyung Lah, with the Trump administration. One of the people that he has nominated, the person he has nominated for Supreme Court justice is Judge Gorsuch. The president has denied here that in the meeting with him and Gorsuch and Senator Richard Blumenthal, denying the account of the conversation with a judge. And speaking to Anderson Cooper tonight, I want you to listen to what Blumenthal said.

(BEGIN VIDEO CLIP)

SEN. RICHARD BLUMENTHAL (D), CONNECTICUT: I said to Judge Gorsuch that I find these attacks on the judiciary absolutely abhorrent and unacceptable. And I asked him to express his criticism and to condemn these kinds of public attacks on independent judiciary. And at that point after some back and forth he did say that he found them to be disheartening and demoralizing.

(END VIDEO CLIP)

LEMON: That was last night to Anderson.

And Pamela, that account confirmed by fellow senators from both parties and by Ron Bonjean, the spokesman appointed by the White House to handle the Gorsuch nomination. The president is going against the message being sent by his own team handling his Supreme Court nominee.

BROWN: That's right. It certainly contradicting what we heard from Ron Bonjean, another senator from Capitol Hill about the conversation with Trump's nominee, Judge Gorsuch.

What is interesting is today Sean Spicer, the White House spokesman was trying to thread this needle saying misrepresentation because judge Gorsuch was basically speak generally that it is disheartening and I believe the other word was demoralizing when anyone attack the judiciary --

LEMON: Let's play it, Pamela.

BROWN: Yes. Let's listen to that.

LEMON: OK.

(BEGIN VIDEO CLIP)

SEAN SPICER, WHITE HOUSE PRESS SECRETARY: The judge was very clear that he was not commenting on any specific matter. There's a big difference between commenting on specific comments that have been made and tweets and his general philosophy about the judiciary and his respect for fellow judges.

(END VIDEO CLIP)

LEMON: OK. Go ahead, Pamela. What does that mean?

BROWN: Well, so basically he is saying that look he wasn't talking specific to Trump's tweets. That the judge in Washington State who halted his ban was a so-called judge or that the hearings in the ninth circuit were disgraceful, that it was just more generally that if anyone, you know, says things against the judiciary, that that is demoralizing an attack against all judges.

So basically, as I said, threading the needle. And you have heard from the Senator Blumenthal and other senators that they want Judge Gorsuch to actually come out and then publicly condemn Donald Trump about the comments he made. That hasn't happened. Tried to ask questions about it on Capitol Hill and it wouldn't answer questions. But, of course, his confirmation hearing is just weeks away and those senators have said that they will press him. Puts judge Gorsuch in awkward position I don't believe we have ever seen before, David Gergen.

LEMON: David, I want to ask you. Does that explanation from Sean Spicer whole water? Then also this tweet from the president earlier say Senator Blumenthal who never fought in Vietnam when he said year ago. He said years, he had major lie. Now misrepresents what Judge Gorsuch told him. Do these explanation by the president, this tweet out of president and this by Sean Spicer, does this make sense?

GERGEN: No. Sean Spicer, I think Pamela, I think rightly describe this - Sean Spicer was trying to thread the needle. Some needle won't thread. In this case, I think the president -- given the fact that his own representative had corroborated exactly what Senator Blumenthal said, given the fact that Benn Sasse, Republican senator of Nebraska corroborated exactly what Senator Blumenthal said, you would think the White House instead of putting his credibility on the line yet once again and have it shot down once again.

But if take a larger side and praise Gorsuch for his independence of thought, that that is exactly what the president wants, a man of independent thought on the court because this is not only going to play into his hearings. But we have had a lot of evidence in the last 24 hours. And this is actually helping his ultimate confirmation because it's giving proof to the fact that he is more independent minded person. And why doesn't the president just celebrate that?

LEMON: Yes. Well, that's a good question, David.

The news just keeps coming. We will continue to talk about right after this.

(COMMERCIAL BREAK)

[23:42:42] LEMON: White House senior adviser Kellyanne Conway in middle of political firestorm tonight over what she said about of all Things Ivanka Trump's brand.

Let's discuss now. CNN senior political analyst David Gergen is here back with us. Also CNN contributor Larry Noble, general counsel for the campaign legal center.

Good evening to you Mr. Noble. Thank you for joining us. David welcome back.

I want to play what Kellyanne Conway said on FOX News this morning that is causing such a stir when she was asked about Ivanka Trump and her clothing line.

(BEGIN VIDEO CLIP)

CONWAY: Guy buy Ivanka's stuff is what I would tell you. I hate shopping but going to get some on myself today. It is a wonderful line. I owned some of it. I'm just going to give - I'm going to give a free commercial here. Go buy it today, everybody. You can find it online.

(END VIDEO CLIP)

LEMON: David, what is your reaction?

GERGEN: Well, you know, Mr. Noble can speak more eloquently than I can about the ethics laws and the ethics rules, but that seems pretty clearly over the line. As a White House official, you are not supposed to be hawking merchandise for somebody. It is just - that has long been established.

What is striking I think, Don, is to go back to the town hall of Jason Chaffetz is having. You just reported on. You have there crying there for him to go back and investigate the Trump administration as we heard.

You know, earlier today, that's just what he did. He announced that he was going to have hearings with the house oversight committee. He is chairman and he is the rising Republican star and he is going to investigate this whole question about, he referred to the justice department about an ethics violation by Ivanka Trump. That's a big break for Republican from Republican administration that Bill Crystal has been pointing out during the evening.

LEMON: Yes.

Larry, to that end, you know, multiple legal experts and former White House officials say that Kellyanne Conway's endorsement on TV of the Ivanka Trump brand violated ethics rules, governing executive branch employees. What should be done here? Is that in fact correct in your estimation and what should be done?

LARRY NOBLE, CNN CONTRIBUTOR: It is correct. As David said, the rules prohibit a government employee from promoting a private product using government time and government resources and their official status. And there is no question that's what she did here. She said she was giving a free commercial to Ivanka Trump and she said to go out and buy her activity. She was in the White House when she said it. And she was appearing on behalf of the White House. That is a clear cut violation.

You know, what should be done here? Normally, what should be done is the boss in the situation, be it the president, should decide what disciplinary action should be taken. It could be anything from a letter to some sort of reprimand to losing job. All we know from what Sean Spicer said is that she was quote "counseled." Nobody quite knows what counsel means.

So, you know, something needs to be done. And also Representative Chaffetz said he sent a letter to the office of government ethics saying that she should be investigated. I think that is really significant. I think it shows that the Republicans are getting nervous now that the Trump White House is just not in control when it comes to the ethics issues.

[23:45:55] LEMON: Yes. She responded to that counsel thing. I want to play this, David, and you can respond. Kellyanne Conway responded on FOX tonight about being counseled. Listen.

(BEGIN VIDEO CLIP)

CONWAY: I'm not going to comment on that Martha. I actually had nothing more to say about it.

UNIDENTIFIED FEMALE: What about the letter that has come from Chaffetz and Cummings in the House that has gone to the government ethics board. And they say that they consider that to be a very serious -- potentially a serious violation of the government ethics code.

CONWAY: Where is that letter? And we are reviewing that internally. I'm just really happy that I spent a lot of time with the president of the United States this afternoon and that he supports me 100 percent.

UNIDENTIFIED FEMALE: So you spoke about that matter and he is not -- doesn't have intention to suspend you?

CONWAY: We spoke about a range of matters and he supports me 100 percent. In fact, it was a very heartening moment. All I can say to America's women is at some point in your life you ought to have a boss who treated me the way that the president of the United States treated me today.

(END VIDEO CLIP)

LEMON: David, your response first. Go ahead.

GERGEN: Well, listen. I think I admire people who are loyal to their employees who are under the fire. And good for the president to sort of defend her. I don't know what they mean now by being counseled. But there's a larger pattern here, Don, that I think really is important. And that is not only did Kellyanne Conway go out to hawk these products. But yesterday, the president sent out tweets about how badly Ivanka was being treated by Nordstrom's and we have this story in the last couple of two or three days about Melania, the first lady, looking for new marketing opportunities in lawsuit.

And some of these things are in violations of ethics. Many of them are not in violations and the president is not in violation. And so the main thing it may not be illegal but they are tacky. We just haven't had a situation I can ever remember in which members of the president's family are -- immediate family. Now, it is such an honor to be in the White House. It is such a privilege to be in the White House. And we all look to them to be models of behavior, and taking advantage of these years commercially just seems to be -- it's a strange path to take.

LEMON: Larry, in reference to Kellyanne Conway, just to be specific, did she break any ethics rule here?

NOBLE: Yes. I think she did. I think she broke the ethics rule. And I think most ethics experts have said that. And I think that the fact that the White House has at least felt the need to quote "counsel" her reflects that. But, you know, one thing that David said I fully agree with. There is

a much bigger picture here. And it goes back even to the beginning when the president was asked to divest himself of his business interests and he said that he could separate himself from them. That he was not going to manage any of them. And also Ivanka Trump said she wasn't going to manage her business.

But what this shows is, especially with the tweet he first made attacking Nordstrom's, what this shows is that he has not mentally divested himself of the interest. He hasn't separate himself on it. So when a business deal doesn't work out way they want for her company, he immediately attacks Nordstrom's.

And you know, what is the message that were sending? Is the message that any business out there that is going to doing business with the Trump company has to worry about whether or not it doesn't work out the way Trump wants it to. They are going to be attacked on twitter?

And so, this is really a bad message. And it really does go back to the initial question, he should have divested himself from these interests. He should separate himself from it. And having not done that, he is showing just that his promise to stay out of it means nothing because he is getting involved even on this relatively small matters, about, you know, about whether or not Nordstrom's continues to carry her brand. And she is also turning it into attack on himself and his policies. Sean Spicer said that well, this was really about attack on the family and an attack on his policies. No, that's not what it was about. It is about Nordstrom deciding not to carry a line of clothing.

LEMON: Yes. That was not performing well. And so, we warned the American people. We informed them about this and the administration and yet here we are.

Thank you, gentlemen. We appreciate it. We will be right back.

NOBLE: Thank you.

(COMMERCIAL BREAK)

[23:52:56] LEMON: It has been a day of breaking news and here to discuss all of it, my CNN panel. CNN political commentator Kelly McEnany, Democratic strategist Maria Cardona, CNN political commentator Andre Bauer and Carlos Watson, founder and CEO of the global magazine, "OZY."

OK. So Kelly, let's talk about this, the Trump administration dealt a blow tonight from the ninth circuit. What's your reaction?

KAYLEIGH MCENANY, CNN POLITICAL COMMENTATOR: Look. I think that they were off base in their ruling. But that being said, I think President Trump needs to look at what is the most feasible way forward, what's the best way forward for me. And the best way is to either reissue the order according to their standard or let this play out on the merits. He should be talking about his tax reform package, the executive

orders today. We don't want another blow from the Supreme Court order four liberal justices. Let this play out. Don't appeal. And I think that is the politically best move.

LEMON: Andre Bauer, do you agree?

ANDRE BAUER, CNN POLITICAL COMMENTATOR: The number one job of the president is to keep his country safe. And ninth circuit is the most liberal court in all of America. They are 90 percent turnover and they are about like the 2008 Detroit (INAUDIBLE), the 1982 Baltimore Colts. They go without a win all year long.

LEMON: Carlos Watson, this is a stunning defeat for the president. What stood out to you?

CARLOS WATSON, FOUNDER/CEO, OZY: What stood out to me is that even the Republican appointed judge appointed by W also strongly sided with it. And the court didn't even want to get to the heart of several issues because they said it was so clear and they sent to back down to the trial court.

LEMON: Maria Cardona?

MARIA CARDONA, CNN POLITICAL COMMENTATOR: I think what was so clear to me, Don, is that the courts dealt President Trump what he needed the most which was a huge crash course in civics. And that means that he needs to understand that there are three equal branches of government. And when you have your team tell an appeals court that whatever the president does is unreviewable, that does not underscore that you understand how this constitutional democracy works and the court underscored that today.

LEMON: I just did a story with an ethics expert regarding Kellyanne Conway and if she broke an ethics rule and he believes that she did when telling people to go out and buy Ivanka Trump's stuff after Nordstrom and other retailers dropped her.

Kayleigh, what do you think? What is going on? This has been a week for Kellyanne Conway.

[23:55:10] MCENANY: Well, I think what is instructed is that Chaffetz even said, you know, this is irresponsible, this is unacceptable were his words. But, you know, he was fine with President Trump defending his daughter. Great. That's OK. But when an adviser does it, they are subject to conflict of interest rules.

LEMON: Yes. And speaking of Jason Chaffetz, I don't know if we have the video, he is giving a town hall tonight in Salt Lake City and a big crowd showed up. A thousand people inside, a thousand outside that couldn't get in. They are upset about, they say, the Trump administration, the affordable care act being repeal and replaced among other things and the Ivanka Trump thing. Is this something that Republicans should be concerned with and the Trump administration, you think Carlos, much like the tea party? WATSON: I think very much so. In fact, Don, a lot of this got

accelerated by a viral video that went around the net with a former Democratic congressman said the single most effective way to move a congress person's point of view is to attend these town halls. And so, I think following the women's march, following on this, you will see much more of it all throughout the country.

And these town halls, it was interesting to see Chaffetz's reaction. Don, you notice that he didn't look to defend the president on why countries like Saudi Arabia and Pakistan were not among the bans. Instead, he simply said the woman had a terrific question and I'm not sure where to go with it. So I think this is going to be tough for a number of House Republicans.

LEMON: Quickly, Andre, as a Republican and a Trump supporter, are you concern about this groups?

BAUER: No. Well, I'm always concerned about anybody. President Trump is just getting started. He is delivering on a lot of his promises. And I think as we progress forward, they will be happy with a lot of picks he makes.

LEMON: I have to go. Thank you very much.

We will be right back.

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