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Homeland Security Chief Regrets Travel Ban Rollout; Trump: My Travel Ban May Go To Supreme Court; Soon: Senate Votes On Trump's Controversial Pick; Trump: Obama Likes Me, But He May Not Admit It; "Torture Memos" Author: Trump Has Gone Too Far. Aired 11-11:30a ET

Aired February 7, 2017 - 11:00   ET


KATE BOLDUAN, CNN ANCHOR: -- in just hours, a legal showdown on the fate of the executive order. Federal judges are set to rule on whether or not the hold on the ban stays in place. But moments ago, the new secretary of Homeland Security took the blame for the rocky roll-out. We are going to have more on that in just a moment.

But first, let's get to the president. He is defending the travel ban once again in a meeting at the White House just now. Listen.


UNIDENTIFIED FEMALE: How far are you willing to take your travel ban fight?

DONALD TRUMP, PRESIDENT OF THE UNITED STATES OF AMERICA: We're going to take it through the system. It's very important. It's very important for the country, regardless of me or whoever succeeds at a later date. We have to have security in our country. We have to have the ability.

When you take some place like Syria, you take all of the different people. And if you remember, ISIS said, we are going to infiltrate the United States and other countries through the migration and then we're not allowed to be tough on the people coming in?

Explain that one. So we'll see what happens. We have a big court case. We're well represented and we're going to see what happens.

UNIDENTIFIED FEMALE: Is it going to go to the Supreme Court, do you think?

PRESIDENT TRUMP: We will see. Hopefully it doesn't happen. It's common sense.


BOLDUAN: So that's what you hear from the White House. But the big news this hour could be coming from Capitol Hill where the new Homeland Security chief is testifying as we speak.

Let's go right now to CNN justice and Supreme Court correspondent, Pamela Brown for more on this. Pamela, we have now Secretary John Kelly admitting, but we have not heard from the White House, that it was a rocky roll-out and taking the blame.

PAMELA BROWN, CNN JUSTICE AND SUPREME COURT CORRESPONDENT: yes, he certainly took the blame and this is his first time testifying about this travel ban, now halted travel ban, and he basically said that, look, it was a rocky roll-out.

In the first 24 hours of it, we sort of had to take a step back and re-evaluate how to proceed and he said the reason why it was rushed is to prevent bad people who wanted to come to the U.S. and do harm from coming here. And so here's what else he said about the chaotic roll- out.


JOHN KELLY, HOMELAND SECURITY SECRETARY: In retrospect, I should have -- this is all on me, by the way. I should have delayed it just a bit so I could talk to members of Congress, particularly the leadership committees like this to prepare them for what was coming.


BROWN: And it's worth pointing out that not only members of Congress weren't aware of it, but also people within Custom and Border Protection in charge of implementing weren't aware of the details in the executive order.

And Secretary Kelly also said that these claims that people were treated inhumanely are simply wrong. He says that these stories are false, that people were standing for hours, different stories that are coming out, he says, that there's really nothing to back up those claims.

And he also said that at this point, DHS is not considering any additional countries to put on that list. He says there have been some erroneous reports about that. He says at this point no additional considerations.

However, there is this sort of process where DHS is trying to firm up the vetting system. So there could be potentially down the road additional countries, but at this point, no specific countries under consideration he said there on Capitol Hill -- Kate.

BOLDUAN: We'll continue to listen in on that. Pamela, thank you so much.

But big news where you hear the White House and the president just as recently as this weekend saying that the roll-out went very smoothly. Now you have the head of the Department of Homeland Security acknowledging that he should have delayed it a bit because, clearly it did not go so smoothly and also taking the blame for it.

We'll talk about that more in a moment, but let's now talk about the legal showdown that this executive order is facing tonight. CNN justice reporter, Laura Jarrett, has been following all of this back and forth. So Laura, just where we are at this moment. What's going to happen at 6:00 p.m. Eastern today? LAURA JARRETT, CNN JUSTICE REPORTER: So this could play out in a number of different ways, Kate. We know for sure that we'll hear from both sides for 30 minutes each and then the judges will issue a decision, and they have a number of different options for resolving this case.

For example, the court could uphold the district court, Judge Robart's ruling, deny DOJ's request, which would keep the suspension of the executive order in place or they could reverse Judge Robart's ruling, which would mean the travel ban is back on again or they can try to come up with some sort of creative way to split the baby and say this district court's decision is upheld on some grounds but not all. So I think whatever the result is, we know this is going to the Supreme Court next.

BOLDUAN: Everyone will be listening very closely to what the arguments are during this one-hour hearing. We're going to talk about that right now. Laura, thank you so much.

Sitting with me now is CNN senior legal analyst, Jeffrey Toobin. So Jeffrey, there is a lot of ors or a lot of options, if you will, that Laura laid out right there for us. What are we going to hear tonight? And it's a hearing on the phone.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Which is weird. It's not unprecedented, but, you know, for a big case, you usually have the lawyers present in court, but they're going to do this whole thing on the phone. The good news is, for all of us, it's going to be live streamed on the web.

[11:05:09]BOLDUAN: What are we going to hear tonight, do you think?

TOOBIN: There are really two basic positions here and they both have a lot of validity. This is a really hard case. The administration is going to say this is about border protection. That is uniquely within the province of the president of the United States.

He's responsible for the security of this country, and he has a lot of authority, which he does, over immigration policy. The challengers, the attorney generals of Washington and Minnesota are going to say, yes, that's true, but the president still has to abide by the laws and the constitution of the United States.

And you can't discriminate against people who are Muslim, who are from these specific countries under our immigration laws and under our Constitution. So that's the crux of the conflict, and it's a really hard question.

BOLDUAN: One of the things that folks are really interested in and last night where the conversation was, something new coming from the government's argument was that at a minimum, they are asking to reinstate the ban on people who have never been into the United States.

So basically, give us our executive order in part. Allowing those who have already been in the United States, allow that all to go through. In making that request, that argument, is the government scaling back what they are looking for?

TOOBIN: Well, they are hoping not to lose the whole thing. I mean, part of the problem with this executive order is that it's not been clear who was covered by it. At first, they were stopping people who already had green cards.

Then the administration said, no, green cards, you are different. There are people who already have visas who have been stopped. They are really -- they are -- it would be one way of dealing with this to say they can come into the country.

And then there are people who don't have visas. So these are ways of dividing up the ruling without overturning it in its entirety or upholding it in its entirety.

BOLDUAN: Can I get your quick take on, you were sitting here as we were listening to Secretary Kelly and his testimony talking about the travel ban. He says that this -- the way it rolled out, the rocky way it rolled out was on him. He wished he had delayed it a bit. The man is facing a legal challenge. Does that -- is that on him?

TOOBIN: Not at all. I mean, this was written at the White House and he apparently had very little to do with it and even knowledge of the creation of this executive order. But certainly, the legal question of whether it's constitutional, whether it violates other laws --

BOLDUAN: That's not on Kelly.

TOOBIN: -- that's not on him at all. Now it is true that, even assuming the whole thing is legal it was rolled out in a way that was confusing to basically everyone. So that arguably would be on him.

BOLDUAN: Great to see you, Jeffrey. Thank you.

TOOBIN: Nice to see you.

BOLDUAN: Happening right now also on Capitol Hill, Senate Democrats have been staging a marathon overnight protest in a last-ditch effort to stop the confirmation of Betsy DeVos as secretary of education. The final vote is set to happen within the next hour and it's looking to be a real squeaker.

CNN's senior congressional reporter, Manu Raju, is following this on Capitol Hill. So Manu, what is the very latest? Where do things stand here?

MANU RAJU, CNN SENIOR CONGRESSIONAL REPORTER: Well, we're looking at likely that Betsy DeVos will be confirmed as the next secretary of education. We're not getting any indication right now that there are any Republicans in addition to the two who already said they were going to vote no, if there's a third that will defect and cause Betsy DeVos from not being confirmed.

We're actually getting the sense that Republicans are largely united. This vote today expected to be 50/50 in the Senate. That would require Vice President Mike Pence to come to the Senate and break a tie and ensure that she gets the job. This would be an historic move.

First time ever that a Senate historian can recall that a vice president coming to Capitol Hill to break a tie, but Democrats staging this all night session trying to drum up opposition, trying to energize their base because a lot of liberals and progressives are fired up about Betsy DeVos but probably to no avail.

We expect her to get the job and afterwards, Kate, the Senate is going to move to break a filibuster of Jeff Sessions' nomination to become attorney general, and then expect the Senate Republicans to move aggressively to get Tom Price confirmed for Health and Human Services.

Steven Mnuchin to be Treasury secretary and if Democrats try to delay things expect all-night sessions, weekend sessions in order to get that done. So this is where things stand right now. Trump is likely to get his picks but maybe not in the exact time frame that he wants -- Kate.

[11:10:05]BOLDUAN: All right, watching that closely. That vote on the nominee for education secretary will be happening, we think, starting right around the noon hour. Watching that closely to see how things move along in the Senate. Great to see you, Manu. Thank you.

So joining me now to discuss is Angela Rye, a CNN political commentator and former executive director of the Congressional Black Caucus, and CNN political commentator and former director of Black Outreach for the George Bush White House, Paris Dennard. Great to see you both.

So Angela, it might be unprecedented that the vice president has to break a tie for a cabinet nominee, but all signs are pointing to, she is getting the job. So why did Democrats stay up all night?

ANGELA RYE, CNN POLITICAL COMMENTATOR: Well, and I think the reality of this opposition, Kate, is it was in some ways bipartisan. There are a number of people who don't think Betsy DeVos is qualified. There were so many of Trump's nominees who were challenged, right, like they actually challenged our core values.

And so folks had to determine where they were going to put most of their efforts. Betsy DeVos was one of them because most Americans believe that education should be equally accessible and equally resourced across the board.

That we should not utilize government resources and pouring them all the way into charter schools or privatizing schools so other kids can't get educations. I have two godsons right now who are in a charter school. I'm a product of 12 years of private school.

BOLDUAN: Democrats do not like what Betsy DeVos, her beliefs on public education. That is for sure. Some Republicans not happy about it, but it's going through, all signs point to. Was this a show overnight?

RYE: I don't think it was a show. I think it really is designed to say, listen, this is someone who challenges our core values about the education system in this country. And just because there are, for example, senators who are in very Republican-leaning states that can't afford to take that vote.

So that is the reality of it. That is what happens when you have a divided Senate. You might have lip service in support of what you're trying to do, but you may not have the votes. That's the reality of the lay of the land.

BOLDUAN: So Paris, at the very same time, it is unprecedented that the vice president has to break this tie. Two Republicans, they defected. It might be a vote to confirm, but it's not exactly a vote of confidence for DeVos so they had to bring in the VP to push her over the line.

PARIS DENNARD, CNN POLITICAL COMMENTATOR: That's just the way the Constitution works. That's the way it works. The Senate, there's a tie, the vice president steps in, who is the president of the Senate, comes in to break the tie. I can't think of any other vote.

I can't think of any other time in history for the vice president to come in and say to the American people, but more specifically to the children and to the parents of America, this vote is important. This woman is important.

And she stands for what I know you stand for, which is the changing, the revolution, the really -- the reforms that we need to make to our public education system, she's going to make them.

This administration is committed to them, and that's to why this is such an important vote. It's the vote for the children, and it's one that I think to answer your previous question, it was unfortunate for the Democrats to play politics and this theatrics because they know this vote is going to happen and she's going to be confirmed.

So the question is, why do it? It's just to have political theater and to raise moot points at this time because they know she's going to be confirmed and they are afraid, in my opinion, of the reforms she's going to make to the public education system, which will totally dismantle the higher education teachers lobby, the teachers unions, which has controlled the public education system for far too long.

BOLDUAN: You know who had an interesting -- you say change is coming, Paris. You had an interesting take on this, Angela, David Milbank who wrote a column today arguing that for Democrats, this is actually a good thing. Here's why. It's an interesting logic.

He wrote this in the piece. He said that the new administration's incompetence is their friend, Democrats' friend. His point is that for Democrats if they think this is an unqualified nominee. It's a cabinet secretary that won't get anything done. Is this good news for you?

RYE: No. I think that it's bad news for the country, and I couldn't disagree with Paris more on her being revolution for the kids. Maybe revolution in a bad way. But I think that this isn't about the teachers unions. This is about people -- sure, school choice is something Republicans go around all the time. But what does that really mean if you are defunding public schools so folks have to really research to determine whether or not the school around the corner from their home is good enough for their child, right?

So I understand what he is saying. I just don't think that having someone unqualified in any of our cabinet positions is good for this country. I do not believe she's qualified. She's demonstrated gross incompetence throughout her history in this space as well as at her confirmation hearing.

BOLDUAN: Looks like she's going to be the next secretary of education unless something wild happens in the next 60 minutes. Paris, let me change gears real quick because I want to get your take on this.

[11:15:03]President Trump in an interview spoke out again about his relationship with former President Obama. Here's what he said to Fox News. Listen to this.


BILL O'REILLY, FOX NEWS: You guys seem to get along. All right, would that be accurate?

PRESIDENT TRUMP: It's a very strange phenomena. We get along. I don't know if he'll admit this, but he likes me.

O'REILLY: How do you know?

PRESIDENT TRUMP: I like him, because I can feel it. That's what I do in life. It's called, I understand.


BOLDUAN: I like him. He likes me. Paris, which bit of this makes you more uncomfortable?

DENNARD: None of it makes me uncomfortable. What I like about this is the fact that I think there's a mutual respect that President Obama and President Trump have for each other. I don't know if President Obama is good for him politically to admit to it, but, look, they both rocked the establishment.

No one thought that a junior senator from Illinois was going to come in and defeat the Clinton machine and you know what, he did it, and no one thought, the media, the polls, anybody thought that Donald J. Trump, the businessman, was going to come in, rock the GOP establishment, win the nomination and then win the presidency.

I think there's a mutual respect and his intuition is telling him that there's something that they both can agree upon and that they both are fighters. Donald Trump is going to put America first. So I think that they do like each other.

BOLDUAN: My intuition is that you both like me and I like you. DENNARD: That's so true.

RYE: Let me give you one word. The other Donald Trump, Alec Baldwin, says wrong. That's my answer to that.

BOLDUAN: Angela Rye, thank you very much. Paris, thanks as always. Thanks, guys.

He pretty much wrote the book on enhanced interrogation tactics, but now he says President Trump has gone too far. Executive power run amok. That's next.

Also this, we are looking at live pictures from -- from the House. We're looking at a hearing ongoing now. The new head of the Homeland Security Department is testifying on Capitol Hill as we speak. What he is saying about the fate of the border wall and the travel ban.

And what do you do after spending the last eight years as the leader of the free world? If you are Barack Obama, you go kite surfing with Sir Richard Branson. The new video and pictures prepare for an epic caption contest.




UNIDENTIFIED FEMALE: How far are you willing to take your travel ban fight?

PRESIDENT TRUMP: We're going to take it through the system. It's very important. It's very important for the country.


BOLDUAN: President Trump just moments ago vowing to take his travel ban battle, the battle over his travel ban through the system all the way to the Supreme Court, if necessary. Today, the legal fight goes before a three-judge panel.

Joining me right now to discuss is John Yoo. He authored much of the legal advice for President George W. Bush after 9/11 on enhanced interrogation tactics, of course, known as the torture memos. He's now a law professor at the University of California Berkeley.

Mr. Yoo, thank you for your time. You wrote a powerful opinion piece in "The New York Times" about the president's executive actions, about executive power and, of course, included in that is on the president's travel ban.

And you say that he's gone too far here. You are no shrinking violet when it comes to presidential powers. You spent your career advocating for increased power in defense of national security. Exactly what we're talking about here. Why do his actions concern you so much? JOHN YOO, FORMER U.S. DEPUTY ASSISTANT ATTORNEY GENERAL: I think that the framers wanted to have a very powerful, energetic executive to protect the country from foreign threats. But when it comes to domestic policy, Congress comes first and the president's job is to carry out or execute the Congress' policies.

Immigration law is an area that the Supreme Court has long said is in the hands of Congress. Any powers a president has are just those given to the president by the legislature and in this case, this statutory questions are very close.

There is a prohibition in the immigration laws that says you cannot discrim -- the president cannot discriminate on the basis of race, religion or national origin on who he lets into the country.

There's another statute which says, however, when it's in the national interest, the president can suspend or block some classes of aliens from coming in.

BOLDUAN: So where do you think he's wrong on the travel ban?

YOO: I think the problem for me, the suggestions coming out of the White House from Mayor Giuliani and other advisers that what Trump wanted was a Muslim ban. If there really is a religious motivation behind the executive order, then I think you're running into constitutional provisions, which control Congress and the president both, like the free exercise of religion or more importantly the provision in the First Amendment that says that the government cannot try to set up a church or favor any religious group over another.

BOLDUAN: So, obviously, the Justice Department is arguing for the ban, for the president. Do you think he'll win the court battle?

YOO: I think there's a serious problem in the court decision about who brought the suit. As you may remember, the suit is being brought by the state of Washington. That's not the best person -- plaintiff in court. Instead, someone who -- an individual who couldn't get into the country like a green card holder or someone with a valid visa would be the best person to bring a lawsuit, rather than the state of Washington.

On the other hand, the 9th Circuit where I'm sitting right now in San Francisco, is the most liberal circuit, liberal court in the country. I have a hard time seeing them overturning this trial judge today.

BOLDUAN: So you also in your opinion piece write about the border wall. You found legal justification for Guantanamo Bay, but you don't think this president has the right to build a wall on the border. Why?

YOO: Again, it has to do with the basic division of powers between the president and the Congress. Congress has control over the border. The president can say, I want to build a wall. He can say, I want to build a walking path along the border, but it's up to Congress to pay for it, to authorize it and pay for it. A wall costs something like $12 billion. Congress hasn't authorized even close to that much. Even Guantanamo Bay which President Trump has wanted to keep open or President Obama tried to close. Keeping Guantanamo Bay built and open is up to Congress through its funding power.

If Congress wants to close Guantanamo Bay, they just cut off the cash spigot, and if they wanted it to stay open, they keep it open.

[11:25:11]BOLDUAN: And the big question is, are they going to fund it. Stick with me right now, Mr. Yoo. I want to tell our viewers, you're seeing Vice President Mike Pence heading up the steps to the capitol where he may or may not but likely will be needed to break a tie to push through the cabinet nomination, the confirmation of Donald Trump's Education secretary nominee, Betsy DeVos. That will be happening. We're watching that closely. Vice President Mike Pence arriving right now.

One more question for you, Mr. Yoo, if I still have you. Former Attorney General Roberto Gonzalez, you worked closely with, he was asked about your opinion piece. His take on it was that he thinks this is all part of a learning curve for Donald Trump in getting to understand the checks and balances of the government. Do you think it could be that simple, or do you think it's something different?

YOO: I would have hoped that he -- that President Trump would have been studying the constitution when he knew he was going to be the nominee or even when he started running for office. But I think, unfortunately, he see signs he doesn't really understand the separation of powers.

He doesn't really understand the constitutional purpose and limits on the presidency. For example, when he called a district judge in the immigration case we've been talking about "so-called judge," that shows a fundamental disrespect for the judiciary and the proper role of the courts, the president, and Congress.

BOLDUAN: Mr. Yoo, thanks for your time. Really appreciate it.

YOO: Thank you.

BOLDUAN: John Yoo right there.

All right, coming up for us, new details about the deadly terror raid in Yemen. Was there a secret target, and is that target now who is taunting President Trump?

Plus, gearing up for a possible showdown. One Republican vowing to challenge President Trump on the issue of Russia. Details ahead.