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EARLY START

McConnell Silences Warren on Senate Floor; Travel Ban Decision in Hands of Federal Appeals Court. Aired 4-4:30a ET

Aired February 8, 2017 - 04:00   ET

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


(BEGIN VIDEO CLIP)

[04:00:13] SEN. ELIZABETH WARREN (D), MASSACHUSETTS: I appeal the ruling of --

SEN. STEVE DAINES (R), MONTANA: The objection has been heard. The senator will take her seat.

(END VIDEO CLIP)

CHRISTINE ROMANS, CNN ANCHOR: A fiery liberal senator silenced for breaking a Senate rule. Or was it the Republicans who broke the cardinal rule by giving a fresh megaphone now to one of the president's fiercest critics?

JOHN BERMAN, CNN ANCHOR: The future of the president's travel ban now in the hands of the federal appeals court after a dramatic telephone arguments. We could get a ruling at any minute.

ROMANS: Good morning, everybody. Welcome to EARLY START. I'm Christine Romans.

BERMAN: I'm John Berman, barely talking. It's February 8th, 4:00 a.m. in the East.

ROMANS: Let's start with this, the stunning development on the floor of the U.S. Senate. This is remarkable what we saw last night. One of the president's most fierce liberal critics, Democratic Senator Elizabeth Warren, on the floor silenced by Majority Leader Mitch McConnell in partisanship on display last night. The drama unfolded when Senator McConnell invoked a rarely used rule to cut off Warren during last night's debate on the nomination of Jeff Sessions for attorney general.

Watch what happens when the Massachusetts senator tries to read a letter written in 1986 by Martin Luther King's widow. She was criticizing Sessions who was a federal court nominee at the time.

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WARREN: This is what it said, "They are mothers, daughters, sisters, fathers, sons and brothers.

SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER: Mr. President --

WARREN: They are --

MCCONNELL: Mr. President --

DAINES: The majority leader?

MCCONNELL: The senator's impugned the motives and conduct of our colleague from Alabama, as warned by the chair. Senator Warren, quote, "said Senator Sessions has used the awesome power of his office to chill the free exercise of the vote by black citizens." I call the senator to order under the provision of Rule 19.

WARREN: Mr. President?

DAINES: Senator from Massachusetts.

WARREN: Mr. President, I am surprised that the words of Coretta Scott King are not suitable for debate in the United States Senate. I ask leave of the Senate to continue my remarks.

DAINES: Is there objection?

MCCONNELL: I object.

WARREN: I appeal the ruling --

DAINES: Objection is heard. The senator will take her seat.

(END VIDEO CLIP)

ROMANS: According to the Majority Leader McConnell's staff, Senator Warren is now barred from speaking on the Senate floor for the remainder of the debate on Sessions nomination. But she did not stay silent. She went on the internet and then she read Mrs. King's letter on Facebook after she was cut off from the Senate chamber, and then she spoke to CNN's Don Lemon.

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WARREN: There's been some hard words in the United States Senate through the years, but all of a sudden, when I'm reading something, a truthful statement from Coretta Scott King, answer, no, can't say that. Well, I'm going to tell you this, they can shut me up but they can't change the truth.

(END VIDEO CLIP)

ROMANS: The debate over the Sessions nomination is expected to wrap up at 7:00 tonight when a confirmation vote is planned.

We're counting down the hours to a monumental court decisions. Three federal judges on the 9th Circuit expected to rule as early as today on President Trump's refugee and travel ban. During a 60-minute phone hearing last night, those judges spared with attorneys on both sides, sparred over the president's sweeping use of the executive power. The connection between the seven nations ban by the White House and terrorism, and where to draw the line for determining intentional discrimination. Government lawyers tried to make the argument that the president has blanket authority in cases of national security, and should not be impeded by the courts.

That triggered pushback by the judges, listen.

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AUGUST FLENTJE, JUSTICE DEPARTMENT SPECIAL COUNSEL: The district court's decision overrides, the president's national security level over the level of risk. And we've been talking about the level of risk that is acceptable. As soon as we're having that discussion, it should be acknowledged that the president is the official that is charged with making those judgments.

JUDGE MICHELLE FRIEDLAND, NINTH CIRCUIT COURT OF APPEALS: So, are you arguing then that the president's decision in that regard is unreviewable?

FLENTJE: The -- yes, there are obviously constitutional limitations, but we're discussing the risk assessment.

(END AUDIO CLIP)

ROMANS: Attorneys for the states argue the president's travel ban harms U.S. citizens and discriminates against Muslims which the judges did not always seem to buy.

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JUDGE RICHARD CLIFTON, NINTH CIRCUIT COURT OF APPEALS: I have trouble understanding why we're supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected as residents of those nations. And where the concern for terrorism with those connected with radical Islamic sects is kind of hard to deny.

NOAH PURCELL, WASHINGTON STATE SOLICITOR GENERAL: Your honor, the case law from this court and the Supreme Court is very clear that to prove religious discrimination, we do not need to prove that this order harms only Muslims or that it harms every Muslim. We just need to prove that it was motivated in part by a desire to harm Muslim.

And we have alleged that --

CLIFTON: How can you infer that desire in fact the vast majority of Muslims are unaffected?

PURCELL: Well, your honor, in part, you can refer it from intent evidence. I mean, there are statements that we quoted in our complaint that are shocking evidence of intent to discriminate against Muslims.

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ROMANS: The 9th Circuit will only decide whether a Washington judge overstepped his authority by suspending the president's travel ban. The case is widely expected to end up in the Supreme Court.

I want to go live to Atlanta and bring in a legal mind on this matter, Michael Moore, former U.S. attorney from Georgia's middle district.

Good morning to you.

MICHAEL MOORE, FORMER U.S. ATTORNEY, MIDDLE DISTRICT OF GEORGIA: Good morning, Christine.

ROMANS: You heard some of those exchanges from that conference call. Tell me what you make of where we are in this legal process.

MOORE: You know, I think that it's pretty clear the judges were what we call a hot bench, and that is that they were interested, they had questions. And I would not put a lot of stock or too many emphasis on which way the questions seemed to lean. Most of time, people, lawyers, who especially practice in front of the federal courts, don't put too much weight on how the questions go because, really, it's the judges' decision and it's their job to push each side of the case, to look for strong points and weak points.

And you may have a judge who is asking questions, it seemed to me, leaning towards one side of the case, but really, they're favoring the other side. They're just pushing that advocate to state his or her position. I think it's interesting. They spend a lot of time on the standing issue, and that is whether or not the state of Washington had a right to bring the case. You know, they brought the case on parens patriae doctrine and also on a sort of a business side of a proprietary case.

I also think it's interesting that we're seeing now because the judge was very interested in the evidence of the case, whether or not the one side had more than an ability to show that they had a likelihood of success. We're seeing that there's -- the words of the president, President Trump, may be coming back to haunt him, as we heard, they're talking about his use of the word "Muslim ban" --

ROMANS: Yes.

MOORE: -- in the campaign.

So, it was an interesting day and I'm sure you say we're going to see an appeal whichever way the case is decided.

ROMANS: Yes. Well, you talk about the Muslim ban, the president's own words being brought up in this proceeding here. And we heard them talk about religious animus and pointing out, we heard the judge pointing out that frankly, most Muslims would not fall under this band.

Where do you see, you talk about standing, what about religious animus?

MOORE: You know, I think there again, it went back to what evidence is in the record. Remember, the judges were not deciding the case and what really reaching the question of the constitutionality of the order itself. They were just looking to see, does one side or the other have the ability to see whether or not they may prevail at the end of the day? And they're looking back at the words of President Trump and others apparently attached as exhibits in the case. And there's even reference about newspaper articles.

But they're seeing, in fact, that was the promise all along. And this appears to be, this executive order appears to be a fulfillment of the president, or by the president, to implement a Muslim ban. So, I think there's some indication that gives the court a reason to think there's a racial animus.

It's pretty clear when you read the executive order, in fact, that there are groups of people who, one religion or another coming out, refugees from certain countries, whether a Muslim countries or in the minority religion that may get preference. Those things are going to have to be weighed out by the court. But I do think that the judges seemed to indicate there was evidence on the record that give some indication of religious animus.

ROMANS: Let's talk about how quickly this is moving. I mean, it was just a couple of weeks ago, the president came right into office and dropped this executive order. Now, it's here in the ninth circuit, almost certain to go to the Supreme Court, many people say here. And you heard these attorneys yesterday talking about how fast this process is moving. Listen.

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JUDGE WILLIAM CANBY, NINTH CIRCUIT COURT OF APPEALS: How many federal offenses have we had being committed by people who came in with visas from these countries? The answer was there haven't been any.

FLENTJE: Yes, your honor, these proceedings have been moving quite fast and we're doing the best we can. I can cite --

FRIEDLAND: The proceedings are moving fast but you appealed to us before you continued in the district court to develop the record.

PURCELL: Our complaint was filed a week ago Monday. We had extraordinarily little opportunity to actually gather and present evidence in the district court.

CLIFTON: You faulted the government for exactly the same thing. So far, I haven't heard a lot of reference to evidence. And a lot more reference to allegations. And I don't think allegations cut it at this stage.

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ROMANS: Michael Moore, what do you make of that exchange?

MOORE: You know, I think it's pretty clear and irony in this case it has moved at a quick pace. The parties were already on an extended and expedited, rather briefing schedule to move the case through the district courts. [04:10:00] There's been an appeal now. The question now is, will they

appeal for a rehearing en banc? They have the right to do that. That's not -- i's not a full judges, because there's so many judges on the ninth circuit, it's a smaller group. There'd be about 11 judges that would hear the case, or they can take an appeal to the Supreme Court.

So, they're drawing it out. But at the same time, that both sides are coming back and saying, look, it's moving so fast we need more time to present our case. But they got us to where we are at the 9th Circuit. So, it will be interesting to see if the judges give them any break for that reason.

ROMANS: All right. Michael Moore, thanks for dropping you. We'll talk to you again very, very soon this hour. Thank you, sir.

MOORE: Thanks, Christine.

ROMANS: All right. President Trump's next executive action could involve worker visas and corporate America bracing for a potential hit to business. At the center of those concerns, something called the H- 1B visa. The goal of that program is to fill a skills gap that allows qualified foreign workers to work at U.S. companies. They have to have at least a bachelor's degree and companies must pay them what they would pay a U.S. worker.

Eighty-five thousand visas are awarded each year. That's done by lottery. And those with the visas can stay working in the U.S. up to six years. There's demand for far more, by the way, than 85,000.

It's unclear how exactly the president wants to change that program, but the draft that's been circulating mandates that the secretary of homeland security review regulations of all work visa programs, including the H-1B. It aims to find ways to make the program more efficient and ensure that it's admitting the best and the brightest according to that draft.

All right. New reports that President Trump is not too thrilled with his press secretary. We'll tell you how the White House is trying to ease his concerns.

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[04:15:29] ROMANS: Billionaire Betsy DeVos sworn in as the nation's new education secretary with Vice President Pence casting the historic tie-breaking vote in her favor. Two Republicans voted against her nomination.

But Democrats needed to peel off one more GOP senator for a defeat. Teachers unions and public school advocates flooded Senate phone banks in opposition to DeVos. They said she's not qualified and doesn't know how to speak for this typical American school yard in a public school. But Pence's vote put her over the top. The vice president calling it the easiest vote I've ever cast. And his press secretary, the press secretary to the president, Sean Spicer, saying she is a qualified candidate and they are proud to have her in that seat. BERMAN: Two families are accusing the Trump administration of

inappropriately placing the murder of their children on the White House list of unreported terror attacks. The parents of British backpackers Mia Ayliffe-Chang and Tom Jackson say terrorism was ruled out soon after a disturbed individual stalked the 21-year-old woman and fatally stabbed here in an Australian hostel last summer. He also killed the Good Samaritan who tried to protect her. Both families expressed their anger on social media.

Sandra Jackson, Tom's mother, directly addressed the president, writing, "Wake up this morning to see you used my son's murder to further your campaign of hate. How dare you. You are a disgrace."

ROMANS: The U.S. military looking for a few good rooms in Trump Tower. A Pentagon says they're working through proper channels to rent a limited amount of space. It will be separate from the Secret Service detail that works out of the Trump family's New York residence. The move raises more conflict of interest questions because it could directly funnel government money into one of Trump's business interests.

BERMAN: The White House is stepping up its search for a new communications director. Officials say they're trying to lighten the load on embattled Press Secretary Sean Spicer who's been handling both jobs. Sources say President Trump is disappointed how Spicer has performed so far. The president apparently was not amused by the "SNL" skit which featured Melissa McCarthy playing Spicer at a White House briefing chewing a lot of gum. Spicer did not respond for the request for comments.

ROMANS: For the record, the president is not amused with many of the --

BERMAN: No, he doesn't like "Saturday Night Live".

ROMANS: -- many of the "Saturday Night Live" skits.

All right. The Standing Rock Sioux tribe says it will not give up its fight, despite the army giving final approval for completion of the controversial Dakota Access Pipeline. The oil project has triggered months of violence, sometimes violent protests from Native Americans, environmentalists over that pipeline route and what they say is a threat to the tribe's water supply. President Trump signed an executive order reversing the Obama administration, now directing the Army to finish that project quickly.

To ISIS now. A setback in the fight against ISIS. Officials in Yemen are suspending U.S. ground missions against suspected terrorists in that country. Yemeni officials are outraged over the number of civilians killed in last month's al Qaeda raid, a raid that also claimed the life of a U.S. Navy SEAL.

Senators Ted Cruz and Bernie Sanders squaring off last night in a live CNN debate over the future of health care in America. Cruz, a Texas Republican, insists his party must quickly honor its promise to repeal every word of Obamacare. Sanders, a Vermont independent, is accusing the GOP of panicking.

Listen to this fiery exchange over rationing health care and how involved the government should be in this process.

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SEN. TED CRUZ (R), TEXAS: This is what happened when government takes over health care. Every example on earth. The result is rationing and waiting periods. And you, the citizens, being told, no, you can't have the health care you want and deserve.

SEN. BERNIE SANDERS (I), VERMONT: And in America, we do rationing in a different way, Ted. The way we do rationing is, if you're very rich, you can get the best health care in the world, I believe, right here in the United States. Every single year, tens of thousands of our fellow Americans die because they don't go to the doctor when they should.

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ROMANS: Republicans are struggling to come up with a replacement plan for the Affordable Care Act. President Trump is now acknowledging there may not be one until next year.

Devastating tornados tear through Louisiana. Just an awful scene there. Damage and cleanup efforts -- next.

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[04:24:02] ROMANS: A big cleanup under way this morning in southern Louisiana after seven confirmed tornados touched down Tuesday, including the one in New Orleans. Both the governor of Louisiana and the mayor of New Orleans issuing emergency declarations. They're screens of other devastations, scores of homes -- scores of businesses damaged or destroyed. Dozens of injuries have been reported, but no deaths. New Orleans' Ninth Ward, one of the areas hardest hit, one resident comparing it to Hurricane Katrina.

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UNIDENTIFIED MALE: You're dealing with amazing destruction. And it's not just -- I mean, it's like Katrina again. The whole block is gone, you know? And it's just a matter of rebuilding.

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ROMANS: The president tweeting overnight, "Our thoughts and prayers are with everyone in southeastern Louisiana affected by today's severe tornados."

So, how will the weather impact cleanup efforts?

Let's get to meteorologist Pedram Javaheri.

(BEGIN VIDEOTAPE) PEDRAM JAVAHERI, AMS METEOROLOGIST: John and Christine, conditions across parts of Louisiana finally beginning to quiet down. That storm system responsible for some nine reports of tornados now pushing offshore.

[04:25:03] And you take a look, the temperatures spring to almost summerlike in nature going with 86 in Houston, almost a good 80 degrees warmer than what is happening across parts of North Dakota. Look at New York, nearly 60, 65 in Washington today. All of it as we get some southerly flow ahead of this next storm system here that sends temperatures skyrocketing over the next 24 hours.

And then by this time tomorrow morning, we're talking about a completely different story. Storm system parks offshore, back behind this northerly flow. We get the temps that drop off by 30 degrees in spots, so we're talking about significant accumulation potential there for snowfall to begin in the early morning hours, and then really continue for much of the day.

And, generally speaking, you could see as much as ten inches around parts of northern New Jersey, into New York, get around Boston potentially up to a foot of snowfall. And it's been a very quiet year when it comes to snow accumulations across New York City. Six to nine inches what we think will happen around New York City for tomorrow.

Notice what has already happened so far this year, about 11 inches and about 14 inches is what is normal. So, we are in a deficit, and, of course, some improvement of that in the next 24 hours.

(END VIDEOTAPE)

ROMANS: All right. Pedram Javaheri, thank you for that.

So, Senator Elizabeth Warren tried to read an old letter on the Senate floor. And then Republicans used an old rule to quiet her. More on a shocking showdown in the Senate.

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