For the Record with Greta, Transcript 2/6/2017

Hallie Jackson, Ari Melber, Alan Dershowitz, Ken Vogel, Molly Ball, Michael McFaul, Randi Weingarten, Chris Murphy, Heidi Przybyla, Susan Ferrechio

Show: For the Record with Greta
Date: February 6, 2017
Guest: Hallie Jackson, Ari Melber, Alan Dershowitz, Ken Vogel, Molly Ball, Michael McFaul, Randi Weingarten, Chris Murphy, Heidi Przybyla, Susan Ferrechio 


GRETA VAN SUSTEREN, FOR THE RECORD HOST: We have breaking news For the
Record tonight, the Trump 6:00 PM deadline on the controversial travel ban
just pass, now it is in the courts hand and a ruling could come at any
time, and we are standing by to bring you that decision should it happen in
this hour. What is the court going to do? And if the court slaps down
President Trump, what will he do?

Also grabbing the mic, senate Democrats seized the floor in a talk-a-thon
aim at taking down education nominee Betsy DeVos. Democrats desperately
trying to pull one more Republican to their side, but will the GOP beat
back the effort. And a backlash to the president praised for Vladimir
Putin, why the new comments have stunned GOP leaders.

We begin tonight with the breaking news. The fist throwing fight over
President Trump`s travel ban potentially headed to the United States
Supreme Court. But first, moments ago, President Trump`s justice department
filed a brief in the U.S. court of appeal for the ninth circuit asking to
reverse an order of the lower court judge. Now the lower court judge is the
one that Trump called a so-called judge in a weekend tweet, the judge had
issued an emergency order suspending Trump`s travel ban. And at this hour,
everyone is waiting for the appeals court decision and the court could rule
at any time. Meanwhile, U.S. Central Command in Tampa, President Trump
making his case for strong border protections.


what`s been going on over the last few days. We need strong programs so
that people that love us and want to love our country and will end up
loving our country are allowed in. Not people that want to destroy us and
destroy our country.



VAN SUSTEREN: We have team coverage tonight reporting the facts, covering
all the legal argument and covering the blistering political fallout. Let`s
start with NBC`s Hallie Jackson live at the White House. Hallie?

HALLIE JACKSON, NBC NEWS: Hey there, Greta. Just looking through the
filling now from the department of justice, again, filed within just the
last, maybe five minutes or so here, and the argument being made by the
department of justice is that the injunction is essentially far too broad.
That`s one of the argument that they`re making here with the
administration, the White House, confident that it will succeed in trying
to get this temporary travel ban reinstated. You`ve heard it from the
president all weekend long. You are continuing to hear it from members of
the administration that they believe this is a lawful move, that the
president is legally allowed to do this. But as you`ve said, Greta, all
eyes on whatever is going to happen now with the panel of three judges that
going to be make the ultimate decision at least for tonight in a case that
is probably going to end up in the Supreme Court, the legal battle far from
over. And the political battle is getting pitched to. You saw the president
going after this judge, James Robart. He was appointed under President
George W. Bush in 2003, and confirmed by the senate not long after in 2004.
The president calling Robart a so-called judge, raising questions about
him, implying if there were to be future attack that the blame would
potentially lay at feet of this judge. You have heard Republicans now
coming out and saying listen, there`s a difference, right? I`m paraphrasing
the argument, but there`s a difference between disagreeing with the ruling
which the president clearly does, in which many Republicans disagree with,
and working to delegitimize in effect question the legitimacy of somebody
who is a federal judge. It`s a situation where, yet again, you are seeing
Republicans working to distance themselves now from a controversial comment
from President Trump, Greta.

VAN SUSTEREN: Hallie, thank you. And Ari Melber is MSNBC chief legal
correspondent. Ari, I know that you are madly going through the pleading as
well. We all getting it to cross our devices and getting hard copy. Before
we get to the pleading, if you can sort of tell me, this is not about the
constitutionality of this matter before the ninth circuit. It`s about
whether it`s constitutional or not, it`s about whether it should have been
stopped, isn`t that right?

this is a debate on whether these cases should proceed with the pause
button hit and this ban pause that it was Friday night, or with the ban
ongoing while the case is proceed. That`s the big legal question here as we
wait for that emergency panel ninth circuit. I do have it though, and parts
of what`s in here as Hallie was mentioning an argument that this solution
or this – a pause, the temporary restraining order, is over broad given
that it basically freezes all sorts of different parts of the ban because
you have a pause on the entire refugee program under the ban as written by
President Trump. You have the specific intention to Syria, then you the
have seven country issue. I will say as you know and as we can discuss
further, even though this is only about what happens as the case
procedures, these filings along with the other fillings are already seen
from DOJ do get into the argument because one of the key element of whether
or not you get this kind of pause is whether there`s a likely success on
the merits, and that is the underlying constitutional question. So, you
know, I`m looking at this new filing here moments ago from DOJ, and it does
say things about the underlying goals here. One of them is, for example, it
said, look, we are going after places that raise, quote, heighten terrorism
related concerns. We are going after aliens who`ve never been inside the
country before and does have no – a president of constitutional right to
appeal these things. So it does get in to some of that as well.

VAN SUSTEREN: All right, Ari, I want you to stay with us and continue to
read it because it was just filled. I want to go now to Alan Dershowitz,
who is a constitutional law scholar and professor emeritus at Harvard Law
School. Nice to see you, Alan.

ALAN DERSHOWITZ, HARVARD LAW SCHOOL: Thank you, nice to see you.

VAN SUSTEREN: All right, Alan, put aside the question about whether you
like the president order or not. Focus simply on the issue of whether or
not that executive order is constitutional or not. Professor Lawrence told
me Friday night it is not. What do you say?

DERSHOWITZ: I think it`s partly constitutional and party unconstitutional.
It is constitution probably in so far as it relates to people outside the
country, who`s never been in the country and who were seeking visa`s, say
from Yemen or some other country, they have no constitutional standing to
object to this, and no constitutional right to a visa. They will make a
clever argument, they will say the first amendment doesn`t convey only
right it also has constraints on the government. Congress shall make no law
respecting an establishment of religion, that`s an uphill fight for them. I
think they will lose on that issue. I think they will win on the issue of
people who are in the country, say students at universities who had a visa,
went out of the country are trying to come back. I think we`re going to see
a divided opinion. But I don`t think the ninth circuit is going to vacate
the stay right now. Because the stay is in effect. I think chaos would
ensue if the ninth circuit now vacated it and then restore it after they
had a decision, restore it in part. I think you`re going to see a lot of
movement towards preserving the status quo while litigating this issue, and
I predicted divided results.

VAN SUSTEREN: All right. Let me go right of the issue of the people
outside of the United States who may want to come here. And you`ve talked
about that you can`t pass a law restricting on religion. Is this – is the
fact that this executive order doesn`t say Muslim, it just identifies seven
countries that are predominantly Muslim and not even include other
countries that are Muslim, is this really about religion on a constitution
of standpoint?

DERSHOWITZ: Well, of course it`s about religion because the president have
told us it`s about religion. He called it a Muslim ban. But the court will
look at it on its face. Will not consider the motive of the president. And
one can make a strong argument that these are seven countries, not the only
seven, but seven countries that have had terrorism. These are countries
also in which many people don`t have American values. For example, the
level of anti-Semitism in these countries is very, very, very high. The
level of bigotry against gays and women is very, very high. And so, one can
make the argument that these are countries that should be subject to a
different standard without regard to what the religious majority is. Also,
I think the constitution does permit protecting religious minorities who
are subject to persecution. Now these are religious minorities are
Christians, they`re Sunnis in Shia states, They`re Shias in Sunnis state,
they`re Bahai`s, they`re Kurds, so I do think that a strong argument can be
made for the constitutionality of some parts of the bill, but as to other
parts, no. And I think what`s very wrong is that today the debate has been
an absolute one. The proponents of the bill say is old unconstitutional.
The opponent of the bill say is old unconstitutional. What`s needed is a
nuance calibrated approach looking at every aspect of the order, and
deciding which parts are constitutional, which parts are not.

VAN SUSTEREN: Maybe Ari can help us with that nuance calibrated by looking
at maybe – at least he just read the justice department – Ari, can you
give us some more guidance on this?

MELBER: Yeah, a couple of points. One, Professor Dershowitz is basically
referring to what kind of standard will apply here, and we know that in the
context of war and immigration there`s a differential standard to
presidents. That is to say that even though people might feel some of what
they`re doing is controversial or not even fully rational would be one
legal term, there`s great deference here in this area because judges aren`t
going to substitute there views for the president with regards to religion.
These is certainly precedent for giving protection and asylum to those who
are persecuted. Well, obviously, it is rational and there is precedent for
the notion that persecution happens at time when you`re the minority
religion. So that alone is well supported and not necessarily a problem.
Having said that, the president may have done his lawyers a disservice and
going further than to text the order and saying he did not want to help
Christians because that is different. That can sound or a judge might look
at that as a potential religious preference which is different in the
asylum standard.

Point number two goes to the standard, one of the things that Judge Robart
said on Friday, in his hearing when he pressed the DOJ lawyers was have
there been attacks on immigrants from these seven countries, and they
basically had to concede there have not. And so, he said, well, under a
rational basis standards that is to say, is there a rational security
reason to do this you fight fail. The DOJ has a decent counter argument
which is what Professor Dershowitz was just referring too. You don`t even
get to do rational basis review, you should defer to this presidential
judgement. But this is an area that could be a problem because I will say
this on the fact, on the law we have to see what the court says. On the
facts, the fact that these seven countries have not been a source of
immigrant related terror is an issue, and the fact that the reference point
that`s been offered, Greta, basically them saying, well, congress and
President Obama referred to them as dangerous places for Europeans to pass
through. There they are in the screen. That was from a visa waiver program
for European tourist. And so the judgment in that context legally was if
you`re a British citizen and you go through Syria on your way to America,
we want to take a second look at you. Hey, that`s sounds pretty reasonable.
That`s a different determination on whether people coming from those
countries pose an immigrant threat.

VAN SUSTEREN: All right, Alan, you want to respond to this?

DERSHOWITZ: Yeah. And I also think that the amicus brief that was filed
today on behalf of secretary of state, and generals, and security people,
was clearly designed to support Judge Robart statement saying that this is
not – cannot be justified based on national security needs. But I think
the problem is going to be a technical one of standing and that is does a
person who is outside of the country and never been in – have standing,
right. Does the state of Washington have standing on behalf of Microsoft
and Google and other companies to raise these issues? Chief Justice Roberts
of the United States Supreme Court has been a real hawk on standing,
demanding that you show a kind of personal harm that you`ve suffered. And
so, I think they`re going to have a hard time overcoming that. The main
point this is complex. I can teach a Harvard Law School seminar on this
case. It is so complicated and it shouldn`t be discussed as if it is a
simple yes or no. That`s not the way it`s going to be resolved.

MELBER: Do you have seats for Greta and I because I love to go?

DERSHOWITZ: Sure, sure.

VAN SUSTEREN: Anyway, let me bring in – I know you are. Let me bring in
some other guests. Molly Ball, a politics reporter from the Atlantic, and
Ken Vogel, chief investigative reporter from Politico. Ken, this also has
enormous political ramification. You even got Republicans mad at
Republicans. Democrats jumping in on this.

KEN VOGEL, POLITICO. Yeah. I mean, let`s not forget Trump made a lot of big
promises coming in, this is one of them. And so far, this is not being
implemented. There`s question about the wall, who is going to pay for it,
another big promise. And there`s question about the implementation of
Obamacare. So we see him lashing out, lashing out on the judge, lashing out
on critics of this, and it sort of – there`s an element of working to
rest, there`s also an element of sort of explanation like why these things
are not the successes that he said they were going to be.

VAN SUSTEREN: Alan, what do you think of his – the president tweet over
the weekend referred to the judges, so-called judge?

DERSHOWITZ: It`s ridiculous, and also hurts his case tremendously. This is
a judge who was confirmed 99-0. He`s has an extraordinary good reputation.
He was nominated by a Republican. It reminds people of Trump calling
President Obama the so-called president in effect. You don`t attack the
integrity of the judge the way Trump did in the case involving the judge
whose parents were born in Mexico. That doesn`t help you, it doesn`t help
politically. It doesn`t help legally. It will very much alienated the
fellow court judges. It was just dumb. There`s no other word for it.

VAN SUSTEREN: Molly, Senator McConnell, majority leader, has he responded
at all or reacted to this?

MOLLY BALL, THE ATLANTIC: Oh, yes. Well, what he said yesterday with one of
the Sunday shows was that he would not be encouraging the congress to
somehow codify legislatively the order that Trump did. You know, a lot of
the criticisms from Republicans, even those who agree with Trump`s stated
aims on this, or who think that there`s need to be more careful vetting of
people from – majority Muslim countries, or from certain countries, or
terror harboring countries, they still have problem with the process by
which this was done. That so many of the agencies were not notified. The
congress didn`t see this coming, that people – green card holders were
literary detained at airports. And so, I think McConnell by saying that he
is not going to carry Trump`s water here, is basically saying, look, if you
want us to help you succeed, you`ve got to work with us. You can`t just do
these things unilaterally and expect us to clean up your mess.

VAN SUSTEREN: All right. Let me go to some legal voodoo. Let me go to you,
Alan. I think this is going to be decided tonight. That`s my legal voodoo,
who knows, it`s a wild guess, but your thoughts?

DERSHOWITZ: I don`t think so. But I do think that President Trump, if he is
rational would withdraw his order, mute the case because he may very well
may lose part of it, and go back to the drawing board and come up with a
much more calibrated, much more carefully thought through rule. I think he
will do that if he loses. And I think maybe the court know he will do that
if loses, so that would incline them to continue the stay so as to
encourage the president to avoid the constitutional crisis by redoing this
with the consent and consultation of lawyers, of national security people,
with legislators, and that way you have a win-win. You have a regulation
that`s constitutional and protective.

VAN SUSTEREN: Ken, I do not see the president backing down. If he loses I
see this going on. I do not – I mean – this is – he takes no prisoner.

VOGEL: We see absolutely nothing from him during the course of the
presidential campaign or his first day in office that would suggest that he
will do anything that would admit that there`s anything he could have done
better in the first place. In fact, he would double down more likely his
instincts, how I see is playing down on this.

VAN SUSTEREN: Maybe he`ll win. The ninth circuit is typically a liberal
circuit, but who knows what judge to decide.

BALL: On the one hand, Trump doesn`t back down publicly. So his public
stance is going to be this type of bluster. But remember after he
personally insulted Judge Curiel, he then went on to quietly settled that
case, and then to go on and talk about something else. So when Trump see
that he lost the battle, sometimes he quickly moves on and hopes nobody
will notice, and find something else that he thinks he could win on.

VAN SUSTEREN: Thank you everybody. Thank you very much. And Ari has a
special note, he`s going to be – he`s much more tonight, he`s guest
hosting the Last Word at 10 PM Eastern, right here at MSNBC, so check back
on Ari. And coming up, clash in the senate, Democrats is now making a final
push to defeat President Trump controversial pick for education secretary.
But first, backlash after President Trump new comments on Vladimir Putin.
I`ll talk to America`s former ambassador to Russia.



CHUCK SCHUMER, U.S. SENATOR: Unbelievably, just yesterday, the president
insinuated that the American and Russian governments were somehow morally
equivalent. Russia a dictatorship, where Putin kills his enemies, imprisons
the press, and causes trouble anywhere he can in the world.


VAN SUSTEREN: Reactions are pouring in today, and not just from Democrats.
Tough responses from Republican and military leaders to this.


UNINDENTIFIED MALE: Putin is a killer.

killers. We`ve got a lot of killers. Why do you think our country is so
innocent? You think our country is so innocent?


VAN SUSTEREN: President Donald Trump suggesting a moral equivalent between
Vladimir Putin, the president of Russia, and the United States. Senator
McConnell saying Putin is a thug, and he doesn`t think there`s any
equivalency between the way the Russians conduct themselves in the way the
United States does. Senator Marco Rubio tweeting, when has a democratic
political activist even been poisoned by the GOP or vise versa, we are not
the same as Putin. And here`s what retired four-star general, Barry
McCaffrey, said on MSNBC earlier today.


BARRY MCCAFFREY, RETIRED GENERAL: I`m actually incredulous with the
president to make a statement like that. One can argue that`s the most
anti-American statement ever made by the president of the United States.


VAN SUSTEREN: Michael McFaul is a former U.S. ambassador of Russia and a
professor at Stanford University. Good evening, sir. So we have heard from
Russia, at least a spokesperson for Vladimir Putin, who said that he wants
an apology from Bill O`Reilly because he called Vladimir Putin a killer.
But let me switch to what the president said, President Trump, what do you
think President Putin thinks about that exchange?

course, this is what Vladimir Putin and his media argue all the time. The
Russian media has praise President Trump. On my twitter feed is filled with
Russian nationalist, praising President Trump for speaking the so-called
truth. But I said so-called truth because I don`t think it is purely
correct just to put my professorial hat on for now, the Russian army
behaves differently in the fight in Aleppo for instance when we fight in
Syria under operation Inherent Resolve. And most certainly, how we treat
our opponents, political opponents inside our government, inside our
country is different than Vladimir Putin. But the political point is also
just crazy. I don`t understand why the commander-in-chief is calling his
old soldiers killers equivalent to Russian soldiers. It doesn`t really
makes sense to me.

VAN SUSTEREN: Is this just a 24-36 hour story where we are all obsessing on
it, or does this having a long-term impact, or does this reflect on
something bigger?

MCFAUL: Well, you know, Greta, that`s a great question, I don`t have a
great answer. But I`ll just remind your viewers here that he said almost
exactly the same thing on Morning Joe in December 2015 as a candidate. And
one man can say, well, maybe he doesn`t know all the facts about how the
Russians operate, it was a one-off, it`s just a 24-hours cycle. But now as
president to say those things suggest to me that this is what he believes.
This is what he actually believes about our country versus Russia. And I
hope somebody would brief him and dis-infused on that belief.

VAN SUSTEREN: All right. In light of the fact that he said it back then
before he was the president, and the light of the fact that quote President
Obama election have consequences, and the light of the fact that he
represents the American people, at least – in the Electoral College, I
would not be surprised if a lot of Americans tonight were thinking that,
Yeah, this is what we wanted him to say.

MCFAUL: I don`t know the single American that wants him to equate what the
United States of America, what our soldiers do abroad with Russia. I simply
don`t know a single person that would agree with president Trump in our
country right now.

VAN SUSTEREN: Was he talking about – I mean, look, I`ll tell you he`s
going to say this, let`s say he wasn`t talking about the soldiers, he`s
going to know he`s comprise the streets Chicago where people are shooting
themselves up. I don`t think – I think we haven`t really – I mean, he`s
going to – he will come out and say what.

MCFAUL: Fair point.

VAN SUSTEREN: . and that`s what I think – you know, we all seized upon
that, that`s what I thought when he said it. But, you know, I think he will
be saying something different.

MCFAUL: Well, that`s interesting. He should clarify that point. Because
when you put it in abstract tense, right? There are a lot of killers, the
passive tense. What it says to me is that – actually, soldiers don`t kill
without orders, they do things without orders. They do things on behalf of
the commander-in-chief. And when the question was being asked he wasn`t
talking about criminals, he was talking about Putin. Mr. O`Reilly was
talking about Putin very specifically. So, you know, maybe he could clarify
that, but I took it to mean he was talking about the United States

VAN SUSTEREN: Well, I actually did as well, but I was just trying to play
devil`s advocate. Anyway, Ambassador.

MCFAUL: Fair point.

VAN SUSTEREN: . thanks for joining us. Thank you for joining us, sir.

MCFAUL: Thanks for having me. All right, thank you.

VAN SUSTEREN: And more breaking news on the legal front over President
Trump travel ban, the United States court of appeal has now schedule oral
arguments for tomorrow at 6:00 PM Eastern, on whether to lift the stay,
we`re of course we`ll be watching. Ahead, we get reaction to the travel ban
controversy. I`ll talk to Democratic senator, Chris Murphy. But first,
senate Democrats tonight trying to take down President Trump pick for
education secretary. I`ll talk with the head of the American Federation of



CHUCK SCHUMER, U.S. SENATOR: The nominee for secretary of education doesn`t
know some of the most basic facts about education policy

PATTY MURRAY, U.S. SENATOR: This nomination is dead even right now. We need
just one more Republican to join us.

ELIZABETH WARREN, U.S. SENATOR: This is deeply personal. It`s personal for
me. My first job out of college was as a teacher.


VAN SUSTEREN: Live pictures of the senate floor, Democrats making a
desperate plea for one more Republican vote against Betsy DeVos as
education secretary. That`s all they need to sink Trump`s cabinet pick,
otherwise we could be heading to a 50/50 tie with Vice-President Pence
casting the deciding vote tomorrow. Randi Weingarten is president of
American Federation of Teachers, and like today took part of a protest
against the nominee held outside the capital. Nice to see you.

great to see you.

VAN SUSTEREN: OK. Why don`t you want Betsy DeVos?

WEINGARTEN: For several reasons. But, number one, she`s not just
disconnected from public education, it`s not just that she`s ill- informed,
it`s that all the work she`s done as a lobbyist and she`s done a lot of
work in and around education, has been actively hostile to the schools that
90 percent of kids go to right now.

VAN SUSTEREN: All right, I lifted – I went back to one of the charter
creating – the law creating Department of Education. I had forgotten. And
it said that, you know, it said that the Department of Education was
basically to facilitate education in public and private, a quite broad
definition. Is she opposed to helping private schools or she, I mean,
opposed to helping public schools, is that your thought at the expense of
private or charter?

WEINGARTEN: So, what we`ve seen from Michigan and from Florida, is that she
has been actively defunding public schools. So look, there`s lots of people
that like charters. I`ve eon (ph) one in New York City. It has 100 percent
graduation rate. But you can`t be the head of public education – you can`t
be the head of education and actively hate the schools that 90 percent of
kids go to. That`s part of the reason why there has been this grassroots
uprising from rural, suburban and urban schools.

VAN SUSTEREN: I suspect if she were here she would say she doesn`t hate
public schools thought that`s just her opponents are saying. But the one
thing that is indeed as sort of, you know, we see here in the district of
Columbia as we have public schools here and if you are politician or a
doctor or a lawyer or even the president of the United States, the last
things you do is send your kid to a public school. So there`s no –

WEINGARTEN: Unless you live in northwest where people go to deal (ph) all
the time and where people use the public school system –

VAN SUSTEREN: But would you admit that most people of means in this city
they`re so troubled by this – in general, the public schools that they set
at Sidwell or to (INAUDIBLE) or all these other schools?

WEINGARTEN: Actually, I would say that it`s about half and half now. There
are lots of people with means in this city that send their kids to private
schools, but at the end of the day, if you live in the northwest in this
city –

VAN SUSTEREN: In which section?

WEINGARTEN: But my point is this, that schools in United States of America
track socio-economic issues. The schools in suburban America where you have
parents that have means tend to be better than the schools on places where
you don`t and what we have to do in public education is we have to switch
that. Meaning we have to give more resources to the kids who need it most.

VAN SUSTEREN: All right, one quick question before you go, which Republican
are you, if you`re going to gain (ph) another Republican, which Republican
are you likely get between now and tomorrow`s votes.

WEINGARTEN: Well look, 85 Republicans – 85 senators passed the Ed (ph) law
last time. There are at least 15 of them who are Republicans.

VAN SUSTEREN: And I couldn`t get a name I`m not going to get a name. I
won`t get a name. All right.


VAN SUSTEREN: At least I tried. Anyway, nice to see you, Randi.

WEINGARTEN: You too. Thanks Greta.

VAN SUSTEREN: Next, reaction to breaking news on travel ban controversy.
Democratic senator Chris Murphy weighs in. And later, Super Bowl stunner.
I`ll get reaction from a man who knows a thing or two about Super Bowls.
The one and only Broadway Joe Namath.


VAN SUSTEREN: News just breaking in less than 24 hours. A U.S. appeals
court will hear oral argument by telephone on whether to reinstate
President Trump`s travel ban after it was suspended by a Seattle trial
court judge on Friday. Now each side will be permitted 30 minutes of
argument time beginning at 6:00 p.m. eastern tomorrow night.

And Senator Chris Murphy is Democrat from Connecticut. He`s a member of the
health committee and also on the foreign relations committee. Good evening

SEN. CHRIS MURPHY (D), CONNECTICUT: Thanks for having me.

VAN SUSTEREN: Sir, what do you think about the breaking news now that the
Trump administration has filed its brief and already the U.S. Court of
Appeals in 9th Circuit has ordered an oral argument tomorrow night and will
be doing it by telephone 6:00 p.m. tomorrow.

MURPHY: Well, hopefully this gets settled soon. There`s so much uncertainty
in the world right now and we`ve really become an international laughing
stock because of how badly this has been handled. You know, although I`m
not an immigration law specialist, it does appear to me that the 1965 law
which prohibits discrimination based on religion or based on national
origin prevails over any national security powers that the president has.

And you know, the national security argument to me just doesn`t, you know,
work with the straight face given the fact since September 11th we haven`t
had a terrorist attack by any of the countries on the list and yet none of
the countries on that list and yet none of the countries where the 9/11
hijackers were from are not on that list. So, it doesn`t seem to match up
with the real national security threat that has been posed to the United
States over the course of the last 20 years.

VAN SUSTEREN: I`m surprised it`s being done by telephone. If I were the
lawyer on either side, I`d want to be doing – making my argument in
public, I mean, right in front of the court whereas by telephone. So I`m a
little bit surprised it`s by telephone. And actually, I thought that they
might even just decide on the pleadings and do it tonight, but the suspense
will continue for another 24 hours at least then they`ll make a decision.

But Professor Alen Dirshowitz says that it`s partially constitutional.
Professor Laurence Tribe how was a colleague of his in Harvard Law School
says that it is unconstitutional. So even different (INAUDIBLE) scholars
see a very different law.

MURPHY: Well, I think we should clear it all up here in the congress. I`ve
got a piece of legislation that would prohibit funding from being used to
implement the ban. Dan Feinstein has a piece of legislation that would
rescind it. You know, you have Republicans and Democrats in congress that
has gone records saying that, you know, this is exactly what the terrorist

In the end, you know, terrorism is a tactic that is designed to insight a
level of fear that is disproportionate to the actual threat such that you
make mistakes. And this is textbook mistake. It`s going to be, already is,
bolds (ph) and board material for this terrorist recruiters. It`s making
our country less safe rather than as Trump thinks making us more safe.

So, I`m rooting for the courts to strike this down but I think Congress
could step in and set the record very clearly if we wanted to.

VAN SUSTEREN: We have a minute left, but I suspect that if the president
does lose this round, I don`t think he`s just going to give up. I think
he`s going to take it on. Do you not, next court?

MURPHY: Well, I certainly think – you can read his comments about this
judge, personally attacking the judge without thinking that he`s going to
take this to the next level. You know, my worry is that ultimately he
decides to just go his on way notwithstanding court`s rulings. And then you
got a constitutional crisis.

So, clearly he is not giving this up but I think you`re finding that courts
of public opinion and courts of law are going to be on the other side. That
should be enough for him to let this go and start working with us on things
that can bring us together and make the country more safe.

VAN SUSTEREN: Senator, thank you for joining us.

MURPHY: Thanks, Greta.

VAN SUSTEREN: And now we have more breaking news. An NBC News exclusive
report on that U.S. mission in Yemen just over one week ago which resulted
in the death of a Navy Seal. Cynthia McFadden is NBC`s senior investigative
correspondent. Cynthia.

Greta. Well, we have detail tonight about that top secret mission in Yemen
and why the U.S. took the gamble to go in.


MCFADDEN (voice over): Tonight, multiple military and intelligence
officials tell NBC News the real reason for the U.S. military operation
last week in Yemen. The top secret target, the man American intelligence
officials designate the third most dangerous terrorists in the world. The
head of Al Qaeda in Yemen.

His name, Qassim Al-Rimi. The mission, kill or capture him.

operation by all standards.

MCFADDEN (voice-over): Today we learned the high stakes gamble to capture
Al-Rimi was not a success. He is alive in Yemen according to multiple
military officials who confirmed that last night Al-Rimi released an auto
recording taunting President Trump as he spoke to the Yemeni people saying,
“The fool of the White House got slapped at the beginning of his road in
your lands.`

The White House declined to comment. Al-Qaeda in Yemen has been behind a
variety of terrorist plots including the failed underwear bomber and is
considered the most dangerous hub of Al Qaeda in the world.

UNIDENTIFIED MALE: This would be unfair to say that this was a slap-kind of
an operation. Even though the Trump administration is new to the national
security world and may be getting its feet under it, the counter terrorism
community to include the military is well-schooled and well-oiled in terms
of launching these kinds of attacks.

MCFADDEN (voice-over): All of the leaders in the military chain of command
were in agreement that the prospect of getting Al-Rimi made the high stakes
mission worth the risk. Officials tell NBC News President Trump was told by
the Secretary of Defense and the chairman of the Joint Chief of Staff that
the possibility of capturing Al-Rimi would be a game changer.

And in making their case to proceed, they told the president they doubted
the Obama administration would have been bold enough to try it. The
operation was larger than any counter-terrorism strikes since the killing
of Osama Bin Laden in 2011. A Navy Seal, William Ryan Owens was killed
during the raid when forces were faced with a fierce resistance.

UNIDENTIFIED MALE: It`s very difficult to judge in a binary context yes or
no if this was a success. Counter-terrorism work is difficult. It`s
dangerous. You have to be present and you have to disrupt especially in
places like Yemen.


MCFADDEN: It is not yet clear how valuable the intel gathered from the
computers and phone at the scene in Yemen will turn out to be. It is also
not clear yet whether Al-Rimi was at the target location that night or
whether perhaps he was tipped off beforehand. The Pentagon have no comment.

VAN SUSTEREN: Cynthia, thank you.

Ahead, inside the Trump White House. New details on the in-fight (ph) in
the power place and exactly how information is flowing to President Trump.


VAN SUSTEREN: Now we go inside the Trump White House. The “New York Times”
reports on infighting and stumbles inside the White House. The “Times” is
reporting Steve Bannon remains the president`s dominant advisor despite Mr.
Trump`s anger the he was not fully briefed on details of the executive
order he signed giving his chief strategist a seat on the National Security
Council. A greatest source of frustration to the president from the fallout
from the travel ban.

President Trump tweeting, “The failing “New York Times” writes total
fiction concerning me. They have gotten it wrong for two years and now are
making up stories and sources.”

Heidi Przybyla, a senior political reporter for “USA Today,” Susan
Ferrechio is the chief congressional correspondent for the “Washington
Examiner.” Susan, I`m always fond of you interesting – I don`t know what
the right word is – for the palace intrigue of any White House especially
early on, but this one is quite interesting.

SUSAN FERRECHIO: Oh, yes, but I`m not sure what to do believe becayse there
have been some reports that have been debunked about internal strife
between the new Trump administration employees.

VAN SUSTEREN: And which even I think the “Washington Post,” they have to
back – they had to change the story online.

FERRECHIO: There`s more too, you know. Sean Spicer, the press secretary was
on a daily basis getting up at the podium and saying this is wrong, so it`s
hard to really know what`s true, what`s just malicious leaks, what`s
exaggerated. And then you have come on twitter and just say that the “New
York Times” is lying. So I`m just not sure.


FERRECHIO: No he`s not because they`re lying, right.

is that he was increasingly angered by this narrative that was taking hold
that started out with the “Time” magazine cover about Bannon being the
great manipulator and then it continued with the “New York Times” op-ed and
folks like Madeline Albright saying that Bannon was pulling the strings on
Trump, but I think he got irritated so he pushed back on it.

But he wasn`t specific in that tweet about what exactly about the story was
false. What`s clear is that there was a botched roll out. We don`t know who
he`s pointing fingers at about it.

VAN SUSTEREN: That was clear but in defense of the White House, they`ve got
the situation where the “Time” magazine terrible pool (ph) of reports
saying that the – a Martin Luther King bust was removed from the Oval
Office, it was not. They`ve had the “Washington Post” have to walk back
some stories, so that`s not true.

You`ve got Nancy Pelosi calling Steve Bannon and white supremacist. I mean,
they are taking a lot of incomes and a lot of the stuff that`s reported are
anonymous sources which is very difficult to respond to.

FERRECHIO: That`s an interesting parallel here. You have a White House that
is trying to move hard and fast on all these campaign promises. And so
there have been some stumbles, which you have the media that`s moving hard
and fast and trying to really delegitimize Trump I think. I don`t think
it`s been fair. I know there`s a debate about that.

And there are also filing out too with some of their hits. And so I think
both sides are, you know, making mistakes clearly but I`m not quite sure
what I believe when I read these inside stories in the media anymore. I
don`t know who is saying it, why they`re saying and why –

VAN SUSTEREN: But that`s the whole comment (ph) with anonymous sources. I
mean it`s like you know –

PRZYBYLA: There`s a difference with the media though. I mean, the bust of
Martin Luther King, that was a big mistake.


PRZYBYLA: It was corrected.

VAN SUSTEREN: It may have been corrected but the message went out to the
whole media and you`ve got a reporter looking for (INAUDIBLE) at least I
think not to rehash an old story, but I think the reporter was looking to
see if, aha! He`s a racist, he got rid of the Martin Luther King.

FERRECHIO: There`s a lot of that aha reporting right now.


VAN SUSTEREN: But I`m saying that`s what I think and I don`t blame him for
being angry about that.

FERRECHIO: Yes, I would have been.

PRZYBYLA: The problem is that you have folks from the podium though saying
things that are demonstrably false and not correcting it. And then you have
Kellyanne Conway going out and making up an entire terrorist attacks up in
Bowling Green massacre which we found out today she said it twice before.

VAN SUSTEREN: So, she really feel like there was a massacre. I saw her
explanation but you don`t buy her explanation that it was it. She meant
bowling Green terror.

PRZYBYLA: I`ll buy her explanation but then I saw today that she has said
it twice previously. And so that`s where – we`re in this while alternate
universe of the word that she coined, which is alternative facts and that`s
a dangerous thing to see.

FERRECHIO: Well, you know, Obama said you can keep your doctor and you can
keep – and your insurance won`t go up. I mean there are people –

PRZYBYLA: Thousands of people said that he had hoped to achieve and that he
didn`t. It`s different from telling something that you know is not true.

FERRECHIO: Well did she know it was not true when she said it before and
now she`s being corrected for it like, if she said the Bowling Green
massacre next week, well, come on now, you know –

PRZYBYLA: You should take it point for point that when Sean Spicer comes
out and says, but there are more people at Trump`s inauguration.

FERRECHIO: It`s true. The Obama administration was not always truthful.
They are far more eloquent about it though. I will give them a credit for

PRZYBYLA: We`re not talking a out Obama. We`re talking about Trump.

VAN SUSTEREN: Can I just defend my first impression in being a lawyer. In
court, we couldn`t do anonymous sources and we had to raise our hand and
swear to tell the truth, the whole truth and nothing but the truth. Not
such a bad idea.


PRZYBYLA: Always free to say specifically what was wrong about the report,
he didn`t say.

VAN SUSTEREN: Anyway, moving on. Thank you both.

Coming up, a Super Bowl for the ages, I`ll talk to someone who knows a
little bit about Super Bowls, Hall of Famer and Super Bowl winner, Broadway
Joe Namath. And for the record, red rollers (ph), blue rollers (ph), Pats
fans, Falcons fans, all had something to unite about.



performance. I`m so proud to be a part of this team. You know, we faced a
lot of adversities over the course of the year and overcame with a lot of
mental toughness.


VAN SUSTEREN: You know who that is. That`s Super Bowl MVP Tom Brady today
after leading the biggest comeback in Super Bowl history. Last night, an
epic Super Bowl that many are calling the greatest of all-time.

Let me bring in the one and only Broadway Joe Namath, the MVP quarterback
of Super Bowl III and NFL Hall of Fame. Joe, nice to see you.

JOE NAMATH, FOOTBALL HALL OF FAMER: Well thank you Greta. Good to hear you
Greta and see you.

VAN SUSTEREN: Yes, it`s good to hear from you. Of course I always tell you
that you broke my husband`s heart in 1969 when you beat his Colts, 16 to 7
in Super Bowl III. But moving along, let me talk about last night`s Super
Bowl. How in the world could Tom Brady pull that off? What do you think?

NAMATH: You know what, year in year out of recent history, who`s the best?
Who`s the best? From what I saw last night, Greta, Tom is – he is the
best. The way he changed speeds on those pass that he threw, that he
dropped in there, that second half, played well the first half. But the man
was throwing strikes and changing speed as well. It was brilliant.

VAN SUSTEREN: You know, I understand how he – if you start out winning,
you can win the whole game, but to have that come back, it looked over. I
was convinced, you know, Falcons are going to do to the Patriots what they
did to my beloved Packers. I thought it was over for the Patriots. But how
did he – how could he even pull that off?

NAMATH: Experience for one thing. Besides the talent, his talent, which is
wonderful, and that team`s talent, the experience they`ve had. They had so
much confidence even going into the halftime, word (ph) has come out. Now
these guys are keeping cool. We`re going to get it. We`re going to get it.
The younger players listened to the vets and they had the confidence they
were going to come back. They just stayed after it, man, and pulled it off.

VAN SUSTEREN: Well, I thought they were going to win because I thought it
would be the sort of revenge of Tom Brady in deflategate and so I thought,
you know, before the game started that they would win, but then at the end,
when they did win and Goodell, the NFL commissioner to present the trophy,
he got booed by them. Did you hear that?

NAMATH: I don`t think he deserved all of those boos. Let me put it that
way. Yes.

VAN SUSTEREN: That was amazing. So tell me, does he retire now? Does he go
out like Peyton Manning after a Super Bowl win or does – do you think
Brady is going to play again next year?

NATHAM: I`m going to listen to what he has to say. So far, he`s saying he`s
planning on playing until he`s 45 and I wouldn`t past him. So, I`ll listen
to Tom, whatever he says.

VAN SUSTEREN: Would you say after the 1969 Super Bowl that this was the
best Super Bowl?

NATHAM: Oh, man, you know, I have not seen a game like this. I have not
seen the world championship, a Super Bowl like this. We have seen some good
ones but not this kind of game where a team has been so far behind, hung in
there and kept coming back. That second half – who would`ve thought they
were going to make that comeback. Only those (INAUDIBLE) and coaches, maybe
some of the Patriot fans.

VAN SUSTEREN: Joe, always nice to talk to you. Love seeing you. Love to
have you on the set some time when we`re in the same city.

NATHAM: Well, we`ll do it. I promise you, I`d love to be there.

VAN SUSTEREN: All right. Thank you, Joe.

NATHAM: Thank you Greta.

VAN SUSTEREN: I want to say something “For the Record.” History made in
Houston. A nail biter Super Bowel, 111 million people watched this American
tradition. And while the ending was emotional for both teams and their
fans, so was the beginning.

President George H.W. Bush, with his wife Barbara, the former First Lady,
the longest married presidential couple in history, both just days out of
the hospital. He was in the ICU, but they are so strong, taking the field
for the most memorable coin toss a Super Bowl has ever seen or will ever

The president getting a standing ovation from both team, both coaches, both
sides of the crowds. Patriots fans. Falcon fans. Of course, not everyone
voted for President Bush. Some not even born when he ran, but all loved him
and when it comes to sportsmanship and doing the right thing, look to
President Bush 41.

His son Jeb was locked in a bitter battle with Donald Trump but President
Bush still called Trump to congratulate him on defeating Hillary Clinton.
Bush 41 also wrote President Trump a kind letter ahead of his inauguration.

Bottom line, for being shot down in the Pacific in World War II, to the
White House, to the Super Bowl, President George H.W. Bush is and always
has been a class act. One we can all look up to.

Thank you for watching. We`ll see you tomorrow night right here 6:00 p.m.
eastern. If you can`t watch live, set your DVR and follow me on twitter
@Greta. Go to Facebook for behind the scenes and videos and more.
“Hardball” with Chris Matthews starts in about ten seconds and you don`t
want to miss that. But you can still go to my Facebook page before Chris
starts. Nice to see you.