Show: HARDBALL Date: February 7, 2017 Guest: Harold Koh, Amy Klobuchar, Bill Johnson, David Rivkin, Bill Johnson, Susan Page, Eugene Robinson, Michael Steele (ORAL ARGUMENTS)
JUDGE MICHELLE FRIEDLAND, 9TH CIRCUIT COURT OF APPEALS: Thank you again for appearing on such short notice. We are adjourned.
CHRIS MATTHEWS, HOST: Good evening. I`m Chris Matthews in Washington.
We`re following breaking news tonight, an extraordinary legal battle ogre the fate of the president`s travel ban, and more than that, the question of whether an American president is limited by the law even in deciding matters of national security.
A lawyer for the states of Washington and Minnesota have been squaring off with the United States Justice Department before a three-judge panel of the 9th circuit court of appeals over whether or not to reinstate President Trump`s ban on travelers from seven majority-Muslim countries.
The hearing, which was conducted over the phone, just wrapped up. On Friday, a federal district court judge in Seattle temporarily blocked the order from being enforced while he weighs its constitutionality. Well, the Justice Department appealed to the ninth circuit to reinstate the travel ban immediately.
Attorneys for Washington and Minnesota argue the travel ban is unconstitutional because it discrimination on the basis of religion. The Justice Department says it is necessary for national security reasons.
Here`s part of that hearing, where two of the judges, Michelle Friedland and Richard Clifton challenged the special counsel to the U.S. assistant attorney general, August Flentje, on that point. Let`s listen.
(BEGIN VIDEO CLIP)
JUDGE MICHELLE FRIEDLAND, 9TH CIRCUIT COURT OF APPEALS: Has the government pointed to any evidence connecting these countries with terrorism?
AUGUST E. FLENTJE, SPECIAL COUNSEL: These proceedings have been moving very fast. I -- and the -- the strongest point on that is that in 2015 and 2016, both Congress and the administration made determinations that these seven countries posed the greatest risk of terrorism.
JUDGE RICHARD CLIFTON, 9TH CIRCUIT COURT OF APPEALS: Is there any reason for us to think that there`s a real risk or that circumstances such that there would be a real risk if existing procedures weren`t allowed to stay in place while the administration, the new administration, conducts its review?
FLENTJE: Well, the president determined that there was a real risk.
(END VIDEO CLIP)
MATTHEWS: Well, I`m joined right now by MSNBC`s chief legal correspondent, Ari Melber. Ari, when you -- just generally watching this, I thought it was like -- a little bit like the Super Bowl. It was going in one direction for a while. Then it seemed to be going in the other direction, more in the direction of the administration`s position later on. The judges were very tough on both witnesses, both for the government and for the state of Washington, I thought.
ARI MELBER, MSNBC CHIEF LEGAL CORRESPONDENT: Yes, tough on both sides, As is expected, appeals court judges here are going to cut right to it. That`s why there wasn`t a lot of time for argument. It was much more responding to questions.
On the lawyering -- not on the merits, on the lawyering, I thought the DOJ came up short several times, Chris. You could tell that, for folks who were listening live, by the long pauses when they were unable to answer certain questions. You could tell that by when they basically changed the subject.
So pressed on standing, on whether Washington state even can bring this case, they would sometimes reach out for other arguments. So that was tough going.
And then the big debate, which you know about from the political side of the aisle here, all the discussion of these seven countries -- Why these seven? Are they really rooted in what has come before?
The judges really hard on DOJ about that and citing some of the pivotal moments in that underlying court hearing, the Seattle hearing, where Judge Robart said, Well, wait a minute. Is there immigrant threat from these seven countries? At that point, the DOJ lawyer on Friday said, Well, I don`t have that information. And the judge said, Well, it seems like there isn`t. And that point arose again today.
So there were many areas where I thought the DOJ lawyers struggled. On the -- on the challengers` side, look, a lot of discussion about religion here and whether this is religious ban or not. That is so important not only because of the controversy and the fact that Donald Trump started his campaign in the primaries talking about banning Muslims, ended his campaign talking about something a little different, about a geographic approach.
But at the heart of this case, which is the heart of the appeal here, the ninth circuit could reinstate this ban -- they could do that tonight, Chris -- or they could leave the temporary block in place while the trial continues.
But one of the questions at the heart is, is this discriminations by another means? There is tremendous power for presidents over immigration. It is akin to the war-making power in the sense that this is what the executive gets to do. What the executive doesn`t get to do is hide behind those powers, war or immigration, while trying to discriminate in violation of, say, the 1st Amendment.
So whether this is a Muslim ban or not, the key debate there, is important. And you heard a proportional argument, for example, where the judge said, Well, hold on a minute. Most Muslims around the world aren`t affected by this, basically echoing something that press secretary Sean Spicer has said. And at times, I thought the Washington lawyer there struggled in rebuttal and said, Well, I haven`t thought about it. I`m not sure.
MATTHEWS: Yes.
MELBER: There are legal arguments for that because, obviously, the Constitution forbids discrimination whether it`s on wide basis or not.
The other thing -- Rudy Giuliani, someone you`ve interviewed, someone who`s outspoken -- we have seen, let`s be clear, Rudy Giuliani`s comments there to Fox News on national television come up twice now, one in the underlying hearing that stayed this and now in this hearing.
A Republican-appointed judge, Chris, I`m sure you heard it, Judge Clifton there near the end, saying, Do you deny that Rudy Giuliani said this grew out of Muslim ban? That was a tough question. DOJ didn`t have a good answer. They said, Well, no, we don`t deny it, we just say this isn`t that. That`s the kind of evidence that`s going to hurt this administration if judges think it shows religious animus.
MATTHEWS: If you were accused of discrimination against a religion, but yet, say, a club or something or an organization hires huge numbers, in this case, allows huge numbers of Muslims from Egypt, the Emirates, Saudi Arabia, Jordan, all kinds of countries are not covered by this -- can you argue that it`s anti-Muslim?
MELBER: Well, I think...
MATTHEWS: If it`s not anti-Muslim in the large sense that it`s -- obviously targeting countries that are majority-Muslim, but it isn`t against Muslims because there`s nothing really stopping 90-some percent of Muslims from coming here from Indonesia, Pakistan, all -- Europe -- all the places where they live.
MELBER: Right. And so statutorily -- that is to say on the text of the order, it doesn`t do that, and in its impact, you have a lot of other places, as you just articulated, that aren`t affected. So that`s a defense. The reason why Rudy`s comments are considered pivotal to challengers is because he says, Well, that`s what we set out to do, and then we just tried to find a legal way...
MATTHEWS: I know.
MELBER: ... we tried to find cover. So that`s...
MATTHEWS: Too cute.
MELBER: ... the debate. I will say this, Chris. It is certainly legally problematic for the administration that all of the countries they picked do not have a historical link to sending killers here.
MATTHEWS: Right.
MELBER: I mean, I`m speaking to you from New York. We know who came here, OK? We know what countries they came from. They knocked the buildings down. They murdered thousands of people. We know about that.
When you set up new immigration rules and you don`t touch any of that, and then you do touch these other countries, you have a question. Legally, it`s a rational basis standard under immigration law, typically, which would be, Is there a rational link? I would tell you they would be on stronger legal footing if they would have targeted, say, Saudi Arabia and Pakistan instead of these countries. But that doesn`t mean this isn`t within the president`s power.
MATTHEWS: Well, if you`re a president, you do get to decide where the threat is. And if he thinks it`s going to come from those countries, based upon the travel restrictions that President Obama put into place on those specific seven countries, he can argue, We`re not going to wait until we get hit before we act. Anyway...
(CROSSTALK)
MELBER: ... brief point. I know we`re running out of time. We took the hearing for a long time. The travel restrictions there seems to be a lot of confusion about. The point there was whether a British businessperson who stops over in Libya is under more, you know, suspicion.
MATTHEWS: Right.
MELBER: That`s what the visa waiver program was about. And you could see why that would make sense because you say, Well, if we`re waiving a visa for a European citizen, gut then they stop over in one of these countries, why are they doing that? What`s going on there?
Those restrictions were not about the threat within those countries. So there`s been a lot of confusion about that, maybe genuine confusion.
I think the larger question is what you pinpointed, Chris. Does the courts -- in the end, do they really want to get between the president and his authority to decide where the threat, even if these seven countries were poorly picked, because historically, presidents certainly have the power to say, Hey, Japan, hey, Saudi Arabia, hey, Iraq -- if they pick it, that they can limit it. That`s generally been understood to be a part of the presidential`s (ph) Article 2 powers.
MATTHEWS: Yes, it`s tricky for a judge to go show at the airport, looking to see who`s coming in from -- from Somalia or somewhere like that.
Anyway, thank you, Ari Melber.
MELBER: Thank you.
MATTHEWS: Great arguments.
Tonight -- actually, today, President Trump said he`s willing to take the fight all the way to the Supreme Court, if necessary. Here he is.
(BEGIN VIDEO CLIP)
QUESTION: Mr. President, how far are you willing to take your travel ban fight?
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Oh, 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.
QUESTION: (INAUDIBLE) Supreme Court (INAUDIBLE)
TRUMP: We`ll see.
(CROSSTALK)
TRUMP: (INAUDIBLE) It`s common sense. You know, some things are law, and I`m all in favor of that. Some things are common sense. This is common sense.
(END VIDEO CLIP)
MATTHEWS: Well, I`m joined right now by Harold Koh, a law professor at Yale University and a former State Department legal adviser, and constitutional lawyer David Rivkin, who was a White House legal adviser in the Reagan administration.
Professor Koh, you first. What do you think should decide this case? Is it the merits in terms of national security and the president`s judgment? Is it the constitutional ban on any establishment of religion? What is the key factor that you would look to in deciding a case like this either at the appellate or at the district level?
HAROLD KOH, YALE UNIVERSITY PROFESSOR OF LAW: I think the question is whether the status quo is defective and whether we needed this Muslim ban. If it was a terrorist ban, then why don`t they go against countries that actually sent us terrorists? Instead, they went against a bunch of countries where not a single person caused a fatal terrorist attack.
And so at the district court, the judge said, I want to make a ruling based on fact or based on fiction, and I`d rather do it based on fact.
Now, what happened here was there were two issues. One, can president use his authority to issue such a sweeping order not connected to fact? And if he does, are his actions reviewable by a court?
The appeals court that just heard the case was very skeptical about the notion that you couldn`t hear the -- you couldn`t review it. And they were very skeptical about the notion that Washington couldn`t come in to plead the rights of its citizens.
So they started talking about the merits, and then they made a basic point, which is that if you call something a Muslim ban and then you call it something different, you can put lipstick on a pig, but it`s still a pig.
MATTHEWS: What about Hezbollah? Do you think -- you -- you don`t think Iran is a threat to the United States in terms of Hezbollah and its support for that terrorist group around the world? How can you argue that Hezbollah`s not our enemy? Forget the religion.
KOH: I`m not arguing that, Chris. Here`s the point...
MATTHEWS: But you said that these countries don`t pose a threat to us because of, you know, the way they calculate the history, but certainly in real time, right now, you know, Hezbollah`s our problem. It`s a danger to us, isn`t it, from Iran?
KOH: The question is, what kind of system do we need? And the system that we had was extreme vetting.
MATTHEWS: Yes.
KOH: So, President Trump said, I want extreme vetting. What he didn`t notice is that`s what we already had.
It`s an individualized determination. It`s not group-based. This is not a country that makes determinations about people based on stereotypes about their background. It`s based on the content of individual character.
And so we had a system where, if you pose a threat, then you have to be individually extremely vetted. And they proved that there was no new threat. So, the national security officials who filed the declaration, you saw their brief. It included two secretaries of state, four former directors of the CIA, fortunately people who were on the threat stream, Chris, one week before.
MATTHEWS: Right.
KOH: And they said there`s no new threat. And our system, there`s no new reason to think it`s not working.
(CROSSTALK)
MATTHEWS: I`m just curious, how do you know as a legal scholar where our threat comes from? Hezbollah works out of Lebanon, but it`s actually being financed always by Iran. We know that. The Shia are behind it. And they are Shia.
This is very complicated. And if you`re a judge and you`re wrong about this, and we do suffer an attack from one of these countries, what do you say, it`s not my fault? What do you say to the public as a judge?
(CROSSTALK)
KOH: What the judge said to the government is, prove there`s a threat that is not...
(CROSSTALK)
MATTHEWS: But if the threat occurs later, subsequent to this ruling?
(CROSSTALK)
MATTHEWS: But presidents are responsible for the future, not the past.
(CROSSTALK)
KOH: Where is the evidence that there is a new threat? Where is the evidence of a new threat?
MATTHEWS: I`m just asking you in terms of consequence, or are judges immune to consequence?
KOH: No, the judges have to rely on facts and they have to rely on whether the response to the facts is consistent with the law. And they said that the president was doing neither. He had no facts and he was acting outside the law.
(CROSSTALK)
MATTHEWS: Sure. I accept, if it was empirical, we would have this thing beaten by now, terrorism.
(CROSSTALK)
KOH: One week before, all of these officials who signed this declaration said, we were current with the threat stream and we did not think it would be addressed by this. It was going to be addressed by our existing system of individualized vetting.
In other words, if you think it`s problematic, turn up the screws. Instead, they suddenly say, let`s throw away the whole machine. Let`s put in a broad ban. And then the ban turns out not to be based on fact.
You don`t get deference for being president when you don`t make a reasoned decision or throw out procedures that are working without explanation, and causing chaos in the process, as we have all noticed.
MATTHEWS: OK. We will get back to this later, sir, but I was talking about where the bucks stops. And in the end, it`s the president who is responsible for what happens tomorrow, next week, next year, and in this case for the next four years.
Here is an exchange between Washington Solicitor General Noah Purcell and Judge Richard Clifton on the question of showing religious discrimination against Muslims. Let`s watch or listen.
(BEGIN AUDIO CLIP)
NOAH PURCELL, WASHINGTON STATE SOLICITOR GENERAL: 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 Muslims. And we have alleged that...
JUDGE RICHARD CLIFTON, NINTH CIRCUIT COURT OF APPEALS: How do you infer that desire if, in fact, the vast majority of Muslims are unaffected?
PURCELL: Well, Your Honor, in part, you can infer it from intent evidence. There are statements that we have quoted in our complaint that are rather shocking evidence of intent to discriminate against Muslims, given that we haven`t even had any discovery yet to find out what else might have been said in private.
The public statements from the president and his top advisers reflecting that intent are strong evidence, and certainly, at this pleading stage, to allow us to go forward on that claim.
(END AUDIO CLIP)
MATTHEWS: Mr. Rivkin, how do you respond to that question about whether this is in fact a Muslim ban?
DAVID RIVKIN, FORMER ASSOCIATE WHITE HOUSE COUNSEL: It`s not a Muslim ban for a variety of reasons.
But let me just point the most cogent. The notion that federal judges are equipped to second-guess a threat assessment performed on the basis of objective intelligence -- and, yes, the previous administration officials, Chris, had the same intelligence. But we`re talking about discretionary judgments about, what is the acceptable level of risk?
MATTHEWS: But what are limits on a president`s power in the Constitution, do you hear? In this case, what is the limit? If it was an outright Muslim ban, could he get away with it?
(CROSSTALK)
RIVKIN: I would be troubled by an outright Muslim ban.
MATTHEWS: Would the president still have the authority, do you think?
RIVKIN: It is not a Muslim ban.
MATTHEWS: No, if it were -- it`s being called that. If it were in principle, it would be an Establishment Clause issue, a First Amendment issue.
RIVKIN: Well, we have a problem -- I have a problem with the notion that states can vindicate pre-exercise arguments.
But if you had an individual who could make this argument, I would be troubled. But let me emphasize, we now have two political branches that both structurally, with the delegation to the president`s authority to exclude certain classes of aliens, based upon his discretionary determination, plus his constitutional authority over foreign affairs -- and his case load says immigration decisions.
So, both political branches structurally came together, putting it in the highest quadrant of Youngstown of (INAUDIBLE) case (INAUDIBLE) concurrence.
And we have both executive and congressional determinations that these countries are the countries of concern. Where my colleague Harold misses the boat entirely, how you slice this, how you treat the concern, and whatever measures -- he says extreme vetting.
That`s not the decision of a previous administrations` officials. It`s a decision of this administration`s officials. And, by the way, not only do those countries breed terrorism. Those countries, by and large, have conditions on the ground, their high-quality vetting in the judgment of this administration, Chris, is impossible.
And the notion that that judgment can be gainsayed by Article III judges is just risible. That`s not at all something they`re institutionally capable of.
MATTHEWS: So, you are thinking it`s legal for a president to have a permanent ban on a country`s entry into the United States? You can make a list of countries and say, for the foreseeable future, we`re not letting anybody in from those countries? You say that would be within his authority?
RIVKIN: If we have particularly a situation where both political branches have blessed it, I think it would be entirely constitutional.
But if I can briefly focus on the standing issue, my prediction is that this will be dismissed on standing grounds.
MATTHEWS: You predict this will go that way, with the president?
Let me go back to professor Koh.
Which way do you think this is going to go when it gets to the -- if it gets to the Supreme Court? Will it go with the president or with the state of Washington here?
KOH: Oh, it`s going to go for the state of Washington.
Chris, there`s a main point here which is being missed. How do you deal with a terrorist threat? Do you deal with it by a ban on countries, or do you deal with it by visas who are granted to individuals and who are heavily vetted?
The system we have was individualized vetting. And there`s no proof that that system of individualized vetting wasn`t working. In fact, these countries, all the people who would have committed terrorist attacks, were vetted out.
So, the question is, if you don`t like that system, why don`t you make the vetting system stronger, instead of suddenly shifting to a system which bans people based on stereotype, based on religion and national origin? It`s a lazy way out.
MATTHEWS: I agree with that.
(CROSSTALK)
MATTHEWS: I agree with you. And I think that Secretary Kerry and President Obama, and it would have been Secretary Clinton, if she were elected -- they would have agreed with you.
But we had an election. And we have a president who has decreed another way. And we will test it in court. And that`s all part of our constitutional process.
KOH: But the president still has to obey the law.
(CROSSTALK)
MATTHEWS: I agree with you. You`re not going to get me to fight with you about that, professor. I`m with you on that.
KOH: But you said, the buck stops..
(CROSSTALK)
MATTHEWS: If it gets to the right policy -- if it gets to a question of policy and who is smart and who is not, I would still put my money on the politicians.
Anyway, professor Koh.
(CROSSTALK)
KOH: Chris, your statement the buck stops with the president, if the president is obeying the law and if the president has some facts to support what he is doing, instead of relying on stereotyping or discrimination.
(CROSSTALK)
MATTHEWS: I agree. I agree with that.
But the day after we have this ruling, the person responsible for the safety of this country is not the judges. It`s the president. He is responsible, or she is responsible if it`s a woman. They are responsible for the protection of this country, if they obey the law.
I agree with that. But this consequential -- we have to observe the consequence here. Michael Dukakis was a good public servant. And he believed in this furlough program for prisoners in prison for life. And he thought that was a good policy. And Willie Horton got out and raped a woman.
And you know what? In the end, the public said they should not have let the guy out.
(CROSSTALK)
KOH: Where does the president`s power come from? Where does the president`s power come from?
MATTHEWS: It come from the Constitution under Article II. I understand completely.
KOH: Yes. And who has the last word on the Constitution?
MATTHEWS: The Supreme Court under judicial review since Marbury vs. Madison. I agree with you.
KOH: Exactly, Chris.
MATTHEWS: But to hear the court talking about policy, I wonder if they`re beyond their ken.
(CROSSTALK)
RIVKIN: The Constitution does not provide for judicial analysis of every single issue. There`s a body of case law that has to do with standing that limits who can bring cases and controversies, body of law when it comes to a political question doctrine that says that some issues are free from judicial discernment.
It is an utter exaggeration and violation of our structural separation of power provisions to say the courts have the last standing on everything. And, to me, frankly, it is risible to argue that somehow judges are better able to assess the threat.
(CROSSTALK)
MATTHEWS: David, you said before we went on that you think that your side will win this argument in the courts.
RIVKIN: Yes. I actually am optimistic about the Ninth Circuit. And I`m certainly optimistic about the Supreme Court.
MATTHEWS: OK.
Professor Koh, you believe your side will win. That`s sort of the way we do things. We`re looking at who is going to win.
Professor Koh, again, you believe that the administration will win this case?
KOH: The majority of the courts that have ruled, the vast majority, have - - on this, judges, have ruled against the president.
Remember this, Chris. Donald Trump is a private citizen. He became citizen. His power comes from the Constitution and the law. If he violates the law, and the court says you`re violating the law, he can`t do it.
(CROSSTALK)
KOH: So, on this, the courts are the last word.
RIVKIN: This is not how this works.
(CROSSTALK)
MATTHEWS: I`m going to have to cut this off.
Please come back, gentlemen.
Professor Koh, thank you. I agree with you completely, except that I worry about policy decisions made by judges.
David Rivkin, thank you, sir.
Let`s get to the politics of this fight. The states of Washington and Minnesota have sued to block President Trump`s travel ban, arguing that the ban discriminates against Muslims. They are citing the president`s own controversial and inflammatory language we all have heard during the campaign. They are using it as evidence in court.
Historically, the courts have given the president broad leeway when it comes to immigration and national security policy. Critics say President Trump is using fear to pressure the judiciary and gin up support behind his policy.
Well, on Saturday, President Trump tweeted: "The opinion of this so-called judge, which essentially takes law enforcement away from our country, is ridiculous and will be overturned. What is our country coming to when a judge can halt a homeland security travel ban and anyone, even with bad intentions, can come into the United States? Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision."
Well, though the judiciary tends to side with the executive in this cases, some say Trump`s words could come back to haunt him before the court.
As "The Washington Post" writes today: "No one apparently gave him anything like a Miranda warning. Anything he says can and will be used against him in a court of law."
Well, U.S. Senator Amy Klobuchar is a Democrat from Minnesota and an attorney. And she joins us now.
SEN. AMY KLOBUCHAR (D), MINNESOTA: Thanks, Chris.
MATTHEWS: Senator, a couple points.
Consequence of legal decisions. If the court rules the president is beyond his bounds, and this does involve an Establishment Clause violation because it does involve singling out a religion for a ban on travel, where does that lead us that says Trump is wrong, but then who does set the policy on illegal or dangerous immigrants coming into this country?
Who is responsible, the courts or the president? Subsequent to a decision, doesn`t it go back to him?
KLOBUCHAR: The president is responsible for national security, Chris. I think you have articulated that well.
But there are three equal branches of government. And Congress in many ways gets involved as well. So, if this were to happen, I think the administration needs to look at, what are the biometrics and technology they want to add? Do they want to add more vetting?
Obviously, we have really upgraded the vetting over the years for these refugees. And, by the way, it`s not just the seven countries for the refugees. It`s from everywhere in the world.
We have a 4-year-old toddler that we were finally able to get through since the order. So, if this happens, then he simply will have to do what I think he should have done in the first place, is work with people, figure out what he wants to add with vetting. If he has actual threats of people from these countries, and he wants to change some things and do some things, good.
But I think what happened here is, this was so rashly drafted that, in fact, the next day...
MATTHEWS: I agree, but -- OK.
KLOBUCHAR: ... they came in and said, oh, it doesn`t include green card people.
Well, I`m glad that they did that, but that actually became one of the arguments here. You can`t just change what the order meant originally. And it just shows how many difficulties there are with this order under the law.
MATTHEWS: OK. Let`s talk about the fact, though. let`s talk about two options here.
If the Ninth Circuit, which is the most liberal court in the country on every cultural or political issue that I can think of -- it`s a liberal circuit court. And this administration is very unlucky to have found itself in that court, but they are in there, and they going to rule on this appeal.
My question is, if they go with the government on this, they go with the Justice Department on this, and they basically end the ban coming out of Washington State and Minnesota, what will you think of that? Will you think that was a mistake by the court or you think it`s something that has to be remedied some other way? Or will you say, presidents probably have to make these big decisions, that`s why we have elections?
How will you react to it as a lawmaker, if it goes the other way, if it goes the other way?
(CROSSTALK)
KLOBUCHAR: OK.
If it goes the other way, two things. Number one, I would like to get the administration to simply admit that this has not worked. As Rob Portman, Republican senator said, the vetting rule wasn`t vetted. There are children, there are people that are caught in transit, and they need to fix it.
Secondly, the Congress, we do have a bill, and right now, it is Democratic bill, but to repeal the ban. And Congress should get involved. We have a duty here, I believe, to get involved and to work with the people in our states.
So, those are two ways to change this that don`t involve the courts. But I think you`re going to continue to see court cases and individual rights asserted, because this is a constitutional issue, as well as a security issue.
I always believe the number one focus of government should be people`s safety. But, as you can see from a number of national security experts, says this actually doesn`t make us safer because of the way it was done.
MATTHEWS: How do we predict where the next terrorist is going to come from? The attorneys go by precedent. Professor Koh talked precedent. There`s no example of these seven countries yielding terror.
But we know that Somalia is a dangerous country. We know it is. We know that Hezbollah is supported entirely by Iran. We know these groups are international. They are mobile. But they come from different countries. We know Sirhan Sirhan, probably the first terrorist of the modern era, killed Bobby Kennedy. He came from Palestine.
So, he was Palestinian or Jordanian at the time. So, my just -- question is, how do you know? How do you know which country is going to hit us next?
KLOBUCHAR: You do everything, you do use every tool you can for the vetting process.
MATTHEWS: Isn`t that the president`s call to figure out which -- isn`t it the president`s essential call?
If this were Barack Obama, wouldn`t you trust him to decide where our threats were coming from, if it were Obama?
KLOBUCHAR: If Barack Obama did upgrade the vetting process, and we have done a number of things..
MATTHEWS: But he focused on the -- particularly, he focused on those seven countries.
KLOBUCHAR: If -- Barack Obama and the administration and the Congress have worked on this now to change our vetting process, acknowledging there`s a lot of people out there want to do us harm.
But I don`t believe that this means that we should throw out our entire refugee program, which is basically what this did for a period of time, for any country in the world. I don`t believe that this was the right way it go.
Instead of working with people to see what changes the president wanted to make, instead, they put in this complete ban. And they caused chaos throughout the world.
And it`s no surprise to me that they are now looking at trying to change it and saying, well, it doesn`t interpret it to do this, we`re going to use this exception for that.
And, instead, I think they are better off starting from scratch here, working with all of the law enforcement and agencies and General Kelly at Homeland Security. And that would be the smartest thing to do.
MATTHEWS: Well, I wish you well.
KLOBUCHAR: But, meanwhile, we will wait to see what the courts say.
MATTHEWS: I wish you well. Always the better way, legislation with the president. Going about it rationally. Thank you.
KLOBUCHAR: I can see you love lawyers, Chris. I can see you just law the law.
(CROSSTALK)
MATTHEWS: I`m with Scalia on one thing. I like laws, not interpretations.
KLOBUCHAR: And there`s no better thing for you to cover than a three- judge, telephoned-in court hearing. But you have done with it much class.
MATTHEWS: Well, they`re very smart, these guys.
Anyway, thank you very much, Senator Amy Klobuchar of Minnesota.
KLOBUCHAR: Yes. Thank you.
MATTHEWS: As this legal fight goes on, President Trump is also accusing the media, of course, as he always does, of intentionally downplaying terrorists threat. And this is he told U.S. military personnel yesterday at MacDill Air Force Base in Tampa.
(BEGIN VIDEO CLIP)
DONALD TRUMP (R), PRESIDENT OF THE UNITED STATES: It`s gotten to a point where it`s not even being reported, and in many cases the very, very dishonest press doesn`t want to report it. They have their reasons, and you understand that.
(END VIDEO CLIP)
MATTHEWS: Well, that`s absolute nonsense. The press covers every terrorist act it even hears about, but we can`t take care of ones that didn`t happen. That`s a problem for us, I guess. We don`t know what didn`t happen, so we can`t report it wrongly.
Anyway, now U.S. Congressman Bill Johnson from Ohio, Republican.
Thank you, Mr. Johnson.
Congressman, just respond to what you have been hearing here from both attorneys and the arguments we have had on this program.
REP. BILL JOHNSON (R), OHIO: Well, Chris, I think you have been making some of the very points that I would make.
Ultimately, it`s one person in this country that gets to make these decisions under our Constitution. And it`s the president of the United States. And even the courts have affirmed that.
In Harisiades vs. Shaughnessy, the court ruled that no court, unless explicitly indicated in law, is to review the political branch of government`s decision to allow or disallow aliens to come into the United States.
So, I think you have made the point very clear, Chris, and I have agreed with much of what you have said, that it`s the president`s responsibility to support and defend the United States. He has access to the classified information. It`s his decision.
MATTHEWS: Well, my concern is, I have to admit, it`s policy, because, in the end, the judges are not going to make policy. They can criticize and they can restrict it appropriately under the Constitution.
But the dangerous thing we fall into here -- and I haven`t seen this happen before -- there`s going to be question now of who is calling the shots in foreign policy and national security policy. It`s on Trump`s desk. You don`t have to like him. You don`t have to like the fact he won. You don`t have to like anything.
But we only have one president. And they have to decide how to defend this country. And we start hamstringing that ineffectively. Now, maybe -- inappropriately. Now, maybe you could argue that this is something that has to be stopped in its tracks, that this is so unconstitutional, we can`t let it go any further.
But I would think there`s an argument that Trump has. He can say, these countries have been selected out before as dangerous. We can`t predict a country that hit us before will hit us again. Muhammad Ali (sic) come from Egypt. His hoods or his -- his goons came from Saudi Arabia.
Maybe you should go with -- do you think it`s more -- I will just throw it to you. Would it have made more sense for him to go over the countries that have hit us to start with, rather than select another seven to go after?
JOHNSON: Well, I think you have to go back to what Judge Robart said.
MATTHEWS: Why didn`t he name -- why didn`t he -- why didn`t he name Egypt.
(CROSSTALK)
MATTHEWS: That they select another 70 go after.
BILL JOHNSON, (R) OHIO: Well, I think you have to go back to what Judge Robart want to say.
MATTHEWS: Why do they name -- why they didn`t name the age of principle? Why didn`t trump name Egypt?
(CROSSTALK)
JOHNSON: Because he had authority.
MATTHEWS: Most of those guys --.
(CROSSTALK)
MATTHEWS: -- most of those guys came from Egypt. I mean they have --.
(CROSSTALK)
JOHNSON: Because he had the authority of the law on his side. Chris, the house -- I mean the Senate Judiciary Committee conducted an analysis. And, you know there have been over 500 people not only arrested but tried and convicted for terrorist acts in the United States. Over 380 of those people, Chris, were found to have been foreign born. And 60 of those people arrested, tried, and convicted came from those seven countries. So for Judge Robart of for anyone one to say that there`s no evidence that those countries aren`t a threat, that`s just simply inaccurate.
MATTHEWS: OK, we have to go overall of that. U.S. Congressman, Bill Johnson, Ohio, thank you for coming on. By the way, we continue to cover the arguments tonight over president Trump travel ban at the ninth circuit court of appeals. And where, the legal fight goes on as president Obama argument. I guess I wish you were still here. President Trump tries to use fear in the means of terrorism to win the argument. This is "Hardball" where the action is.
(COMMERCIAL BREAK)
MATTHEWS: Welcome back to "Hardball", President Trump is only been on office now for 19 days seems like longer, doesn`t it? But his administration is currently fighting off a legal challenge, we`ve been talking about that could affect hundreds of thousands of people and the direction of his presidency for years to come.
In typical Trump fashion he refuses to bag down. This is stubborn fella. On Saturday, he went after the White House in State Judge, he say to White House judge, who order that hole on his executive order tweeting, "Just cannot believe a judge would put our country in such a peril. If something happens, blame him in court system. People pouring in, bad."
And it`s like, I don`t know what a third language coming here now. For more in the political ramification of this legal final jam (ph), very smart people, the roundtable tonight, former RNC Chair and then MSNBC Political Analyst Michael Steele, Susan Page Washington Bureau of Chief for USA Today, and Eugene Robinson, Columnist for the Washington Post and also an MSNBC Contributor.
Gene, let me ask you about the whole world view of this.
EUGENE ROBINSON, MSNBC POLITICAL ANALYST: Yeah.
MATTHEWS: Trump has been presenting a scary view of the world.
ROBINSON: Yeah, I`m sure.
MATTHEWS: He`s astonished (ph) since the day he took the oath. He wants us to fear that we have to circle the wagons within all these extreme measures almost go under martial law.
ROBINSON: Yeah, well that was --.
MATTHEWS: But why does he do that? And why -- how does it fit to seven country ban?
ROBINSON: Well, that was the tenure of this whole campaign. I alone can fix it. I, you know, you`re the murderers and rapist. And I mean it was a very dark sort of picture of America. And he portrays himself as the savior. I thought this argument was just accelerating today. I really did. And it seem to me, you saw the back and forth. You saw them go after the governments, lawyer and then go after the states lawyer pretty tough in both cases. It seems to me that perhaps the hinge on whether or not, it is in fact a Muslim ban because while the great majority of Muslims are uneffected they don`t move in those seven countries.
MATTHEWS: That was a good point that the guy made from Washington. From that way, he keep saying that D.C., the guy from D.C..
ROBINSON: Yeah, it`s true that the great majority of Muslims are not affected, however almost a 100 percent of those affected are Muslims. So you couldn`t -- like if you were going to ban Christians.
MATTHEWS: Yeah.
ROBINSON: And you said, oh I`m just banning that if that`s OK. That would not be okay. That would not be acceptable under the constitution. So it`s subs --.
(CROSSTALK)
MATTHEWS: Well, you know, the argument that they make since.
ROBINSON: -- but they`re all Muslims.
MATTHEWS: And they make the argument, it`s not a Muslim ban because we don`t stood all Muslims. Therefore, it`s not a Muslim ban.
ROBINSON: Right.
MATTHEWS: It just sound Muslim ban.
SUSAN PAGE, WASHINGTON BUREAU OF CHIEF FOR USA TODAY: So it was --.
(CROSSTALK)
MATTHEWS: It was adamant (ph), with just ban that you`re picking --.
(CROSSTALK)
MATTHEWS: -- we have a club in vet, it made 80 percent of people, this Muslim is (inaudible), they`re coming in against but not -- I`m sorry, you don`t discriminate again and say, they proceed. But it does around about 20 percent. Is that a ban? I don`t know. I think it is.
PAGE: But, you know, you saw them, you -- to some degree I think the justice just may have been doing -- being a double as advocate in some cases when they were across to keep certain.
MATTHEWS: That`s what I do.
PAGE: It`s hard to affirm conclusions, right. But there was one point where the female justice through a lifeline I thought do they do that.
(CROSSTALK)
PAGE: Because, I think, don`t you have some exhibits that show that.
(CROSSTALK)
PAGE: Yes, right, we do some exhibits in all that point whether this was seen envision motivated originally as a Muslim ban.
MATTHEWS: What was it?
MICHAEL STEELE, MSNBC POLITICAL ANALYST: We answer this that all of this was easily avoidable.
ROBINSON: Yeah.
STEELE: If -- just take aside saving and running it through the vetting process internally with the various agencies to make sure you got only basis covered. But once you put that out there, and it`s very clear that, oops, we didn`t mean to include those, you know, who have legal residents, who have green cards, et cetera, just pull the E.O., use your eraser, erase those lines.
ROBINSON: Yeah, right.
STEELE: Well, that`s not Trump.
(CROSSTALK)
STEELE: Trump doesn`t do that.
ROBINSON: And then you don`t have a lawsuit because as you`ve heard in the arguments here and as a lot of scholars have said absent those provisions, this covers a lot of ground.
MATTHEWS: So we say for confrontation (ph). We -- I mean for the production loss due process. We guarantee that under the 5th amendment I`ve learned, not just the 14th at the civil war. But we will guarantee the right to persons. But it seems to be the one I read it, it`s people who are here.
ROBINSON: Right.
MATTHEWS: If you somewhere in Afghanistan, you`d like to come to America and you`ve never been here, no routings here, you don`t really qualify as a person yet. It`s just seem -- how does that work?
ROBINSON: Well, I think that --.
MATTHEWS: What do you see from --.
(CROSSTALK)
ROBINSON: -- I`m sorry, I`m not a lawyer.
MATTHEWS: -- what is due process mean?
ROBINSON: I think not necessarily but the state was asserting, standing on the basis that its Universities were harmed.
MATTHEWS: Yeah.
ROBINSON: The University which, you know, are harmed by the Muslim ban. In other words, it was asserting its standing under harm to the state and its entities rather than asserting harm to. But the State also argued but if we wanted, we could assert arm to those people were coming in too.
MATTHEWS: Yeah.
STEELE: Well, and the reason for that was because those people who are coming in, let`s say, the students, they are under the protection. They have the right because they have a card. They have authority to be here. And then, the constitution attaches to them.
MATTHEWS: OK.
ROBINSON: So they can make that. They can make the dual argument not only we, as an institutional harm because those individuals aren`t allowed back in.
ROBINSON: Right.
STEELE: But those individuals are harmed and we are making that argument on their behalf.
MATTHEWS: Excuse me.
STEELE: Yes sir.
MATTHEWS: I`m just coming a little choppiness (ph) to here. I get a little --.
(CROSSTALK)
STEELE: Right, what`s that?
MATTHEWS: Why don`t we push our kids to be engineers too?
ROBINSON: Well, we can do that.
MATTHEWS: Why do we have the things that we got an imported challenges --.
(CROSSTALK)
MATTHEWS: I mean I think it`s great to import before around the world because that edge to our kids. And Tom Friedman here, he say, but it would be nice to know that we did have a inability to learn engineering here, wouldn`t it?
PAGE: You know, I think that`s an argument for another day.
MATTHEWS: OK, fine. Michael, I`m being restricted here. Michael, Susan, Eugene, we`ll be right back. Just stay within our coverage with the legal and political fight over president Obama`s immigration ban obviously continues later in this program. We`re going to come back and talk about. Plus, the story confirmation day of Betsy DeVos for Secretary of Education, that`s coming up. She`s the first person or any person to ever be confirmed because the vice president jumped in and broke the tie. You`re watching "Hardball" where the action is.
(COMMERCIAL BREAK)
MATTHEWS: Let`s continue, we continue to follow the oral arguments over president Trump`s travel ban. They just wrap up of course with the ninth circuit of appeals. But earlier today, in the historic moment at the United States senate, vice president Mike Pence, there he is, was called in to break the tie to confirm Trump`s pick for Education Secretary, Betsy DeVos.
It`s the first time that`s happened for a county confirmation ever. Two republicans voted against DeVos causing a 50-50 split between the parties right down the aisle. They`re requiring Pence to put DeVos over the top. DeVos was sworn in late today. And now the Senate moves to consider Jeff Sessions for attorney general. Senate democrats are mounting another talkathon tonight. They`re trying to derail his nomination for the Sessions. Of course the member of the senate is expected to be confirmed. I will be right back.
(COMMERCIAL BREAK)
MATTHEWS: We`re back with the "Hardball" roundtable, Michael Steele, Susan Page and Eugene Robinson. For me, setting this time, what happens in there? How big are the stakes in terms of our constitution, our country which way this goes in the courts?
STEELE: I think it`s pretty big. I know administration wants resolution obviously in its favor but he wants a definitive answer, so it can then project out into other things.
(CROSSTALK)
MATTHEWS: Is it win-win for them if they blame it on the court?
STEELE: It`s a win-win for them.
(CROSSTALK)
STEELE: Because this going to get to the Supreme Court one way or the other.
MATTHEWS: And they`ll blame it on the judges if they don`t get their way.
PAGE: And it will take some time, though. And with that, a court case is going in multiple states. This is going to be answer, it seems to me, it`s not going to get settle tonight or tomorrow morning.
MATTHEWS: What happens if it goes against the administration? What will that say about our future and their future as a presidency?
PAGE: I think it says that Trump overreached and they paid the price for the kind of messy rollout failure to consult that marked this --.
(CROSSTALK)
MATTHEWS: Does it hurt Bannon? Does it hurt Steve Bannon help Reince Priebus?
PAGE: Well, I mean that`s up to the president. I think the president probably thinks it reflects on the court, not on him.
ROBINSON: Right. I think that this panel`s ruling is important because they are supposed to look at what do they think is the ultimate were going to happen with the case, right? I mean that sort of one of the things they take into consideration, but it certainly not this dispositive of that. And so, we`ll see which way they go.
MATTHEWS: So it goes back to Washington State?
(CROSSTALK)
ROBINSON: It could go back to the district judge, the federal judge in Washington who made the first ruling.
MATTHEWS: OK, we`ll be right back with Michael, Susan, Eugene, you`re watching "Hardball" where the action is.
(COMMERCIAL BREAK)
MATTHEWS: I want to thank Michael Steele, Susan Page and Eugene Robinson. That`s "Hardball" for now. Thanks for being with us. All In with Chris Hayes, right now.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END Harold Koh, Amy Klobuchar, Bill Johnson, David Rivkin, Bill Johnson, Susan Page, Eugene Robinson, Michael Steele