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For the Record with Greta, transcript 1/31/2017

Guests: Peter Alexander, Chris Coons, Mark Halperin, Jeffrey Rosen, JohnNeely Kennedy, Ron Desantis, Amy Walter, Heidi Przybyla, McKay Coppins

Show: FOR THE RECORD Date: January 31, 2017 Guest: Peter Alexander, Chris Coons, Mark Halperin, Jeffrey Rosen, John Neely Kennedy, Ron Desantis, Amy Walter, Heidi Przybyla, McKay Coppins  (JOINED IN PROGRESS)

GRETA VAN SUSTEREN, FOR THE RECORD HOST: Breaking news and it is non-stop.  President Trump in just a short time will announce to the nation his nominee to the Supreme Court, and no matter who he name this will be, not could be, but this will be a bruising political battle that could go nuclear.  And right now at the White House we are expecting the arrival of congressional leaders and perhaps the nominee himself.  Our cameras are watching.  We`ll go there live.

Also, defending the Trump executive order, the head of homeland security grilled by the press about what he did and didn`t know about the controversial plan for Muslim refugees.  And that`s not all, Democrats in congress boycotting hearings, delaying votes, throwing sand in the gears of government, are they playing politics or standing up for principal.

Tonight is the night, and we are standing by for the big announcements.  President Trump will soon announce his Supreme Court nominee, and you can expect that could ignite the biggest political fight in years.  And you`re looking at live picture of the White House where President Trump has invited a host of VIP`s to meet his nominee.  Now, NBC News has learned, Trump`s list is down to two candidates, a person familiar with the process tells NBC both the candidates were given the opportunity to come to D.C. for the announcement.  And we are learning tonight that perhaps both nominees will be in the room tonight, Neil Gorsuch for the 10th circuit court of appeals, and Thomas Hardiman for the 3rd circuit court of appeals.  As candidate and President, Mr. Trump often talked about his priorities for the court.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES OF AMERICA: I think that every person that I`ll pick will be big, big -- I think people are going to love it.  I think Evangelicals, Christians will love my pick and will be represented very, very fairly. 

Well, if that would happen because I am pro-life and I will be appointing pro-life judges.

A person who is unbelievable highly respected, and I think you will be very impressed with this person.


VAN SUSTEREN: Democrats are already ramping up their opposition to the Trump`s White House by boycotting hearings, delaying votes on several Trumps` nominees.  Senator Schumer spoke out on President Trump`s nominee.


CHUCK SCHUMER, U.S. SENATOR: We want a mainstream nominee who gets bipartisan support.  We hope that will happen tonight, we`ll see.  That`s all I`m going to say on that.  Sixty should stay on the Supreme Court, and the reason for this is simple, we thought it such an important position that it ought to be bipartisan and mainstream in terms of the nominees.


VAN SUSTEREN: NBC`s Peter Alexander joins us from the White House.  Peter?

PETER ALEXANDER, NBC NEWS: Hi, Greta.  You set the table well for this, the White House is teasing this effectively as sort of primetime contest.  We`re told that President Trump invited both finalist, judges Gorsuch and Hardiman to Washington for what is a rare evening event.  We do not know for certain that they are both here.  Just a short time ago I spoke with a senior White House official they have been very explicitly trying to build up the drama surrounding this pick.  This official indicated coyly that right up until the announcement that 8:00 tonight at eastern, it may not be clear who President Trump is going with.  He won`t rule out that both judges could be there in the east room.  What`s also not clear is whether one or both of the judges will be here at the White House at all for a reception that`s going to take place about an hour from now.  Among those expected the Republican senate majority leader, Mitch McConnell, Chuck Grassley, he obviously is the chairman of the senate judiciary committee.  We`ve just learned that House Speaker Paul Ryan will also be there for the announcement, but he won`t be there for the earlier reception.  Democrats include Chuck Schumer, Dick Durbin, and Diane Feinstein, they`re all invited, we`re told they have all declined.  Senator Durbin explained his decisions to pass just a short time ago.  Take a listen.


DICK DURBIN, U.S. SENATOR: I don`t want to be standing there in the crowd when they pull back the curtain to say here is your nominee.  Let`s do this is an orderly fashion.  I want to learn who it is.  I want to learn more about them.  I want to ask the right questions.  I just don`t think this was appropriate roll out if you will of the Supreme Court nominee.


ALEXANDER: That was Dick Durbin just a short time.  In the past the name of the nominee certainly would have leaked by now, but the White House as we say is loving the suspense, Greta.  We`ve been getting sort of conflicting hints all day long about who it maybe.  The senior aid I spoke to a short time ago tells me fewer than five people know for certain who that choice is, back to you.

VAN SUSTEREN: Peter, thank you.  Senator Chris Coons is a Democrat from the great state of Delaware.  He served on the senate judiciary committee and will vote on President Trump`s nominee.  Nice to see you, senator.

CHRIS COONS, U.S. SENATOR: Great to be with you, Greta.

VAN SUSTEREN: Senator -- look, we`re all expecting that this is going to be a showdown in the senate judiciary committee, that the Democrats have drawn a line in the sand.  Republicans, likewise, have drawn a line in the sand, your thoughts about that?

COONS: Well, first, I have to say that the idea that somehow there`s going to be both of the finalist, both the circuit court judges at the White House tonight for some sort of celebrity apprentice final reveal.  It`s a little unsettling.  A nomination for the Supreme Court of the United States is one of the most important consequential decision any senator will make, a vote on that confirmation.  And it is my hope and expectation that the senate judiciary committee will give President Trump`s nominee the thorough consideration and the complete hearings that Chief Judge Merrick Garland of the D.C. circuit, President Obama nominee to the Supreme Court vacancy never got.

VAN SUSTEREN: I actually agree with you on the Judge Merrick Garland nomination.  Because I`ve always thought that Republicans if they didn`t want him they should just vote no, but then at least he deserved a hearing, that the constitution said that the president, then President Obama had an obligation to appoint someone, to nominate someone, but I was actually disappointed on that.  But based on that are the Democrats going to take revenge for that?

COONS: Well, I can`t speak for all my colleagues.  I won`t.  I do think it`s important for us to remind the American people that this is someway a stolen seat, that this is a seat that should have been filled in the last year by President Obama.  And I urge President Obama shortly after Justice Scalia passed away to nominate someone who was confirmable, who is a centrist, who is in the mainstream of American legal thinking, and D.C. circuit Chief Judge Merrick Garland certainly was that.  I had a chance to get to know him through a number of interviews and reading through his background, but the American people didn`t.  We never had that hearing, the majority in the senate led by Senator Mitch McConnell, steadfastly refused to give him a hearing at any point in time.  And I think that disrespects both the constitution and our process here in the senate and the American people.

VAN SUSTEREN: Senator Schumer just said and the sound that we played that he`s looking for a mainstream candidate.  Judge Hardiman who comes from the 3rd circuit was nominated in 2007, and then Senator Schumer, and then Senator Obama, and then Senator Feinstein voted for his nomination to the 3rd circuit.  Is there a different standard or to what is sort of mainstream when you go to the Supreme Court, or do you expect their vote to be essentially the same?

COONS: Well, there`s certainly a different level of significance and importance through the Supreme Court justice.  Especially with a court that has been so evenly divided in recent decision and in recent terms of the court.  I know that we all look very closely as circuit nominees.  We review their records.  We interview them.  I`ve chaired a number of confirmation hearings in my first four years in the senate when we were in the majority on the judiciary committee.  But a Supreme Court nominee has its special importance because only the most difficult and complicated and consequential legal decisions make it all the way to the Supreme Court.  So I do think you will see some different votes, and it`s my hope that all of my colleagues will keep an open mind, and that Republicans will agree to give us the opportunity to thoroughly vet this candidate, to thoroughly understand this nominee, to research their background, to hear from witnesses on both in support and opposition, and to have a full and thorough nomination hearing process.

VAN SUSTEREN: And just a note to the viewers, we are watching the White House because we`re expecting the congressional members to join the reception and we may even catch the nominees slipping in to the White House, so we`re watching the doors.  Senator, you live by the sword, you die by the sword, and the nuclear option which does not apply to Supreme Court justices, but the Republicans could change that.  Senator Harry Reid change the nuclear option a few years back, you know, do you regret that Senator Harry Reid did that?

COONS: Well, what I regret was that there was so much Republican obstruction that so many district court seats were not filled for months and years, and so many senior position in the Obama administration were left unfilled for months and months because of Republicans obstruction.  That ultimately, majority leader Harry Reid and President Obama urged us to take the unprecedented steps of changing the filibuster for the confirmation of district court judges and senior executive position.

VAN SUSTEREN: But don`t you see -- I mean, that`s sort of the cycle that can`t seem to be broken here because if three of these senior senators thought that Judge Hardiman, if he`s a nominee, was a mainstream for the circuit court, if they change their mind now, it does looks sort of like there` sort of an obstructionist circle.

COONS: Well, I think, Greta, we all face a higher test in burden to explain and to articulate our votes, particularly on this consequential nominee for the U.S. Supreme Court.  We do have to say we`re in a different political environment today than we`ve been in recent years.  We have a different sort of president.  In the first 12 days of the Trump administration has put many on my home state on edge with a series of executive order that have led to some real uneasiness, some unhappiness, even in some cases chaos in our airports.  As folks have tried to understand and implementing and comply with an executive order that I think is unprecedented.  And certainly, Sally Yates, the acting attorney general until last night, believe was not defensible.

VAN SUSTEREN: Senator, thank you for joining us.

COONS: Thank you.

VAN SUSTEREN: Mark Halperin is a political analyst, co-author of Game Change, executive producer of the new show, Time documentary, Trumped inside the greatest political upset of all-time.  Nice to see you, Mark.


VAN SUSTEREN: Pick picture, what does this mean politically?

HALPERIN: Well, a lot of the Trump administration so far has not looked like normal Washington.  This fight is likely to largely look like what has become the norm for Supreme Court nominees.  President will announce someone tonight.  It would be someone who most conservatives will look at and say great, trustworthy, this is not -- this is a Scalia not a suitor.  Democratic senators, some will feel enormous pressure to come at instantly for the nominee.  Others will say, as Senator Coons just -- let`s look.  When we hear the nominee speaks tonight it would be first time almost many Americans has heard from them, people going to get to know what they`re like.  Are they pleasing in their demeanor like John Roberts?  And what is the opposition research, that`s the big next step.  Can Democrats find things in their background, hopefully ideological for the sake of the country, not personal, but can they find things that they can then use to try to derail the nomination.

VAN SUSTEREN: But we really haven`t gotten the point.  I fully expect during the hearings, I going to find out what the nominee got in conduct in first, second and third grade, which is absolutely irrelevant.  But the level of scrutiny and the sort of the meanness of obstructionist in both sides of the aisle, and they`re both guilty on this, both side.  If the shoe on the other foot, if it would be President Hillary Clinton we would have the same spat.

HALPERIN: The challenge for Washington to be less partisan, on one level if Donald Trump got elected not to holding either party, people thought maybe he`ll be the guy to make bipartisan deals.  It`s not going to happen on the court.  The extraordinary energy on the left now to block either of the these nominees or pretty much anyone on the list that Donald Trump will add to the campaign will be the first volley.  Then it`s going to be up to Republicans to either pressure enough Democrats to not join a filibuster or to go with the nuclear option.

VAN SUSTEREN: Do you think it`s possible that some Democrats could be pressured by the Republicans not to -- I mean, to join and vote for this nominees?

HALPERIN: Well, maybe not vote for the nominee, but maybe not to support a filibuster.  You know, there is an exact number of Red States Democratic senators up for reelection in two years that the White House would need to flip and say we`re not going to support, we`re going to break a filibuster.  The Democratic senators across will come under that pressure.  The White House has to hope the nominee is someone who the public likes, and then I suspect the White House will engage in their supporters in a kind of pressure you see.  They`ll go to Montana or go to Missouri.  They`ll go to states that Donald Trump won and they`ll try to build support and pressure those Democratic senators.  It`s going to be tough though because they need pretty much every getable Democratic senator to break a filibuster.

VAN SUSTEREN: All right.  Well, this is far more important position prior than the president of the congress in many ways because this is a lifelong appointment.  And the fact -- I mean, it`s possible that both of them will be there.  I actually agree with Senator Coons, you don`t have to make it look like a gameshow, or like the apprentice.  I know we`re doing that, or if the White House is doing that, I don`t know who`s creation is, but this is such a somber part of our governing.

HALPERIN: Well, you know, it`s a co-equal branch and -- it`s important to remember, whoever it is, is replacing Scalia, so while we no longer have those 4 to 4 ties, in most cases, it doesn`t change the balance of power in the court.  The big one would be the next one presuming that either Justice Kennedy, the classic swing-vote on the court now, or one of the more liberal justices, this one is important but the next one is more important.

VAN SUSTEREN: What does it say about Schumer and McConnell?  What`s their job on this?

HALPERIN: Well, look, those are guys who don`t want their entire life fighting over the Supreme Court.  But this is the thing that energizes the activist, this is a classic thing.  Most of the country would prefer the focus of the government to be on jobs and other things, but activist on the left, activist on the right, the Supreme Court fights in way interest groups raise money, it`s the way senators prove themselves to the most loyal supporters in the party.  So, it`s become a really unfortunate part of American life.  And I don`t see this one breaking the law in June.

VAN SUSTEREN: All right.  You followed Donald Trump, the new president too closely, what do you think that Trump is thinking tonight on all of this?

HALPERIN: Well, he loves surprise.  I`ve been surprise myself that they made it clear who the two finalist were.  I don`t see why they did that if they wanted it to be a surprise.  I don`t know that the country is thinking about this like these two guys have not captured the public imagination.  Even for insiders, you know, their records, their bios are different, but their record is pretty similar.  And I think he`ll be happy if it stays a secret until 8:00.  And I think he likes legacy, and if he can be the guy who remakes the Supreme Court, he`ll like that because he wants to be an important president that`s really key to his thinking about whether they`ll all be a successful -- this will be a successful endeavor for him or not.

VAN SUSTEREN: Mark, thank you.

HALPERIN: Greta, great to see you.

VAN SUSTEREN:  Jeffrey Rosen is president and CEO of the National Constitution Center and a professor at George Washington University Law School.  Nice to see you.  And the two candidates, at least we think they are, Gorsuch and Hardiman can you compare and contrast them for me?  Mark just said they`ve got a lot in common essentially, but what the difference?

JEFFREY ROSEN, PRESIDENT AND CEO OF THE NATIONAL CONSTITUTION CENTER: Mark is absolutely right.  But on the bottom line votes they might be similar, but they`re quite different in disposition.  Gorsuch is the nation`s leading conservative legal intellectual.  If there were a successor to Justice Scalia it would be Gorsuch.  He court for Justice Kennedy.  He`s written a fascinating book on legalizing suicide.  He has question the constitutionality of the administrative state.  And he`s likely both to have a huge influence in redefining the terms of legal debate in the nation as a whole.  And also, operating effectively within the courts in winning over Justice Anthony Kennedy for whom he clerks.  Judge Hardiman is a respected conservative.  He is well liked by his colleagues.  He has pro- law and order opinions.  He`s less outspoken than Judge Gorsuch, less of a sort of legal intellectual and has more of a blue collar background that may appeal to Trump and to his base, so both could be appealing to different aspect for that reason. 

VAN SUSTEREN: Can you fold into this analysis the nominee who didn`t get a hearing, Judge Merrick Garland, where would have he served fit in this spectrum?

ROSEN: Well, Judge Garland is more like Judge Gorsuch in the similarity of their background.  They both went to Harvard Law School.  They have the most elite background.  They excelled on the law review, and in that sense they`re more alike than Judge Hardiman is.  But Judge Garland is definitely more liberal than Gorsuch.  The court will look very different under Gorsuch than Garland, and for that reason the election had a huge difference.

VAN SUSTEREN: And I might add you keep mentioning Harvard as Hardiman went to my alma mater so -- I`ve got to give him a plug for that.

ROSEN: Absolutely, much better.

VAN SUSTEREN: I mean after all that -- Harvard, Gorsuch.  All right.  Why do you think Trump focus on these two?  I mean he has a long list of about 10 or 15.

ROSEN: He choose what he really meant what he said during the campaign when he wanted a nominee who is acceptable to conservative Republican senators and representatives.  And also to groups like the federal society, the heritage organization, these would be on any Republicans president`s list of the most respected Republican judges in the country.  He didn`t go off list with a Senator Ted Cruz, or a Peter Thiel, or all that sort of really out of the box thinking that he was toying with at some point.  In the end, he understands that it`s so important to the Republican base that they`re going to want a reliable conservative as Mark said is not going to be a suitor, will be a reliable Scalia, and is not going to involve in that sense he played it safe.

VAN SUSTEREN: Thanks for joining us.

ROSEN: Thank you.  It`s a pleasure.

VAN SUSTEREN: Still ahead, on tress falling around Trump`s immigration order, who knew what and when?  The homeland security chief is speaking out.  Also, speaking out House Speaker Paul Ryan, are Republicans on the same page as President Trump.  Big night, stay with us.  



TIM KAINE, U.S. SENATOR: Well, President Trump is going to nominate someone to the Supreme Court today.  And I was in the senate for one Supreme Court nomination.  The nomination of a superbly qualified jurist who received (INAUDIBLE) for Democrats and Republicans, Merrick Garland in February of 2016, who for the first time in the history of this country was not given the dignity of even be allowed to appear at a hearing before the judiciary committee, much less able to receive a vote.


VAN SUSTEREN: Senator Tim Kaine speaking out about how Republicans blocked President Obama Supreme Court pick, Judge Merrick Garland.  Well, now the shoe is on the other foot.  President Trump is set to announce his nominee just for a short time, and the question is will Democrats return the shot by blocking the nomination, and if they do how will Republicans respond?  Senator John Neely Kennedy is a Republican from Louisiana, he also served on the senate judiciary committee, and will vote on President Trump`s nominee for the U.S. Supreme Court.  Nice to see you, sir.


VAN SUSTEREN: And having just joined U.S. senate, I bet this is exciting vote for you in the judiciary.

KENNEDY: Well, it is.  I`m looking forward to the hearings.  I`m looking forward as if everyone to finding out who the president`s nominee is.  I may be the only person in the Milky Way who believes this but I`m not interested in a political brawl.  I`d like to get to know the nominee.  I`m interesting in three things, substance, process, and character.

VAN SUSTEREN: Well, in light of that, I know I can`t -- you were part of the U.S. senate for the Merrick Garland thing.  If you`re not interesting in a political brawl, and as a strict reader of the constitution, President Obama did nominate as a shell nominate, and nominate up to the Supreme Court, and then the Republican sat on it and Judge Merrick Garland never got hearing.  Is that something you would have agreed to, to prevent him from getting a hearing?

KENNEDY: Yes.  We were in the middle of a presidential election. The composition of the United States Supreme Court was a big issue in that election.  President Obama, I mean no disrespect, but he was a lame duck president.  I think Senator McConnell made the right call.

VAN SUSTEREN: Well, but on the downside of this -- I think the nomination was last February, and we`re left without a ninth justice for a long time and it was more than one decision that it had an impact on when they came up for the lower courts in terms of having been granted -- so it did have some impact.

KENNEDY: Well, I hope we`re not left without justice any longer, and there`s no reason for that.  We`re going -- I`m not interested in a political vote.  I`m not interested in a superficial hearing.  I meant what I said, Greta.  I want to learn about this gentleman or this lady, whoever he may appoints.  I want to know how he feels about Roe v. Wade, and Griswold v. Connecticut, and Terry v. Ohio.  I want to learn about his character.  I want to know if he knows the name of the person who cleans his office.  I notice that a few people around Washington seem to act if they were one of the founding fathers.  I want to know if this nominee has humility.  This is a big deal.  The American people are going to have to live with this nominee if he or she is confirmed for the rest of their natural lives.  His decisions are going to impact every American economically, socially, culturally, spiritually.  This nominee needs to be properly vetted and that`s what I`m interested in doing is giving the president my advised and consent.

VAN SUSTEREN: Senator, thank you very much.  Welcome to Washington and welcome to the U.S. senate, sir.

KENNEDY: Thanks, Greta.

VAN SUSTEREN: Ahead, as President Trump immigration order causing a rift among Republicans.  We`ve got Speaker Paul Ryan first public comments.  And was the head of homeland security kept in the loop or left out in the cold.  He took questions from the media today and told his side.



PAUL RYAN, HOUSE SPEAKER: What is happening is something that we support which is we need to pause and we need to make sure that the vetting standard is up to snuff so we can guarantee the safety and security of our country.  That is what this does.  Now I think it`s regrettable that there was some confusion on the roll out of this.  No one wanted to see people with green cards or special immigrant visa`s like translators gets caught up in all of this.


VAN SUSTEREN: House Speaker Paul Ryan on the president executive action on immigration.  Speaker Ryan also says he learned about the action around the time it was announced to the rest of us.  But political reports staffer on the house judiciary committee secretly worked on the order without telling party leaders or the judiciary chair.  House staffers also reportedly signed nondisclosure agreement.  And today, judiciary chair, Bob Goodlatte, defended those staffers saying they worked on several policies for the Trump team during the transition, and did not make any final decisions.  Congressman Ron Desantis is a Republican from Florida, who served on the house judiciary committee.  Good evening, sir.

RON DESANTIS, U.S. CONGRESSMAN: Good evening, Greta.

VAN SUSTEREN: Well, the speaker of the house says is regrettable this little confusion, and I guess that`s sort of a nice polite way to say it because, you know, a lot of people were very upset and still upset, but many took to the streets to the airport, and it`s a little bit more than confusion.

DESANTIS: Well, it was definitely a crazy weekend.  But I think the ultimate point is we don`t want these programs, although I support having a refugee program, support legal immigration.  We don`t want those -- the American people to assume risk to their safety and security.  So I want to make sure we`re doing this right.  I had the chance to meet with some of the other members today with King Abdullah of Jordan.  And he said, look, ISIS is trying to infiltrate some of the migration flows with their operatives so it is an issue. We got to get it right and I`m hoping the Trump administration does that.

GRETA VAN SUSTEREN, FOR THE RECORD HOST: Do you have objection to House judiciary staffers working on this and or should they have had permission from the chair of the committee?

DESANTIS: Well, Chairman Goodlatte, he addressed us earlier and he seemed to think the article was a little bit misleading and that he understood that they were working. You know, I`m not sure how the staff is working like you think that I have encouraged my staff to work with some of the legislative folks in the White House, because having White House support for a bill is good.

And so there is a room for collaborative process. I think generally speaking though, if you`re doing a purely executive action, it`s probably better that that`s done within the executive branch.

VAN SUSTEREN: Do you think that should be only an executive action or would you prefer that this issue be brought to the legislative branch of government, your branch?

DESANTIS: Well, it may end up being there but under existing law, the president does have broad authority that Congress has already delegated to the executive to make these types of decision about who can be entered and who cannot be entered. And so this was something that he had promised to do in the campaign and he did cite (ph) legal authority to do it.

It doesn`t mean Congress can also weigh in and maybe we will. But I think a lot of this is going to be how is the State Department and DHS actually implementing this. And the proof will ultimately be in the pudding if the migration pattern is safe, then I think everyone will be happy.

VAN SUSTEREN: There`s a lot of intrigue last night with the acting Attorney General Sally Yates issuing her memo. She was then fired and then we get the U.S. Attorney from the eastern district of Virginia now as the acting AG until Senator Sessions is confirmed, but do you think that Sally Yates, if she objected this would have been wiser to resign rather than put out the article -- the memo and get fired?

DESANTIS: Without question. The memo she put out didn`t say that she thought it was unconstitutional.

VAN SUSTEREN: She said she didn`t like it. She basically said she didn`t like it.

DESANTIS: Exactly. And so if that is -- if it violates your personal scruples, more power to you. But the absolute correct thing to do is to tender your resignation. What you can`t do is say I`m just not going to do the job that the Department of Justice is supposed to do because I don`t like it, because imagine then if her junior prosecutors decided to buck her when she said that. It just doesn`t work. So Donald Trump had no choice but to terminate her and I hope that Jeff Sessions gets confirmed very quickly.

VAN SUSTEREN: What does it say about sort of the dialogue between, I mean, I realize she`s a hold-over and she`s an acting Attorney General in the White House, you know, it`s sort of blew up in the public and you know, we`re at home so I`m hoping that things are being worked out a little bit better.

DESANTIS: Well, I think that the new administration obviously there`s some work to do but she even alluded to the Office of Legal Counsel -- that`s typically where they go and she said all they do is vet for legality and proper form, I have this special other duty --

VAN SUSTEREN: Which is sort of what -- which is sort what they`re supposed to do. I mean, they`re seeing whether it`s illegal or not and she didn`t say it was illegal, she said she didn`t like it.

DESANTIS: Exactly. And she said that she has the special duty above and beyond what OLC was. So I think traditionally, you work through the OLC. They`re very smart and they do a good job. They have a lot of institutional knowledge.

But if they say it`s good to go for an attorney general to say we`re not going to defend this in court and then just think you`re going to keep your job. There is no way that`s sustainable Republican administration or a Democrat administration.

VAN SUSTEREN: Any thoughts on the intrigued (ph) 16 blocks away at the White House as we`re waiting for the nominee and we got cameras on entrances waiting to see if the nominee slips in. Any thoughts on this intrigue (ph) tonight?

DESANTIS: Well I`ve read some of Judge Gorsuch`s opinions and extra- judicial writing on paper. He is very much in the mold of Justice Scalia and Justice Thomas. I think he has a very strong (INAUDIBLE). The question will be does he have the backbone and fortitude that Scalia and Thomas had. He might but I think only time will tell. But on paper, I think it will be hard to find somebody who measures up along the lines as Scalia was as a justice.

VAN SUSTEREN: And this year it is going to be bruising. Whoever gets nominated is in for a bruising. Anyway, congressman, thank you sire.

DESANTIS: Yes, congrats on the show, Greta.

VAN SUSTEREN: Thank you sir.

The Homeland Security chief speaking out. What did he know about the immigration executive order and when. We have some answers but we also have some more questions. Big night here on MSNBC. Stay with us.



JOHN KELL, SECRETARY, HOMELAND SECURITY: This is not a travel ban. This is a temporary pause that allows us to better review the existing refugee and visa vetting system. Over the next 30 days, we will analyze and assess the strengths and the weaknesses of our current immigration system which is the most generous in the world. This is not, I repeat, not a ban on Muslims.


VAN SUSTEREN: Homeland Security Secretary John Kelly meeting the press today to answer many unanswered questions about the implementation of President Trump`s immigration order. The big question, what did he know when did he know it?


KELLY: We did know the E.O. was coming. We had people involved in the general drafting of it. Clearly, it was -- this whole approach was part of what then candidate Trump talked about for a year or two.

So we knew it was coming. It wasn`t a surprise it was coming and then we implemented it. As I said, if we knew it was coming from like two years ago when Mr. Trump first started to run for president, certainly we didn`t learn about it on an airplane. I mean, again, we knew it was coming, we knew it was signed Friday morning.

(END VIDEO CLIP) VAN SUSTEREN: Joining us, Amy Walter, national editor of The Cook Political Report, Heidi Przybyla, senior political reporter for USA Today and McKay Coppins, staff writer for The Atlantic. First to you Amy, when did -- I`m still not sure -- when did he actually find out that this thing had been drafted and gone to the printer essentially and ready to go?

AMY WALTER, NATIONAL EDITOR, THE COOK POLITICAL REPORT: Well, I felt that the clip that you put up there was quite telling. He said well of course we knew this is coming. He`s been talking about it on the campaign trail. Everybody knew this was coming. And the details about when it was coming out, what was in there, and specifically we knew that the issue of the green card holders. Were they going to be accepted, not accepted, how was this all going to work?

Look, it`s clear that the implementation part, the rollout was a big problem in part because the left hand didn`t know what the right was doing. Did people know that this was a major plank in the Trump campaign? Absolutely. Did they know it was coming down the pipe at some point? Sure. But were they involved in the very details of this planning? I don`t think we have a really good answer to that.

VAN SUSTEREN: McKay, I guess on the one hand it is who had leaks in this town, but everything is held closely. For instance, we don`t even know who the nominee is going to be for the Supreme Court, which is unusual. Usually we have the leaks certainly by now. And so it`s closely held at the White House. On the other hand, you would think that the secretary of DHS would be someone who would be rather since he essentially have to implement this. It`s important that he or she be in the know.

MCKAY COPPINS, STAFF WRITER, THE ATLANTIC: We also saw a reporting from the Associate Press that Mattis, Secretary of Defense was not consulted on the details of it and that Rex Tillerson, the nominee for Secretary of State was, in the words of the AP, baffled that he hadn`t been consulted on the details.

I think that when you talk to Republicans -- I`ve been talking to Republicans on the Hill and what they say is that, you know, the thing that has eased their nerves about a Trump presidency is that he`s brought some serious people into his cabinet and into his administration.

But if they`re not being consulted, if they`re not in the room when these very crucial decisions are being made, then it`s unclear how much help that`s going to be. And I think that we saw, I think one quote from a Republican saying we`re tired of the chaos and I think that that`s going to be an issue going forward.

VAN SUSTEREN: Heidi, I guess if this thing had rolled out a little better, I mean certainly like -- even the Speaker of the House referred to it as confusion or chaos, I know exactly what word he used, I can`t remember now, but if it had rolled out a little bit better, that this wouldn`t be such an issue that we keep pounding on like, who knew about this, who was part of writing this think, who is making decisions.

HEIDI PRZYBYLA: Right. And as you know, Greta, the way that executive orders usually work is that they`re generated by the agencies. They are not generated by the White House and then the agencies are informed, and that`s because there is a protocol in Washington and there`s a vast bureaucracy of people -- bureaucracy here of people who have years and years of experience in counter-terrorism and also in legal analysis and then usually an executive order would be generated by them and then work its way up to the executive branch so that you got buy-in from everybody.

When you don`t do that, you see the type of "chaos" that ensued in terms of the green card holders being detained and the chaos at our airports. Again, back to the case point, this could be a harbinger of many additional, you know, roll out flubs if that procedure isn`t adhered to because the permanent (INAUDIBLE) you know, the agencies here in Washington expect to be a part of implementations like this.

VAN SUSTEREN: Amy, we know how it looked confusing to us over the weekend to follow (ph) that term. We saw what happened at the airports, any sort of thought or reflection on what the rest of the world who watch this so closely, do we know any sort of reactions from any of the -- any other nations of government or leaders and will there be any sort of reverse effect on us. Are we going to get blocked any place?

WALTER: No. So that I think what we`re going to be watching for as these days and weeks unfold. Either thing that we`re going to be looking for is how regular people and not just folks sitting here on TV talking about it or folks on Capitol Hill are talking about it, how they react into this. And we`ve only had a little bit of polling. One poll that came out today that suggests that this is actually not as unpopular of the position that given what we`ve seen from the protests, you would think it would be.

Forty-nine percent of Americans say they support what Trump did, 41 percent say they oppose that. Not surprisingly, it`s incredibly divided based on what party you sit in. And look, I think that we`re going to be talking about for the next foreseeable future this divide that we had in the campaign, that was exacerbated in the campaign.

These were two scorched earth candidates who ran strictly to their base. And this is a candidate who is running a government much like he ran his campaign which is to say I have this group of voters, this group of supporters, they like me, that`s all I need. I don`t need to expand out beyond that. They`re going to keep me here and we`re going to watch this divide continuing got those on the Hill who said, oh my gosh, there is so much chaos, did you watch the campaign at all where you ping (ph) it all --


VAN SUSTEREN: I think the (INAUDIBLE) what McKay said, it`s like, he`s doing what he said he was going to do.

WALTER: Exactly.

VAN SUSTEREN: So how in the world -- so take from what Amy said -- and why is anybody surprised? If he didn`t do it, they would be mad at him -- that was his base.

COPPINS: Well, this has been the problem with the political class and the media from the beginning. That everyone keeps waiting for a Trump pivot. Everyone keeps thinking he couldn`t possibly really mean what he is saying. It`s clear that he`s going to do what he said he was going to do in the campaign and I think we better buckle in and get ready for it.

VAN SUSTEREN: Breaking news. We have some live pictures right now of new anti-Trump protests across the country. Here are crowds gathering in Minneapolis, Minnesota and here`s the scene in Columbia, South Carolina. Another night of demonstrations against the new president of the United States and his policies. We`re going to keep an eye on this.

And up next, the Democrats boycott, delaying votes for president Trump`s cabinet picks -- is it a sign of things to come? Also a long, bruising bitter fight over that empty seat at the Supreme Court and how we got here and what happens next.


VAN SUSTEREN: We`re just over an hour away from President Trump`s Supreme Court pick announcement. A live picture right here of the White House where congressional leaders will enjoy a meet and greet with the new nominee. So how did we get here? Well, it`s been a long road.


UNIDENTIFIED FEMALE: Breaking news, Justice Antonin Scalia, the Supreme Court`s most influential conservative has died.

UNIDENTIFIED MALE: It`s a sad day for the family and for the country.

SEN. TED CRUZ (R), TEXAS: I do not believe the Senate should take up nomination in this election year.

BARACK OBAMA, FORMER PRESIDENT OF THE UNITED STATES: Today I am nominating Chief Judge Merrick Brian Garland to join in the Supreme Court.


SEN. MITCH MCCONNELL (R), SENATE MAJORITY LEADER: We will not be hearing or vote --

OBAMA: I simply ask Republicans give him a fair hearing.

UNIDENTIFIED MALE: This is an unprecedented level of dysfunction.

UNIDENTIFIED MALE: The seat that is sitting empty is being stolen from the Obama administration.

MCCONNELL: The next president is going to be the person who chooses the next Supreme Court justice.

UNIDENTIFIED MALE: Donald Trump elected the next president of the United States.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: And we`ll ne appointing pro- Life judges.

SEN. CHUCK SCHUMER (D), SENATE MINORITY LEADER: We`re going to oppose him tooth and nail.

UNIDENTIFIED MALE: And there`s yet a new standard now which is an (INAUDIBLE) from the Supreme Court nominee at all.

UNIDENTIFIED MALE: We`re going to confirm President Trump`s nominee one way or the other.

TRUMP: I`ve made a very good decision and I think you will be very impressed with this person.


VAN SUSTEREN: We`re back with the panel, Amy Walter, Heidi Przybyla, and McKay Coppins. Heidi, the White House must -- the lawn right now must be filled with the media. We`re watching entrances, we got cameras on there. Everybody is looking for it. There`s going to be suspense in the East Room. It doesn`t get more suspenseful than this, does it?

PRZYBYLA: No, but we shouldn`t be surprised, Greta. I refer you back to the vice presidential search, to the cabinet search, in all of these cases it`s just Trump`s style to try and, you know, create a bit of a spectacle around it. But in this case, it`s going to continue when whoever this nominee heads to Capitol Hill.

And I think the Democrats are going to have to decide whether they really go to mat on this one because on the one hand, you see the people, you just show the shots to the people out in the street protesting. The progressive left is in a ladder. They are building what looks like, it could be a movement, a movement much more significant than the Tea party.

Democrats have to show that they`re responsive to that but at the same time they know how the senate works and they know that if they actually do try to filibuster on this, that Mitch McConnell can say, look, there`s precedent for the nuclear option and I`m going to use it. And in this case, it would be a lost fight because we`re not talking about shifting the ideological orientation of the court with this fight.

But if Mitch McConnell does us the nuclear option, then they set themselves up when another opening comes up to have no power, and that opening really could shift the ideological balance of the court so, they face a difficult decision.

VAN SUSTEREN: Amy this is profoundly important even though it doesn`t shift -- I agree with Heidi, it doesn`t -- but I mean it still is the Supreme Court and this one is like basically forever. I mean it`s the lifetime of a justice, and yet, you know, it`s sort of baked into this as this political fight with this horrible political history.

Look at how Judge Merrick Garland got caught in the whip saw, you know. Is there -- are there any sort of cooler heads on this like just strip away the politics and at least give the guy a shot. I mean, you ask him probing question, vote yes or no?

WALTER: Well, Heidi bring up an interesting point which is there`s a choice here for Mitch McConnell whether he decides he`s going pull the nuclear option or that they will decide instead to go first at least pressure those red states Democrats who aren`t sitting in places with these big protests, places like West Virginia and Indiana and North Dakota and get a hand full of Democrats to at least, maybe votes for him but to break a filibuster.

They can go and vote against him when it comes time for the final vote. But not only would that be the cooler heads decision, but it would also I think prevent -- I`m sorry, Democrats from getting one more piece to throw on to the fire, right.

I mean I think by his decision, if there is a decision to do the nuclear option, he`s giving those protesters, the progressive left, those folks who are so angry about the current structure of the government one more reason to dislike Republican and more reason to come out vote and in 2018 and to be motivated to stay on the streets for the foreseeable future.

VAN SUSTEREN: Maybe, McKay, that we ought to do something unique and before they get into like grilling this nominee -- they actually have a discussion where advice and consent meets, and to maybe invest some effort like, no, I mean like -- it`s come down to whether, you know, your shirts or ski, you know, it`s like do you like the guy or not? I mean nobody has really sort of delved into what the constitutional obligation is. There`s an awful lot of taking sides.

COPPINS: Well, but there`s an escalatory cycle here where you know, the Democrats are saying, well, look what the Republicans did with Merrick Garland. Why should we now be forced to go along with that or whatever nominee President Trump has. 

VAN SUSTEREN: And look what (INAUDIBLE) nuclear option. So we`re going to do the nuclear option.

COPPINS: The problem is all tribal partisan revenge and it has to stop at some point, right.

VAN SUSTEREN: How does that stop?

COPPINS: Well, I don`t know. I think that -- you said if there was some kind of goodwill, good faith conversation among the senators, but there`s no climate for that in Washington. As you said, you`re showing the images of activists out on the street. There is no appetite on the left for Democrats as we go along.

VAN SUSTEREN: Amy, you`re shaking your head. That`s a signal.

WALTER: That there`s an end to this. Who doesn`t benefit? That`s the thing there -- we`re all about, you know, carrots and sticks and in this business there are not many carrots and there are a lot of sticks. And especially when you have a congress that is made up right now of people who mostly sit in red or blue districts.

There are only 25 Republicans right now who sit in the district that Trump did not carry. There are only 12 Democrats who sit in the district that Hillary Clinton did not carry. There`s no incentive to reach across the aisle because they don`t represent people that have a different political point of view or who has voted differently than their party.

VAN SUSTEREN: You know, it`s just that -- it`s never done especially are such these fights are such big fundraiser for both sides to. Money comes in over the trans and every time there`s a huge fight like this. But anyway, we carry on. We`ll see who the nominee is tonight. Thank you all.

COPPINS: Thank you.

WALTER: You`re welcome.

VAN SUSTEREN: And "For the Record," I got to change the pace a little bit. I want to tell you a story of heroism so you need to just stay right where you are. Don`t go away.


VAN SUSTEREN: I`m going to say something "For The Record." Yes, we didn`t need another controversy. I`m talking about the U.S. Military raid in Yemen over the weekend. In a statement, President Trump called the raid successful and praised U.S. Forces for gathering important intelligence to help prevent terrorism. But, a senior military official is now telling NBC News that almost everything went wrong in the raid.

While three Al-Qaeda leaders were killed, so were two Americans, one the 8- year-old daughter of a New Mexico-born Al-Qaeda leader and the other 36- year-old Chief Petty Officer William Ryan Owens. There are likely be an investigation and we we`ll learn whether the raid was a success or everything went wrong or something in between.

But one thing is absolutely crystal clear, tonight without an investigation, a member of our military, a Navy Seal, Ryan Owens, sacrificed his life to make us safe. I didn`t want his sacrifice buried in all the other news that have been breaking in the past few days because I want his family and friends to know we grieve with them and we appreciate his sacrifice for us.

Thanks for watching. See you tomorrow night right here at 6:00 p.m. eastern. If you can`t watch live, set your DVR. "Hardball" with Chris Matthews starts right now.