Show: For the Record with Greta Date: February 6, 2017 Guest: Hallie Jackson, Ari Melber, Alan Dershowitz, Ken Vogel, Molly Ball, Michael McFaul, Randi Weingarten, Chris Murphy, Heidi Przybyla, Susan Ferrechio
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GRETA VAN SUSTEREN, FOR THE RECORD HOST: We have breaking news For the Record tonight, the Trump 6:00 PM deadline on the controversial travel ban just pass, now it is in the courts hand and a ruling could come at any time, and we are standing by to bring you that decision should it happen in this hour. What is the court going to do? And if the court slaps down President Trump, what will he do?
Also grabbing the mic, senate Democrats seized the floor in a talk-a-thon aim at taking down education nominee Betsy DeVos. Democrats desperately trying to pull one more Republican to their side, but will the GOP beat back the effort. And a backlash to the president praised for Vladimir Putin, why the new comments have stunned GOP leaders.
We begin tonight with the breaking news. The fist throwing fight over President Trump`s travel ban potentially headed to the United States Supreme Court. But first, moments ago, President Trump`s justice department filed a brief in the U.S. court of appeal for the ninth circuit asking to reverse an order of the lower court judge. Now the lower court judge is the one that Trump called a so-called judge in a weekend tweet, the judge had issued an emergency order suspending Trump`s travel ban. And at this hour, everyone is waiting for the appeals court decision and the court could rule at any time. Meanwhile, U.S. Central Command in Tampa, President Trump making his case for strong border protections.
(BEGIN VIDEO CLIP) DONALD TRUMP, PRESIDENT OF THE UNITED STATES OF AMERICA: You`ve been seeing what`s been going on over the last few days. We need strong programs so that people that love us and want to love our country and will end up loving our country are allowed in. Not people that want to destroy us and destroy our country.
(END VIDEO CLIP)
VAN SUSTEREN: We have team coverage tonight reporting the facts, covering all the legal argument and covering the blistering political fallout. Let`s start with NBC`s Hallie Jackson live at the White House. Hallie?
HALLIE JACKSON, NBC NEWS: Hey there, Greta. Just looking through the filling now from the department of justice, again, filed within just the last, maybe five minutes or so here, and the argument being made by the department of justice is that the injunction is essentially far too broad. That`s one of the argument that they`re making here with the administration, the White House, confident that it will succeed in trying to get this temporary travel ban reinstated. You`ve heard it from the president all weekend long. You are continuing to hear it from members of the administration that they believe this is a lawful move, that the president is legally allowed to do this. But as you`ve said, Greta, all eyes on whatever is going to happen now with the panel of three judges that going to be make the ultimate decision at least for tonight in a case that is probably going to end up in the Supreme Court, the legal battle far from over. And the political battle is getting pitched to. You saw the president going after this judge, James Robart. He was appointed under President George W. Bush in 2003, and confirmed by the senate not long after in 2004. The president calling Robart a so-called judge, raising questions about him, implying if there were to be future attack that the blame would potentially lay at feet of this judge. You have heard Republicans now coming out and saying listen, there`s a difference, right? I`m paraphrasing the argument, but there`s a difference between disagreeing with the ruling which the president clearly does, in which many Republicans disagree with, and working to delegitimize in effect question the legitimacy of somebody who is a federal judge. It`s a situation where, yet again, you are seeing Republicans working to distance themselves now from a controversial comment from President Trump, Greta.
VAN SUSTEREN: Hallie, thank you. And Ari Melber is MSNBC chief legal correspondent. Ari, I know that you are madly going through the pleading as well. We all getting it to cross our devices and getting hard copy. Before we get to the pleading, if you can sort of tell me, this is not about the constitutionality of this matter before the ninth circuit. It`s about whether it`s constitutional or not, it`s about whether it should have been stopped, isn`t that right?
ARI MELBER, MSNBC CHIEF LEGAL CORRESPONDENT: That`s exactly right. I mean, this is a debate on whether these cases should proceed with the pause button hit and this ban pause that it was Friday night, or with the ban ongoing while the case is proceed. That`s the big legal question here as we wait for that emergency panel ninth circuit. I do have it though, and parts of what`s in here as Hallie was mentioning an argument that this solution or this -- a pause, the temporary restraining order, is over broad given that it basically freezes all sorts of different parts of the ban because you have a pause on the entire refugee program under the ban as written by President Trump. You have the specific intention to Syria, then you the have seven country issue. I will say as you know and as we can discuss further, even though this is only about what happens as the case procedures, these filings along with the other fillings are already seen from DOJ do get into the argument because one of the key element of whether or not you get this kind of pause is whether there`s a likely success on the merits, and that is the underlying constitutional question. So, you know, I`m looking at this new filing here moments ago from DOJ, and it does say things about the underlying goals here. One of them is, for example, it said, look, we are going after places that raise, quote, heighten terrorism related concerns. We are going after aliens who`ve never been inside the country before and does have no -- a president of constitutional right to appeal these things. So it does get in to some of that as well.
VAN SUSTEREN: All right, Ari, I want you to stay with us and continue to read it because it was just filled. I want to go now to Alan Dershowitz, who is a constitutional law scholar and professor emeritus at Harvard Law School. Nice to see you, Alan.
ALAN DERSHOWITZ, HARVARD LAW SCHOOL: Thank you, nice to see you.
VAN SUSTEREN: All right, Alan, put aside the question about whether you like the president order or not. Focus simply on the issue of whether or not that executive order is constitutional or not. Professor Lawrence told me Friday night it is not. What do you say?
DERSHOWITZ: I think it`s partly constitutional and party unconstitutional. It is constitution probably in so far as it relates to people outside the country, who`s never been in the country and who were seeking visa`s, say from Yemen or some other country, they have no constitutional standing to object to this, and no constitutional right to a visa. They will make a clever argument, they will say the first amendment doesn`t convey only right it also has constraints on the government. Congress shall make no law respecting an establishment of religion, that`s an uphill fight for them. I think they will lose on that issue. I think they will win on the issue of people who are in the country, say students at universities who had a visa, went out of the country are trying to come back. I think we`re going to see a divided opinion. But I don`t think the ninth circuit is going to vacate the stay right now. Because the stay is in effect. I think chaos would ensue if the ninth circuit now vacated it and then restore it after they had a decision, restore it in part. I think you`re going to see a lot of movement towards preserving the status quo while litigating this issue, and I predicted divided results.
VAN SUSTEREN: All right. Let me go right of the issue of the people outside of the United States who may want to come here. And you`ve talked about that you can`t pass a law restricting on religion. Is this -- is the fact that this executive order doesn`t say Muslim, it just identifies seven countries that are predominantly Muslim and not even include other countries that are Muslim, is this really about religion on a constitution of standpoint?
DERSHOWITZ: Well, of course it`s about religion because the president have told us it`s about religion. He called it a Muslim ban. But the court will look at it on its face. Will not consider the motive of the president. And one can make a strong argument that these are seven countries, not the only seven, but seven countries that have had terrorism. These are countries also in which many people don`t have American values. For example, the level of anti-Semitism in these countries is very, very, very high. The level of bigotry against gays and women is very, very high. And so, one can make the argument that these are countries that should be subject to a different standard without regard to what the religious majority is. Also, I think the constitution does permit protecting religious minorities who are subject to persecution. Now these are religious minorities are Christians, they`re Sunnis in Shia states, They`re Shias in Sunnis state, they`re Bahai`s, they`re Kurds, so I do think that a strong argument can be made for the constitutionality of some parts of the bill, but as to other parts, no. And I think what`s very wrong is that today the debate has been an absolute one. The proponents of the bill say is old unconstitutional. The opponent of the bill say is old unconstitutional. What`s needed is a nuance calibrated approach looking at every aspect of the order, and deciding which parts are constitutional, which parts are not.
VAN SUSTEREN: Maybe Ari can help us with that nuance calibrated by looking at maybe -- at least he just read the justice department -- Ari, can you give us some more guidance on this?
MELBER: Yeah, a couple of points. One, Professor Dershowitz is basically referring to what kind of standard will apply here, and we know that in the context of war and immigration there`s a differential standard to presidents. That is to say that even though people might feel some of what they`re doing is controversial or not even fully rational would be one legal term, there`s great deference here in this area because judges aren`t going to substitute there views for the president with regards to religion. These is certainly precedent for giving protection and asylum to those who are persecuted. Well, obviously, it is rational and there is precedent for the notion that persecution happens at time when you`re the minority religion. So that alone is well supported and not necessarily a problem. Having said that, the president may have done his lawyers a disservice and going further than to text the order and saying he did not want to help Christians because that is different. That can sound or a judge might look at that as a potential religious preference which is different in the asylum standard.
Point number two goes to the standard, one of the things that Judge Robart said on Friday, in his hearing when he pressed the DOJ lawyers was have there been attacks on immigrants from these seven countries, and they basically had to concede there have not. And so, he said, well, under a rational basis standards that is to say, is there a rational security reason to do this you fight fail. The DOJ has a decent counter argument which is what Professor Dershowitz was just referring too. You don`t even get to do rational basis review, you should defer to this presidential judgement. But this is an area that could be a problem because I will say this on the fact, on the law we have to see what the court says. On the facts, the fact that these seven countries have not been a source of immigrant related terror is an issue, and the fact that the reference point that`s been offered, Greta, basically them saying, well, congress and President Obama referred to them as dangerous places for Europeans to pass through. There they are in the screen. That was from a visa waiver program for European tourist. And so the judgment in that context legally was if you`re a British citizen and you go through Syria on your way to America, we want to take a second look at you. Hey, that`s sounds pretty reasonable. That`s a different determination on whether people coming from those countries pose an immigrant threat.
VAN SUSTEREN: All right, Alan, you want to respond to this?
DERSHOWITZ: Yeah. And I also think that the amicus brief that was filed today on behalf of secretary of state, and generals, and security people, was clearly designed to support Judge Robart statement saying that this is not -- cannot be justified based on national security needs. But I think the problem is going to be a technical one of standing and that is does a person who is outside of the country and never been in -- have standing, right. Does the state of Washington have standing on behalf of Microsoft and Google and other companies to raise these issues? Chief Justice Roberts of the United States Supreme Court has been a real hawk on standing, demanding that you show a kind of personal harm that you`ve suffered. And so, I think they`re going to have a hard time overcoming that. The main point this is complex. I can teach a Harvard Law School seminar on this case. It is so complicated and it shouldn`t be discussed as if it is a simple yes or no. That`s not the way it`s going to be resolved.
MELBER: Do you have seats for Greta and I because I love to go?
DERSHOWITZ: Sure, sure.
VAN SUSTEREN: Anyway, let me bring in -- I know you are. Let me bring in some other guests. Molly Ball, a politics reporter from the Atlantic, and Ken Vogel, chief investigative reporter from Politico. Ken, this also has enormous political ramification. You even got Republicans mad at Republicans. Democrats jumping in on this.
KEN VOGEL, POLITICO. Yeah. I mean, let`s not forget Trump made a lot of big promises coming in, this is one of them. And so far, this is not being implemented. There`s question about the wall, who is going to pay for it, another big promise. And there`s question about the implementation of Obamacare. So we see him lashing out, lashing out on the judge, lashing out on critics of this, and it sort of -- there`s an element of working to rest, there`s also an element of sort of explanation like why these things are not the successes that he said they were going to be.
VAN SUSTEREN: Alan, what do you think of his -- the president tweet over the weekend referred to the judges, so-called judge?
DERSHOWITZ: It`s ridiculous, and also hurts his case tremendously. This is a judge who was confirmed 99-0. He`s has an extraordinary good reputation. He was nominated by a Republican. It reminds people of Trump calling President Obama the so-called president in effect. You don`t attack the integrity of the judge the way Trump did in the case involving the judge whose parents were born in Mexico. That doesn`t help you, it doesn`t help politically. It doesn`t help legally. It will very much alienated the fellow court judges. It was just dumb. There`s no other word for it.
VAN SUSTEREN: Molly, Senator McConnell, majority leader, has he responded at all or reacted to this?
MOLLY BALL, THE ATLANTIC: Oh, yes. Well, what he said yesterday with one of the Sunday shows was that he would not be encouraging the congress to somehow codify legislatively the order that Trump did. You know, a lot of the criticisms from Republicans, even those who agree with Trump`s stated aims on this, or who think that there`s need to be more careful vetting of people from -- majority Muslim countries, or from certain countries, or terror harboring countries, they still have problem with the process by which this was done. That so many of the agencies were not notified. The congress didn`t see this coming, that people -- green card holders were literary detained at airports. And so, I think McConnell by saying that he is not going to carry Trump`s water here, is basically saying, look, if you want us to help you succeed, you`ve got to work with us. You can`t just do these things unilaterally and expect us to clean up your mess.
VAN SUSTEREN: All right. Let me go to some legal voodoo. Let me go to you, Alan. I think this is going to be decided tonight. That`s my legal voodoo, who knows, it`s a wild guess, but your thoughts?
DERSHOWITZ: I don`t think so. But I do think that President Trump, if he is rational would withdraw his order, mute the case because he may very well may lose part of it, and go back to the drawing board and come up with a much more calibrated, much more carefully thought through rule. I think he will do that if he loses. And I think maybe the court know he will do that if loses, so that would incline them to continue the stay so as to encourage the president to avoid the constitutional crisis by redoing this with the consent and consultation of lawyers, of national security people, with legislators, and that way you have a win-win. You have a regulation that`s constitutional and protective.
VAN SUSTEREN: Ken, I do not see the president backing down. If he loses I see this going on. I do not -- I mean -- this is -- he takes no prisoner.
VOGEL: We see absolutely nothing from him during the course of the presidential campaign or his first day in office that would suggest that he will do anything that would admit that there`s anything he could have done better in the first place. In fact, he would double down more likely his instincts, how I see is playing down on this.
VAN SUSTEREN: Maybe he`ll win. The ninth circuit is typically a liberal circuit, but who knows what judge to decide.
BALL: On the one hand, Trump doesn`t back down publicly. So his public stance is going to be this type of bluster. But remember after he personally insulted Judge Curiel, he then went on to quietly settled that case, and then to go on and talk about something else. So when Trump see that he lost the battle, sometimes he quickly moves on and hopes nobody will notice, and find something else that he thinks he could win on.
VAN SUSTEREN: Thank you everybody. Thank you very much. And Ari has a special note, he`s going to be -- he`s much more tonight, he`s guest hosting the Last Word at 10 PM Eastern, right here at MSNBC, so check back on Ari. And coming up, clash in the senate, Democrats is now making a final push to defeat President Trump controversial pick for education secretary. But first, backlash after President Trump new comments on Vladimir Putin. I`ll talk to America`s former ambassador to Russia.
(BEGIN VIDEO CLIP)
CHUCK SCHUMER, U.S. SENATOR: Unbelievably, just yesterday, the president insinuated that the American and Russian governments were somehow morally equivalent. Russia a dictatorship, where Putin kills his enemies, imprisons the press, and causes trouble anywhere he can in the world.
(END VIDEO CLIP) VAN SUSTEREN: Reactions are pouring in today, and not just from Democrats. Tough responses from Republican and military leaders to this.
(BEGIN VIDEO CLIP) UNINDENTIFIED MALE: Putin is a killer.
DONALD TRUMP, PRESIDENT OF THE UNITED STATES OF AMERICA: We have a lot of killers. We`ve got a lot of killers. Why do you think our country is so innocent? You think our country is so innocent?
(END VIDEO CLIP) VAN SUSTEREN: President Donald Trump suggesting a moral equivalent between Vladimir Putin, the president of Russia, and the United States. Senator McConnell saying Putin is a thug, and he doesn`t think there`s any equivalency between the way the Russians conduct themselves in the way the United States does. Senator Marco Rubio tweeting, when has a democratic political activist even been poisoned by the GOP or vise versa, we are not the same as Putin. And here`s what retired four-star general, Barry McCaffrey, said on MSNBC earlier today.
(BEGIN VIDEO CLIP)
BARRY MCCAFFREY, RETIRED GENERAL: I`m actually incredulous with the president to make a statement like that. One can argue that`s the most anti-American statement ever made by the president of the United States.
(END VIDEO CLIP) VAN SUSTEREN: Michael McFaul is a former U.S. ambassador of Russia and a professor at Stanford University. Good evening, sir. So we have heard from Russia, at least a spokesperson for Vladimir Putin, who said that he wants an apology from Bill O`Reilly because he called Vladimir Putin a killer. But let me switch to what the president said, President Trump, what do you think President Putin thinks about that exchange?
MICHAEL MCFAUL, FORMER U.S. AMBASSADOR IN RUSSIA: Putin loves it. Of course, this is what Vladimir Putin and his media argue all the time. The Russian media has praise President Trump. On my twitter feed is filled with Russian nationalist, praising President Trump for speaking the so-called truth. But I said so-called truth because I don`t think it is purely correct just to put my professorial hat on for now, the Russian army behaves differently in the fight in Aleppo for instance when we fight in Syria under operation Inherent Resolve. And most certainly, how we treat our opponents, political opponents inside our government, inside our country is different than Vladimir Putin. But the political point is also just crazy. I don`t understand why the commander-in-chief is calling his old soldiers killers equivalent to Russian soldiers. It doesn`t really makes sense to me.
VAN SUSTEREN: Is this just a 24-36 hour story where we are all obsessing on it, or does this having a long-term impact, or does this reflect on something bigger?
MCFAUL: Well, you know, Greta, that`s a great question, I don`t have a great answer. But I`ll just remind your viewers here that he said almost exactly the same thing on Morning Joe in December 2015 as a candidate. And one man can say, well, maybe he doesn`t know all the facts about how the Russians operate, it was a one-off, it`s just a 24-hours cycle. But now as president to say those things suggest to me that this is what he believes. This is what he actually believes about our country versus Russia. And I hope somebody would brief him and dis-infused on that belief.
VAN SUSTEREN: All right. In light of the fact that he said it back then before he was the president, and the light of the fact that quote President Obama election have consequences, and the light of the fact that he represents the American people, at least -- in the Electoral College, I would not be surprised if a lot of Americans tonight were thinking that, Yeah, this is what we wanted him to say.
MCFAUL: I don`t know the single American that wants him to equate what the United States of America, what our soldiers do abroad with Russia. I simply don`t know a single person that would agree with president Trump in our country right now.
VAN SUSTEREN: Was he talking about -- I mean, look, I`ll tell you he`s going to say this, let`s say he wasn`t talking about the soldiers, he`s going to know he`s comprise the streets Chicago where people are shooting themselves up. I don`t think -- I think we haven`t really -- I mean, he`s going to -- he will come out and say what.
MCFAUL: Fair point.
VAN SUSTEREN: . and that`s what I think -- you know, we all seized upon that, that`s what I thought when he said it. But, you know, I think he will be saying something different.
MCFAUL: Well, that`s interesting. He should clarify that point. Because when you put it in abstract tense, right? There are a lot of killers, the passive tense. What it says to me is that -- actually, soldiers don`t kill without orders, they do things without orders. They do things on behalf of the commander-in-chief. And when the question was being asked he wasn`t talking about criminals, he was talking about Putin. Mr. O`Reilly was talking about Putin very specifically. So, you know, maybe he could clarify that, but I took it to mean he was talking about the United States government.
VAN SUSTEREN: Well, I actually did as well, but I was just trying to play devil`s advocate. Anyway, Ambassador.
MCFAUL: Fair point.
VAN SUSTEREN: . thanks for joining us. Thank you for joining us, sir.
MCFAUL: Thanks for having me. All right, thank you.
VAN SUSTEREN: And more breaking news on the legal front over President Trump travel ban, the United States court of appeal has now schedule oral arguments for tomorrow at 6:00 PM Eastern, on whether to lift the stay, we`re of course we`ll be watching. Ahead, we get reaction to the travel ban controversy. I`ll talk to Democratic senator, Chris Murphy. But first, senate Democrats tonight trying to take down President Trump pick for education secretary. I`ll talk with the head of the American Federation of Teachers.
(BEGIN VIDEO CLIP)
CHUCK SCHUMER, U.S. SENATOR: The nominee for secretary of education doesn`t know some of the most basic facts about education policy
PATTY MURRAY, U.S. SENATOR: This nomination is dead even right now. We need just one more Republican to join us.
ELIZABETH WARREN, U.S. SENATOR: This is deeply personal. It`s personal for me. My first job out of college was as a teacher.
(END VIDEO CLIP) VAN SUSTEREN: Live pictures of the senate floor, Democrats making a desperate plea for one more Republican vote against Betsy DeVos as education secretary. That`s all they need to sink Trump`s cabinet pick, otherwise we could be heading to a 50/50 tie with Vice-President Pence casting the deciding vote tomorrow. Randi Weingarten is president of American Federation of Teachers, and like today took part of a protest against the nominee held outside the capital. Nice to see you.
RANDI WEINGARTEN, PRESIDENT OF THE AMERICAN FEDERATION OF TEACHERS: It`s great to see you.
VAN SUSTEREN: OK. Why don`t you want Betsy DeVos?
WEINGARTEN: For several reasons. But, number one, she`s not just disconnected from public education, it`s not just that she`s ill- informed, it`s that all the work she`s done as a lobbyist and she`s done a lot of work in and around education, has been actively hostile to the schools that 90 percent of kids go to right now.
VAN SUSTEREN: All right, I lifted -- I went back to one of the charter creating -- the law creating Department of Education. I had forgotten. And it said that, you know, it said that the Department of Education was basically to facilitate education in public and private, a quite broad definition. Is she opposed to helping private schools or she, I mean, opposed to helping public schools, is that your thought at the expense of private or charter?
WEINGARTEN: So, what we`ve seen from Michigan and from Florida, is that she has been actively defunding public schools. So look, there`s lots of people that like charters. I`ve eon (ph) one in New York City. It has 100 percent graduation rate. But you can`t be the head of public education -- you can`t be the head of education and actively hate the schools that 90 percent of kids go to. That`s part of the reason why there has been this grassroots uprising from rural, suburban and urban schools.
VAN SUSTEREN: I suspect if she were here she would say she doesn`t hate public schools thought that`s just her opponents are saying. But the one thing that is indeed as sort of, you know, we see here in the district of Columbia as we have public schools here and if you are politician or a doctor or a lawyer or even the president of the United States, the last things you do is send your kid to a public school. So there`s no --
WEINGARTEN: Unless you live in northwest where people go to deal (ph) all the time and where people use the public school system --
VAN SUSTEREN: But would you admit that most people of means in this city they`re so troubled by this -- in general, the public schools that they set at Sidwell or to (INAUDIBLE) or all these other schools?
WEINGARTEN: Actually, I would say that it`s about half and half now. There are lots of people with means in this city that send their kids to private schools, but at the end of the day, if you live in the northwest in this city --
VAN SUSTEREN: In which section?
WEINGARTEN: But my point is this, that schools in United States of America track socio-economic issues. The schools in suburban America where you have parents that have means tend to be better than the schools on places where you don`t and what we have to do in public education is we have to switch that. Meaning we have to give more resources to the kids who need it most.
VAN SUSTEREN: All right, one quick question before you go, which Republican are you, if you`re going to gain (ph) another Republican, which Republican are you likely get between now and tomorrow`s votes.
WEINGARTEN: Well look, 85 Republicans -- 85 senators passed the Ed (ph) law last time. There are at least 15 of them who are Republicans.
VAN SUSTEREN: And I couldn`t get a name I`m not going to get a name. I won`t get a name. All right.
VAN SUSTEREN: At least I tried. Anyway, nice to see you, Randi.
WEINGARTEN: You too. Thanks Greta.
VAN SUSTEREN: Next, reaction to breaking news on travel ban controversy. Democratic senator Chris Murphy weighs in. And later, Super Bowl stunner. I`ll get reaction from a man who knows a thing or two about Super Bowls. The one and only Broadway Joe Namath.
VAN SUSTEREN: News just breaking in less than 24 hours. A U.S. appeals court will hear oral argument by telephone on whether to reinstate President Trump`s travel ban after it was suspended by a Seattle trial court judge on Friday. Now each side will be permitted 30 minutes of argument time beginning at 6:00 p.m. eastern tomorrow night.
And Senator Chris Murphy is Democrat from Connecticut. He`s a member of the health committee and also on the foreign relations committee. Good evening sir.
SEN. CHRIS MURPHY (D), CONNECTICUT: Thanks for having me.
VAN SUSTEREN: Sir, what do you think about the breaking news now that the Trump administration has filed its brief and already the U.S. Court of Appeals in 9th Circuit has ordered an oral argument tomorrow night and will be doing it by telephone 6:00 p.m. tomorrow.
MURPHY: Well, hopefully this gets settled soon. There`s so much uncertainty in the world right now and we`ve really become an international laughing stock because of how badly this has been handled. You know, although I`m not an immigration law specialist, it does appear to me that the 1965 law which prohibits discrimination based on religion or based on national origin prevails over any national security powers that the president has.
And you know, the national security argument to me just doesn`t, you know, work with the straight face given the fact since September 11th we haven`t had a terrorist attack by any of the countries on the list and yet none of the countries on that list and yet none of the countries where the 9/11 hijackers were from are not on that list. So, it doesn`t seem to match up with the real national security threat that has been posed to the United States over the course of the last 20 years.
VAN SUSTEREN: I`m surprised it`s being done by telephone. If I were the lawyer on either side, I`d want to be doing -- making my argument in public, I mean, right in front of the court whereas by telephone. So I`m a little bit surprised it`s by telephone. And actually, I thought that they might even just decide on the pleadings and do it tonight, but the suspense will continue for another 24 hours at least then they`ll make a decision.
But Professor Alen Dirshowitz says that it`s partially constitutional. Professor Laurence Tribe how was a colleague of his in Harvard Law School says that it is unconstitutional. So even different (INAUDIBLE) scholars see a very different law.
MURPHY: Well, I think we should clear it all up here in the congress. I`ve got a piece of legislation that would prohibit funding from being used to implement the ban. Dan Feinstein has a piece of legislation that would rescind it. You know, you have Republicans and Democrats in congress that has gone records saying that, you know, this is exactly what the terrorist wants.
In the end, you know, terrorism is a tactic that is designed to insight a level of fear that is disproportionate to the actual threat such that you make mistakes. And this is textbook mistake. It`s going to be, already is, bolds (ph) and board material for this terrorist recruiters. It`s making our country less safe rather than as Trump thinks making us more safe.
So, I`m rooting for the courts to strike this down but I think Congress could step in and set the record very clearly if we wanted to.
VAN SUSTEREN: We have a minute left, but I suspect that if the president does lose this round, I don`t think he`s just going to give up. I think he`s going to take it on. Do you not, next court?
MURPHY: Well, I certainly think -- you can read his comments about this judge, personally attacking the judge without thinking that he`s going to take this to the next level. You know, my worry is that ultimately he decides to just go his on way notwithstanding court`s rulings. And then you got a constitutional crisis.
So, clearly he is not giving this up but I think you`re finding that courts of public opinion and courts of law are going to be on the other side. That should be enough for him to let this go and start working with us on things that can bring us together and make the country more safe.
VAN SUSTEREN: Senator, thank you for joining us.
MURPHY: Thanks, Greta.
VAN SUSTEREN: And now we have more breaking news. An NBC News exclusive report on that U.S. mission in Yemen just over one week ago which resulted in the death of a Navy Seal. Cynthia McFadden is NBC`s senior investigative correspondent. Cynthia.
CYNTHIA MCFADDEN, SENIOR INVESTIGATIVE CORRESPONDENT, NBC: Good night Greta. Well, we have detail tonight about that top secret mission in Yemen and why the U.S. took the gamble to go in.
(BEGIN VIDEO CLIP)
MCFADDEN (voice over): Tonight, multiple military and intelligence officials tell NBC News the real reason for the U.S. military operation last week in Yemen. The top secret target, the man American intelligence officials designate the third most dangerous terrorists in the world. The head of Al Qaeda in Yemen.
His name, Qassim Al-Rimi. The mission, kill or capture him.
SEAN SPICER, WHITE HOUSE PRESS SECRETARY? I think it is a successful operation by all standards.
MCFADDEN (voice-over): Today we learned the high stakes gamble to capture Al-Rimi was not a success. He is alive in Yemen according to multiple military officials who confirmed that last night Al-Rimi released an auto recording taunting President Trump as he spoke to the Yemeni people saying, "The fool of the White House got slapped at the beginning of his road in your lands.`
The White House declined to comment. Al-Qaeda in Yemen has been behind a variety of terrorist plots including the failed underwear bomber and is considered the most dangerous hub of Al Qaeda in the world.
UNIDENTIFIED MALE: This would be unfair to say that this was a slap-kind of an operation. Even though the Trump administration is new to the national security world and may be getting its feet under it, the counter terrorism community to include the military is well-schooled and well-oiled in terms of launching these kinds of attacks.
MCFADDEN (voice-over): All of the leaders in the military chain of command were in agreement that the prospect of getting Al-Rimi made the high stakes mission worth the risk. Officials tell NBC News President Trump was told by the Secretary of Defense and the chairman of the Joint Chief of Staff that the possibility of capturing Al-Rimi would be a game changer.
And in making their case to proceed, they told the president they doubted the Obama administration would have been bold enough to try it. The operation was larger than any counter-terrorism strikes since the killing of Osama Bin Laden in 2011. A Navy Seal, William Ryan Owens was killed during the raid when forces were faced with a fierce resistance.
UNIDENTIFIED MALE: It`s very difficult to judge in a binary context yes or no if this was a success. Counter-terrorism work is difficult. It`s dangerous. You have to be present and you have to disrupt especially in places like Yemen.
(END VIDEO CLIP)
MCFADDEN: It is not yet clear how valuable the intel gathered from the computers and phone at the scene in Yemen will turn out to be. It is also not clear yet whether Al-Rimi was at the target location that night or whether perhaps he was tipped off beforehand. The Pentagon have no comment. Greta.
VAN SUSTEREN: Cynthia, thank you.
Ahead, inside the Trump White House. New details on the in-fight (ph) in the power place and exactly how information is flowing to President Trump.
VAN SUSTEREN: Now we go inside the Trump White House. The "New York Times" reports on infighting and stumbles inside the White House. The "Times" is reporting Steve Bannon remains the president`s dominant advisor despite Mr. Trump`s anger the he was not fully briefed on details of the executive order he signed giving his chief strategist a seat on the National Security Council. A greatest source of frustration to the president from the fallout from the travel ban.
President Trump tweeting, "The failing "New York Times" writes total fiction concerning me. They have gotten it wrong for two years and now are making up stories and sources."
Heidi Przybyla, a senior political reporter for "USA Today," Susan Ferrechio is the chief congressional correspondent for the "Washington Examiner." Susan, I`m always fond of you interesting -- I don`t know what the right word is -- for the palace intrigue of any White House especially early on, but this one is quite interesting.
SUSAN FERRECHIO: Oh, yes, but I`m not sure what to do believe becayse there have been some reports that have been debunked about internal strife between the new Trump administration employees.
VAN SUSTEREN: And which even I think the "Washington Post," they have to back -- they had to change the story online.
FERRECHIO: There`s more too, you know. Sean Spicer, the press secretary was on a daily basis getting up at the podium and saying this is wrong, so it`s hard to really know what`s true, what`s just malicious leaks, what`s exaggerated. And then you have come on twitter and just say that the "New York Times" is lying. So I`m just not sure.
FERRECHIO: No he`s not because they`re lying, right.
HEIDI PRZYBYLA, SENIOR POLITICAL REPORTER, USA TODAY: I think what`s clear is that he was increasingly angered by this narrative that was taking hold that started out with the "Time" magazine cover about Bannon being the great manipulator and then it continued with the "New York Times" op-ed and folks like Madeline Albright saying that Bannon was pulling the strings on Trump, but I think he got irritated so he pushed back on it.
But he wasn`t specific in that tweet about what exactly about the story was false. What`s clear is that there was a botched roll out. We don`t know who he`s pointing fingers at about it.
VAN SUSTEREN: That was clear but in defense of the White House, they`ve got the situation where the "Time" magazine terrible pool (ph) of reports saying that the -- a Martin Luther King bust was removed from the Oval Office, it was not. They`ve had the "Washington Post" have to walk back some stories, so that`s not true.
You`ve got Nancy Pelosi calling Steve Bannon and white supremacist. I mean, they are taking a lot of incomes and a lot of the stuff that`s reported are anonymous sources which is very difficult to respond to.
FERRECHIO: That`s an interesting parallel here. You have a White House that is trying to move hard and fast on all these campaign promises. And so there have been some stumbles, which you have the media that`s moving hard and fast and trying to really delegitimize Trump I think. I don`t think it`s been fair. I know there`s a debate about that.
And there are also filing out too with some of their hits. And so I think both sides are, you know, making mistakes clearly but I`m not quite sure what I believe when I read these inside stories in the media anymore. I don`t know who is saying it, why they`re saying and why --
VAN SUSTEREN: But that`s the whole comment (ph) with anonymous sources. I mean it`s like you know --
PRZYBYLA: There`s a difference with the media though. I mean, the bust of Martin Luther King, that was a big mistake.
PRZYBYLA: It was corrected.
VAN SUSTEREN: It may have been corrected but the message went out to the whole media and you`ve got a reporter looking for (INAUDIBLE) at least I think not to rehash an old story, but I think the reporter was looking to see if, aha! He`s a racist, he got rid of the Martin Luther King.
FERRECHIO: There`s a lot of that aha reporting right now.
VAN SUSTEREN: But I`m saying that`s what I think and I don`t blame him for being angry about that.
FERRECHIO: Yes, I would have been.
PRZYBYLA: The problem is that you have folks from the podium though saying things that are demonstrably false and not correcting it. And then you have Kellyanne Conway going out and making up an entire terrorist attacks up in Bowling Green massacre which we found out today she said it twice before.
VAN SUSTEREN: So, she really feel like there was a massacre. I saw her explanation but you don`t buy her explanation that it was it. She meant bowling Green terror.
PRZYBYLA: I`ll buy her explanation but then I saw today that she has said it twice previously. And so that`s where -- we`re in this while alternate universe of the word that she coined, which is alternative facts and that`s a dangerous thing to see.
FERRECHIO: Well, you know, Obama said you can keep your doctor and you can keep -- and your insurance won`t go up. I mean there are people --
PRZYBYLA: Thousands of people said that he had hoped to achieve and that he didn`t. It`s different from telling something that you know is not true.
FERRECHIO: Well did she know it was not true when she said it before and now she`s being corrected for it like, if she said the Bowling Green massacre next week, well, come on now, you know --
PRZYBYLA: You should take it point for point that when Sean Spicer comes out and says, but there are more people at Trump`s inauguration.
FERRECHIO: It`s true. The Obama administration was not always truthful. They are far more eloquent about it though. I will give them a credit for that.
PRZYBYLA: We`re not talking a out Obama. We`re talking about Trump.
VAN SUSTEREN: Can I just defend my first impression in being a lawyer. In court, we couldn`t do anonymous sources and we had to raise our hand and swear to tell the truth, the whole truth and nothing but the truth. Not such a bad idea.
PRZYBYLA: Always free to say specifically what was wrong about the report, he didn`t say.
VAN SUSTEREN: Anyway, moving on. Thank you both.
Coming up, a Super Bowl for the ages, I`ll talk to someone who knows a little bit about Super Bowls, Hall of Famer and Super Bowl winner, Broadway Joe Namath. And for the record, red rollers (ph), blue rollers (ph), Pats fans, Falcons fans, all had something to unite about.
(BEGIN VIDEO CLIP)
TOM BRADY, QUARTERBACK, NEW ENGLAND PATRIOTS: It was just a great team performance. I`m so proud to be a part of this team. You know, we faced a lot of adversities over the course of the year and overcame with a lot of mental toughness.
(END VIDEO CLIP)
VAN SUSTEREN: You know who that is. That`s Super Bowl MVP Tom Brady today after leading the biggest comeback in Super Bowl history. Last night, an epic Super Bowl that many are calling the greatest of all-time.
Let me bring in the one and only Broadway Joe Namath, the MVP quarterback of Super Bowl III and NFL Hall of Fame. Joe, nice to see you.
JOE NAMATH, FOOTBALL HALL OF FAMER: Well thank you Greta. Good to hear you Greta and see you.
VAN SUSTEREN: Yes, it`s good to hear from you. Of course I always tell you that you broke my husband`s heart in 1969 when you beat his Colts, 16 to 7 in Super Bowl III. But moving along, let me talk about last night`s Super Bowl. How in the world could Tom Brady pull that off? What do you think?
NAMATH: You know what, year in year out of recent history, who`s the best? Who`s the best? From what I saw last night, Greta, Tom is -- he is the best. The way he changed speeds on those pass that he threw, that he dropped in there, that second half, played well the first half. But the man was throwing strikes and changing speed as well. It was brilliant.
VAN SUSTEREN: You know, I understand how he -- if you start out winning, you can win the whole game, but to have that come back, it looked over. I was convinced, you know, Falcons are going to do to the Patriots what they did to my beloved Packers. I thought it was over for the Patriots. But how did he -- how could he even pull that off?
NAMATH: Experience for one thing. Besides the talent, his talent, which is wonderful, and that team`s talent, the experience they`ve had. They had so much confidence even going into the halftime, word (ph) has come out. Now these guys are keeping cool. We`re going to get it. We`re going to get it. The younger players listened to the vets and they had the confidence they were going to come back. They just stayed after it, man, and pulled it off.
VAN SUSTEREN: Well, I thought they were going to win because I thought it would be the sort of revenge of Tom Brady in deflategate and so I thought, you know, before the game started that they would win, but then at the end, when they did win and Goodell, the NFL commissioner to present the trophy, he got booed by them. Did you hear that?
NAMATH: I don`t think he deserved all of those boos. Let me put it that way. Yes.
VAN SUSTEREN: That was amazing. So tell me, does he retire now? Does he go out like Peyton Manning after a Super Bowl win or does -- do you think Brady is going to play again next year?
NATHAM: I`m going to listen to what he has to say. So far, he`s saying he`s planning on playing until he`s 45 and I wouldn`t past him. So, I`ll listen to Tom, whatever he says.
VAN SUSTEREN: Would you say after the 1969 Super Bowl that this was the best Super Bowl?
NATHAM: Oh, man, you know, I have not seen a game like this. I have not seen the world championship, a Super Bowl like this. We have seen some good ones but not this kind of game where a team has been so far behind, hung in there and kept coming back. That second half -- who would`ve thought they were going to make that comeback. Only those (INAUDIBLE) and coaches, maybe some of the Patriot fans.
VAN SUSTEREN: Joe, always nice to talk to you. Love seeing you. Love to have you on the set some time when we`re in the same city.
NATHAM: Well, we`ll do it. I promise you, I`d love to be there.
VAN SUSTEREN: All right. Thank you, Joe.
NATHAM: Thank you Greta.
VAN SUSTEREN: I want to say something "For the Record." History made in Houston. A nail biter Super Bowel, 111 million people watched this American tradition. And while the ending was emotional for both teams and their fans, so was the beginning.
President George H.W. Bush, with his wife Barbara, the former First Lady, the longest married presidential couple in history, both just days out of the hospital. He was in the ICU, but they are so strong, taking the field for the most memorable coin toss a Super Bowl has ever seen or will ever see.
The president getting a standing ovation from both team, both coaches, both sides of the crowds. Patriots fans. Falcon fans. Of course, not everyone voted for President Bush. Some not even born when he ran, but all loved him and when it comes to sportsmanship and doing the right thing, look to President Bush 41.
His son Jeb was locked in a bitter battle with Donald Trump but President Bush still called Trump to congratulate him on defeating Hillary Clinton. Bush 41 also wrote President Trump a kind letter ahead of his inauguration.
Bottom line, for being shot down in the Pacific in World War II, to the White House, to the Super Bowl, President George H.W. Bush is and always has been a class act. One we can all look up to.
Thank you for watching. We`ll see you tomorrow night right here 6:00 p.m. eastern. If you can`t watch live, set your DVR and follow me on twitter @Greta. Go to Facebook for behind the scenes and videos and more. "Hardball" with Chris Matthews starts in about ten seconds and you don`t want to miss that. But you can still go to my Facebook page before Chris starts. Nice to see you.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END