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The Last Word With Lawrence O'Donnell, Transcript 2/6/2017

Guests: Rick Wilson, Neera Tanden, David Frum, Jay Rosen, Jonathan Alter, Matthew Miller

Show: The Last Word with Lawrence O'Donnell Date: February 6, 2017 Guest: Rick Wilson, Neera Tanden, David Frum, Jay Rosen, Jonathan Alter, Matthew Miller 

RACHEL MADDOW, MSNBC: Thiel apparently referred the -- apparently, he`s 

just getting started.

Peter Thiel apparently referred the guy, so presumably he`s going to be perfect.

That does it for us tonight, we will see you again tomorrow, now, it`s time for THE LAST WORD, Ari Melber sitting in for Lawrence tonight. Hi Ari.

ARI MELBER, MSNBC: Hi Rachel, I only heard part of that segment, it`s about drugs and an island, is this -- and an Ibiza party or?

MADDOW: Yes, it`s like -- it`s basically like a vampire novel without --

MELBER: Yes --

MADDOW: Vampires or sex, yes --

MELBER: That makes more sense. Thank you very much, Rachel --

MADDOW: Thanks Ari --

MELBER: See you soon, I am Ari Melber, I`m in for Lawrence and you will hear from him tonight.

Also, the travel ban heading back to court in less than 24 hours as Donald Trump attacks the judicial system on Twitter.


UNIDENTIFIED MALE: The executive order will remain on hold for at least another day.


UNIDENTIFIED MALE: The president has broad powers with these executive orders, but it is not unfettered.

TRUMP: We`re up against an enemy that celebrates death and totally worships destruction.

UNIDENTIFIED MALE: This president simply cannot accept anything that doesn`t go his way.

UNIDENTIFIED MALE: President Trump has abused his power.

UNIDENTIFIED MALE: If you`re a judge, you`re illegitimate.

UNIDENTIFIED MALE: We don`t have so-called judges.

UNIDENTIFIED MALE: If it`s polls that don`t reflect well, they`re fake. If it`s a news story, it`s lies

UNIDENTIFIED FEMALE: The travel ban is not a ban which makes it not a ban.

UNIDENTIFIED MALE: But you just called it a ban.

UNIDENTIFIED FEMALE: Because I`m using your words!

UNIDENTIFIED MALE: Made very clearly, did not quite have a full grasp on how to run the White House.

UNIDENTIFIED MALE: My sense is that Bannon makes many people uncomfortable.

UNIDENTIFIED MALE: Hello, Donald, I have arrived.

TRUMP: Hi Steve, you look rested.



UNIDENTIFIED MALE: The great manipulator.

UNIDENTIFIED FEMALE: The president making it clear in a tweet this morning, "I call my own shots."

UNIDENTIFIED MALE: Can I have my desk back?

UNIDENTIFIED MALE: Yes, of course, Mr. President, I`ll go sit at my desk, yes.




MELBER: Donald Trump campaigned on a vow to challenge the Washington establishment. The general idea of changing Washington is a popular theme even beyond Trump`s voters.

But it is hard to change something with nothing. New data suggests the Trump administration is struggling to do the job, literally.

Consider the President Trump has only named 35 nominees for a total of 693 top posts under his control.

The political appointees that require Senate confirmation. In other words, 95 percent of federal leadership positions haven`t been filled.

While Trump certainly satisfied some of his campaign pledges through swift executive orders, there are new reports today that he may not have read them very closely.

Take one Trump move that`s controversial precisely because it`s not an ideological issue. The decision to elevate a political operative onto the National Security Council.

When voters talked about changing Washington, few wanted more politics injected into national security.

But these reports say that Trump didn`t know he was giving Steve Bannon that unusual promotion.

Citing, "Mr. Trump`s anger that 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 greater source of frustration to the president than the fallout from the travel ban according to the "New York Times".

Trump saying he wasn`t fully briefed. Let`s have some real talk here. The order on the Security Council was under 3,000 words.

That is shorter than a single newspaper. The way to get briefed on it is to read it.

The president also seemed angry today about press coverage alleging without evidence that reporters don`t want to cover terror attacks.


TRUMP: All over Europe, it`s happening. It`s gotten to a point where it`s not even being reported.

And in many cases, the very dishonest press doesn`t want to report it. They have their reasons and you understand that.

(END VIDEO CLIP) MELBER: Well, we don`t know what the reasons are. The White House releasing a list of 78 terror attacks that it asserts did not receive, in its view, the proper coverage in the press.

But we took a look among those incidents sites and other 2015 Paris attack, the shooting in San Bernardino, the Pulse nightclub attack and the Brussels airport bombing.

You may remember them because they were widely covered. A Tyndall Report which tracks TV coverage says they were among some of the most covered events of the year.

President Trump also caught a lot of push-back, you probably heard about this from Republicans over Trump`s unusual attacks on a sitting federal judge who temporarily blocked the travel ban.

Trump writing, "the opinion of this so-called judge which essentially takes law enforcement away from our country is ridiculous and will be overturned."

He also wrote this weekend, "just cannot believe a judge would put our country in such peril, if something happens, blame him and court system, people pouring in, bad."

Here is Republican Senator Ben Sasse.


SEN. BEN SASSE (R), NEBRASKA: I`ll be honest, I don`t understand language like that.

We don`t have so-called -- so-called judges, we don`t have so-called senators, we don`t have so-called presidents.

We have people from three different branches of government who take an oath to uphold and defend the constitution and it`s important that we do better civics education for our kids.


MELBER: And apart from the civics, there is growing dissent over a whole and other controversial comment from the president this weekend.

His position toward President Vladimir Putin of Russia.


BILL O`REILLY, FOX NEWS: Do you respect Putin?

TRUMP: I do respect him.

O`REILLY: Do you? Why?

TRUMP: Well, I respect a lot of people, but that doesn`t mean I`m going to get along with them.

O`REILLY: Putin is a killer.

TRUMP: There are a lot of killers, we got a lot of killers. What? You think our country is so innocent? We made a lot of mistakes.

I`ve been against the war in Iraq from the beginning --

O`REILLY: Yes, mistakes are different then --

TRUMP: Made a lot of mistakes, OK, but a lot of people were killed. So, a lot of --

O`REILLY: All right --

TRUMP: Killers around, believe me.


MELBER: It is true that heads of state make life and death decisions. He mentioned Iraq there.

But on Putin, he has specifically been accused of using the state to intimidate and target opponents, to murder and poison critics.

And to commit war crimes attempting to murder even the families of his opponents.

Just tonight, for example, as this controversy is playing out, the wife of a Putin opponent says her husband, Vladimir Kara-Murza fell into a coma from being poisoned in Moscow.

Meanwhile, the Kremlin now publicly asking Bill O`Reilly to apologize for what he said about Putin there.

All of that is the contexts for Putin being an alleged killer. And Trump`s apparent equivalence about it drew strong rebuttals today.


UNIDENTIFIED FEMALE: It`s up to President Trump to establish relationships with foreign leaders, but also to recognize them for who they are.

SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER, SENATE: America is exceptional. America is different. We don`t operate in any way the way the Russians do.

GEN. BARRY MCCAFFREY, FORMER UNITED STATES ARMY OFFICER: I`m actually incredulous that the president would make a statement like that.

It -- one can argue that`s the most anti-American statement ever made by the president of the United States.


MELBER: That is quite a condemnation from a former four-star general there. If a sitting president wants to question a potential mistakes in U.S. foreign policy, it might be constructive.

But to do so in defense of Vladimir Putin`s alleged killings is truly one of the more bizarre arguments in an already unusual week.

And it`s only Monday. Joining me now for more context, David Frum; senior editor for "The Atlantic," Rick Wilson; Republican strategist and contributor to the "Daily Beast". And Neera Tanden; President of the Center for American Progress. Rick, what`s going on?

RICK WILSON, REPUBLICAN STRATEGIST: Look, Ari, I mean, we`re right now in a situation where I think the president has run up against this wall of reality, as I wrote in the "Daily Beast" today or yesterday, that he has collided with reality.

There are things in this country where the rule of law still applies. Where judges, not so-called judges, actual judges who are still seated on the courts can tell the president that an action or an order does not meet constitutional or legal muster, that`s what they`re doing.

This is a guy who is in a panic because of that. And so, he`s tweeting out like an intemperate child over and over again.

This sort of Twitter dysentery of Donald Trump repeatedly trying to raise the threat level, trying to say the judges will be responsible if there`s an attack.

Lying outright, saying no one covers these attacks. You know, he`s -- this is a guy who is doing everything that is out of that sort of authoritarian playbook to delegitimize every center of power in our constitutional republic other than his Twitter account.

MELBER: Neera, you were a close adviser to Hillary Clinton. Some of what we`re seeing is what that campaign warned about.

That there wouldn`t be a maturity or learning curve. But even putting that political dispute to the side.

I wonder what you as a policy person think of what we`re seeing here and what the ramifications are when you see this level of vitriol attack and really seemingly bizarre statements that have consequences.

NEERA TANDEN, PRESIDENT, CENTER FOR AMERICAN PROGRESS: Look, I think Donald Trump is obviously just way in over his head, and he does what he always does.

You know, what essentially happened here is that the courts have put a stop to and we`ll see if it`s temporary or not.

But it basically ruled incredibly and quickly against him. And, you know, I think he sees these things in win/losses and he`s lost here.

And so he`s attacking and striking out. The problem is that, he`s -- you know, he`s now representative of the country.

And by attacking the judiciary, by -- you know, essentially equating the United States with Russia, it`s not just Americans who see this, people around the world see it.

And I have to say, I think our allies around the world are losing confidence and confidence in this presidency, confidence in American leadership.

And also I think the reality here is, we just don`t know what`s happening next.

I mean, the "New York Times" pictures really paints a picture of a White House, a president and a White House who cannot -- who do not have a grasp on power.

They do not know what they`re doing. They can literally can`t find the lights. And I think that he`s striking out because that is hitting close to home because it`s --

MELBER: Right --

TANDEN: True, it`s not --

MELBER: For folks --

TANDEN: False, it`s true.

MELBER: For folks who hadn`t read the whole article yet, the "New York Times" this morning front page saying that Trump aides are literally meeting in the dark in the White House in rooms when they can`t find the lights which isn`t good.

I think it`s fair to say. David Frum, reading also here from the "New York Times", I want to get your response on the competent issue of how things are run.

"New York Times" reporting on Chris Christie, saying, before he was ousted as transition chief, the Trump adviser with the most government experience helped prepare detailed staffing and implementation plan in line with kickoff strategies of previous Republican presidents.

It was discarded, get this, "a senior Trump aide made a show of tossing it into a garbage can for a strategy that prioritized the daily release of dramatic executive orders to put opponents on the defensive."

David, every White House has a political strategy, no question. I wonder, though, what you think of the allegation here that the notion of putting opponents on the defensive was prioritized over good governance.

DAVID FRUM, SENIOR EDITOR, THE ATLANTIC: Well, I think it was nice for the "New York Times" to print Chris Christie`s job application for him, that was considerate.


Look, everyone`s at ten, like the guitarist in "Spinal Tap", I want to go to 11. Look, I`m a Putin hardliner. I was a Putin hardliner, I`m a Putin hardliner today. I was one in 2013, and I was one in 2007.

But I know a lot of smart people who are not such hardliners, and it`s an interesting and complicated problem.

Maybe the relationship -- maybe we could achieve more things with Russia by being a little softer.

And if we had a president who conscientiously believed that a softer approach to Russia would be better, that would not be a view I would share, but it would be a view that I could respect and debate.

When the president who`s advocating a soft line on Russia, who says, hey, we are no better than Russia, is also someone who solicited aid from Russian intelligence agencies.

That`s a different story. If you`re watching a trial, and the judge finds for the defendant and you think the plaintiff should have won, that`s upsetting.

But if the judge finds for the defendant when you think the plaintiff should have won, and you -- and you just watched the judge take a $50,000 present from the defendant, you feel a little differently about the whole thing.

And that`s the situation we are -- Donald Trump accepted a present from Vladimir Putin. He solicited a present from Vladimir Putin. And now he`s defending him. It`s not an intellectual disagreement.

MELBER: Right, and the -- and Rick, I mean, the equivalence there really underscores a part of what David is talking about.

Which is, there`s no nice way to put it, something that is suspicious. You liken it to a trial, this would not be inculpatory evidence. This would be bad evidence.

The fact that you`re making these equivalences. Here`s Marco Rubio, a Republican saying basically when is a Democratic political activist been poisoned by the GOP or vice versa?

We`re not the same as Putin, Rick.

WILSON: Look, this is a guy, there`s an abundance of evidence that from his behavior alone that Donald Trump is compromised in some degree or capacity by the Russians.

And you know -- and the fact of the matter is, there`s vastly more evidence that Donald Trump is a Russian stooge than there ever was that Barack Obama was a Kenyan Muslim terrorist sleeper agent.

This is a guy who is going out of his way to destroy our alliances throughout the world. To compromise our alliances, to wreck the relationships we`ve had with Australia, with Britain, with European countries.

And yet, everyday that he`s called on to talk about Vladimir Putin, it`s in terms of respect, it`s in terms of wanting to get along. It`s in terms of how he can make Vladimir Putin`s life just a little easier every day.

And it`s a moment, frankly, that folks who are -- who have paid attention to the Russian national behavior, not only from the cold war era, but recently, where they kill journalists, they poison --

MELBER: Right --

WILSON: Political opponents, they shoot down civilian airliners, then invade their neighbors. This is not something that I think represents American values in any way whatsoever, but Donald Trump apparently does.

MELBER: Neera, take a listen to Nancy Pelosi on her theory on this. I want to get your response. Here it is.



I think we have to have an investigation by the FBI into his financial, personal and political connections to Russia.


PELOSI: And we want to see his tax returns so we can have truth --



MELBER: Neera?

TANDEN: Look, I think she is absolutely right. And I just need to remind everyone, it was just a few weeks ago that the CIA and our intelligence forces writ large.

Including the FBI went public with the idea, with the facts that, or their understanding that Donald Trump, that the Russians got involved in our election in order to help Donald Trump become elected.

And what was his response to attack our intelligence forces? To attack the CIA?

If that doesn`t show you there`s something obviously wrong here, that there must be some kind of collusion, when he won`t release his taxes, we cannot get basic information out.

And just on every policy issue, it`s not what he just said over the weekend, it`s his position on every issue. Syria, Crimea, NATO, the EU on each one of these issues, he takes a position.

A person who`s not particularly consistent takes a position that is pro- Russia, and then on top of it, equates us with the Russians when they have done these incredibly horrific acts.

And I think that`s why Democrats and Republicans, Democrats on the Hill as well as Lindsey Graham and John McCain are launching serious investigations.

And the question is whether they`re going to have the subpoena power to get to the bottom of these issues.

MELBER: Well, and David, the subpoena power is key, of course, because there are things you want to look at, some of which might not be appropriate for public consumption.

The government deals with various layers of confidentiality, but to at least put some of this to rest.

And if this is, indeed, something that has just gotten out of proportion, you would think this is a White House that would want to cooperate to put it to rest.

FRUM: Well, that`s obviously not true. Look, there`s this vast ferment of activism that is bubbling up in the country.

And a lot of it from viewers of this network. I`m not a person -- I`m a person of the right and I still am.

I`m probably -- I have different views on the capital gains tax for most of the people viewing this program tonight. But what I would beseech those who want to do something constructive, is to focus on two asks.

Where other movements in the past like Occupy Wall Street have fallen apart because they had 900 asks.

If you have 900 asks, you have none. There are only two. And Neera said it very well. The Treasury should release the president`s tax returns and that should be a law.

And there should be independent commission headed by competent intelligence professionals and to nominate Madeleine Albright and Michael Chertoff to do an independent investigation with subpoena power of what happened in the 2016 election.

Ask those two things, that`s enough.

MELBER: Well, it`s --

FRUM: And don`t be distracted by anything else.

MELBER: Well, it`s a great and fair point, especially because as you know, as you allude to, there are Congress and a bipartisan basis under federal law can deal with the taxes issue.

Most people`s taxes are private, but you give up privacy when you serve in the government. And a lot of people below the president, of course, have already given up some of that.

So, we are out of time on this conversation, fascinating stuff. David Frum, Neera Tanden, thank you for joining.

Rick sticks around, and coming up next, the terrorist who is the top secret target of the U.S. military raided Yemen last week was not captured.

Now, he`s allegedly taunting President Trump in a new audio recording, will explain.

And later, I have a special report that goes inside the courtroom of the judge who blocked President Trump`s travel ban that we were just discussing.

And I will explain why Trump lost this round.


MELBER: The terrorist who was the target of the U.S. military raid President Trump ordered in Yemen last week is now allegedly taunting President Trump. That is next.

And later in the hour, a special appearance by Lawrence O`Donnell.



SEAN SPICER, WHITE HOUSE PRESS SECRETARY: I think when you look at the totality of what was gained to prevent the future loss of life here in America.

And against our people and our institutions and probably throughout the world in terms of what some of these individuals could have done, I think it is -- it is -- it is a successful operation by all standards.


MELBER: Sean Spicer there briefing reporters on the U.S. Navy SEAL raid in Yemen last week. New reports, though, suggesting the operation did not achieve at least one key objective.

Nbc News investigative journalist Cynthia McFadden reporting tonight that the raid was actually targeting Qasim al-Raymi; the head of al Qaeda in Yemen.

But the effort to capture or kill him was not successful. Al-Raymi is alive in Yemen according to multiple military officials.

And he`s released an audio recording taunting President Trump saying, "the fool of the White House got slapped at the beginnings of his road in your lands."

Now, while there is much we just don`t know about this raid, McFadden is reporting on sources describing how top officials briefed President Trump while he made up his mind.


CYNTHIA MCFADDEN, INVESTIGATIVE JOURNALIST: Officials tell Nbc News President Trump was told by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff that the possibility of capturing al-Raymi 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 counterterrorism strike since the killing of Osama bin Laden in 2011.


MELBER: The White House and the Pentagon declined to comment.

Joining us now is Jason Kander; Missouri`s former Secretary of State and a man who served as a military intelligence officer in Afghanistan in 2006.

Working on corruption and espionage investigations within the Afghan government. Also back with us, Rick Wilson; Republican strategist and contributor to the "Daily Beast".

Jason, when you listened to Cynthia`s report there, first of all, the biggest operation since the bin Laden raid, this is a very big deal that obviously has been slightly overshadowed by a lot of other big deals in the news.

Put this in context for us on number one, the operation, and number two, these reports about the way the president was briefed.

JASON KANDER, FORMER SECRETARY OF STATE, MISSOURI: The way that I received this is from the perspective of somebody who as you mentioned served on the ground overseas.

And one of the aspects of being on the ground overseas is that you`re putting a lot of faith, no matter who the president is, no matter who`s in your chain of command.

You`re putting a lot of faith in the idea that everybody along the way in the process has done everything that can be done to make your mission successful.

And to make sure that you could be as safe as possible. None of this is safe. So, whether you`re a Navy SEAL or a sergeant in a motor pool, you put faith in that idea.

And so what we definitely know about this situation is that the president didn`t go through an interagency process.

We also know that this is a president who has many times sloughed off the importance of intelligence briefings.

And from the perspective of someone on the ground, that`s the kind of thing that really gives you pause.

I mean, it`s not good for our operations.

MELBER: Rick, I`ll repeat my caveat which is it`s early yet. There`s a lot we don`t know.


MELBER: But officials have been speaking about it to some degree and some have been at least candid or perhaps sharing what their concerns are.

Here`s what a senior U.S. military official, granted anonymity told Nbc News last week, "almost everything went wrong."

"New York Times" with an article that made a similar point, "as it turned out, almost everything that could go wrong did." Rick?

WILSON: Well, look, this is one of these things where, you know, Donald Trump had the final go, no-go decision on this.

But the actions that led up to this, this was obviously in planning for quite some time. There`s a long chain of various planning cells, intelligence operations.

You know, the entire -- as Jason was mentioning, there`s an entire chain that goes into building an operation like this.

And look, these are risky operations by their very nature. They are dangerous, they are uncertain.

And frankly, you know, in my view, if Jim Mattis looked at this thing and said this is worth the risk and this is worth the effort to try to capture a very significant al Qaeda leader in Yemen, then this is a man who`s not looking at this in a frivolous or trivial or politicized way.

But you know, regardless of what the president`s level of actual engagement on this was, these operations are incredibly dangerous.

They`re incredibly risky. And things do go wrong and can go wrong. We don`t know a lot about it yet.

There may be things we find out that it was rushed or pushed, we don`t know any of that. And I think we should sort of reserve judgment on the final elements of that until the end.

But I will say, and then to echo Jason again, this is a president who has ignored and blown off a lot of intelligence briefings.

These should be something that is a daily part of his ritual. He should be doing a lot more intelligence -- getting a lot more intelligence briefings and watching a lot less cable TV every morning.

MELBER: Right, and because there`s been such a reaction or I think it`s fair to say at times overreaction to what the president says and the type of things this president posts online, that there`s been disproportionate attention to that.

And not perhaps as much to this story, which is why we wanted to look at it even though we don`t know, it`s any --

WILSON: Yes --

MELBER: President faces rough odds when making some of these tough decisions, we do know that. Before I let you go, Jason, I know, you`re also launching a new organization called Let America Vote.

An issue a lot of people have been thinking about. The public debate over voter suppression in the U.S. which is, of course, what your -- what your former job as an official was.

Tell me about that before I let you go.

KANDER: Sure, well, thanks for asking. We look at the fact that the Republicans over the last several years have really made voter suppression a key part of their strategy.

And now they`re doing that from the White House. That`s why we see President Trump making up the idea of 3 million to 5 million illegal voters.

It`s really about just easing the process of passing voter suppression laws all over the country. And it is time that we stand up and fight against it. Time that we stand up and say it`s not OK.

So, Let America Vote is being formed to make sure that wherever this happens, anywhere across the country, that we go there and we expose the true motivations behind it.

MELBER: Well, David Frum said he had two "asks" for viewers tonight. I guess you might have a third.

People can decide whether they want to get involved or not. But interesting to learn about, Jason, thank you and Rick Wilson, thanks to you.

Now, there are over eight cases against the Trump immigration ban. Why did it take a federal judge in Seattle to stop it on Friday?

Next, we have a special trip inside his courtroom to show you how Judge James Robart, the completely real judge who Donald Trump attacked as a so- called judge.

How he put the Trump administration`s arguments to the test and why Trump lost.


ARI MELBER, MNSBC CHIEF LEGAL CORRESPONDENT: The political world is on edge waiting to see if three judges in California will continue blocking President Trump`s immigration ban. Tonight, they announced a special hearing tomorrow. But those judges are not deciding the original case blocking the ban. They`re overseeing it.

This is the man handling the original case. Judge James Robart, a respected Bush appointee, unanimously confirmed, who sparked President Trump`s irate twitter attacks this weekend. But to understand how we got here, you have to understand what judge Robart did to make Trump so angry. Forget twitter. Forget much of what passes for debate on TV. Let`s go inside the courtroom to learn exactly why Trump lost this round.

Let`s begin with one of Judge Robart`s first questions. Is this a Muslim ban? The judge pressed challengers for more evidence than mere statements made in the heat of the campaign.


JAMES ROBART, UNITED STATES FEDERAL JUDGE: It seems to me that it`s a bit of a reach to say the president`s clearly anti-Muslim or anti-Islam based on what he said in New Hampshire in June.


MELBER: The lawyer challenging the ban, Noah Percell, had an answer. The answer was Rudy.


NOAH PURCELL, WASHINGTON SOLICITOR GENERAL: We have the president`s adviser saying on national television that, you know, the president asked him to come up with a Muslim ban, this was after the election, asked him to come up a Muslim ban in way that would make it legal and that`s what they did.


MELBER: He is referring to this.


RUDY GIULIANI, FMR MAYOR OF NEW YORK CITY: When he first announced it, he said Muslim ban. He called me up, he said put a commission together, show me the right way to do it legally. What we did was we focused on instead of religion, danger, the areas of the world that create danger for us which is a factual basis, not a religious basis, perfectly legal.


MELBER: That clip is important, the challengers say, because it shows an intent to discriminate even if the order doesn`t use the word, Muslim. The lawyer defending the ban, Michelle Bennett, insisted the ban doesn`t target Muslims but she also said it doesn`t really matter because President Trump`s powers are so broad he can make these decisions without court oversight. That led Judge Robart to this question.


ROBART: Given the breadth of authority of the executive in the area of immigration, do you acknowledge any limitation on his or her power?

MICHELLE BENNETT, FEDERAL GOVERNMENT LAWYER: Your honor, I don`t think your honor needs to answer that question to decide on this case.

ROBART: Well it seemed like a good question.


MELBER: The attorney is ducking there, arguing if there are limits on the president`s immigration powers, Trump has not reached them. And she said congress has given huge power to the president in the amended immigration and nationality act.


BENNETT: We have the president acting pursuant to power that congress gave him which means under the Youngstown still seizure cases, he`s acting at the apex of his power.


MELBER: She`s citing a Supreme Court case there on President Truman seizing steel mills. And it is true that congress passed a law giving the president the power to suspend aliens. But it also prohibited discrimination based on nationality. Challengers say that makes the ban illegal since it discriminates against the nationality of seven countries which brings us to the worst moment for Donald Trump in that courtroom.

You know, sometimes the simple questions are the hardest. Judge Robart took a step back and asked whether immigrants from those seven countries have been arrested for terrorism.


ROBART: How many arrest have there been of foreign nationals for those seven countries?


MELBER: That is a tough question because so far, the Trump administration has no good answer which was evident.


BENNETT: Your honor, I don`t have that information.


MELBER: I don`t have that information. Or maybe the information just hurt Trump`s case.


ROBART: Let me tell you the answer to that is none, as best I can tell.


MELBER: Now that is huge. The judge suggesting there that while the president may have the legal power to ban some countries, he still needs a reason. He needs a rationale. He needs facts.


ROBART: I`m also asked to look and determine if the executive order is rationally based, and rationally based, to me, implies to some extent I have to find it grounded in facts as opposed to fiction.


MELBER: That is a federal judge telling the Trump administration alternative facts don`t fly in court. That the ban needs some rational link to real threats not fears or made up attacks, not that anyone would make up terror attacks.


KELLYANNE CONWAY, COUNSELOR TO THE PRESIDENT: I bet there was very little coverage. I bet -- I bet -- its brand new information to people that President Obama had a six-month ban on the Iraqi refugee program after two Iraqis came here to this country, were radicalized and they were the masterminds behind the Bowling Green massacre. (INAUDIBLE) because it didn`t get covered.


MELBER: That kind of falsehood could hurt Donald Trump in court. Judge Robart said he might block a ban that is irrational while Trump`s lawyer argued the president has the power to be irrational in this key exchange.


ROBART: To some extent I have to find it grounded in facts as opposed to fiction.

BENNETT: Your honor, we actually don`t think you are supposed to look at whether it`s rationally based.


MELBER: Not supposed to look at it if it`s rationally based. You heard that right. The Trump administration`s position is basically you got to fight for your right to be irrational. Now why would they say that? Partly because lawyers make every possible argument and presidents want deference. But also for another reason.

The DOJ may realize that if the debate is about whether facts support this ban, they could lose. In other words, even if courts find the president has this power and it`s not a religious test, and it doesn`t violate due process, courts could still strike it down, the ban, they could strike it down if it`s not based on facts. And the facts are the ban only limits immigration from countries that have never sent attackers, while ignoring countries that have sent attackers to the U.S.


JEFF MERKLEY, UNITED STATES SENATOR: There have been zero fatal terror attacks carried out by immigrants from the seven nations listed in the order. Zero. Now we have been attacked by individuals from other countries who aren`t listed in this order. From Saudi Arabia, from the United Arab Emirates, from Egypt and Lebanon.


MELBER: Those are the kind of facts the judge cited. So after all the recent noise and grandstanding and tweets, after all the chaos and questions and confusion, the current status of the travel ban was not decided by the loudest person in the room or the person with the sharpest insult. It was decided quietly, dispassionately, by an independent judge. There`s no denying this ruling`s power. It`s the kind of power that does not need to yell to be heard.

The ruling re-opening America`s doors was heard all over the world. Whether you support or oppose the ban that is exactly what an independent judiciary is supposed to look like. It`s a very beautiful thing. Now up next, Lawrence O`Donnell has something to say about Kellyanne Conway and the press.


LAWRENCE O`DONNELL, MSNBC ANCHOR: At the end of the first week of the Trump presidency, Kellyanne Conway issued this challenge to the owners of TV news networks.


CONWAY: Who`s cleaning house? Which one is going to be the first network to get rid of these people who said things that just weren`t true? Not one network person has been let go. Not one silly political analyst and pundit who talked smack all day long about Donald Trump has been let go. They`re on panels every Sunday. They`re on cable news every day.

Who`s the first editorial writer? Where`s the first blogger that will be let go that embarrassed his or her outlets? We know all their names. I`m too polite call them out by name. But they know who they are. And they`re all wondering who will be the first to go. It`s the election was three months ago. None of them have been let go.


O`DONNELL: Who will be the first? George Will. Already has been the first. Fox news let him go two weeks ago for being consistently and thoughtfully anti-Trump.


GEORGE WILL, POLITICAL COMMENTATOR: Just when you think American politics has hit rock bottom, Mr. Trump rises or stoops to the challenge of saying there is no rock bottom for American politics.


O`DONNELL: While Donald Trump was campaigning for president, he was also campaigning to get George Will kicked off FOX News. Broker down political pundit George will who was wrong almost all the time should be thrown off FOX news, boring and totally biased. When Donald Trump won the election, George Will`s days at FOX News were numbered.

George Will is a Pulitzer Prize winning columnist for decades has been the best solidly conservative thinker and writer in the country. Even those of us who sharply disagree with George Will find his columns mandatory reading as they have been for republican and democratic presidents throughout his career. There is no one at FOX News smarter than George Will, and now he`s gone. The president of the United States didn`t want to see George Will on his favorite network and now he never will.

Joining us next, Jonathan Alter and Jay Rosen, the question is, who will be the next journalist who gets fired in the Trump war on the media?


O`DONNELL: George Will, conservative columnist, called Donald Trump a bloviating ignoramus, a buffoon, a political sociopath and history`s most unpleasant and unprepared candidate. And Donald Trump has finally succeeded in his campaign to get Fox News to fire George Will. So who`s next? Joining us now Jonathan Alter, an MSNBC Political Analyst and Columnist for the Daily Beast. Also joining us Jay Rosen, a media critic and professor of journalism at New York University. He is the author of Press Think, a web blog about journalism. Jay, you`ve been studying the Trump phenomenon, trying to figure out how the media should confront it and what tools it needs to use that are different from what we`ve seen in the past. Now we see Kellyanne Conway coming out in a straight-on overt attempt to try to get people fired out of this business. Where do we stand now?

JAY ROSEN, CRITIC: Well, I think a lot of journalists think they can handle Kellyanne Conway. They can ask her the tough question that`s going to demolish her, of course, that never happens.


ROSEN: I think also they`re having trouble adjusting to fact there aren`t that many Republicans who are willing to go on and defend Donald Trump. And so the few who can speak as Trump`s defender are in more demand and that gives her the power. I also think they`re having trouble grappling with the fact that the production of confusion is a method that the Trump Whitehouse is using as control and the fact that when we`re done listening to Kellyanne Conway, we know less as viewers doesn`t seem to bother the journalists who interview her and they`re sort of slow in accommodating this fact. and so right now I think the Trump Whitehouse is much better at reading the deep grammar of the press than the press is at interpreting -

O`DONNELL: What do you mean the deep grammar?

ROSEN: The deep grammar is like the logic beneath the practice. So, for example, the fact that you need your interviewees to come back is part of the deep grammar of journalism, right? It affects a lot of what you do but it`s not on the surface, it`s not explained to viewers. It`s not something that journalists would talk about very often. But certainly Kellyanne Conway knows that and gives her an advantage because she knows she has to be welcomed back.

O`DONNELL: But Jonathan, there`s been a Trump enemy list for years now. I`ve been on it for six years now. He`s been trying to get me fired off this network for six years. He would never come on this program. Kellyanne Conway would never come on this program. There are programs on other networks they will never go on and they are all doing very, very well. Rachel Maddow got Kellyanne Conway once but it`s not going to be frequent. Rachel`s doing fantastically well wthout having this constant access journalism game.

JONATHAN ALTER, AN MSNBC POLITICAL ANALYST: Well there`s a myth that you have to have certain people on to get good ratings. And there`s not any direct correlation. Now that myth was fostered by the fact that every time Trump went on in 2015 and 2016 cable networks saw their rating spike.

So that became almost like drug. You know we need to get him back to keep these ratings high. And it was always an implicit deal. And sometimes Trump would even make it explicit. I heard accounts from producers at other networks before he`d go on the air he would say well you`re not going to ask me about the birther stuff, right? We`re not going to talk about that tonight. And the implication was if the anchor asked him about it he wouldn`t be back the next time.

So that game him a measure of control. But now these networks don`t need Trump. They don`t even need Kellyanne Conway for their ratings. And I think the idea that she is somehow going to buffalo all these owners into firing a lot of Pundits is not withstanding George Will stay. I don`t think it`s going to happen because the countervailing force from Trump critics out in the audience is very strong. And if they start to throwing people on the fire their going to hear about it.

O`DONNELL: Well you know I`m off next week and I just want the world to know it`s because I will have been disappeared by the Trump or Putin Army that deals with reporters. We`re going to take a quick break. We`re going to be right back.


MELBER: President Trump takes on American Chords on Twitter again tonight. That story is next.


MELBER: Tonight the Justice Department filed its official brief defending the travel ban. Now oral arguments scheduled for torn in the 9th circuit in California. This hour Donald Trump tweeting the threat from radical Islamic terrorism is very real. Just look what`s happening in Europe and the Middle East, courts must act fast. Joining me now to get into it is Matthew Miller, a former director of the Office of Public Affairs for the Department of Justice under Attorney General Eric Holder. Good Evening to you. Let`s start with what we`re seeing in the pushback from President Trump. The broadest and most benign context one can give is that presidents do battle with the courts, FDR famously had a long-running battle that even involved court packet. President Obama criticizing Citizens United. The notion of that tension is not new. This level of personally picking on a judge, which recalls what happened in the campaign, is rare, to say the least, given your time at DOJ, what do you think of that aspect?

MATTHEW MILLER, MSNBC CONTRIBUTOR: You`re right. It`s very rare. And what`s different is so, yes, President Obama obviously disagreed withes the Citizens United decision, did it publicly. He never questioned legitimacy of the courts to make that decision. And he never personally attacked a judge the way Trump has done. What Trump has done over the weekend with these tweets, questioning the legitimacy then moving to actually blame the Federal Judge if a terrorist attack happens is so far beyond the pail and actually it`s going to hurt his case in court? I think there`s a good chance that the judge looks at, you know, let`s not look at this case on its merits. But judges are people, too. And I think when the judge looks at the questions about the President`s power and how the President behaves, he make think to himself , you know, this is the time when someone needs to rein in the President before it`s too late.

MELBER: Right, you`re talking about a boomerang. Alan Dershowitz, Harvard Law Professor, iconoclastic legal thinker who supported a lot of executive power, who supported torture warrants. He`s on record saying part of the ban he believes is illegal, and yet even he had this to say tonight on our air r about this boomeranging.


ALAN DERSHOWITZ, HARVARD LAW PROFESSOR: It`s ridiculous and also hurts his case tremendously. You don`t attack the integrity of the judge. That doesn`t help you. It doesn`t help politically and it doesn`t help legally. It will very much alienate the Appellate Court Judges. It was just dumb.


MELBER: The idea there is tension between the branches already exist but whether this Supreme Court or John Roberts who has held up the institution of the court and its integrity as a goal of his tenure might feel a need to push back harder on this kind of attack from a president.

MILLER: Yes so center of this case as you covered in an earlier segment is the inherent power of the Presidency. That`s what the judge is looking at. And so he`s looking and asking in general, what powers does the president have? But I think given President Trump`s behavior, he might also look at the question, what powers does President Trump have? When you see a President that came into office that started by attacking the news media, undermining and trying to delegitimize the central pillar of our democracy. And then now his move to the courts, try to undermine and delegitimize a court. The judge may say this President is different from other presidents. I`m still going to make a finding based in law, based on the facts of this case but I have to look at how the President`s behaving and decide early on that the courts need to tell this President that there is a limit to his power.

MELBER: Right and part of this question is what is normal and what is abnormal? John Yu, who authored the torture memos and is another defender of robust executive power came out today in The New York Times and said even I have concerns about this President`s Executive Power which is a bit like Darth Vader saying, hey, I think you guys are being a little tough here. One planet maybe, but I don`t want to destroy the whole solar system. I mean, when John Yu says you`re overboard, what does that tell you?

MILLER: It means you`re really overboard. John Yu is someone who said the President had authority to torture people, just flat-out the President had the authority in law to torture people. So when John Yu comes and says you`ve gone too far, it`s absolutely right. The President has just overreached with his power. And you can make a credible argument for the President`s case here. You can make an argument for him having the power to make these decisions on immigration. But when you look at what he said both in a campaign and what he said in his tweets and his what supporters have said, It gives the people suing a very good case.

MELBER: Well and as we showed in some of the footage from that hearing, that`s what one Federal Judge was concerned about, even if you this power, have you exercised it in such a way, such an intent it may go over the line because of some of the rational problems. Matt Miller from DOJ, thank you for joining as always. Always I`m Ari Melber. You can always find me on Facebook at or as Lawrence O`Donnell knows you can always e-mail me at I do read the inbox. That is our show and the 11th Hour starts right now.