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The Last Word with Lawrence O'Donell, transcript 2/7/2017

Guests: Joan Walsh; Jonathan Alter; Catherine Rampell, Bob Ferguson, Vince Warren, Jeremy Bash

Show: THE LAST WORD WITH LAWRENCE O'DONNELL Date: February 7, 2017 Guest: Joan Walsh; Jonathan Alter; Catherine Rampell, Bob Ferguson, Vince Warren, Jeremy Bash RACHEL MADDOW, MSNBC:  That he envisioned over 20 years ago -- federal district court. 

"Based on his record, I believe his confirmation would have a devastating effect on not only the judicial system in Alabama, but also on the progress we have made everywhere toward fulfilling my husband's dream that he envisioned over 20 years ago.

I therefore urge the Senate Judiciary Committee to deny his confirmation.  I thank you for allowing me to share my views."

The Reverend Martin Luther King's widow, Coretta Scott King writing to the Senate in 1986 when Jeff Sessions was up for a federal judgeship.

Tomorrow, he'll be up for Attorney General.  Senator Elizabeth Warren silenced on the floor of the Senate tonight for having the temerity to read those words anew.

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, good evening, Ari.

ARI MELBER, MSNBC:  Good evening, Rachel.  I just wanted to ask you, I've been watching your phenomenal coverage and that unusual interview with Senator Warren.

I'm --

MADDOW:  Yes --

MELBER:  Just curious.  Do you see this as something that escalated in a heated moment on the floor or a sign of the way Republican Majority leader here is going to run this Senate?

MADDOW:  I am not surprised that Mitch McConnell came up with a procedural way to interrupt what the Senate Democrats were doing on the floor of the Senate.

He knows they're there for the second all nighter in a row.  He knows they're tired, he knows that that's a good time to try to provoke or poke people.

You know, that's not politics, that's human nature.  What I am very surprised by, and I hope it's viewed by Republicans as a political failure and not as a political success.

What I am surprised by is that he chose the widow of Martin Luther King Jr. as the hill he wanted to die on here.

As the thing that he was going to proclaim effectively obscene on the floor of the Senate by using Coretta Scott King's words as the way that he shut up Elizabeth Warren.

He is exhibiting the kind of profound indifference to the racial contours of the Jeff Session's nomination that I wouldn't have expected from somebody as savvy as Mitch McConnell.

MELBER:  Wow --

MADDOW:  And so, if they did that on purpose to try to be racially provocative, to try to stir up the racial edge and -- or try to stir up racial currents here, I think that's scary and gross.

If they did it accidentally, I think it's political malpractice.  But I think that they've just turned this issue.

And Elizabeth Warren and the Jeff Sessions nomination into a much hotter, more hotly contested and sort of scarier thing that it's been up until now.

MELBER:  Yes, it was remarkable.  Do you --

MADDOW:  Yes --

MELBER:  Think it changes any votes? That's my last question.

MADDOW:  I don't know.  I mean, we've seen a lot of Republicans say they're willing to support Jeff Sessions from the very beginning.

Joe Manchin; Democratic senator from West Virginia had indicated that he might support him.  I do think that Mitch McConnell put a very different cast on it by doing this tonight. 

And I think this is going to galvanize a lot of people.  I think it's going to -- you know, bring a lot more attention to that vote and might otherwise have happened. 

Especially because the votes have been strong out for so long.

MELBER:  Yes --

MADDOW:  I don't know.  Do you think this will move votes?

MELBER:  It's hard -- it's hard to know, but I think the notion of using procedures this way to, as she put it to you, be red-carded and say a senator literally cannot speak on the Senate floor.

This is a floor where almost everything can be said because --

MADDOW:  Yes --

MELBER:  There's a right to talk, it was striking.

MADDOW:  It is striking.  And so, I mean, we'll see.  You know, Mitch McConnell is a savvy operator.

I don't think that he usually does stuff he doesn't mean.  If he meant to make this a race fight, even more than it already was over Jeff Sessions, as you know, Katie by(ph) the door in terms of what comes next --

MELBER:  Yes, well --

MADDOW:  Yes --

MELBER:  Rachel, thank you for your coverage on that --

MADDOW:  Thanks --

MELBER:  Appreciate it --

MADDOW:  Appreciate it. 

MELBER:  We have quite an evening obviously unfolding and a lot of news to break this hour.

More on that story.  But first, we're looking at the lawyers here for President Trump asking for that urgent hearing tonight, trying to get the travel ban reinstated.

They ran into tough questions by federal judges, as did lawyers for Washington state challenging the ban.

The Attorney General leading that challenge joins me tonight, it's his first interview since that hearing. 


CHRIS MATTHEWS, MSNBC:  An extraordinary legal battle over the fate of the president's travel ban.

LESTER HOLT, JOURNALIST:  A three-judge panel is considering arguments about whether to keep a hold on enforcing the order.

UNIDENTIFIED MALE:  Is there any reason for us to think that there's a real risk?

UNIDENTIFIED MALE:  Well, the president determined that there was a real risk.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  I actually can't believe that we're having to fight in a court system to protect the security of our nation.

SETH MEYERS, COMEDIAN & TELEVISION HOST:  It seems like Trump's real rage is he just found out there are two other branches of government.

REP. PAUL RYAN (R-WI), SPEAKER, UNITED STATES HOUSE OF REPRESENTATIVES:  Look, he's not the first president to get frustrated with a ruling from a court. 

TRUMP:  You know, sometimes the law -- some things are common sense.  This is common sense.

SEN. JOHN MCCAIN (R), ARIZONA:  The roll-out was disastrous.

UNIDENTIFIED MALE:  In retrospect, I should have delayed it just a bit.

TRUMP:  Well, everybody is talking and dealing, a lot of bad people are thinking about let's go in right now.

UNIDENTIFIED FEMALE:  Have you urged the president not to make false claims?

SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER, SENATE:  I'm not going to try to speak for the president, he can speak for himself and frequently does.

MEYERS:  Checks and balances? I thought it was just checks.


MELBER:  Hello, I'm Ari Melber in for Lawrence O'Donnell.  President Trump's travel ban hangs in the balance tonight after that pivotal hearing before three federal judges on the ninth circuit.

The question, should the ban be reinstated or remain paused while cases challenging its legality make their way through the courts?

Now, we have a special report for you right now on what went down tonight.  The judges' first question was are the doors to the court even open to this case?

President Trump's lawyers arguing his views cannot be questioned in this area.  In lawyer lingo, that means they told the judges this ban is not even reviewable.


UNIDENTIFIED FEMALE:  Are you arguing then that the president's decision in that regard is unreviewable?



MELBER:  Don't count the pause -- a power clash as you'll hear in court.

Trump's lawyers telling the judge this is basically none of their business.

They do have some law on their side.  There are topics where courts don't review presidential decisions. 

But one of the questions in this case is whether the government is conducting religious discrimination, which is typically unconstitutional.

So, a judge asked if this is a religious ban, then would the court doors be open?

Could someone have standing for that? The question drew a concession from Trump's lawyers that yes, there are Supreme Court cases including a 1972 case called Mandel that would open the court's doors.


UNIDENTIFIED MALE:  If the order said Muslims cannot be admitted, would anybody have standing to challenge that?

UNIDENTIFIED MALE:  I think Mandel and Din give a route to make a constitutional challenge if there were such an order.


O'DONNELL:  Then the judges pushed further, saying the Muslim ban question was not hypothetical, given comments by, yes, Rudy Giuliani.

This was a piece of evidence we reported Monday on THE LAST WORD because challengers used it as evidence against Trump in their victorious hearing that first blocked the travel ban.


RUDY GIULIANI, FORMER NEW YORK CITY MAYOR:  When he first announced, and he said Muslim ban, he called me up and 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 was what the challenger cited last week and it worked in their favor again tonight.

Maybe Rudy Giuliani is a secret member of the ACLU for all the help he's doing for their cause.

Tonight, another Republican-appointed judge pressed Trump's lawyers on whether they denied Giuliani's statements.


UNIDENTIFIED MALE:  Either those kind of statements were made or they're not. 

Now, if they were made, but they were made not to be a serious policy principle, I can understand that.   

But if they were made, it is potential evidence, it is the basis for an argument. 

So, I just want to make sure I know what's on the table. 


MELBER:  That was the question, Trump's lawyer backed down in his answer.


UNIDENTIFIED MALE:  Well, those are in the record.


MELBER:  The record is of course the foundation for arguments in this case.

The judges are basically pushing Trump's lawyers to accept the reality that one of their own advisors, a former prosecutor said this all grew out of a Muslim ban.

Now, on the other hand, to be fair, the White House has stressed Giuliani went rogue and they say the order isn't a Muslim ban.

Now then the hearing moved from the government's legal powers to its powers of reasoning.

This is where the legal and political debate meet because we're going to hear a lot about why President Trump picked those seven countries to ban.

Tonight, a Democratic-appointed judge citing that moment in the lower court when Trump's DOJ lawyers couldn't justify the threat of immigrants from those seven countries. 


UNIDENTIFIED MALE:  The district court asked the representative of the Department of Justice, you know, you're in the Department of Justice.

How many federal offenses have we had -- being committed by people who came in with visas from these countries? And --


UNIDENTIFIED MALE:  The other -- the other night was the answer, was there haven't been any.


MELBER:  Now, that's true.  Here was the Trump lawyer's answer in court on Friday.


UNIDENTIFIED FEMALE:  Your honor, I don't have that information.


MELBER:  I don't have that information.  But that information is available.

There have been no deadly attacks by immigrants from any of the seven countries.

The judges didn't bring up that moment to give the lawyer a hard time.

The legal reason to cite that moment is because courts may review whether a government decision is rational.

This is considered a pretty easy review usually.  The government basically needs a rational reason for doing something, almost any reason will do.

But the government can't offer a bad reason like discrimination or no reason, which could be irrational, and of course does.

And after two weeks and over 20 losses, the Trump administration is still struggling to offer that rationale reason in court. 

A travel ban order cites 9/11, but none of those attackers are from the seven countries. 

It cites homeland security but no other deadly terrorist attackers again are from the seven countries.   

And tonight, Trump's lawyers cited a federal law about vetting for mostly European travelers to explain those seven countries.

And that maybe a tough, legal argument though, because that law had nothing to do with native immigrants traveling from those countries.

It was a law that gave extra vetting to European travelers who passed through the seven countries.

You can think about it like this.  If a British tourist stopped in Libya, then the U.S. would give him extra vetting on his way to United States.

That was a security measure applied to the British tourist, not to Libyan native immigrants.

Bottom line, this was a list of countries that were deemed dangerous to visit, not necessarily dangerous for sending their native citizens as immigrant terrorists to the U.S.

Now, outside the courtroom it may be an effective political tactic for Trump to say he got this list of countries from Congress and the Obama administration.

Even if the list was for a European visa waiver program, not for banning native immigrants.

But folks, inside the courtroom, some judges are already probing whether this defense is yes, rational.

As a lot of law unprecedented is still on President Trump's side.  Because the president does have huge immigration powers. 

But tonight, it appears some judges may further probe whether he is using those big powers rationally.

Joining me now is Bob Ferguson; Attorney General for the state of Washington in his first interview since that hearing tonight.

What did you think of the judges' questioning? Do you think you will win this next round?

BOB FERGUSON, ATTORNEY GENERAL, WASHINGTON:  Thanks for having me on, Ari, I really appreciate it. 

And yes, I said from the beginning when I filed this complaint on behalf of the state of Washington that I was confident we would prevail.

We prevailed at the federal district court level of course, I'm confident that we'll prevail here as well.

MELBER:  When you think about this debate over the seven countries, which is played out publicly, politically and legally. 

Do you think the judges will dig in deep to look at how the visa waiver program has worked or as the Trump administration argues, should they stay out of that?

Because even if these seven countries weren't well picked, say, we stipulate that, there's a lot of precedent that says the president would have this power. 

Surely, you would concede the president could suspend immigration from all of Saudi Arabia on September 12th.

FERGUSON:  So, Ari, I'm so glad you played in your clips that segment from the oral argument in which one of the judges asked the Justice Department, are you saying that the president's actions are unreviewable and after that long pause, the answer was yes.

Look, Ari, the president does have -- to your point, broad powers when it comes to immigration.

But those powers must be able to be reviewed for example to see if there was a discriminating intent or motivating factor behind the signing of that executive order.

So, frankly, as my (INAUDIBLE) said at the trial court level, that argument by the federal government that we cannot look behind the order at all is truly frightening.

MELBER:  But can the president suspend, say, an entire state that we're at war with immigrants?

FERGUSON:  Well, I'm not going to begin to -- hypothetical.  I'm talking about as a case we have right now, right?

Which is a case in which this executive order was put together even by the administration's own acknowledgement too quickly, without sufficient -- without sufficient thought and clearly violates the constitution, other statutory provisions as well.

That's why I think Judge Robart, who was appointed of course by President George W. Bush, the trial court judge ruled in our favor.

And granted frankly, the extraordinary relief of putting a state on the whole program.

I think the ninth circuit court of appeals is going to see it the same way.

MELBER:  Your lawyer did pretty well today, I would say.  But he did have a real rough patch on the question about all of global Muslims who aren't affected by this.  Take a listen.


UNIDENTIFIED MALE:  Do you have any information as to what percentage or what proportion of the adherence to Islam worldwide are citizens or residents of those countries?

My quick penciling suggests it's something less than 15 percent.

UNIDENTIFIED MALE:  I have not done that math, your honor.


MELBER:  If the vast majority of the world's Muslims are unaffected by this, how does your case credibly state this targets Muslims?

FERGUSON:  Sure, so the part that you did not air was Noah's answer, which he eventually got to.

Which is in looking at whether or not there's a motivating factor that's discriminatory.

It does not mean the action, whatever action we're talking about has to discriminate against everybody within a particular class.

As long as you are targeting, discriminating against a group, that is sufficient under the law. 

The key test under the law, Ari, is whether or not, in signing the executive order, there was a discriminatory, motivating factor behind it. 

And we think in this case the evidence is clear from President Trump's own words and the judges hammered on that as you pointed out later in the oral argument.

MELBER:  Washington State Attorney General Bob Ferguson on what's being a busy stretch for you, thanks for joining tonight.

FERGUSON:  Thank you, Ari, have a great night. 

MELBER:  Absolutely.  I want to turn now to Vince Warren; executive director of the Center for Constitutional Rights. 

You run an organization that has handled many such cases, including challenging another important presidential power, the war-making power in detention cases.

In full disclosure, we met many years ago when I worked with CCR.  But I want to ask you, when you look at this, there is an argument that this is the heart of presidential power. 

VINCE WARREN, EXECUTIVE DIRECTOR, CENTER FOR CONSTITUTIONAL RIGHTS:  I think that's right, it is the heart of presidential power. 

And I think, you know, what's clear particularly when we talk about the discrimination question, I think the Attorney General is right in their view that you don't have to discriminate perfectly.

You don't have to discriminate against everyone.  So, for example, if the president came up with some law that said we are going to discriminate against black people in three states in the United States, that doesn't cover everybody in the United States.

But it doesn't mean it's not discrimination.  So, I think there's a plausible and a very good, solid argument that they're making that it doesn't have to be perfect discrimination in order for it to be unconstitutional and problematic. 

MELBER:  There are so many different lines of attack here, which is common, because lawyers like to put everything on the menu for a judge.

But putting your litigation hat on, which do you think are actually most likely to get the ban permanently struck down?

WARREN:  I mean, I think there are range of questions, and I think there's an equal protection argument with respect to discrimination.

And I think the first amendment question with respect to religion, I think it's also strong.

There are a lot of -- there are state court arguments, there are state constitutional arguments, there's a lot of stuff that's in there.

I think the strongest piece is that President Trump and his -- and his -- and his folks said pretty clearly that they wanted to create a ban.

They actually wanted to create a ban before he was the president-elect, before he was the Republican nominee.

He's been talking about this before he even had access to a lot of the intelligence stuff.

So, I think it's fair for the court to be able to look behind what his -- what his claims are now.

Particularly when you have an administration that doesn't seem to be so happy to tell the truth all the time and that they fudge the facts.

I think it's actually not only within the court's power, but I think it's prudent to look behind some of those.

MELBER:  Well, that was one of the roughest parts in these arguments tonight.

And at one point, the DOJ was struggling basically, to provide some of the basic type of record evidence, just the basic facts and precedent that you'd want to provide a judge. 

And they said back to the judge, well, this is going really fast.  And the judge had to point out well, it's going fast because the Trump administration asked for this emergency hearing.

I want to actually -- this is the last clip we're going to play.  But it's pretty interesting, I want to play that part. 


UNIDENTIFIED MALE:  Yes, your honor.  These proceedings have been moving quite fast and we're doing the best we can.

I can't --

UNIDENTIFIED FEMALE:  You're saying the proceedings are moving fast, but you appealed to us before you continued in the district court to develop the record.

So, why should we be hearing this now if it sounds like you're trying to say you're going to present other evidence later?


MELBER:  In your view, has there been some subpar lawyering here because the administration has not put its best foot forward to defend this in court?

WARREN:  Well, I think it's ad hoc lawyering.  I mean, in the sense that they are making this up as it goes along.

Because the time frame, the order was issued so rashly and so badly and without any good roll-out, everybody is scrambling to try to figure out what the legal arguments are.

There's one point that I think the judge made which was really interesting.

When he was asking the questions -- one of the judges was asking the questions about, well, isn't it true that for these seven countries that Congress' response to them was actually to vet people more in these seven countries.

And is there anything wrong with that, is there a changed circumstance?

You know, the judge was essentially saying, look, if it ain't broke, why is President Trump trying to fix it?

You have to convince me that it's broke.  And of course, the government lawyer couldn't possibly do that.

MELBER:  Right, and that again goes to part of where the Justice Department does not want to be, which is the innards of this rule.

That's why they started by saying, don't even look under the hood.  You look under the hood if you had a more what?

Lawyers call tailored or targeted program, it might be more defensible. 

The question on me is whether the appeals court or the Supreme Court wants to second-guess immigration to that degree?

CCR Executive Director Vince Warren, thanks for being here --

WARREN:  Thanks so much for having me --

MELBER:  I appreciate it.  Coming up, we do have more on the breaking news that Rachel and I were discussing right at the top of our show. 

Elizabeth Warren being formally rebuked by Republicans on the Senate floor for a floor speech where, among other things, she was quoting Coretta Scott King.


MELBER:  Another breaking news item tonight.  After President Trump ordered that raid in Yemen which killed some Yemeni civilians, the government of Yemen now officially is saying it is banning the U.S. from any more ground operations.

The two countries basically had an agreement previously that was allowing the U.S. to conduct some operations, trying to target al Qaeda in the Arabian Peninsula.

Now, back here at home, security experts warning the president's travel ban is not helping make the U.S. safer either. 

We have more on that next.   


MELBER:  President Trump is obviously an unusual client.  While the Justice Department is defending his travel ban with that hearing tonight. 

Trump continues his own public pressure campaign, suggesting any ruling against his order would make the federal judiciary responsible for the fallout from any terror attacks on American soil.

And then in a meeting with the National Sheriff's Association today, Trump insisted the ban was common sense, he hopes it won't go before the Supreme Court.

And then in a bizarre exchange we're going to show you.  There was a sheriff complaining about a state senator's potential legislation regarding civil asset forfeiture.

Which to be clear is about as dry as it sounds.  And then President Trump basically said he would get involved with a threat of payback.

He didn't even know who the legislator was yet.  Take a listen.


UNIDENTIFIED MALE:  On asset forfeiture, we got a state senator in Texas that was -- that was talking about introducing legislation to require conviction before we can receive that forfeiture money.

TRUMP:  Can you believe that?

UNIDENTIFIED MALE:  And I told him that the cartel would build a monument to him in Mexico if he could get the legislature signed -- 

TRUMP:  Who is the state senator? You want to give his name? We'll destroy his career.



MELBER:  Joining me now is Jeremy Bash; Msnbc national security analyst and former Chief of Staff to CIA Director Leon Panetta as well as at the Pentagon.

Good evening to you, let's start open, any comment on what I just showed at the president's approach to the federal judge and the federal judiciary's oversight of these issues.

Which you of course dealt with on the national security side.

JEREMY BASH, FORMER CHIEF OF STAFF TO LEON PANETTA:  Good evening, Ari.  Look, I think the president likes to attack institutions.

He's attacked a free press, he's attacked the intelligence community, he's downgraded the role of the director of national intelligence and the joint chiefs.

I think it's all an effort so that when his policy-making goes forward, he's not constrained by facts, people who are experts in their field.

And that's dangerous.  It's dangerous for policy-making, and I think it's also dangerous for national security. 

MELBER:  When you look at the security side, I wonder what your observations are having listened to that hearing.

I mean, there are certainly times where your old colleagues at the CIA or Pentagon would say, look, keep the judges out, you know, we respect them.

But we would prefer to do our own business.  I mean, the CIA often when it comes to areas where the rest of the government is held to account, they have some exceptions.

Some of them well earned, some of them logical.  But what is your view of the balance you heard in that courtroom today?

BASH:  Well, look, I think the president does deserve some deference in matters of national security.

But I think in this case, with regard to this executive order, the national security aspect was sort of invented at a (INAUDIBLE).

The threat was hyped.  Supposedly there are some secret information or intelligence that would justify an emergency measure like this.

I think the administration should come forward and explain what that is, that causes us to on an emergency basis close our borders to seven countries. 

MELBER:  Have you heard --

BASH:  So far --

MELBER:  I mean --

BASH:  We haven't heard any --

MELBER:  You point your finger -- have you heard maybe more on background or folks who don't want to put their name attached to it.

What the rationale is to the seven countries because as I was reporting here in the top of the show.

There has not really been a security-based argument.  There's an argument that federal law dealt with visa waiver countries because of European tourists which we've shown why that's a different application to the law.

But even that is old and not about the current security threat.  Do you -- do you know of one ?

BASH:  No, I don't, and I've been trying to find one.  I think we've been all in this town hunting for what is -- what is motivating this other than the campaign rhetoric and the political rhetoric about a Muslim ban.

And so far, no one can come up with it.  And I would just note that viewers should also take a look at an important filing that was made in the ninth circuit by ten former senior national security officials.

It was made late Sunday night, it's on their website.  It was signed by a number of people including four people who ran the CIA.

General Mike Hayden, John McLaughlin, a career CIA analyst who rose through the leadership ranks of the agency.

Mike Morell, also a career national security professional and analyst and Leon Panetta, my old boss who ran both the CIA and the Pentagon.

Four men who basically argued there is no reason to protect the country in this way.

There's a reason to protect the country from terrorism, you do it in a focused way, following leads and following specific threat streams.

That's how we have prevented another 9/11 in the past 15, 16 years.  You don't do it through these blanket bans.

And there's no real reason from a national security perspective to do it in this way.

And worse, Ari, and this is what came out in their filing, it actually would hand ISIS a major victory, so it actually can make our country less safe.

MELBER:  Jeremy Bash, as always, appreciate your expertise, thank you.

BASH:  Thanks, Ari. 

MELBER:  Now, coming up, we have more on that breaking news.  A dramatic turn of events on the Senate floor this evening just within the last hour with Republicans formally voting to rebuke Elizabeth Warren.

She was given a floor speech about Senator Sessions' nomination to be Attorney General and she was quoting Coretta Scott King's opposition to Jeff Session's 1986 nomination to be a federal judge. 


STEVE DAINES, UNITED STATES SENATOR:  This is a reminder not pertinent necessarily to what you just shared, however, you stated that a sitting senator is a disgrace to the department of justice. 

ELIZABETH WARREN, UNITED STATES SENATOR:  I think that may have been senator (INAUDIBLE) who said that. 

DAINES:  And this -

WARREN:  Although I would be glad to repeat it in my own words.  So quoting Senator Kennedy, calling then nominee Sessions a disgrace is a violation of senate rules?  It was certainly not in 1986. 

DAINES:  In the opinion of the chair it is. 

WARREN:  So let me understand then -

DAINES:  The senator is warned. 


MELBER:  And that is certainly an unusual event on the senate floor and one that has some differing precedent, which we will get to.  But to show you what happened, then 20 minutes later Senator Warren interrupted again, this time by Senate Majority Leader Mitch McConnell. 


WARREN:  They are --


DAINES:  The majority leader. 

MCCONNELL:  The senator has impugned the motives and conduct of our colleague from Alabama as warned about the chair.  Senator Warren quote said Senator Session has used the awesome power of his office to chill the free exercise of the vote by black citizens.  I call the senator in order under the provision of rule 19. 

WARREN:  Mr. President? 

DAINES:  Senator from Massachusetts. 

WARREN:  I'm surprised that the words of Coretta Scott King are not suitable for debate in the United States Senate.  I ask leave of the senate to continue my remarks. 

DAINES:  Is there an objection? 


WARREN:  I appeal the ruling --

DAINES:  Object -- objection is heard.  The senator will take her seat. 

WARREN:  Mr. President, I appeal the ruling of the chair and I suggest the absence of a quorum. 

DAINES:  The clerk will call the roll. 


MELBER:  Then in a vote of 49-43, the senate held the vote on that underlying issue the result being to silence Senator Warren.  Now, moments ago she spoke out on this.  This was her first interview or really public statement of any kind and what again was very unusual on the senate floor.  This is an unusual circumstance in the sense that you have the conduct of a senator about remarks of another senator who is also, obviously, up for confirmation. 

So there's more than one thing going on.  But here's how she explained it in this new interview with Rachel Maddow. 


WARREN:  Reading that letter out loud, according to Mitch McConnell, impugned Senator Sessions and therefore I got gavelled and was forced to sit down and I am not allowed to speak on the floor of the senate.  I'm not allowed to speak so long as the topic is Senator Jeff Sessions. 


WARREN:   I've been red carded on Senator Sessions. 


MELBER:  For more on this developing news, I'm joined by Joan Walsh and Jonathan Alter. Joan? 

JOAN WALSH, AMERICAN AUTHOR:  It's unbelievable.  I mean, to see her being told to sit down was almost painful.  And the idea that a senator is above criticism, when you nominate a senator for a cabinet position, his colleagues cannot criticize him is kind of crazy, kind of elitist.  And let's remember he didn't just silenced Elizabeth Warren, he silenced Coretta Scott King. 

And that's just a shocking thing to do.  On top of everything else Jeff Sessions was not a senator when these comments by senator - the late Senator Kennedy and the late Mrs. King were made about him.  These were comments that came in the course of that unfortunate senate nomination for judgeship where he was rejected by a republican senate.  So the idea that these words that moved a republican majority senate in 1986 are now not fit to be spoken. 

And she wasn't just, you know, prohibited from continuing that statement, she's prohibited from making any statement through the rest of the debate on Sessions.  I just didn't know that was possible. 

JONATHAN ALTER, AMERICAN JOURNALIST:  I just think it's profoundly stupid of Mitch McConnell.  I mean, what has he done?  He's shone a light on the objections to Jeff Sessions as essentially a racist, that Coretta Scott King, who's still a revered figure in this country brought up now the attention of the nation or people who are interested in politics is riveted on this.  To use a cliche, the optics are horrendous, as they have been for the Trump administration so far.

It's almost like the disease of bad optics is contagious and now it's moved to Capitol Hill where they are doing things that defy political common sense and normally Mitch McConnell, what everyone thinks of him is a smart operator.  This was a dumb thing for him to do. 

MELBER:  Well and to your point, they have the votes on most of these. 

WALSH:  Right. 

MELBER:  The only thing left is a debate on the senate floor, which is not exactly the roughest or toughest opposition tactic.  It is literally words in a public debate that then move on to a vote.  Now we'll put up on the screen for folks and most people don't know and don't care much about rule 19, I haven't thought about it a long time.  But it says no senator in debate shall directly or indirectly by any form of words impute to another senator or other senator any conduct or motive unworthy or unbecoming a senator. 

The core of the rule if you're interested in this kind of thing is to try to protect a little bit of comity and good faith -

WALSH:  And quorum - yes quorum. 

MELBER:  -- in debate between senators. 

WALSH:  Exactly. 

MELBER:  It is not obviously at a basic level about confirmation process where someone is leaving the senate and their - their conduct so to speak is going to be assessed sooner or later depending on their record.  I want to share one more thing from Senator Schumer's office which in a late night unusual blast.  Lot of unusual things tonight.  They say, quote, senate republicans have regularly flaunted rule 19 in the past, republicans never asked them to sit down this is a clear case of selective enforcement. 

Only Senator Warren accurately quoting from MLK'S widow provoked republicans to action, Joan. 

WALSH:  Well that's obvious.  And the point that you raised, I'm not a lawyer, I'm not a scholar of the senate, but it's clear that is intended to keep, you know, certain boundaries around debate and I can understand it.  But it's not intended to be used in a situation like this.  And an impartial president, or a fair minded president would have, you know, looked at this as two senators, their having a debate and sided with Senator Warren because that's not the way the rule was intended to be used. 

So, and this is so interesting because I'm not sadly because I think he should be opposed, she should be voted down because of his racial past and his voting rights past first and foremost.  I'm not aware of a single republican who is in danger of voting against him.  I wish I could say it was different.  Are you, John?

ALTER:  No.  And, you know, also think back to a couple of years to when Ted Cruz and Rand Paul and others were going at it on the senate floor and seen some pretty harsh things as Senator Schumer indicated.  Rule 19 has been honored in the breach, a fair amount in recent years.  So for them to choose this occasion -

MELBER:  Right. 

ALTER:  -- to shine a light on it in this way is perplexing.  We would not be talking about this.  It's not as if the attention of the world was riveted on the senate floor tonight. 

WALSH:  Right. 

ALTER:  This was - this was the last stages -

MELBER:  Right. 

ALTER:  -- of something that's a done deal, Sessions is going to get confirmed -

MELBER:  And the underlying issue Jonathan -

ALTER:  Yes. 

MELBER:  -- is of course the questions that did dog then Prosecutor Sessions when he was up for the federal judgeship, which is there were accusations made on the record, some under oath, that he had made a lot of racially incendiary comments, that he was basically having difficulty with black colleagues within the prosecutor's office.  Now, in fairness, there was a strenuous rebuttal of that at the time and they continue to rebut that.  That is something that is up for debate. 

I just wonder as final thought to you John and Joan you're staying with us for the program - I wonder how do you talk about any of that fairly, right, without raising the prospect of impugning him as a nominee. 

WALSH:  Right. 

MELBER:  In other words whether you were on the attack or defense, you're going to be discussing that alleged conduct. 

ALTER:  Of course.  And, you know, when you're talking about confirming somebody for a position that is this important, to say that, oh, but this big chunk of his record, what lead him to be denied a federal judge in the past, that's off limits -

WALSH:  Now he's senator. 

ALTER:  Yes, because - because now he's protected by being in the club. 

WALSH:  Right. 

ALTER:  Well I don't think the American public responds very well to the club protecting people from basic accountability.  Almost think that McConnell wants to polarize this a little bit, wants to rally the Trump folks who are behind Sessions so that he has some really adamant supporters when he goes into that job at the justice department. 

MELBER:  Wow.  Jonathan Alter, thank you for joining us.  Joan stays.  Coming two weeks in and we do have some new polling here about what Americans think of Donald Trump's presidency and whether the honeymoon is over. 


MELBER:  Here's something you may not have seen yet.  The federal official in charge of implementing President Trump's travel ban, Homeland Security Secretary John Kelly, said something interesting.  He now says it would have been better to roll out the ban differently. This was before the House Homeland Security Committee today.


JOHN KELLY, HOMELAND SECURITY SECRETARY:  In retrospect, I should have, this is all on me by the way, I should have delayed it just a bit so that so that I could talk to members of Congress, particularly the leadership of committees like this to prepare them for what was coming.


MELBER:  Credit where it's due and whatever amount of credit may be due, but that is useful testimony from a public official.  The roll-out, which was widely known as confusing that's been well documented.  Secretary Kelly's comments though are still at odds with the way President Trump has been describing it.  This is his recently - that's two days ago.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES OF AMERICA:  I think it was very smooth.   We had 109 people out of hundreds of thousands of travelers and all we did was vet those people very, very carefully.


MELBER:  Now typically even when there are disagreements or missteps  it is early on for this administration and voters tend to give new administrations something of a honeymoon period.  We checked today and it looks like that is not happening. 51 percent of Americans now disapprove of how President Trump is handling his job. 42 percent approve.   That's according to Quinnipiac Poll.   Gallup tracking shows 54 percent disapproval while 42 percent approved.

To put this in some context The Word Team looked at this today.  It took 922 days for President Obama's approval rating to fall to 42 percent in Gallup.  Donald Trump has been in office 19 days.  Now coming up we have a pop quiz for you.  What reportedly bothered President Trump most about this SNL sketch?  The answer coming up.


MELBER:  Question.  President Trump was most bothered by which part of this SNL skit?


BOBBY MOYNIHAN:  I want to ask about the travel ban on Muslims.

MELISSA MCCARTHY:  It's not a ban.

MOYNIHAN:  I'm sorry?

MCCARTHY:  It's not a ban.  The travel ban is not a ban which makes it not a ban. 

MOYNIHAN:  But you just called it ban. 



MELBER:  Newly disclosed court documents raising some questions about potential conflicts of interest within the Trump Whitehouse.  This is all part of a $150 million libel sued filed by First Lady Melania Trump.  The First Lady going after a company that publishes the British tabloid Daily Mail over an article they have retracted.  Now Mrs. Trump's role as First Lady is not explicitly mentioned but the complaint refers to an opportunity she had "to launch a broad-based commercial brand in multiple product categories.  Each of which could have garnered multi-million dollar business relationships for a multi-year term during which plaintiff is one of the most photographed women in the world. 

Joan Walsh is back with us and also joining me is Catherine Rampell of the Washington Post.  I will start from a criticism here of Richard Painter who was an ethics lawyer for George W. Bush, who I should mention is also suing the Trump Administration over some of these issues.  But he says look there's never been a First Lady of the U.S. who insinuated she intended to make a lot of money because of the once in a lifetime opportunity of being First Lady.  And since we're talking lawsuits, we'll give you the rebuttal and then your guys (INAUDIBLE) Catherine Charles Harder who is Melania Trump's attorney and a top, well-known attorney in these kind of libel cases says look the First Lady has no intention of using her position for profit and will not do so.  It's not a possibility.  Your thoughts Catherine?

CATHERINE RAMPELL, JOURNALIST, WASHINGTON POST:  It sounds like Melania's lawyer should read his own complaint is what I would say.  I mean if you look at the complaint it says this is a once in a lifetime opportunity in which she will have a multi-year experience in which she will be among the most photograph women in the world.  And that is the perfect time to launch her own brand and to capitalize on that fame.  So I don't know how her own attorney can argue, you know, within the span of 24 hours seemingly that she either wants to capitalize on her new found fame and profile and doesn't want to.

MELBER:  You're right and Joan some of them is second nature to them.  And by the way there's nothing wrong with that if you don't want a career in public service. 

WALSH:  Sure.

MELBER:  No greater -

WALSH:  Go after the money.

MELBER:  Yes.  No greater American icon than Jay-Z said I'm not a businessman.  I'm a business man.   And Trump was a business, the name and the brand, the family.   Nothing wrong with that.

WALSH:  Right.

MELBER:  And we have a country that rewards that.

WALSH:  Right.

MELBER:  It seems the problem is the transition out of private gain into public service.

WALSH:  And this is beyond the transition.  I mean there's an official transition.  But this is really she's in the Whitehouse.  There - well rarely buy, you know, She is the First Lady. And I just can't believe that the lawyer would undercut his only real argument for damages here.   I also find it hard to believe, Ari, that this allegation, which we don't even dignify by repeating, was widespread enough to actually cost her opportunities.  So I think it's terrible --I mean, this is kind of an inconsistent argument.  I think it's terrible for her to be looking for those opportunities but I also find it hard to believe that this, which did not circulate that widely, people, found the charges radioactive could be blamed for costing her millions in opportunities, even if she decided it was appropriate for her to pursue them.

MELBER:  Right and Mrs. Trump, Catherine has a very strong case on the underlying issue.  The question of it is it worth that many millions and so the lawyers tend to do some inflation. But we could put on the screen in the larger context, you know, they have applied for trademarks for make America great, keep America great, all these kind of things, which show a Nexus of the political messaging with wanted to make money.  You don't need the trademarks something to get votes, Catherine.

RAMPELL:  You don't need to trademark something to get votes.  I mean this is why we have been having this discussion for months now about the importance of having Donald Trump then candidate now president extricate himself from the enormous conflicts of interest that he has created.  That there's a reason why we don't want people who are in public service to be putting themselves in position to directly benefit from that service, at least in a financial sense.

MELBER:  Catherine Rampell and Joan Walsh thank you both for joining tonight, appreciate it.

WALSH:  Thanks Ari.

RAMPELL:  Thank you.

MELBER:  That does it for The Last Word.  As always you can e-mail me at ari I'm tired.  I think I'm going to get some rest.  But you should stay up because The 11th Hour with Brian Williams is live starting now.