unfortunately at the oral arguments there was crickets in response to that question. that's why we're here. >> see you in court. the security of our nation is at stake. that's it for me. i'm wolf blitzer in "the situation room." our special breaking news coverage continues right now with "erin burnett out front." good evening. i'm erin burnett. "out front" tonight, a ruling on president trump's highly controversial travel ban. san francisco's ninth circuit court of appeals moments ago desided against president trump and the government against reinstating his travel ban. a three-judge panel reaching a unanimous decision moments ago, unanimous and keep in mind these jud judges, one appointed by a republican, two by democrats, this decision unanimous. it is 29 pages, a complete repudiation of the government's request to reinstate the ban and of the constitutionality of the ban itself. trump just moments ago

responding, "see you in court. the security of our nation is at stake." he wrote that in all caps. the washington attorney general victorious tweeting also in all caps, "denied, unanimous, per curium." we are awaiting a press conference from the attorney general and solicitor general for the state of washington. obviously victorious tonight. pamela, when we say complete repudiation, it wasn't just 3-0 or just okay this temporary stay here is upheld. this was a repudiation of the entire concept of the travel ban itself. >> it was. what's interesting is you'll recall that the government had actually proposed a compromise saying that the travel ban temporarily should just apply to perhaps those who have never set foot in the u.s. because in the government's view those people don't have any constitutional rights, but as you point out, this was a repudiation of even that idea, that the three judges

made it clear in the ninth circuit that the travel ban should still be halted. this is a huge blow to the trump administration on what was seen by the administration as a signature executive order. what donald trump talked about repeatedly on the campaign trail and the three judges in this order say that the government didn't meet its burden in showing why the seven countries listed in that travel ban pose such a threat, why the individual citizens of those countries should not be able to come to united states for at least 90 days. it says, "the government has not offered any evidence of how the national security concerns that justify those designations which triggered visa requirements can be extrapolated to justify an urgent need for the executive order to be immediately reinstated." in contrast, the judges say the states offered ample evidence that this executive order would substantially injured the states, separating family, stranding state residents

abroad, harming universities so essentially the judges said they believe the states could be successful arguing these merits down the road. now we're learning the department of justice is reviewing this and deciding what to do next. jeff sessions the new attorney general, this is his first day on the job and this is certainly a huge deal for him to be dealing with as they try to figure out what the next step is, whether to appeal to the supreme court or ask for an en banc, which would be more judges in the ninth circuit to look at this case. we'll have to wait and see. >> obviously a crucial decision facing the president and his new attorney general tonight. our senior white house correspondent jim acosta is at the white house. moments ago you heard donald trump say something off camera. a huge thing to say. >> reporter: that's right, erin, reaction to reporters gathered in the west wing a few moments ago, the president was making

his way to the residence and told reporters he believes this decision from the ninth circuit is political, he called it political and predicted that the administration will prevail in court. he also said that he believes the security of the nation is at stake. you can hear how they're framing the argument over here at the white house and you heard the president say earlier this week he believes these judges who are handle this case are quote political. he again said that with respect to this ruling although we should point out one of the judges who heard this on the ninth circuit was a bush appointee, a republican. nefrl, they're also framing this as a national security decision for the next stage in this process, presumably the supreme court, but erin, we are only three weeks into this administration and you are having a very big pushback coming from the judiciary, the judicial branch of this government against the executive branch saying you can't go any farther. so far a big defeat for this

president. >> thank you very much, jim acosta. as i said, any moment here, seconds away from this very important press conference out of the state of washington. we'll bring that to you live. i want to bring in our legal experts. you can see the attorney general for washington, bob ferguson and the solicitor general will be speaking. laura coats, alan dershowitz, ariane devoe, paul kallen and jeffrey toobin. as we await that press conference, the president of the united states has come out and said he thinks they will win. see you in court. moreover he thinks this decision was political. >> four judges have looked at this case so far and all four have come out the same way. two republican appointees, the district judge and one appellate court judge and two democratically appointed judges.

in a world where democrats and republicans often see things differently we have two republican judges, two democratic judges seeing this case the same way. doesn't mean they're right or the ultimate result of this case will turn out the same way, but it's a pretty tough argument to make at this point that they are all just simply opponents of the trump administration rather than judges doing their jobs. >> as we await the presser, we are days away from arguments in the underlying constitutionality of the ban itself, right. this was a restraining order essentially. but this ruling but not just a ruling on that. they were clear. they asked do you have a chance to uphold this and they said no, they ripped it apart. >> a stunning decision by the appellate court which sends a message to the district court on the preliminary injunction.

>> this press conference is starting with attorney general of the state of washington. let's listen in. >> good afternoon, everybody. thank you so much for being here. isle say a few words followed by noah purcell, my solicitor general, followed by colleen melody, the head of our civil rights unit. then we'll take your questions. for those on the phone we'll try to take some of your questions after we get to the room. bottom line, that is complete victory for the state of washington. the ninth circuit court of appeals in a unanimous decision effectively granted everything we saw. we are a nation of laws. as i have said, as we have said, from day one, those laws apply to everybody in our country, and that includes the president of the united states. we've had a chance to look at the opinion. one thing i just want to mention

is throughout this litigation the president has asserted that his actions in signing this executive order are unreviewable and you heard the question posed by the ninth circuit judges in the oral argument this week, the question was asked is it the view of the justice department thoez actions are unreviewable? after a lengthy pause, the answer was yes. here's what the ninth circuit had to say about that -- there is no precedent to support this claimed unreviewability which runs contrary to the fundamental structure of our constitutional democracy. i'm so proud of our team. as many of you know they've been working literally around the clock on behalf of the people of this state. it's the folks you see here who we'll be introducing shortly but also attorneys and professional staff around our office in different offices spread out across the state. all working in different ways to

assist us with this filing. these filings which have been done under intense time constraints as you might imagine. this has been a team effort from this law firm. very proud indeed for this law office. i couldn't be more proud of the teamwork that's been involved. with that, i'll turn to noah, who will -- i'll ask him to say a few words and summarize what the ninth circuit court of appeals did here today and then we'll have a few word from colleen. >> thank you, bob. what we argued to the court yesterday is that it's the role of the courts to say what the law is and to serve as a check on the executive branch, and that's what the court has done in this opinion, in this excellent opinion, this well-reasoned, careful, thoughtful opinion that seriously considered all of the government's arguments and rejected them. and it's important to recognize the real impact this has been

having on peems lives. we've been hearing from people all over the state and country what a difference this has made for them. i want to thank attorney general ferguson for having the bravery to bring this case in the first place and to authorize us to do all this. i think the govern thank the go people for bringing this case and especially the people across our office. ann egg ler, kelly parids, kelly wood, kristin, wendy -- anyway, i'm going to forget people, but the bottom line is we have an outstanding office here. people do public service every day. we're not usually in the limelight like this and not really used to it, but we're proud to have been able to play this role. just briefly about the opinion, it is as the attorney general said a complete victory. it upholds the district court's injunction in every respect. and we couldn't be more pleased

with how careful and thoughtful the opinion is. the judges did their jobs carefully and well and we appreciate their work and thank them for their careful attention they gave to this case. that's all i have for now. colleen? >> our solicitor general argued at the trial court level and the court of appeals. one thing i appreciate is the fact that this case -- there's been opportunity for the public to see people who work on these cases, folks like the team you see here today, and noah's a brilliant lawyer. he's doing an excellent job leading this team. next i want to introduce colleen melody. colleen is the head of our wing luke civil rights unit. i created that unit a couple years ago, two years ago, and as you may know up until then if somebody called our office with a civil rights complaint, despite the fact that we have close to 600 attorneys, we did not handle civil rights complaints on behalf of people

of the state of washington in an affirmative way, which struck me as something that needed to be remedied. so we created a civil rights unit. you're seeing folks colleen will introduce as part of that team. i did not anticipate at that time that a case like this where that team would be pressed into service. i'm so glad and proud we had a team of excellent attorneys and excellent professional staff in that civil rights unit with the background, the expertise and the work ethic who really were prepared for this moment in time to bring this case to the successful results we've had so far. colleen melody, last name spelled melody. colleen? >> thanks, bob. i'll pick um sort of right where he left off, from the beginning on an early saturday morning talking about how to respond to this case the people on my team recognized it instantly as a basic fairness, social justice, and civil rights issue. so i'm proud of them for stepping up to sort of do whatever was necessary to help

get this result that we're talking about today. i wanted to introduce marsha chen, an assistant attorney general in our civil rights team. patricio marquez on the end. mitch reese over here. and sha leah -- >> we'll keep monitoring this and go back in as needed. you just did hear the solicitor general who led the team, noah purcell, and the attorney general for washington, bob ferguson, speaking there. the attorney general said they got everything they wanted, alan dershowitz. they did get everything they wanted. >> yes, they did, but it's still an uphill fight. look, there's a way around this that's a win-win for everybody.

the president has lost, so he is now in a state of limbo. for weeks or months this order will be stayed. he claims it's a threat to the national security of the united states. if he's right, he has one option, rescind the order, start from scratch, write a new order with his new attorney general with the cooperation perhaps of members of congress that will both protect the security of the united states and avoid constitutional challenge. that's his best option right now. but it would require him to admit he was wrong. so now there's a clash between the ego of the president and the national security of the united states. and he has to resolve it in terms of the national security of the united states by rescinding this state order and coming up with an order that won't be stayed. that's what he ought to do. >> it's pretty important how you put that. ariane, what alan is saying is the president says this is so crucial.

if this was so crucial for security, he would say, forget it, i'll throw it out and write a new one and it will be done perfectly and go into place and there are no issues. he's already tweeted out in all caps, see you in court. he'll fight over the one he already did. >> exactly. he said i'll see you in court, and maybe that means the supreme court. one thing about this opinion is so interesting, remember during oral arguments and judge friedland asked the government, she said, is this unreviewable? and then there was this long pause. and then they said yes. they wrote there is no precedent to support this claim of unreviewability which runs contrary to the fundamental structure of our constitutional democracy. strong language.

>> you mentioned that moment. i want to read what the court ruled. when august flentje made the case, paul, when he argued this, i want to play for everybody when the judge said, are you arguing the president's decision is unreviewable. here's how it played out. >> are youb arguing, then, the president's decision in that regard is unreviewable? >> the -- yes. there are obviously constitutional limitations, but we're discussing the risk assessment. >> that was the painful pause, and that became a core of what we're seeing here. they are cite, palmeiing a 1967 saying it would indeed be ironic if in the name of national defense we would -- there thai

ear citing a previous case saying absolutely not. the president's decision on this is reviewable. completely rejecting that argument. >> and this is critical because this whole thing was the president saying i'm the only one in charge of national security under the constitution of the united states and the local judge has no right to interfere in my decisionmaking. and here they throw that concept in the judicial trash barrel and say essentially, we can review even national security issues. you don't have exclusive authority in this area. >> and the cases they cite to make that point that no national security -- where the supreme court said to the bush administration, you have to abide by the constitution even when it involves terrorism, even when it involves some of the worst people we've encountered,

and even when it's in cuba, where guantanamo prison is, not inside the united states. so the idea that national security decisions are somehow outside the review of the courts is one -- >> if you get back to the standing irk shoe that professor dershowitz talked about earlier, this is such a sweeping decision. they essentially say because aliens, the term used in the statutory wording, from other places who normally don't have rights under u.s. law, can be represented by the state of washington, because some of them are students or maybe could be students in the state of washington. >> eventually, yeah. >> it's a broad grant of standing and u.s. constitution nal rights to people in other countries. >> alan, there was a compromise during the oral arguments we heard, august flentje put forward a compromise, right, that would have said, well, this only applies to people who have never been to the united states before, so we're giving them a right for green cards or already granted visas.

say they they're not buying that either. they didn't give a millimeter. >> they were right not to because to undo the stay now would have created chaos, especially two months from now or a month from now if they have to reinstate it. when the case gets to the supreme court, chief justice roberts is very tough on standing. he has used standing often to avoid reaching these kinds of difficult constitutional issues. this is the most extreme case of standing that i have ever seen in my 53 years of litigation having the state of washington have standing to assert the rights of people who have no contact with the united states, have never been in the united states. there are two possible ways of making that. one as an establishment of religion where, remember the constitution doesn't just grant a right there. it says congress shall make no law. it's a restriction on the

federal government. that's one way of doing it. the other way is to say that, look, we really have an interest. our tax base, students, et cetera, it will be a hard road in the supreme court. there's no way of predicting outcome of this case on the merits if it gets to the supreme court. >> laura, what do you think? >> well, you know, what's so striking to me is that the court does concede the president of the united states should get deference when it comes to national security, but the reason national security interests were of paramount concern to this particular court is because of procedure. look, the lower court said we're going to suspend this ban. in order for this court to reverse that ban, they asked the department of justice to explain to them why returning to the pretravel ban status quo of the vetting process would somehow hurt the federal government and its citizens. tell us what you know. what is it about our new perhaps novel national security risk that require us to go back to or have a new system of vetting.

unfortunately they nad no response and that's one of the main components of this order. the court is saying we agree there is deference although we can review it and we did when it came to japanese internments and denying communist passports, but if you have a valid, now is the time to tell us and now came and went. >> you got in the audio of the president of the united states responding to this. let me play it for you. here's donald trump. >> just a decision that came down, but we're going to win the case. >> and have you conferred with your new attorney general on this tonight? >> no, i haven't. we just heard the decision. >> how did you find out about the decision, mr. president? >> just saw it, just like you did. >> all right. obviously a little issue at the end but that was his immediate reaction. he also said he thought this was political. david gergen is here with me.

mark preston, bill krystle, kayleigh mcenany joining our legal experts. when you hear the president's response saying this is political, saying they're going to fight it, tweeting, see you in court in all caps, david gergen, it's clear where he stands on this. he won't revoke the order and try to write a better one. that's not how he's talking tonight. >> sure not although alan dershowitz has a useful point. alan's notion of repeal and replace has some resonance here. it may be the best way out for the president ultimately. he is going to fight in the meantime. he'll hurt himself if he continues tweeting and challenging the court and challenging the judicial system. but i must say it's a surprise to everyone just how broad and sweeping this opinion is written by including one judge appointed by george w. they reject the standing

argument, the reviewability argument put forward by the government. they said they rejected the argument there was no likelihood of success citing donald trump, what he'd been saying through the campaign, he wanted a wanted a ban on muslims and evidence with rudy giuliani's statement that he wanted a path toward a muslim plan. they rejected that this would do enormous harm to leetch it in place. they said you haven't presented any evidence. if you do, we might be persuaded but the government failed to do that. i think it was sloppily argued by the government. we'll see where we go from here. ultimately the administration may prevail on the substance. >> i believe we have that full audio and i want everyone to hear what he said about the politics. again, donald trump. >> decision came down but we're going to win the case.

>> and have you conferred with your new attorney general on this tonight? is he -- >> no, i haven't. we just heard the decision. >> how did you find out about the decision? >> we just saw it, just like you did. >> the news, the media. >> but it's a decision that we'll win in my opinion very easily. >> and are you -- >> and by the way, we won that decision in boston. >> are you any closer to the attorney general who -- >> we'll be making the decision over the next week. >> okay. >> you hear the president's response, obviously hadn't had much time to think about it. obviously the key thing is everyone using the word stinging, repudiation, complete and total loss for his argument. >> a very broad decision. federal judges are human. i have to think some wanting to send a message to donald trump. he personally attacked their college a district judge over

the weekend in an unusual way. they made their arguments but i have to think -- going forward i think his chances in the federal courts are hurt by the attitude he's taking by federal judges. they're human and want to be treated with respect. the executive branch is entitled to appeal but usually they do so in a respectful tone. put that together today with trump's attack on john mccain this morning, on senator blumenthal. he's spending political capital attacking people who he'll need some cooperation from. if you lose every case in federal court and attack a republican senator that's chairman of a committee, 52 republicans on the senate, you need to get legislation through, i think they're in some campaign they can beat up everyone and steam wall their way to vikt aand that's not how governing works in the united states of america. >> we got a tweet from hillary clinton, responding to the ruling, and all she tweeted was,

"thr "3-0." a unanimous ruling. let me ask you about this. donald trump saying it's political decision and we will see them in court, for donald trump to stay george w. bush appointees, he may view those as political. >> no doubt. it's certainly predictable as well we would expect donald trump to come out and say something like that and to continue on fighting. also the reaction is noteworthy. one is from tom cotton, the arkansas senator. he was under consideration to be defense secretary. he described the ninth circuit as the most notoriously left-wing circuit in america. i'm confident the

administration's position will prevail. we're already seeing donald trump's allies to add on to the politicization. but this isn't just a democrat versus republican fight. we had the national restaurant association immediately come out with a statement where they said this takes into the economy and how important this could hurt small business if they continue going down a similar path. this is a fight that isn't as easy, not as black and white as we can talk about it on tv. a lot of gray areas. >> kayleigh, it begs the question of will donald trump stop attacking judges. tonight all he said on twitter is i'll see you in court. he did just say, it's a political decision. this comes on top of tweets about judge robart, now of course going to be -- was -- originally did the ruling where

trump said just cannot believe a judge would put our country in such peril. if something happens, blame him. and in the opinion of this so-called judge. here he is again tonight saying it's a political decision. do you think he understands that kind of talk might have backfired on him? and that's why partially this could have been 3-0? >> i think he realizes and hopes as we all do that judges would rule based on the law, not the fact they were criticized by a co-equal barra co-equal branch of government, the president. but a smart point by alan dershowitz. if you look at the ruling they ruled on two things. they looked at due process rights and said legal permanent rights have due process rights and aliens who have been in the country, leave, and try to come back. donald trump could easily rewrite this and i think he'd have better success going to the supreme court because as we know you have three right-wing justices, four liberals and justice kennedy, who could go either way. practically speaking and politically speaking he can

continue criticizing the judiciary all he wants, i have no problem with that but practically looking at the legal landscape going forward, rewriting it might not be a bad idea. >> rewriting it makes all the sense in the world. >> this is such a repudiation of the whole concept. >> but isn't everything we know about donald trump that he is not going to rewrite this? isn't he going to say i was right from the start and i am going to push this as hard as i can and the judges are wrong? yes, it makes all the sense in the world to rewrite it but he'll never do it. >> we have to remember something important. the president has said another judge -- four judges in the west said -- were unanimous on this but the president keeps citing the boston judge who wrote a 20-something page decision totally opposite to this saying there were standing problems, no due process violations occurred, no -- >> this was regarding two professors -- >> different people involved.

but we're talking about the same executive order and talking about whether the president has primacy in the area of national security. >> are you thinking he can win? >> i'm not sure he'll rewrite it. i agree that's the sensible way to go. but the president keeps citing the boston judge. he was angry at his lawyers, remember, because they didn't spend time invoking the boston judge, judge gordon, and i think he'll fight this to the wall in the supreme court. >> alan. >> that would be a big mistake because he can use the boston judge to his advantage. if he goes the ninth circuit route, he is likely to have to appeal from a ninth circuit opinion that's unfavable to him. if he doesn't appeal this order which he'll lose in the supreme court on a stay and waits for decisions to come from other courts with more favorable circuits the case he brings to the supreme court could come from a circuit that rules in his

sfooifr then if there's a 4-4 split he wins. >> now you're talking logic. now you're talking logic on the part of the president and he's a gut instinct player. >> you have the state of virginia trying to proceed with a case. you have 17 other states that have filed am ckamicus briefs. states across the country were ready to lose today so there would be others coming behind it. >> there will be more cases coming along. the supreme court is going to happen in this case but when it does it will still be bounced back to the original district court in seattle. there has been no full record. in the new order we're told you can look behind the intent of the ban. there was a secular purpose or a pretext for discrimination.

if that's the case, you have to develop it. in the oral arguments the washington state solicitor general said i need an opportunity for discovery. we're not talking about an immediate discussion on the full merits in front of the supreme court. speculative to figure out what they'll rule. >> in the meantime, the order is stayed and the country is at risk according to donald trump. and if the country is at risk because this order is stayed and will remain so for a period of months almost certainly, his only option to protect the country is to withdraw the order, write a new order that protects the country while at the same time -- [ talking over each other ] >> obviously you'll have other districts that would challenge it. this is a wide sweeping repudiation. it says whatever he said about

muslims on the campaign trail is good enough to show his intent, that it doesn't matter if no one's ever been in the united states before, they have the right as a state to constitutionally protect those individuals. what executive order could accomplish what trump wants to accomplish that doesn't run into the same problems? >> it's difficult. >> go ahead, jeff. >> one way you could do it is you could say people from these seven countries who have some connection to political activity, they're the ones who are -- will not be allowed in the country. >> it's not just the majority muslim countries, it's a subcategory within those people. that would certainly be much more likely to be upheld by the court. >> you could change the minority religion section as well and not refer to that. might solve some of those

establishment clauses. >> he's just not going to do that. he'll fight this executive order because it's his executive order. >> that's what he said. everyone stay with me. i want to go on the phone to the governor of washington, jay inslee. thanks for your time. obviously you're thrilled with this i would imagine. you're completely thrilled. the bite is spresident of the u states says he'll see you in court, it's a political decision. what's your response? >> i saw a tweet he said he'll see us in court. we just saw him in court and he got beat. four judges have made decisions and two rr appointed by republican presidents. this is checks and balances in operation. the president needs to understand that the constitution rules supreme. he needs to understand there are checks and balances. i'm a lawyer. these were powerful decisions both at the district court level

with judge robart and at the circuit court level. there was clearly a favoritism showed to one religion over another. there is clearly an effort in the executive order to put muslims in the back of the bus. there is no rational basis for picking these seven countries one none of these people and both the circuit and district court made reference, that anyone has caused a fatal terrorist attack from these seven countries. you have to have a rational basis for decision making in this nature. the president would be well advised to read these decisions, listen to his lawyers, and go back to the drawing board if he is interested in these issues. he doesn't indicate he will. that's regrettable. we'll continue to fight this. we won't be intimidated. >> kellyanne conway also has just responded. she was just on fox news. >> you see the president's

initial reaction in his tweet. he said we'll see you in court. and the nation's safety is at risk. that's what this has been about from the beginning, keeping the country safe. it's not just a promise as a candidate, it's his duty and responsibility as president of the united states and commander in chief and in fact he has broad authority to do that under the statute. this ruling does not affect the merits at all. it is an interim ruling and we are fully confident that now that we will get our day in court and have an opportunity to argue this on the merits that we will prevail. >> what's your response to her? obviously this goes to oral arguments when it goes back to the washington state next week. >> i think the power of the district court and the court of appeals was they found a likelihood of success.

he said he wanted to get christians in and keep muslims out, no rational basis to say national security would be jeopardized. the evident before these courts was pretty amazing. there were at least a dozen affidavits filed by former secretaries of the central intelligence agency who worked for republican presidents, former secretaries of state, former homeland security people. just today the cia director said the president would decrease our national security by creating a poster, recruiting poster for isis. all those things were evident. in the court the constitution prevails not any evidence prevails not just who 2013s the mo -- who tweets the most and they concluded evidence was not a basis for this. by the way, judge robart already has helped my state. last night i went to the university of washington global health alliance, melinda gates was there, keynote speaker a

world health organization expert, happened to be born in iraq, the president tried to keep him out of the conference from coming to the university of washington to talk about how we deal with global health. we got that guy in. i'm glad we have a judicial system cha has checks and balances over a president running roughshod over our rights. >> thanks for being with me. paul ryan is responding. what is hi saying? >> not much. he says we'll defer to the white house on this. really underscoring the unusual predicament that republicans are in on capitol hill. a lot of them do not support this travel ban. a lot came out against it, said they believe it's a religious ban, counter to american values, it needs to be pulled back, amended. the republican leadership including paul ryan, mitch

mcconnell, have voiced some level of support for this and believes it should go forward but they know the parties are divided. i'm not hearing a lot from republicans. the senate is in session. there aren't many senators. they're not blasting out statements because of this position not necessarily wanting to poke a finger in the eye of the white house but also not wanting to come out in support of this controversial policy. we're not hearing arguments from the hardcore supporters of the travel ban including tom cotton who believes it should be appealed to the supreme court but mostly a muted reaction from republicans on capitol hill. >> manu, thanks very much. the democratic congressman from texas joins us. you've spoken out against the

ban. i'm sure you're happy with the ruling. it goes to the underlying constitutionality and finds in favor of washington state. >> that's right. the trump administration couldn't show evidence of harm. no refugees from these seven countries have perpetrated an attack on the united states. i'm sure when the court was trying to weigh the harm the government was describing they could know shohozan no evidence. i also think there was a strong message sent by the court to the president and to his administration on that reviewability argument. as everybody knows the president has been very critical and frankly disrespectful of the judiciary since he took office. in fact, i filed a resolution this past week asking for an investigation into whether the president ordered his administration to disobey the

first state stai that was put on his executive order. since then, he's obviously been on twitter and made comments about the judge in washington, about blaming the judge, if terrorist acts have occurred. very disturbing behavior. >> is that part of why they did what they did, such detail they were unanimous, they felt pressure to be unanimous because they were sort of fighting back at him because of what he said about judges? >> well, i think they looked at the case on the merits, but it's certainly possible. i don't think his rhetoric and being so disrespectful to a co-equal branch of government was helpful to him. >> on the underlying merits, do you think the decembiscussion everyone is saying, he should revoke the ban and write a new one -- is there some way he could write this that you would get behind?

you sit on foreign intelligence. is there some sort of a ban that he could write that you would support? >> an across the board ban, very doubtful. it's always fair to be considering and assessing national security threats to our nation. but, look, donald trump almost from the beginning of his campaign started talking about how he could exclude people from the united states. he spoke specifically about a muslim ban even after the executive order was put in place. as you mentioned, rudy giuliani went on television and said that the president called him and asked him how he could accomplish a muslim ban. with those kinds of intentions i think it will be very hard to find middle ground or agreement. >> you mentioned when it comes to enforcing the travel ban when it first came down against the

president you thought he may have been trying to instruct border control to go against the actual ruling. you were looking into whether he violated the constitution at that time. what you said was i hope president trump obeyed the law but if he didn't, congress should censure him. if not, congress should take steps to remove him from office. are you looking down that path, trying to find ways already, talking impeachment? >> i said that if it's determined either by the inspector general who has said that he will investigate or hopefully the justice department will investigate, if it's determined that he asked cdp to disregard or disobey an order then at a minimum the congress should censure the president as a clear warning not to do it again. at that point the choice is his. if he continues to disregard the judiciary -- and the judiciary is way we settle our disagreements. what you're basically saying as

a president is not only am i president but i also am going to usurp the power of the courts or the referees in this case. congress would have no choice if any president and this president decides that he's going to completely usurp the power of the courts than to move for his removal. >> congressman, castro, thank you very much. appreciate talking to you again. back to the unreviewability issue. start with the legal side, obviously it's crucial and at the core. your perspective following this and looking at the context donald trump said if something pad happens to the country it will be the judge's fault for the rules against me. do you think that's part of what they did? they wanted to speak as judges to this president? >> there is no value more central to what constitutional democracy means than the courts

get the final word on what's legal. there are no decisions that are completely outside the constitution. 1803, chief justice john marshall said it is the province and duty of the court to say what the law is, which means as of that moment it was the court's right to overturn acts of congress, overturn acts by the president, and that excerpt that you played from the argument was so important because it was judge friedland asking is the president above the law. and there was that horrible, awkward pause. judge friedland and her colleagues wanted to make clear that the answer is no. the president is not above the law. and that's what this opinion says. >> i want to add one thing. while they coordinated a strong attack on the idea that only the president has the right to deci

decide issues in this area of national security, there is wording in the decision that suggests the president may have a zone of national security authority where there's a legitimate threat to the interests of the united states. what they said here was we asked his lawyers repeatedly, where is the evidence that this ban is responsive to an arcticulable national threat and the judges said they couldn't answer the question. we won't reach the eschissue as whether there may be some national security issues reserved for the president but here's there's no evidence of a national security threat. >> when we get to the next steps, david gergen, we don't know. they could go to an eng bank, try to get more judges involved in the ninth circuit, go to the supreme court, the underlying argument of constitutionality, but all of this will come down to the supreme court unless he revokes the order.

judge gorsuch is in limbo. >> that's correct. you wonder had they appointed garland if they'd have the requisite number of votes. when they go to the supreme court on the temporary restraining order, do tay need five votes in the supreme court to take that up? >> they need five -- to hear it or decide it? >> to bring it to the court on the question of the procedure and whether to reinstate the ban. they need five votes in order to get to the court or can the court accept et it? >> the way stay litigation works is it initially goes to the circuit justice, and that's

anthony kennedy. what almost always happens in a circumstance where they're asking for a stay on an important issue is the circuit justice doesn't decide on his or her own but refers it to the full court. it's not a certiorari situation so they need five votes to overturn this stay. the other point worth making and i hope it's not too much in the weeds is that the supreme court really prefers to hear final judgments not intermediate parts of cases. this is very much a preliminary not even intermediate judgment so i think the trump administration has an even more difficult burden than it might otherwise because the supreme court, even the justices who were sympathetic to his position might say, look, let's send this back to the district court. let's let them hear all

arguments and testimony and then review if this is an inappropriate judgment. >> i just want to -- hold on. ariane. >> to yourt licourt likes chaose you have the ninth circuit ak acting this way. the supreme court may not want to jump in and have it ping-pong back and forth. that's the importance of the ninth circuit ruling. if it comes down 4-4 all they can say is we upheld. but what happened tonight is very important. >> mark preston, jumg gdge gorss role and his process through senate becomes crucial, the timing. >> right.

there's going to be a bright light shined on the confirmation process. judge garland was never given a hearing by republicans and democrats are trying to position themselves to do the same to gorsuch. 4-4 means there will be a critical time. this is where things could get messy. i think what you'll see in the coming hours if not days is both sides try to galvanize behind this. there will be an effort by the left to try to stop gorsuch as quick as they can and use this issue as the example of why they have to do it. what that could lead mitch mcconnell to do in the united states senate -- i don't think it will happen necessarily but we should watch, the nuclear option could be invoked sooner than any of us thought. there is no comity.

>> they would need a majority, not a filibuster. >> if the trump administration wanted to stall to give them more time to get their person on the supreme court, gorsuch, they could petition if an en banc review by the ninth circuit. they will impanel then 11 judges to review the decision of the three judges. that would stall this a little bit. a couple of weeks probably. they laid out a briefing schedule this their order if en banc review is sought. that could be used to stall the trip to the supreme court. >> bill, neil gorsuch has been meeting with senators, met with schumer, blumenthal, and in those meetings they have asked him about donald trump's tweets that have said things about judges. so-called judge specifically.

he said those things were unacceptable. it may not be enough. >> i think it will be enough. the big story is donald trump doesn't have the support of a lot of republicans in congress. he didn't have it before or tonight. with chafe chafe's letter asking for a review of kellyanne conway on ethics grounds. republican chairman of the committee three weeks into a republican administration saying i'm worried about et ibs violations in the white house. attack on mccain. today could be the day the court decision is part of a broader narrative or pattern where trump is just losing allies. he lost his own appointee, judge

gorsuch. >> hardly a ringing endorsement of anything donald trump is trying to do or of his response. >> i anticipate we'll get a lot of support from republicans in the coming days. we've seen tom cotton come out. i think people are taking time to digest this. i think it was smart of ryan to defer to the white house. the latest cnn poll, 90% of republicans approve of the president's job so far. i'm not worried about a complete outflow of republican support. the support is there. i'm not concerned with losing a few establishment figures who were never on board from the get-go. >> do you think the state of washington is celebrating too

early? governor inslee came on the show. when i said he said see you in court, he said we just saw him in court and he got beat. true but you don't get cobbier than that. >> they won. >> courts don't overturn or stay actions of the federal government lightly. the fact they have had four judges look at this, two democratic appointees, two republican appointees and all four have ruled in washington's favor, they're entitled to strut around. >> noah purcell, solicitor general of washington. jeffrey toobin said you're entitled to strut. is that how you're feeling? >> i'm proud of the work our office and our team did. i appreciate the bravery of our attorney general in bringing this case and the careful work the court did.

i'm happy. a lot of people did a lot of hard work. a lot of people were helped by it. >> we heard the oral arguments. you had some moments they went after you. tough questions on the muslim ban and your argument. were you ysurprised when it cam out and it went into detail on the underlying substance of the case? >> no. my experience, when judges -- they ask hard questions. they don't let one side off the hook. i had no objection to the judgments pushing points on our

case. >> i wanted to ask you a question about the oral argument. we played the moment when your adversary was asked the question about is this -- is there any e reviewability of this decision. can any court look at this. and there was this inkrdably long pause. and then he said no. did you think that was a dee moment in the argument as the opinion seems to indicate? >> it played a role. we were in tough position with little time to prepare. it was strange over the phone having far more people listening than is normal.

i think that's a difficulty in the federal government's position. i don't think there is a particularly good answer. >> there was thing bizarre about that experience. you all are on phones in different locations. the country is listening to you. how strange was that moment for you? did it make you nervous? >> it was extraordinarily strange. it was not out of the ordinary. i thought it was wonderful for people to hear.

they pressed both sides for answers to hard questions. they were asking probing questions. >> can i add on behalf of all the lawyers in that court, the fact that all of you have argued this important issue without personally attacking each other but stayed focused on the constitution and the law i think deeply impressed a lot of people in the country. even those who may disagree with the situation there is a way for reasonable people to argue with important issues that affect the

united states. >> everyone was so polite. when drurp has 2013ed in all caps see you in court, we don't know if that's en banc or to the supreme court. what to you say to him? >> i was just talking to our attorney general about that and we've won both times. i feel like it's not like it doesn't count until you get to the supreme court. the judicial system -- i heard a lot of comment tear from people about who appointed who on the supreme court and how they'll think about this. i think this is executive order is so out of the ordinary in so many ways, so unsupported by any rational argument on the administration's part, i am extremely hopeful about what will happen if this case does go to the supreme court, not to say that i don't mean to put any pressure on anyone about how

they could rule, i trust them to apply the law as they have in cases in the past and i think we win. >> noah purcell, thank you very much. solicitor general for the state of washington. he gave that argument with a resounding victory and thanks for watching us. our breaking news coverage continues with "anderson cooper 360." thanks for joining us. major setback from president trump. the verdict has come in. it is unanimous. they are not reinstating his travel ban against refugees and citizens from seven countries that are mostly muslim. the president tweeted in all caps, see you in court, the security of our nation is at stake. off camera the white house the president told reporters he thinks the ruling was political. it was unanimous from a panel of judges appointed by presidents carter, george w. bush and president obama. the original ruling blocking the travel ban came from a