"hardball" begins right now. a so-called judge. let's play "hardball." good evening. i'm chris matthews in washington. is the country on a collision course? are we seeing the early steps of a battle over presidential power that could lead, if it continues on its current course, to a constitutional crisis? the 9th circuit court of appeals is set to determine whether president trump's executive order on immigration remains effectively frozen, or whether it will resume. it began with a sweeping decision late friday when a federal district court judge in washington state issued a temporary restraining order blocking key provisions of the policy. for now, that decision lifts the travel ban imposed on seven mostly muslim countries, pending a final decision on its legality. in the wake of that ruling, president trump took to twitter

to attack the federal judge's decision as well as his legitimacy, "the opinion of this so-called judge which essentially takes law enforcement away from our country is ridiculous and will be overturned." now we await a decision from the reliably liberal the 9th circuit court in san francisco, department of justice filed a brief asking that court to reinstate the president's policy. they argue that "the president has expansive constitutional authority over foreign affairs, national security and immigration." well this could be the beginning of a constitutional showdown, expected to test the limits of executive power, and expected to end in the supreme court, itself. anyway, additionally, nearly 100 technology companies have filed a brief opposing the travel ban including among others apple, facebook and google. i'm joined by nbc justice correspondent pete williams. the state of play, sir, where are we at? >> okay. where we are now is there will be nothing tonight. nothing will change.

this exec receive order will remain on hold for at least another 24 hours. the federal appeals court in san francisco has ordered the two sides, the states and the federal government, to give an hour of oral argument, 30 hours a piece in a telephone conference call. so the judges and the lawyers will all be together on a conference call, it won't be in a courtroom. tomorrow night at 6:00 p.m. eastern. and then at some point after that, the court will decide whether to allow this judge's ruling to remain in effect which would keep the immigration order on hold, or stay the judge's order and let the government begin enforcing it again. >> let me ask you about your constitutional law, your own constitutional law. do you believe based upon what you've been able to gather over the last week or so, does the president of the united states have expansive authority over immigration? can he do, for example, daca, what president obama did, where

he can single out young people in this country who were brought here by their parents and say we're going to get priority again, we're not going to go after them, we'll go after people like felons, we're going to leave them pretty much alone. that seemed to be a broad use of presidential authority. where do you stand on that? >> the obama order, there were two questions. no one contested he could change the enforcement policy. the question was could he on his own or would it take an act of congress? let people stay here, let them work, let them apply for social security and that kind of thing. that's what hung up the obama issue. this is a mixed question, not only of the constitution, but also of federal law. that's the problem for the opponents here because federal law on the one hand says you can't ban anybody, any class of aliens just from a single country from coming in. you can't discriminate like that. on the other hand a separate federal law says the president when acting in the interest of national security can restrict an entire class of aliens, i'm using the word of federal law, aliens, from entering the country. the government has a plausible legal argument here. that's what the courts are going to have to sort out. i must say, chris, that's not the question before this federal appeals court.

the federal appeals court has an entirely different task and that is to decide right now which is best, who gets hurt more? the states say, well we get hurt more, if you let the government continue to enforce the travel restrictions, it hurts our universities, the faculty can't travel. >> i see. >> students are hung up. companies are hurt economically. they can't recruit the best talent. the government says, we're hurt more. if we can't enforce this, potentially bad people could come into the country. that's the balance the appeals court has to decide right now. by the way, chris, i should add in this reply brief filed tonight by the government, they raise an interesting fallback. they say to the appeals court, look, you should wipe this judge's order out completely because we think it's wrong, we should be able to enforce the immigration restriction, but if you had to, we could -- we could say that people who are previously admitted, who are temporarily abroad now, and want

to come back, or are here and want to travel and come back, in other words, immigrants that are here now, if you want to exempt them from the order, well, you could do that. >> is that the 5th amendment protection of equal process, due process? >> well, that does -- you know, that argument has been made about due process. and that's ultimately the lower court's going to get into that when they get into the constitutionality and the legality of this down the road. >> last question. why so urgent? i noticed the way you talk about it, there has to be -- we're expecting to get action as early as tomorrow evening. >> right. >> this whole thing seems to be very fast forward. >> yes. >> that's what about? how's it work in the courts, moves so fast, this could go right to the supreme court it seems very quickly. >> yes. this is very unusual for the federal courts who are not normally noted for speed, but this is an emergency appeal. the judge granted this temporary restraining order. that's what's unusual about this. the state sued on friday. and they said, look, judge, we're getting hurt right now by this.

we want you to issue an order that sort of freezes things as they were before the executive order went into place. and then we'll duke it out later on whether it's constitutional or legal. that's an extraordinary remedy and then the government rushed up to the appeals court and said, oh, no, don't do that. that's all on an emergency basis. >> so interesting. justice correspondent for nbc news, pete williams. thank you, sir. a preview of the coming showdown between the white house and the courts, president trump said the court system would be to blame for any future terrorist attack in this country. here's the president. "just cannot believe a judge would put our country in such peril. if something happens, blame him. and court system. people pouring in. bad." i'm joined by republican strategist and msnbc contributor steve schmidt, as well as jennifer daskell, associate professor of law at american university. i want to go to steve on this on the politics of this thing and your general sense. i mean, there is a background

here. trump has called one judge, a mexican-american guy unreliable because he might have a prejudice against him. this case, he refers to a so-called judge. i'm going to ask the professor whether that's going to make some of these judges a little bit less happy to go along with the government position here. what do you make of this challenging the court, sort of andy jackson sort of thing going on here? >> i think it's totally inappropriate, chris. look, less than three weeks ago donald trump stood on the west front of the capitol, raised his hand, swore to preserve, protect and defend the constitution of the united states. we have an independent judiciary in this country. he's not a so-called judge. he was nominated by a president of the united states. he was confirmed by the united states senate. he's a judge. period. end of discussion. and the attacks on the judiciary are undermining to fundamental fabrics of american institutions which have lost confidence in the eyes of the american people. there's a frightening survey released recently by a harvard professor, 80% of people, 78% of people born in the 1930s believe it is essential to live in a democracy. 25% of people born in the 1980s believe it's essential to live

in a democracy. i think that's terrifying. when you look at his actions, look at the statements out of the white house today about negative news, it's all fake. we're reaching orwellian dimensions with some of this stuff, and it's disturbing, frankly. >> let's take a look at somebody who shatters that argument, sound of yours, of course, yours is sound. let's watch how mike huckabee defends trump's tweets about the court. he did it today. let's listen. >> is this a sign of what's to come in the years ahead where we have the executive branch fighting head to head with the judicial branch? >> in a word, yes, and frankly, i'm glad to see it. i think we have had an executive branch that has emasculated itself by surrendering constantly to the idea that once the court says something, that's it, it's the law of the land. >> professor, i have never heard anybody talk like that. i keep thinking of little l rock back in the '50s and the federal

troops coming in. yes, the courts have a right. even richard nixon, whatever you say about nixons he buckled to the supreme court and turned over the tapes because he knew they were the boss. >> yes. and the good news is that the trump administration is now finally doing that. so they're abiding by the order. they're following lawful process despite what the president is saying. they're appeal to the 9th circuit, exactly the process we would expect and want to happen. >> what would be a judge's reaction -- first of all, the mexican-american judge attacked because of his heritage, trump i guess was suggesting he must not like me is what he was really saying. now referring to a so-called judge. >> it can't possibly help his case. i can't see how this would be a good thing for him going forward if he's insulting the judiciary, he's not going to put them in a favorable position for him.

there is something that is concerning that happened up until this point. before this court order was issued, there were other orders that required the administration to basically let in aliens to boston and to l.a. and despite those orders, up until this court's ruling, the administration had still basically torn up the visas, left people stranded overseas, people weren't being able to board planes until finally this ruling came into effect and the trump administration started abiding by what the judge said. >> steve, we're going to get to it later in the show because it's fascinating this crazy stuff going on inside the white house, this battle of people inside for his ear. when i read, and i can't believe this, i read it in the "times," we're going to get to this later, steve bannon wrote an executive order, himself, wrote an executive order putting him on the national security staff and had trump sign it like he was some old -- had a lot of money, was going to sign away her money. i couldn't believe he got the president to sign an order giving him national security council authority and position without telling him what he was doing. >> well, certainly it's clear that he didn't brief him on what the blow-back would be. this evening a "new york times" editorial by admiral mike

mullen, former chairman of the joint chiefs of staff who talks about how wildly inappropriate it is for the president's political adviser to be on the committee of the national security council. i think what does not get enough attention is the utterly absolutely radical foreign policy views so far outside the mainstream of both democrats and republicans over the last 72 years. this is somebody who roots for the unraveling of the north atlantic treaty organization. and unraveling of the american led liberal international order that prevailed in the cold war, that came to life after the second world war. it has maintained the peace and prosperity of the world, preventing another global catastrophe. and so it's remarkable that someone with that radical a point of view is on that committee and that that

committee will now be politicized. what president trump should do is show that he is capable of acknowledging error, making a course correction, sign another executive order, restoring the chairman and the director of national intelligence to regular membership of that committee, and removing steve bannon from that permanent seat because it is inappropriate. >> thank you, steve schmidt and jennifer daskell. coming up president trump's refusal to say a bad word about vladimir putin is baffling to democrats and republicans alike. . the latest, trump defended putin's use of political violence by saying america has its share of killers and our country's not so innocent after all. this is "hardball" where the action is.

mothers and children trapped in poverty in our inner cities, rusted out factories scattered like tombstones across the landscape of our nation. and the crime and the gangs and the drugs that have stolen too many lives and robbed our country of so much unrealized potential.

this american carnage stops right here and stops right now. >> key word there was carnage. that was president trump, of course, in his inaugural address a few weeks ago painting a dark image of life in america. that grim view was evident in the president's super bowl >> key word there was carnage. that was president trump, of course, in his inaugural address a few weeks ago painting a dark image of life in america. that grim view was evident in the president's super bowl interview with fox news channel's bill o'reilly when he seemed to say our country's leaders are not morally superior, even to vladimir putin. >> do you respect putin? >> i do respect him. >> do you? why? >> i respect a lot of people, but that doesn't mean i'm going to get along with them. he's a leader of his country. i say it's better to get along with russia than not. and if russia helps us in the fight against isis, which is a major fight, and islamic terrorism all over the world -- >> right. >> -- major fight, that's a good thing. will i get along with him? i have no idea.

>> he's a killer, though. >> very possibly i won't. >> putin's a killer. >> a lot of killers. a lot of killers. what, you think our country's so innocent? you think our country's so innocent? >> i don't know of any government leaders that are killers. >> well, take a look at what we've done, too. made a lot of mistakes. i've been against the war in iraq from the beginning. >> mistakes are different then. >> made a lot of mistakes. a lot of people were killed. a lot of killers around, believe me. >> it's a dark view of america which reminded me of this scene from the "godfather." let's watch. >> my father's no different than any other powerful man. >> oh. >> any man who's responsible for other people. like a senator or president. >> you know how naive you sound. >> why? >> senators and presidents don't have men killed. >> oh. who's being naive, kay? >> i thought of that immediately after i heard trump the other day. trump's view of putin and russia were undercut by republican

leaders making the rounds on the sunday morning shows. here's senate majority leader mitch mcconnell and nebraska senator ben sasse reacting to what trump said there. >> i'm not going to critique the president's every utterance but i do think america is exceptional. america is different. we don't operate in any way the way the russians do. >> i don't know what the president's trying to do with statements like he allegedly has on o'reilly. putin is a mess. he's committed all sorts of murderous thuggery. and i am opposed to the way putin conducts himself in world affairs and i hope that the president also wants to show moral leadership about this issue. >> house democratic leader nancy pelosi thinks there's something more to the relationship between trump and putin. at least she's saying so. here she is yesterday on "meet the press." >> i want to know what the russians have on donald trump. i think we have to have an investigation by the fbi into his financial, personal and political connections to russia.

>> okay. >> and we want to see his tax returns so we can have truth. >> wow. joining me right now, senator mark warner, democrat from virginia and vice chairman of the senate committee on intelligence. senator, what do you make of former speaker pelosi just said about, she can't fathom why this president, our president, is so defensive about putin, personally. he wouldn't back up bill o'reilly. bill o'reilly can say what he wants. wouldn't back up the notion that putin was a bad guy. >> chris, it's a pretty extraordinary circumstance. the idea. america is an exceptional country, frankly, america has been exceptionally good to donald trump and somehow he doesn't seem to understand that. and the idea that he would somehow compare putin, who let's face it, not only takes out and kills political opponents, kills journalists, has one of the worst human rights records in the world, to american leadership, is frankly,

unconscionable and luckily you're seeing these outrageous comments actually get agreement with democrats and republicans that this just goes beyond the pail. >> what do you make of this attempt? i don't know what he was up to. doesn't want to take any shots against putin before he meets him obviously. what do you make of his comparison between, say, knocking people off in politics like they apparently do over there and our decision to go do war in iraq which cost the lives of 170,000 over there. stalin said you kill a million people, nobody pays attention, you kill one or two, they do. the difference between macro killing and murder. >> i take a huge exception to that, during the iraq war, we sent national guard troops over there. i saw those men and women go off and to somehow compare those troops who served in iraq or any of our military with some of the putin thugs, if you didn't hear and see the visuals you would say this is all unbelievable. we're in a strange time. these comments don't make us stronger. fodder for our opponents.

these kind of comments, what message that sends to our american military who are still defending us. >> thank you, senator mark warner. when we return, lets me when we return, lets me finish with trump watch. this "hardball" where the action is.

trump watch. monday, february 6th, 2017. the president now entering his third week is facing a battle on two sides. one from outside. the other from inside the white house. the outside fight is with the court system. it may not sell with him that america's judges decide what is constitutional. but they do. it's called judicial review and goes back to the days of chief justice marshall. governor huckabee can say that he's glad to see a fight between the president and the courts, he can say that the executive branch has been, as he put it, emasculated by obeying court rulings but even a president facing removal, richard nixon,

knew he had no choice in such matters. governor huckabee can say he doesn't go along with the notion that once the court says something, that's it, but it is it. and the man in the white house is not getting the right advice if he listens to voices like huckabee's. we don't know tonight how the 9th circuit court of appeals will rule but when it does t will matter. the second battle facing the trump team is inside itself. there are two models for presidential power. one is having a strong chief of staff who the president gives authority over the rest of the team, the second model is called spokes of the wheel which allows a number of people to meet with the president and for him to decide whose guidance to follow. the second method requires, however, that the president, himself, have a firm grasp on government management. it requires his ability not only to know whom to trust on each occasion but his ability to reach into the federal bureaucracy, itself, and even the military to get the key facts he needs to make a decision. if president trump chooses the latter, that doesn't mean he's wrong, franklin roosevelt and john f. kennedy used the spokes of the wheel model but requires a vigilant watch on his people,

alert to what his people are up to. not letting the chief strategist put himself without your full understanding on the national security council or worse yet, having you sign the order without you knowing what you're signing. that's "hardball" for now. thanks for being with us. join me again tomorrow night at 7:00 eastern. see you then. tonight on "all in" -- >> it's gotten to a point where it's not even being reported.

>> attack mode. >> the very, very dishonest do not drink alcohol in excess. to avoid long-term injury, get medical help right away for an erection lasting more than four hours. if you have a sudden decrease or loss of hearing or vision, or an allergic reaction, stop taking cialis and get medical help right away. ask your doctor about cialis.

you may be muddling through allergies.oned with... try zyrtec® for powerful allergy relief. and zyrtec® is different than claritin®. because it starts working faster on the first day you take it. try zyrtec®. muddle no more®. tonight on "all in" -- >> it's gotten to a point where it's not even being reported. >> attack mode.

>> the very, very dishonest press doesn't want to report it. >> president trump blames the press, the polls and now the judicial branch in a last-ditch effort to save his muslim ban. >> they have their reasons and you understand that. >> tonight, where the legal showdown stands. and inside reporting on chaos at the white house. then -- >> putin's a killer. >> a lot of killers. we've got a lot of killers. what, you think our country is so innocent? >> general barry mccaffery on trump's defense of putin. >> and about those ads -- >> what do i tell my daughter? >> how celebrating american values in super bowl commercials has somehow turned into an insult to the president.