if it's tuesday, a legal showdown is looming. tonight, the president's travel ban faces it's biggest test yet, a potentially decisive court hearing scheduled for less than an hour from now. >> this is a very dangerous period of time because while everybody's talking and dealing, a lot of bad people are thinking about hey let's go in right now. plus credibility questions. can the white house continue to play the blame game and dismiss all criticism as fake news? and organized chaos. can the left learn from the tea party's tactics and turn protests into political power? this is mtp daily, and it starts right now.

good evening, i'm katie tur in new york in for chuck todd. welcome to mtp daily. there were some awful terror attacks in the last year, orlando, dallas, baton rouge, new york city, right now the white house appears to be signaling that it knows who to blame if there's another attack. the courts and the press. today at the white house while meeting with law enforcement officials, president trump doubled down on claims that the judicial branch is threatening national security by holding up his travel ban. >> we need this court case that would be helpful to keeping the wrong people out of our country. you know this is a very dangerous period of time, because while everybody's talking and dealing, a lot of bad people are thinking about hey let's go in right now. i actually can't believe that we're having to fight to protect the security in a court system to protect the security of our nation. i can't even believe it. and a lot of people agree with us, believe me. >> the president has tweeted that if something bad happens, the public should blame a quote,

so-called federal judge that the white house claims went quote rogue for temporarily halting the travel ban. a federal appeals court refused the government's emergency request to overturn the judge's ruling and in less than an hour, the appeal's court will lift or maintain the freeze on that order. we're going to be keeping a close eye on that hearing here at msnbc, stay with us. meanwhile folks, president trump's own homeland security chief, general john kelly said that today the ban should have been delayed by him before it was ever signed into law. and it seems that in an effort to neutralize or distract from the news, the administration is blaming the news. here's more from president trump today. >> i happen to know how dishonest the media is. tremendous dishornsy, pure outrighteous honesty. >> the white house is also doubling down on claims that the media is covering up terror attacks, which if you watch or read the news, you know is demons ra bli false.

here's the bigger issue, the national security implications of the wus's current battle with the courts and also with the press is arguably the most al m alarming example of the unwillingness no accept or acknowledge responsibility for it's shortcomings. while it simultaneously attempts to steam roll critics and bad headlines with disinformation, conspiracy theories, innuendo blame and fear mongering. in defending the ban, the white house cited a bowling green massacre, involving the iraqi refugees at least three times before acknowledging the error. the press secretary's attack for referring to it as a ban, despite both him and the the president calling it a ban was an argument bordering on comical. so much so that it was mocked on "saturday night live." the white house has dismissed a state of nationwide anti-trump protests opposing the ban and other white house policies as an invention of pay ud demonstrators and thugs. and this is all just the most

recent stuff. we've seen president trump claim three to five million fraudulent votes from, quote, illegals, cost him the popular vote. and then claimed that every single instance of fraud benefitted hillary clinton. with no hard evidence to prove that. he's told the public dismiss any negative poll as a lie and he's also suggested that the u.s. government acts with the same alleged murderous hostility as vladimir putin. and that does not include how the white house has arguably weaponized terms like fake news to deflect from their mistakes or poorly handled situations. the white house is credibility has been damaged by all of this and you could argue that the press, american democracy, u.s. intelligence, and the u.s. court system are just some of the institutions that have been dragged at times forcibly into the chaos. so what happens next? i'm joined bids "new york times" white house correspondent. glenn thrush. it is very nice to see you.

>> good to see you. >> my first question is how do you continue to cover the game when you've been dragged on the field and put into a uniform? >> well, i can ask you the same question. >> it is -- we could have a debate over it. >> look, i think the issue that you raise early on in your opening about them coming up with all of these attacks on the media, on the judge, coming up with these counterarguments during these pool sprays when reporters come in and photographers come in during these events in the morning, giving the president unmediated access, his tweets, all of these things are meant to distract from concrete questions about fact. when he says, for instance, and i was struck by his statement this morning, that a lot of bad people are going to be coming in as a result of the judge holding this, holding this order, we are talking about a system that was -- that has been fundamentally in place for years and we know from statistics that

from these seven countries we have not seen terror attacks emanating. so he is not referring to anything with historical grounding, he is referring to a argument that he has made. is to ask them concrete questions, to demand facts and not interpretation and to hold them accountable as you just did with that litany that you had. when they're not telling the truth. i think getting into a back and forth about the various honesty and dishonesty of institutions is not especially helpful for us, i think the american people just need to be shown what is true, what is factual, relentlessly by us and we can aggregate that responsibility. >> what do you make of the president releasing 47 different terror attacks they believe were undercovered by the press. among that list, terror attacks that happened that here in this country and here in canada they did not list. they didn't list the attack in

canada from last week in quebec where a white man went into a mosque and killed muslims there. they didn't put charleston, the charleston church shooting on that list. what do you make of them really only defining a terror attack, it seems at least, to be based -- or to be coming from one religion. >> the omission of those attacks is really befudtology me. and i tweeted in the aftermath of the quebec attack as a relative silence of the white house. the president tweeted almost instantaneously a couple days ago when a potential terror attack was thwarted at the louvre in paris, no one was injured, no one was seriously injured, no one was killed, he didn't use the force of his twitter feed and his millions and millions of followers to accentuate this massacre that took place in the country just to our north. i think that raises very significant questions about his priorities on this.

and the other thing, and you know, and i just don't to want repeat this, that the coverage of so many of these events has been wall to wall, in fact, one can argue, you know, in the orlando and in the california shooting, sometimes they were very intrusive coverage. out in california, i remember people breaking into apartments -- not breaking in, but being led into the perpetrators, alleged perpetrators apartment before police had got therein. there was a lot of coverage. now on the margins, his argument, do terror attack overseas particularly in afghanistan and iraq not get enough coverage? yes, but also, i think, you can make the same argument about what's going on with russian aid syrian forces in iowa plep poe and the refugee crisis in syria. i would put as a counterargument to what he made is let's look at the various coverage but the evening news and by cable on the

refugee crisis in syria compared to terrorist attacks. i think you would find probably that the syrian coverage is more deficient than the coverage of terrorist attacks. >> you had a great article in the "new york times" with maggie haberman a couple days ago where you took us behind the scenes in the white house and gave us an idea about what's going on, there's one detail about how they were holding meetings in cabinet rooms, they didn't know how to turn the lights on. that was something that struck out to me. there was a number of interesting details including donald trump watching television. talk to me about the leaks, why are you hearing so much from people inside the white house eager to tell you what's going on? >> well, i think to some extent been it's funny, you know, sean spicer, the press secretary who i've known for years and is a nice guy, pushed back very hard against some of the details that were included in this. truth of the matter is the piece was meant to illustrate the human side of the long time

businessman and the new york resident adjusting to life in a completely unfamiliar environment. that's what we wanted to portray. we're not saying he's lazy. we're not saying he sits around all the time. we're just documenting how difficult it is for him and his very, very small team to make this adjustment. and our larger point to use a metaphor here is they have started off with such a relentless barrage of executive orders. you know, i liken it to carpet bombing while you're still constructing the plane. so the point is, they have a very small staff of really empowered aids, and we know them because if you look at the pictures of the executive order sitings, there they are in the frame, six to eight, maybe ten people tops who are running a lot of things and the fact of the matter is what we've seen in the last two weeks, you need a much more professionalized, much more interconnected, much more experienced staff to run a confident white house operation. so, you know, our goal in writing this was not to criticize him to illuminate for

our readers and perhaps people who work in the white house. some of these deficiencies that they're going to need to address. >> thank you glenn thrush. i will leave out the boo because i really like you. >> thank you. >> at least for now. i'm joined now by republican senator ben sasse from nebraska. one of the more vocal critics. senator, i know you want to talk about neil gorsuch and we're definitely going to get to that, but i want to first ask you about this administration. and whether or not you believe that this administration has a credibility problem. >> listen, i think in america right now, we haven't doing visk civics for a really long time. washington has a credibility problem. and the people voted for disruption, and now they're getting a lot of disruption. and some of that i applaud, some of it unnerves people, but there are a whole bunch of things that need to be rethought. the constitution and the first amendment and freedom of speech,

press, assembly, religion, those things don't need to be rethought. we need to teach and reaffirming those things. but there's a credibility problem that's spread all across washington, d.c. right now. >> i could not agree more with the idea of making sure that civics is taught more forcefully, also make the fourth estate and the importance of a free press. that's my personal opinion. >> i'm with you. >> to go further on that, do you think that you can trust this administration with matters on national security? especially when they've come out and preemptively blamed what another terror attack if it does happen on the courts and the press? >> well, first of all, it is the american tradition that we should regardless of who occupies the white house and who represents you in the legislature.

it is important to reaffirm the three branches of government that all take an oath to the constitution, all try to uphold and defend individual rights that are supposed to check and balance one another. so branches of the government should be attacking other branches. we should hold each other to more account and we have not done that for a long time. >> senator, do you believe the president right now is trying to consolidate power? >> i think that we are going back 80, 90 years where every new executive branch that comes to power tries to consolidate more power. so, my concern isn't something in the last 15 to 16 days, it's something that goes back to teddy roosevelt to republican andwood row wilson, a democrat who thought that democracy was clunky and people couldn't be trusted and legislatures were going to be bought off. you needed more power in the branch of the experts, the executive branch. i think the article one branch, the legislature is a huge part yf we have all these article two executive problems. we have executive overreach? again, not just this

administration, but administration over administration because we've had decades of legislative underreach where the number one priority of most people who serve in the congress is their own incumbency and their own reelection. they don't to want tackle the limited number of really hard generational problems we face. they love to shuffle power off to the executive branch. that's why obamacare is an example was a statute that wasn't finished in 550 places, it said the secretary shall dot, dot, dot, finish the law. and i've been critical as a republican of the democratic administration that wrote the rest of that law and went on beyond the parameters of that law and wrote new law. and i'm going to be critical of anybody of either party in the executive branch that tries to consolidate more power. but a huge part of why we have that problem is because the legislature doesn't do it's job. >> talking about the legislature not doing it's job, and talking about this idea that people are just out to get reelected, republican leadership doesn't seem to be overly concerned with donald trump sort of bending

reality or telling things that are demons ra bli false talking about voter fraud in this country, three to five million quote/unquote illegals voting in a place like california and all of them voting for hillary clinton, that's why donald trump didn't win the popular vote. refusing to acknowledge that russians could have hacked -- or were behind hacks into our political system, regardless of whether or not that affected this election, my question to you is does the republican party have more of a responsibility to push back and say hey listen, we're not going to tolerate this. you've got to play by the rules of the game and the rules of the game are that you tell the truth? >> yeah. so i don't think that republican and democratic labels are the labels we should start with in this conversation. because the founders view was that the way that you check the inclination for people to consolidate power is with other branches that are jealous of their own prerogatives. the legislative executive distinction should provide the

check, not just republican versus democrat or in this case we need republican on republican questioning as well. but, i'm the third most conservative guy in the senate by voting record, i'm not a particularly partisan guy. i sit in daniel patrick moynihan's desk on purpose because he's the author of the famous quote that while everyone is entitled to their opinion, you're not entitled to your own facts. we need more shared facts out there, and that is why the free press you were talking about before and the freedom of speech and freedom of religion and assembly are so critical to an american experiment where we know that most of life isn't about politics. most of life is about the rotary club and your family and church or synagogue or small business and neighborhood. and we need washington to do a small number of the most important things, so that people can live their lives at momentum which is where they raise their kids and find happiness. so we need more skepticism, one branch of another, but we don't need so much hope and trust in these two political parties because neither two political parties is impressive right now. >> i think it's interesting that

you say that because when i was on the campaign trail, donald trump voters did just that. they put all of their hope and trust into a man what if he isn't able to ban muslims from coming into this country. i'm not boired about that. i just believe in him. nibble his ability to change. i want to put that aside i really to want talk to you about neil gorsuch, donald trump's supreme court nominee. i know that you're eager to talk to him. given donald trump's attack on the judiciary saying that federal judge in seattle is a so-called judge because it put a temporary restraining order on his travel ban. are you confident that neil gorsuch would be able to remain independent even though he's being nominated by donald trump? >> unquestionably. and frankly i think that everybody across the political spectr spectrum, everybody who believes in america, whoever believes in a constitutional system of checks and branss should be

excited about neil gorsuch. this is a really strong pick by the president, and frankly people who were skeptical of executive overreach should be excited about this guy because he believes in constraining the overreaching tendencies of any branch to overstep it's constitutional bounds. as it was clear that judge gorsuch was one of the likely finalists. i started reading some of his opinions about three weeks, and they're really impressive. when the guy puts on his robe, he's no longer a private citizen with private views. i assume at night when he takes off his robe and watches espn, might have personal political views, but reading his opinions, i can't figure out what they are. his job is not to be a superlegislate ever to. it's to uphold and defend the constitution. it's to uphold and defend individual rights. it's to check the legislature and executive when it would overstep. that i believe judge gorsuch is the kind of guy of people that might be skept call of this should take a lot of hope in the way he views a judge's job. he's a rock star and frankly

he's the kind of guy the founders delivered on the court. >> if they filibuster of this pick, do you think you support the nuclear option? >> i think it's premature to talk process when this guy should be getting everybody's vote. by the way -- >> i know -- i'm sorry so interrupt, i know it's premature, but that seems to be the way the things are going with the democrats right now. i think it's definitely a possibility, and something that's quite relevant. do you support the nuclear option, yes or no? >> i'm not going to start there. i'll tell you what i do want to us to talk about, and that's that nancy pelosi said before she'd read any of the guy's opinions, if you breathe air or drink water, you should run for the hills and be scared to death of this guy. that's laughable nonsense. and that's the kind of thing we need to call out as civic discord that is just ranked partnership that doesn't have any seriousness about looking at his opinions. if you look at his opinions, and i trust that a will the are going to take judge gorsuch, read his opinions, they're going

to have a guy who's a judge, not a superlegislator. and i don't really think these process arguments should come into play. >> rank partnership maybe, but maybe rank partnership if it is that, that is indicating that we could be heading down a path where this does end up being either the nuclear option or no neil gorsuch. i'm going to vo have to leave it there. i respect your decision not to answer that question with a yes or no answer. senator sasse, i appreciate it. coming up, the future of the president's controversial travel ban is on the line tonight. the showdown before a federal appeals court is less than an hour away. plus how progressive protesters are turning to tea party tactics to get their message heard.

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welcome back to mtp daily. in the next hour, oral arguments will begin on the west coast in an emergency appeal by the trump administration. the government is urging the appeal's court to overturn a judge's order temporarily

blocking the administration's immigration travel ban. we'll have much more on that coming up later in the show. but first, homeland security secretary john kelly appeared on capitol hill today to answer questions from members of congress about the president's immigration order. he began by falling on his sword. taking the blame for the order's shaky rollout. >> in retrospect, i should have, this is all on me by the way, i should have delayed it just a bit so i i could talk to members of congress. particularly to leadership of committees like this. to prepare them for what was coming. secretary kelly repeatedly defended the order calling it lawful and constitutional. rather than a ban. the three judge panel that will convene next hour in san francisco tonight won't determine the merits of the law, just whether or not to keep the temporary hold in place. we'll be back with more mtp daily in 60 seconds. approaching medicare eligibility? don't put off checking out your options until sixty-five.

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wait a second, i thought we were going to have an adult discussion here. >> we thought we were going to have congressman represent us, that didn't happen. >> that was in roseville, california. republican congressman tom mcclintock tried to defend president trump's immigration ban but was met with a wall of protesters outside of his town hall event. and inside the congressman's constituents were ready to talking points and resist posters. in some parts of the country it's beginning to look a lot like 2009 all over again when tea party activists swarmed town halls and meet and greets were consumed by confrontation. and it's not just happening to republicans, senator shelby whitehouse faced the music after backlash for voting cia director -- voting in cia director mike pompeo, across the country, progressives are borrowing the tea party tactics

or maybe just borrowing them back. this playbook is back in vogue with a technological twist as groups find new ways to connect in the resistance against president trump. democrats want the same defiance in their politicians, but could it polarize and weaken the party? brendan was a key operative. founding partner at the political consultings firm stein houser strategies and he joins us now. thank you so much for being here. talk to me, do you think that there's a big difference between the tea party movement and the activists then and what you're seeing forming now on the left? >> well, certainly there's a huge id logical difference between the left and the right. and what they're fighting for and what they're fighting against, but there are some tactical similarities in terms of mass protests and rallies to gavelize opposition and then to direct that opposition toward legislative contact to try and get legislators and congress to vote no or not confirm someone

to take some kind of action. certainly the tea party movement back in twooun and 2010 did crib a little bit from the left when it came to learning how to do street protests, how to hold massive rallies, how to train people and be effective and then deploy them on the issues we cared about. >> so what can each side learn from the other? so what can the left right now learn from how the tea party deployed their tactics successfully in the twen midterms? >> sure. well one of the things i've been thinking about is how the sleft going to have a challenge and it needs to make sure that it expels any radicals from it's midst. whether they are socialists or anarchists or communists. people destroying public property that are destroying starbucks or, you know, destroying an atm machine at bank of america. they need to self-police to make sure that they don't say that that's okay. you know, we've dealt with crazy folks too that tried to infull trait our movement or the crowd that would come into our protests and we would sell police and say you're not apart,

you're not allowed to be. that's important to maintain public support. i also think they need to go ahead and ask lena dunham to exit stage left. she offended middle america. talking about not having had the opportunity to have an abortion. things like that alienate people. for the democrats to be successful for the left to be successful in this movement, they really do have to go back to winning back the voters that actually voted for barack obama in places like michigan and ohio and pennsylvania, and then decided to vote for donald trump. they need to appeal to middle america, to white working class voters in particular. the folks that hillary clinton lost to donald trump. and that's really the challenge that they face. >> you know, you might have a point with that. when hillary clinton was having the rallies with celebrities in order to get the crowds to turn out more in force, donald trump was just standing on a stage alone and he pointed that out. you can have a point when it comes to celebrities and moving them to the side. but on a different point, cory gardner and marco rubio and for that matter the trump campaign,

the transition, now the white house, basically is calling these protesters paid protesters. are they paid protesters or are these just average americans who are dissatisfied with the current state of affairs? and this current administration even before it begins? >> sure, well i think it's probably a bit of both. like in any movement and any political effort you do have people that are paid to go out like unions and environmentalists who have been doing this for decades. who are probably acting as, you know, trainers and as teachers to teach people how to do these tactics. but yeah, you have a lot of people who are probably relatively new to politics or people that have voted in the past that are now coming out and protesting and they have every right to do that. whether they're paid or not. now i wouldn't make the mistake that the democrats made when they labeled the tea party astroturf and fake grass roots and paid to be there. that really backfired against the liberals and the democrats when they did that. in fact, nancy pelosi famously referred to us as astroturf and when we showed up with 500,000

tea party protesters on september 12, 2009, i said into the crowd, you know, we've replaced the grass on the west lawn of the capitol hill with astroturf. and that got a big cheer, people understood that we were being denigrated, insulted, and i really think that, you know, you have to -- you have to encourage participation, even if you disagree with those going out and protesting. they had every right to do that. democrats and liberals are out of power, that's what we should expect them to do and it's up to conservatives to make the case where why we're right and they're wrong. >> thank you, brendan. >> thank you for having me. now let's bring in the panel. masn political analyst, and joan walsh is an political analyst as well. and national affairs correspondent at the nation. and this is a senior reporter with politico. unfortunately for us, not an msnbc contributor. at least not at the moment. maybe we'll change that. >> you know something i don't. >> let's talk about lift off from what brendan was talking about. the tea party movement was super

effective in the 2010 midterm elections. they were force to be reckoned with, do you foresee, joan, the same thing happening with the movements we're seeing on left? can they sustain themselves to make a difference in 2010? 2018. >> and 20 and '22, i don't think anyone can predict that yet, katie. the thing that i would say about them, that makes me hopeful as a liberal is that despite people trying to call them astroturf and george is paying everyone, what i've heard from people all around the country not just at that washington march is that they saw people they've never seen marching before. so this is touching. i think the shock of donald trump's election a lot were apathetic. they didn't think he could win and he won.

then out the gate, such a radical agenda. i think people feel disenfranchised, they know he got almost three million fewer votes from the public and they're asking how. i think there's a wellspring that is frankly scaring democratic party leaders because you know as you've said, sheldon whitehouse had a confront a proud. chuck schumer outside his brooklyn home. he likes to think of himself as a liberal and the people's friend. so i think this is something nobody totally understands, but i really appreciated brendan saying that it's dangerous to call it astroturf, because it probably isn't. >> to joan's point, who's at risk then in 2018? is it republicans whose constituents, at least, a lot of them voted for donald trump or is it the democrats who are seen working with the trump administration and any way, is it someone like sheld whon voted yes to pick cia director mike

pompeo? >> i think democrats are certainly disincentivized to work with donald trump especially as she's seen as increasingly incompetent. that's what it's going to come down with trump voters who wavered and went with trump how the competency of this west wing looking at this executive order on immigration and what an utter disaster it was. donald trump, the white house just doesn't seem to have it's act together. and appointing nominees like betsy devos that couldn't come up and couldn't perform when they were in prime time. >> she still got confirmed. >> barely. >> that's exactly -- look at how much uprising that caused though. and you look at the numbers of democrats and americans, republicans even who are calling in and flooding these congressional offices. you look at the women's march being the largest march ever happen in this country. it is a real force, there is a real opportunity for genuine protest movement here, and i think it is getting into president trump's head. >> let's talk about what we had in the last brok, we were talking to senator ben sasse and

he was making the argument that pushing back against the administration and pushing back against all the powers in government. it's really not an id logical thing. everybody should be doing it. the reality is though, the republicans are taking a bit of a back seat to pushing it back against donald trump trying to overreach on his executive power, do they have a responsibility or are they going to see any negative effects if they don't stand up and say hold on, wait a minute, we need you to -- we need to reign you in a little bit? >> no, i think voters have such a disgust for washington that anyone that goes in there on the promise to change it, shake it up, break it even, is going to have a level of support among the electorate that we could not imagine 10, 15, 20 years ago. so republicans who under the obama administration, government's overreaching, executive orders, oh my god are now saying, oh well that's effective. because there is this notion that you can support your own team almost, you know, irrespective of facts.

and the other side is the enemy. so anything that you do is justified and you just have to look one administration back and everyone's roles were reversed. i think donald trump is able with his charisma, his support, you know, his inability to feel, you know, shame about what he does or says, garners a level of support from his, from people and his allies that makes establishment republicans worried that they cannot be consistent on policy. >> completely dedicated, completely loyal, the question is once his support starts to crack, what do we see the senate leadership do? that is something we're going to have to hold because i have to go to break. stay with us, please. still ahead, the trump administration wants the court to reinstate the controversial travel ban. where the case stands ahead of tonight's showdown. me to reach my goals.use wha'e

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more mtp daily just ahead, but here is first -- let me try that again. but first, here's my friend hampton pearson with today's cnbc market wrap. >> hey katie, stocks ending higher on the day. dow gaining 37 points. s&p up a fraction, the nasdaq adding ten points. the u.s. trade deficit hit it's highest level in four years, despite new numbers from the commerce department released today showing they have narrowed in december. falling by more than 3%. and the u.s. news and world report ranks austin, texas, as the country's best place to live. rankings are based on quality of life, affordability, and job

prospects. that's it from cnbc, first in business worldwide. i mean wish i had time to take care of my portfolio, but.. well, what are you doing tomorrow -10am? staff meeting. noon? eating. 3:45? uh, compliance training. 6:30? sam's baseball practice. 8:30? tai chi. yeah, so sounds relaxing. alright, 9:53? i usually make their lunches then, and i have a little vegan so wow, you are busy. wouldn't it be great if you had investments that worked as hard as you do? yeah. introducing essential portfolios. the automated investing solution that lets you focus on your life. i work ovi need when i my blood sugar to stay in control. so i asked about tresiba®. ♪ tresiba® ready ♪ tresiba® is a once-daily, long-acting insulin that lasts even longer than 24 hours. i need to cut my a1c. ♪ tresiba® ready ♪ tresiba® works like my body's insulin. releases slow and steady. providing powerful a1c reduction. my week? hectic.

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welcome back to mtp daily as we mentioned earlier in the show, at 6:00 p.m. eastern time tonight, there's a hearing in california on the future of president trump's travel ban. let's go to the chief legal correspondent, ari melbourne to help us understand exactly what is going on. i will ask you that. what exactly is going on tonight at 6:00 p.m. eastern. >> what is going on at 6:00 p.m. eastern is a fairly typical thing which is an appeal's court passing some judgment on the temporary restraining order that was so dramatically put down by judge robard, a federal judge in seattle. all they're going to do is meet on the phone, telephone conference call like people have at their normal work, these are judges and they are going to decide whether to leave that temporary restraining order in place or reinstate the travel ban. >> so earlier today, in the

white house press briefing room, sean spicer said that this is not necessarily a big deal. they believe that this case will be decided on it's merits. they believe that they will win the case talking about whether or not this travel ban is constitutional. and they cited the boston case, explain that for us. >> sean spicer is correct, we are still in early procedure land. and all that's being decided is whether during the coming trials this will be a ban that is enforced or not. he's saying hey, give us a minute, when we get to the trial, we are going to win. you mention that case, this is by judge gordon in boston, this was a case that dealt with some of the merits, arguments in order to decide whether or not to block the ban. so it is not in itself a final decision either. >> upheld the band. >> it say it's not going -- what it said was we're not blocking the ban because we don't likely think it's going to be struck down later. a similar posture. the reason the white house likes this case is they went through

several of the arguments, due process arguments, equal protection, and the religious arguments that we've heard so much about. and in each instance, the judge basically said, it is unlikely the challenges will prevail. here's why. on due process, look, there may be people in the airports. we saw those dramatic pictures. there may be people caught up, most of the ban affects people who aren't here yet and this judge was pointing to precedent that shows that those people don't have rights. there's no right to enter the country if you don't have lawful status yet on equal protection, similar type of analysis but went deeper that this doesn't favor one religion or the other. that's one of the debates in this. and then on religion and establishment clause claim, the idea of wait a minute, does this actually set up a preference for christianity. something that donald trump himself eluded to in a christian broadcasting network interview. put what donald trump said to the side, you know, politicians will be politicians, boys will be boys, this text under the courts analysis does not

actually say yes, christian -- >> they're focussing on the executive order. this could go to the supreme court. donald trump says he will take it there if he needs to. doesn't the president to get there. if it does go to the supreme court and say they decided they're not going to take the case up, who's ruling stands? the seattle ruling or the boston ruling? >> neither. because this is a triple layer cake. we just hit super bowl sunday, everybody knows you got the bean and then the cheese and then you've got the sour cream, right? do not set the cheese layer before the layer would decide. translation, after the ruling has the trial and goes on, then an appeal's court and only that would the supreme court decide to leave in place like that. >> i'm not going to offend our audience with what i was think

abouting when you said bean, cheese, layer dip. i'm leaving it there. >> tom brady said that it's ban hard time for him. and i think that's because he got caught cheating. >> oh. thank you, ar melbourne. >> have i left you with anything to think about. keep watching msnbc's covering this through the 6:00 p.m. we're going to be busy. >> we are, and i promise ari will not bring out the three bean cheese whatever dip. so again, we're going to be covering this all night at 10:00 p.m. eastern. you're going hear it on the last word, you're also going to hear this it throughout the next hour. the entire evening we will also have much more here on mtp daily right after this. ♪ why do so many businesses rely on the u.s. postal service? because when they ship with us, their business becomes our business. ♪ that's why we make more e-commerce deliveries to homes than anyone else in the country. ♪ here, there, everywhere.

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discover the story only your dna can tell. order your kit now at ancestrydna.com. welcome back. this was one for the history books today. for the first time ever a vice president came to the senate to cast a tie-breaking vote on a president's cabinet nominee. vice president mike pence had to break a razor thin 50/50 tie to confirm betsy devos, president trump's pick for education secretary. devos's confirmation has been the most contentious of the president's cabinet nominees so far. senators offices were inundated with calls and messages to oppose her. we're expecting devos to be sworn in a little later. and you're looking life right now at the senate floor where senate democrats are holding their second talk-a-thon in as many days. this time, it's an opposition to senator jeff sessions nomination for attorney general. it's unclear wlo weather they'll pull another all nighter as they

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and your medicare. you made a deal a long time ago." now, it's congress' turn. tell them to protect medicare. it is time for the lid so let's bring back the panel. let's talk about the travel ban. joan, donald trump administration briefs it's going to be won on its merit. what are we expecting to hear from them tonight? >> the president has great latitude about who gets let into the country. we're looking at what are the grounds for the removing the stay, removing the tro. i don't know how they will rule. we made one point. that is he is trying to bully

the judiciary branch as well as journalist to cover terror even more. we heard an amazing thing kellyanne conway on cnn she complained about the amount of time -- i hear that correctly -- how many time the media gave to donald trump that they should have have been spending on covering terror. >> did that propel him to victory -- >> a lot of time donald trump is saying things that are factually incorrect. it's a fact. the travel ban, this is something they are going to argue is constitutional because the president has the authority to protect the american citizens. >> it's sloppy thousahow they a going about the order. the fact that this has been such a nightmare rolling it out and

it's been branded as a muslim ban isn't helpful in the courtroom. >> instead we had secretary kelly testifying that he should have been the one to put a pause on it it -- >> everything is protecting trump. they are making an argument that they are protecting american -- a number of if they are going to make an america about protecting america and safety, if you look at the facts, the numbers would lead you in a different direction. >> are they open to the argument that they are fear mongering. absolutely not. >> the administration specializes in fear mongering.

the fact do not support their argument. 1 in $3.6 billion is the number of refugees coming into the countries. there's a 1 in 3.6 billion that a -- >> you have a poise sonned bag of skittles if you talk about access to guns. which the president doesn't want to take on. but they want to point a finger at the people that are not here and say they are the problem. that's what dangerous and scary. >> lots to talk about. spirited conversation. appreciate the time with you. nice to meet you for the first time. joan and awecy, elise, that's it

for tonight. "for the record" with greta. she will be speaking to john mccain whose mother will be turning 95 today. i'm katy tur, thanks authfor watching. afoot and light-hearted i take to the open road. healthy, free, the world before me, the long brown path before me leading wherever i choose. the east and the west are mine. the north and the south are mine.

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breaking news "for the record" at this very second a legal showdown is getting underway over president trump

executive order that could go to the supreme court. panel is hearing argument on whether to lift the hold on the travel ban. this hearing live streaming for the ninth circuit. this is being conducted by phone. they want to argue that the hold in the state of washington is wrong and should be lifted right now. we'll be tracking all development in the hearing as they happen. meanwhile what does president trump say. he sound confident, but should he be? >> we'ring to take it through the system. it's important for the country or me or whatever succeeds as a later date. we need security many our country. we'll see what