Full Episode: Trump administration considers next steps after court upholds travel ban freeze

AMY WALTER: President Trump vows to keep fighting after a federal appeals court keeps his travel ban on hold. I’m Amy Walter. We explain what happens next, tonight on Washington Week .

PRESIDENT DONALD TRUMP: (From video.) We are going to do whatever is necessary to keep our country safe. We will be extreme vetting.

MS. WALTER: A three-judge panel keeps in place a hold on President Trump’s executive order that restricts travelers from seven Muslim-majority countries.

WASHINGTON ATTORNEY GENERAL ROBERT FERGUSON (D): (From video.) It’s about people’s lives and the impact on their lives, and the future of our country and our Constitution.

MS. WALTER: As the White House reviews its options, including a possible appeal to the Supreme Court, Trump’s nominee to the high court distances himself from the president’s criticism of federal judges. Will Neil Gorsuch’s rebuke of Mr. Trump complicate his confirmation process?

And National Security Adviser Michael Flynn is under fire for reportedly discussing President Obama’s sanctions with Russia before Donald Trump took office. We examine the heated debate over the law, national security and politics with Michael Scherer of TIME Magazine, Yamiche Alcindor of The New York Times , Alexis Simendinger of Real Clear Politics, and Josh Gerstein of POLITICO .

ANNOUNCER: Celebrating 50 years, this is Washington Week .

Once again, from Washington, Amy Walter.

MS. WALTER: Good evening. The Ninth Circuit Court of Appeals delivered a significant setback for President Trump’s first major policy decision regarding immigration and national security. During a joint news conference with Japanese Prime Minister Abe, President Trump promised to unveil a new security measure next week.

PRESIDENT TRUMP: (From video.) We’ll be doing something very rapidly having to do with additional security for our country. You’ll be seeing that sometime next week. In addition, we will continue to go through the court process, and ultimately I have no doubt that we’ll win that particular case.

MS. WALTER: Thursday’s decision was not about the legality of the executive order; it simply upheld a lower court’s order to temporarily suspend travel and immigration from seven predominantly Muslim countries. Alexis, in the last few hours there has been a lot going on, a lot from the White House about what they’re going to do next. Can you please help update us?

ALEXIS SIMENDINGER: Well, the president was focused today with the prime minister on the goal that he set, and you heard him talking about that, and I think that’s important to remember. What he’s saying is that he wanted to temporarily bar the travelers and the refugees from coming in while the administration created what he calls an extreme vetting program, in other words a screening process. What he came back to talking about today is the many options that he sees that the administration still has to achieve the ultimate goal.

Initially we heard the president in a tweet say I’ll see you in court and kind of be very hotheaded about it. Today his reaction was more measured. And as the day went on what we learned is that the options are go back and revise the executive order that he issued and clean up the parts of it that seem to be most problematic or vulnerable in the courts, right? Simultaneously, he’s also saying we could go back to the district court, we can make our case on the merits – which is what you described had not been adjudicated, really, by the Ninth Circuit – and we could still prevail. But he’s arguing we need to work with speed here. We’re concerned about people coming into the country. So it may be that two things happen simultaneously, that the administration goes back to the district court on the merits but then simultaneously the president uses his own executive authority to either issue a new order or actually even then maybe add some instructions for the vetting, the procedure that he imagines taking place, and see if that fits within the confines of the law.

MS. WALTER: Well, Josh, how does that actually work? What does that look like? And how much more work do they need to do on this before we see whether we’re going to have real movement on this issue?

JOSH GERSTEIN: Well, they’d have to sit down and go through the order, as Alexis is saying, and see which parts are easiest to implement and which parts create the most legal problems. I mean, one of the big screw-ups here at the beginning was leaving at a minimum ambiguity about whether green card holders were included in the order. It was not only a PR debacle – because you had protests at the airports, you had people being detained, some of whom may have lived in the U.S. for years and years – but it was a legal debacle because it got this order off on the wrong foot. It led to dozens of lawsuits being filed, and it was almost guaranteed that those suits were going to succeed at the early stages because green card holders have a lot of rights. Now, other foreigners – people who are applying for the first time to come to the U.S., people who are refugees – the U.S. courts have very rarely recognized any rights for those people. So an order that just focused on, say, refugees or people that don’t have visas yet would probably be much more defensible.

MS. WALTER: So why not just do that right now – just tweak it and send it back? Would that work?

MR. GERSTEIN: Well, number one, there’s a degree of stubbornness. I mean, the White House had a chance to tweak the order on green card holders and instead they went through this complex process. They had General Kelly at the Department of Homeland Security issue some kind of blanket waiver. That didn’t seem to quite work right or satisfy the courts, so then they had the White House counsel, Don McGahn, issue what he called authoritative guidance that the green card holders weren’t counted anymore. They could have simply had Trump sign another half-page paper saying let’s fix the order, but they didn’t want to back down. So now you have the White House coming to terms with the fact that they’re going to, you know, not be able to save face and say that they did this right the first way.

MS. WALTER: I also want to talk about where we go from here with the administration itself. We had a new attorney general. Jeff Sessions has his place now. Does this now change the way that the Trump administration deals with this issue and other issues like immigration and national security?

MICHAEL SCHERER: I think the fact that we’ve already gone 24 hours here without an appeal shows that they’re behaving differently. Now, there was a first reset after the weekend this order was made in which Chief of Staff Reince Priebus was gathered in the Oval Office with the president and the president said this guy is in charge, you have to follow him. And Reince made a number of changes to make sure that this would not happen again, that executive orders wouldn’t just get pushed out the door without vetting all around government, without Congress being informed, so this sort of chaos wouldn’t happen again.

My bet is that Sessions’ arrival out of the confirmation process will add another voice, another layer here, especially on these issues. Sessions is going to be the attorney general, but he’s also something of a – of a philosophical/ideological godfather to a lot of people in the White House, including to some extent the president. He’s long advocated a far tougher immigration policy, and he’s going to be in charge now of the department that not only brings these cases or defends cases – if it does go eventually to the Supreme Court – but also implements a lot of this stuff.

You know, one of the other orders that was issued before this refugee order was an order about interior security for the United States. And if you read through that, a lot of powers are delegated to the attorney general to figure out how to enforce it. It’s up to the attorney general to figure out who’s a sanctuary city and who’s not a sanctuary city, and to make recommendations about denying federal funding. So I think it’s very likely that several months from now we’ll be looking back and saying Jeff Sessions is one of the most powerful attorney generals we’ve had.

MR. GERSTEIN: Amy, though, there is one problem that I don’t think Jeff Sessions is going to be able to fix, whether it’s with the current order or a future order, and that is the rhetoric that Trump used during the campaign. He talked about this as a “Muslim ban.” His advisor, Rudy Giuliani, is on the record saying they were trying to come up with a legal workaround to implement a Muslim ban, even though many people thought a Muslim ban itself would be illegal. Those comments have dogged the effort to defend this initial order in the courts. They will dog any future order because people are going to say this is just a pretext. And I’m not saying that it means these orders will never take effect, but no matter how they’re redrafted they’re going to face the argument that you’re just dressing up what is really, you know, an invidious act of discrimination, and that’s a big problem.

MS. WALTER: So, bottom line, will this order actually be in place at some point? And if it is, how long in the future?

MR. GERSTEIN: I don’t think it’s going to be in place in any form similar to the way it looks right now. I think if it’s reined in in the way that we were talking about earlier – to, say, suspend refugees across the board and, you know, maybe effect more extreme vetting on people that are applying for visas in the first instance – sure, I think the courts would probably go along with that, although it’s hard to say. Some judges might, you know, see that “Muslim ban” remark, those “Muslim ban” remarks, as kind of an original sin that taints this effort forever.

YAMICHE ALCINDOR: I should just – I should just add, when I think about why – the why Trump does not want to walk this executive order back and why it’s so central to who he is, it’s because his campaign and his supporters are really built on this idea that he was going to make America safe again. And the idea that Trump really got away with running in a campaign without ever having to back down, without ever really having to apologize taught him a lesson. It taught him that in some ways he’s Teflon.

And I don’t think he wants to go back to his supporters and say, I’m really sorry, I messed this up the first time, I’m going to do better, or here’s the things that I need to fix. I think that there’s a personality issue there. And whether or not he’s working with Jeff Session or with Kelly or with anybody, they’re going to have to deal with this personality that isn’t someone that’s thinking about political expediency as much as he’s thinking about whether or not I look like a winner.

MS. WALTER: Go ahead, Mike.

MR. SCHERER: The other thing is that if he gets backs to the statute – you know, and this question of intent, whether there’s some discriminatory intent is going to continue to dog him. But the statute –

MS. WALTER: And by “the statute,” meaning the executive order itself.

MR. SCHERER: No, by the statute meaning the law that Congress wrote –

MS. WALTER: Oh, OK.

MR. SCHERER: – giving the president enormous leeway. The statute basically reads: Whenever the president feels aliens are causing some detrimental effect in the U.S., the president has the authority to limit them. I mean, it’s an enormously broad order. So on paper, it looks like he has a lot of power here. And so when he comes back with here’s how we’re going to vet, he’s going to have a lot of power. The problem is this intent. And if the statute – the enormous power that Congress has given the president, and the Constitution gives the president as well, comes up against this intent question, it could not just be for this issue, it could be for others, if the courts are constantly questioning whether there’s some illegal motive behind what everyone pretty much agrees is the president’s authority.

MS. WALTER: Well, President Trump also faced criticism from his Supreme Court nominee, Neil Gorsuch. Connecticut Senator Richard Blumenthal said Judge Gorsuch called the president’s attack on the federal judge who blocked the travel ban disheartening and demoralizing during closed-door meetings. Now, one of the judge’s handlers confirmed Senator Blumenthal’s characterization, but another said Gorsuch’s remarks were not directed at the president. Yamiche, there are many theories going around about whether Gorsuch misspoke or whether this was strategic. What do you say about that?

MS. ALCINDOR: What I’d say is that at the end of the day you think about the fact that Donald Trump called this person a so-called judge, this person that made this order and was really going up against him. And to have someone that’s going to be sitting on the Supreme Court see somebody else who’s in the judicial field attacked in that way, you would imagine that that person would take issue, even behind closed doors, with the fact that he said that. Now, this walking back of it, this idea that this aide is saying, well, that’s not really what he meant, it’s also the fact that he is still a nominee. He’s not sitting on the Supreme Court yet. So he still in some ways has to be in the good graces of the person who nominated him.

But I think it signals that while there are Republicans making real issues about what they want to pick a fight with about with Donald Trump, in this regard it’s someone who’s going to be on the judicial branch, he’s saying wait a minute because there’s no such thing as so-called judges in America. And I don’t know if that helps him at all with Democrats. I think Democrats are still very, very upset and feel as though this Supreme Court seat was stolen. Even though they’ve talked a little bit about trying to work with Republicans, all the Democrats that I’ve talked to in all confirmation hearings that I’ve covered, they kept on bringing up the Supreme Court, whether or not it was relevant or not in some cases. So I think that there’s that going on. But I don’t – I think that that’s kind of what was going on in there.

MS. WALTER: Well, was it coordinated with the White House? It seems like that’s what they were trying to do, was to get everybody on the same page, and then they got off the page.

MS. SIMENDINGER: Well, one of the things that we’ve learned, as you were just suggesting, is that the president does not take well to any kind of dissent or refutation of his own authority or his point of view. So –

MS. WALTER: Even when it was coordinated?

MS. SIMENDINGER: Well, in this particular case, it is possible in this White House for two things to be true at the same time. So I would just argue that there may have been this thought that this did not hurt the judge among Democrats, for instance. What irritated the president was listening to the Democrats translate what it was that the judge supposedly said or meant or whatever. And, as we’ve all talked about, the president himself is speaking to two very fractured audiences. One is the audience that brought him to the White House, and the other is the audience that is going to have to help him get that judge across the finish line and into the robes and among the other eight.

MS. WALTER: Well, the president is also facing a critical test over policy and personnel. On Friday, The Washington Post broke the story that National Security Adviser Michael Flynn talked with a Russian ambassador about sanctions put in place by President Obama before Donald Trump’s inauguration. For weeks, the White House had denied that Flynn had anything more than a cordial social interaction with Moscow.

Josh, if he did speak – Michael Flynn did speak with this Russian ambassador about sanctions, what happens?

MR. GERSTEIN: So, I mean, there is a law that prohibits private citizens from sort of freelance diplomacy. It’s 218 years old. It’s almost never been enforced in the entire history of the republic. So you may hear people throw that around, but it’s unlikely anything would happen as a result of that. I think the real question is about Flynn’s candor both publicly and with other officials in the White House, including Vice President Mike Pence.

Was he told accurately what happened? Did Flynn maybe not fully remember the conversation? It’s seems fairly well-established, judging by the number of sources who are now speaking out about information apparently from intelligence intercepts of the Russian ambassador or the Russian embassy, that this subject was discussed, and perhaps the possibility that Trump might roll back some of the sanctions that the Obama administration had imposed.

And so it’s become sort of a credibility test. There have been signs that Flynn has sometimes been an embattled figure in the White House, especially because some of his entourage or other members of Trump’s entourage – these ties with Russia have really been very problematic, obviously.

MS. WALTER: Does Flynn keep his job?

MS. SIMENDINGER: This was a question I asked at the White House today. And the answer from the president – I didn’t ask the president, but the president was asked this question – is he acted like he didn’t even know that there had been an article in The Washington Post or in any other media outlet, and, yes, that he supports General Flynn. General Flynn was in the front row of the news conference. The general is with the president over the weekend. The general is supposed to be accompanying the president in all of the discussions with the visiting heads of state next week, including the prime ministers of Canada and Israel. The discussion, though, that is fascinating to me is the White House is not denying this. They are not denying this article. They are saying the article is correct.

MR. SCHERER: And the other problem it’s created is not just about whether the president supports him – because what matters in this White House right now is if the president supports you and right now he supports his team – it’s whether the team can support each other. And this goes straight to that. The fact that Mike Pence went out publicly – and Pence is a guy who takes his own reputation very seriously, is very careful about what he says, and by all reports is very angry that he was giving false information to the – to the nation. Reince Priebus, the chief of staff, also went out on bad information and told the nation bad information.

This is the latest in what has become a series of fights that become public, in which aides are pitting, leaking –

MS. SIMENDINGER: Unnecessarily.

MR. SCHERER: – leaking against each other, undermining each other’s credibility, challenging each other in the press with blind quotes.

MS. SIMENDINGER: Not being sure if they can trust one another in the discussions they have about otherwise very serious matters and the policy that’s going to follow.

MS. WALTER: Well, that’s what I was going to ask – for anybody here, Yamiche or Michael – about what it says about our foreign policy and how we’re putting together – how this White House is putting together foreign policy.

MS. ALCINDOR: Well, what it says is that it can be really problematic. You think about this idea that Russia, we’re still wondering – even though it’s now an old story about whether or not they interacted or interfered in our election – this idea that he’s now talking about possibly lifting sanctions before he’s even in office. And I think, just to go back to the idea about Mike Pence – Mike Pence, unlike Kellyanne Conway, unlike Sean Spicer, hasn’t been pulled out by the media in saying, hey, we can’t trust this person. When he opens his mouth, people usually believe him – or, I would say, most of the time, if not all the time, believe what Mike Pence is saying. So the idea that he could then get wrapped up in this credibility issue that the White House has is really problematic. But aside from that, I think that when you think about Russia’s role and the murkiness of it all and the idea that it’s unclear how close or what the relationship between Putin and Donald Trump is – I think it can be very problematic.

MR. SCHERER: On foreign policy, there’s this tension that has become also very apparent in the last two weeks – remember it’s only three weeks in at this point – (laughs) – in the last two weeks about – between Trump’s rhetoric, which is often very bellicose and unconventional and breaks norms, and what the national security and foreign policy policy actually is. And what we’ve seen is in a number of places them pull back from the rhetoric. You know, we had Trump yesterday having a phone call with the president of China in which he endorsed the One China Policy, you know, a month and a half after making big news by publicly tweeting that it wasn’t a policy he cared much for.

You’ve had the White House pull back from its plans of moving the American embassy to Jerusalem. You’ve had the U.N. ambassador speak very harshly against Russian aggression in Ukraine, which runs against the president’s own language about Putin may be a great guy, may be a bad guy, we don’t really know yet. And so I think there’s a separate fight going on in which the foreign policy establishment both inside the White House and outside is trying to assert itself against the messaging habits of the president. And so far, like in the last couple weeks, it seems like that establishment is asserting itself. But there’s nothing predictable about it.

MS. WALTER: Well, we’re going to turn now and talk about the Democrats. You have TIME ’s cover story. Here it is. Do Democrats matter? You can see Senator Minority Leader Chuck Schumer of New York there on the cover with his little glasses perched on his nose. All right. So, Michael, you’re the Washington Bureau chief. What’s the answer to that question? Do they matter?

MR. SCHERER: Chuck Schumer is doing everything he can to make sure they matter as soon as possible. (Laughs.) Right now, they’re not having a lot of success in blocking anything. And as you mentioned, very likely Gorsuch, the Supreme Court nominee, will go through. You know, all the president’s Cabinet nominees are going to go through. But Schumer does have a few things on his side. He has the fact that a lot of the legislation that the president has basically put his presidency in – a tax bill that’s going to be coming later this year, an infrastructure bill that’s going to be coming later this year, efforts to actually rebuild something when Obamacare is repealed, however it is repealed will need 60 votes in the Senate. And Schumer’s done a pretty good job of corralling a very diverse body of 48 Democratic voting members. So he’s got that.

And then the second thing that’s happening that is not – Schumer’s watching it happen, he’s not driving it, is you have this enormous outpouring of public fury from progressives and liberals that’s just nothing the Senate Democrats or anybody in the Democrats really saw coming or knows exactly what to do with yet. And I think that energy you see in the streets – at protests at airports, at town hall meetings – is – very well could change the political atmosphere here and empower Democrats once again.

MS. WALTER: And yet, Yamiche, that may be organic, but there was a concerted effort by Democrats in the Senate to really be aggressive in these confirmation hearings – holding them late at night, there was the dustup between Elizabeth Warren and Mitch McConnell. So they seem to be taking a very clear and very directed approach on these – on these confirmation battles, and it’s not going to – this seems like it’s not going away anytime soon. They’re going to keep being very aggressive.

MS. ALCINDOR: Well, I think that they lost on most of those battles. You think about Betsy DeVos and what they lost. But at the end of the day, I think what they’re giving is really red meat to their base. There were people rallying outside Chuck Schumer’s home because they thought that he might be a little too nice to these nominees. So they have a base that is frustrated, that is angry, that wants to see their members standing up and making as much noise as possible, even if they understand that they’re not going to be able to get the votes to defeat people. They don’t want to see people resting on their laurels saying, well, you know what, we can’t do anything with this. They also want to see the energy that you see in airports mirrored in the Senate. So you have these all-night protests and people showing up in tailcoats to airports because they’re trying to catch up with their base. And it’s a base that’s sprawling and that’s angry for so many different reasons, including the fact that there’s a whole wing of the party that was angry at the party for even having Hillary Clinton as their nominee. And that’s still something that I think Bernie Sanders supporters really feel very angry about.

MS. WALTER: Well, Alexis, let’s talk about how the White House deals with this. We know that the president brought in a number of red-state Democrats to talk about the Supreme Court nomination. What does the White House think their relationship with the Democrats are going to be?

MS. SIMENDINGER: It’s so fascinating because in the interview with Senator Schumer, you can tell that Senator Schumer is trying to play that balancing act because he has this conference and he’s trying to keep them all together. But as we know, there are 10 Democrats that will be up for reelection in 2018 from red states, and believe me Donald Trump as president and his – and his aides are talking openly every day about their love and affection for them, their need for them, and also – by the way – we have a big target on your backs. And so the president is arguing, you know, I speak to your constituents, I have the power in your state, so I want to remind you who can come into your state next year and destroy you politically. And that’s the undertow.

MS. WALTER: Do they think they can – but do they think they can actually work with these Democrats? Do they want to have deals cut with Chuck Schumer and with the other Democrats?

MS. SIMENDINGER: Well, it’s not only the art of the deal that the president has in his mind, but it’s also the reality of it because, as we were saying, for a lot of the things that – everything that you had on your list of legislation, you’re going to need more than what you have in terms of Republicans in the Senate. So it’s the reality, and it’s also the president’s ambition to show that he can woo a Senator Manchin from West Virginia, who turns out to be, you know, at the White House more often than maybe some Republicans.

MR. SCHERER: But who also calls Chuck Schumer his best friend.

MS. SIMENDINGER: Absolutely.

MR. SCHERER: So there’s that tension there.

MS. WALTER: There’s some. Well, thank you all. Thanks, everybody, for watching.

Our conversation continues online on the Washington Week Extra , where we’ll discuss the bipartisan calls for an ethics investigation into one of the president’s closest advisors, Kellyanne Conway. You can find that and the Washington Week-ly News Quiz online at PBS.org/WashingtonWeek Friday night after 10 p.m. and all week long.

I’m Amy Walter. Have a great weekend, and good night.