Conway: Merits of executive order will prevail in court; Thiessen: Dems to follow policy of obstruction by litigation

This is a rush transcript from "The First 100 Days," February 9, 2017. This copy may not be in its final form and may be updated.

MARTHA MACCALLUM, FOX NEWS HOST:  Breaking tonight, we are awaiting the very first reaction from the White House.  Kellyanne Conway about to join us after her ongoing meeting with the president in the White House right now.

We will also get remarks from the governor of Washington State after the Ninth Circuit Court of Appeals rejects national security warnings from the president and rules against the White House in the first showdown between President Trump and the courts, which has happened just 21 days into his still young presidency.

I'm Martha MacCallum and this is "The First 100" with lots of breaking news tonight.

So, moments ago, the judges that you heard debating that case live here headed down the highly anticipated decision against the president.  They will not allow the president's executive orders on extreme vetting, one of his most controversial and serious campaign promises to go forward for now. The decision nearly guarantees that despite it will indeed go to the Supreme Court most likely, huge political fallout being felt immediately. It didn't take long for the president to counter, as he always does.

Counter punching directly on Twitter.  He said this.  All in caps.  "See you in court.  The security of our nation is at stake!"

So moments from now, as I said, we're going to speak live with Kellyanne Conway, senior counselor to the president.

But first, we begin with Dan Springer, live in Seattle, where this whole legal fight began not too long ago.


DAN SPRINGER, FOX NEWS CORRESPONDENT:  Yes.  And Martha, this was unanimous decision, 3-0.  And as we mentioned before, there were three judges on this panel.  And two of them were appointed by Democratic presidents, one by President George W. Bush, but it's pretty incredible.

We know during these oral arguments, a lot of the time was taken up with two main issues.  What was the motivation behind the travel ban? They talked about, was it really necessary?

And at one point, one of the judges said, look, none of the attacks that have happened since 9/11 or even arrests have been made of people who were plotting attacks in one of those -- from one of those seven countries that travel has been banned from, that was inaccurate.

In fact, The Associated Press did a fact-check and found that to be inaccurate.

But another big point was whether or not the state of Washington and Minnesota, who joined the lawsuit had standing.  And in this ruling today, the Court of Appeals said, yes, Washington does have standing, primarily because it students were affected at public universities.  It rode in their decision.

"These students and faculty cannot travel for research, academics, collaboration, or for personal reasons, and their families abroad cannot visit."

So really, these justices said that Washington State was injured because students at its universities that are public, Washington, Washington State, were injured by this travel ban.  So pretty incredible that in weighing national security or injury to the state, they said that those shootings really had a lot of standing in the eyes of the court.

But this also means that now two Republican judges, Judge Robart at the district court level, who was appointed by a Republican, George W. Bush, and then, this other Republican judge on the three-member panel, he's now had two different courts and two different Republican judges vote against President Trump.


MACCALLUM:  Dan Springer, thank you very much.

So we showed you the tweet that the president sent out almost right away after this decision came down.

Senior White House correspondent John Roberts on this live from the White House lawn with more on the story tonight.

Good evening, John.

JOHN ROBERTS, FOX NEWS NATIONAL CORRESPONDENT:  Martha, good evening to you.  We just heard that the president talk to a number of reporters who were gathered by Sean Spicer's office.  It's called the White House Press Pool.  It's a small group of people that go in to the president's events when he is speaking with dignitaries or having a meeting or as happened today, when he was watching Senator Sessions get sworn in as the attorney general.

Apparently, he came back, had a few words with the pool.  We don't have the full context or the words that he said.  But, apparently, he said, in early read that "This is a political decision and he looks forward to seeing you all in court."

That is repeating the tweet that he sent out just a little while ago where he said "See you in court.  The safety of the nation is at stake."

We don't yet know, though, Martha, the full context of this idea of "See you in court."  We don't know if the White House counsel's office and the Department of Justice will seek an on bank session of the Ninth Circuit Court of Appeals, which could either be a nine or ten judge panel, depending on which on bank they get to, or whether they will file an emergency appeal with the Supreme Court or whether they just might decide to let this temporary restraining order stay in place and go back to the district court in Seattle where there is already a schedule set for hearings on an injunction, at least, against the president's extreme vetting order.

A number of polls in the air here tonight at the White House.  The White House counsel's office is working on this in conjunction with the Department of Justice.

I believe the newly minted attorney general has a previous engagement that he has to attend to tonight, but you can bet that he will be on the phone or on his email or whatever, staying in close touch with all parties here, as they figure out the way forward.  We'll try to get you some more information, Martha.  We'll get back to you as soon as we have that.

MACCALLUM:  All right.  John, thank you very much.

We are about to go live to Seattle, where the Washington State Attorney General Bob Ferguson is about to speak.  You can see the cameras being set up there.

Let's bring in Jonathan Turley, who was on the phone with us.  A well-known constitutional attorney.

Jonathan, your take on this decision tonight?

JONATHAN TURLEY, PROFESSOR, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL:  (via telephone):  Well, it's obviously a considerable setback for the administration.  Very few presidents have faced this type of ruling by a court, limiting their inherent or plenary authority.

The court specifically focused on the due process allegation made by the challenger that said that there was no real guarantee of due process that was shown by the administration.  In some ways, the opinion takes a couple of shots at the Justice Department as being unsuccessful, creating the type of foundation that the court needed to stay in the lower court decision.

It's said repeatedly, you just haven't given a true proof on critical elements, including, quite notably, the authority of the White House counsel to act as he did to guarantee that visa holders would be exempted from this law.

MACCALLUM:  All right.  Jonathan Turley, we will go back to you in just a moment.

This is Bob Ferguson.  We've got this ball rolling in the state of Washington as the attorney general.  He's a winner tonight.  Let's hear from him.


BOB FERGUSON, WASHINGTON ATTORNEY GENERAL:  Good afternoon, everybody.  Thank you so much for being here.  I will say a few words followed by Noah Purcell, my solicitor general; followed by Colleen Melody, who is the head of our Wing Luke Civil Rights Unit and then, we are happy to take your questions.

For those on the phone, we will try and get your questions after we take some from the room.

Bottom line, this is a complete victory for the state of Washington.  The Ninth Circuit Court of Appeals in a unanimous decision effectively granted everything we sought.

We are a nation of laws, and as I have said, as we have said, from day one, that those laws apply to everybody in our country.  And that includes the president of the United States.

We had a chance to take a look at the opinion.  And one thing I just want to mention before I turn to Noah then we'll take your questions is, throughout this litigation, the president has asserted that his actions in signing this executive order are unreviewable.  And you heard the question posed by the Ninth Circuit judges in the oral argument this week, the question was asked, is it the view of the Justice Department that those actions are unreviewable.  And after a lengthy pause, the answer was yes.

Here is what the Ninth Circuit had to say about that.  There is no precedent to support this claim of unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.  I am so proud of our team.  As many of you know, they have been working literally around the clock on behalf of the people of this state.  It's the folks you see here will be introducing shortly, but also, attorneys and professional staff around our office in different office spread out across the state all working in different ways to assist us with this filing, these filings which have been done under intense time constraints, as you might imagine.

So I want to emphasize, this has been a team effort from this law firm.  We're very proud indeed for this law office.  And I couldn't be more proud of the teamwork that has been involved.

With that, I'm going to turn to Noah, who will -- I will ask him to say a few words and also to summarize essentially what the Ninth Circuit Court of Appeals did here today and then we'll have a few words from Colleen.


NOAH PURCELL, SOLICITOR GENERAL:  Thank you, Bob.  What we argue to the court yesterday was that it's the role of the courts to say what the law is and to serve as a check on the executive branch.  And that's what the court has done in this opinion, in this excellent opinion, this well-reasoned, careful, thoughtful opinion that seriously considered all of the government's arguments and rejected them.

And it's important to recognize the real impact of this that has already been having on people's lives.  We've just been hearing from people all over the state and all over the country about what a difference this has made and we are so thrilled for that.

I want to thank Attorney General Ferguson for having the bravery to bring this case in the first place and to authorize us to do all this.

I thank the governor and people of the state for all their support in bringing this case, and most especially, I want to thank the people across our office as the attorney general was saying.  People in my office like Ian Igler (ph), Kelly Parity (ph), Kelly Wood (ph), Chris and Wendy.

Anyway, I'm going to forget people, but the bottom line is, we have an outstanding office here in the AG's office.  People who do public service every day.  We are not usually in the limelight like this and w are not really used to it, but we are proud to have been able to play this role.

Just briefly about the opinion, it is as the attorney said a complete victory.  It upholds the district court's injunction in every respect and we couldn't be more pleased with how careful and thoughtful the opinion is. The judges did their jobs carefully and well and we appreciate their work and thank them for the careful attention that they gave to this case. That's all I'm going to say for now.  I'll turn it over to Colleen.

FERGUSON:  And so, Noah, I think I mentioned, of course, is our solicitor general, who argued at the hearings before Judge Robart, at the trial court level and at the Court of Appeals.

One thing I appreciate is the fact that this case has had a -- there's been an opportunity to -- for the public to see people who work on these cases, folks like the team you see here today and -- Noah was a brilliant lawyer. He is doing an excellent job leading this team.

Next, I want to introduce Colleen Melody.  Colleen is the head of our Wing Luke Civil Rights Unit.  I created that unit a couple of years ago, two years ago.  And as you may know, up until then, if somebody called our office with the civil rights complaint, despite the fact that we have close to 600 attorneys, we did not handle civil rights complaints on behalf of the people of the state of Washington in an affirmative way, which struck me as something may need to be remedied.  So we created a civil rights unit.  You're seeing folks, who Colleen will introduce who are part of that team.

And while I did not anticipate at the time that the main team for case like this where that he would be pressing the service, I'm so glad and proud that we had a team of excellent attorneys and excellent professional staff in that civil rights unit with the background, the expertise and the work ethic, who really were prepared for this moment in time to bring this case to the successful results we've had so far.

So Colleen Melody, last name spelled M-E-L-O-D-Y.



So I will pick up sort of right where he left off that from the beginning, on an early Saturday morning, when we started talking about how we were going to respond to this case, the people on my team recognized it instantly as a fairness, basic fairness, social justice and civil rights issue.  And so I'm very proud for them for stepping up to sort of do whatever was necessary to help get this result that we are talking about today.

So I wanted to introduce Marsha Chien, who is an assistant attorney general in our civil rights team, Patricio Marquez who is on the end there, Mitch Reese (ph) who is over here and Shalia Stalling (ph) who is in the back.


MACCALLUM:  All right.  We're going to step away from this for just a moment.  We expect to hear more from the White House.  Kellyanne Conway is about to join us in just a moment with the first official response from the White House on this decision tonight.

The political reaction to this decision is already pouring in all across the country.

Trace Gallagher breaks down what we are hearing from our West Coast newsroom tonight.


TRACE GALLAGHER, FOX NEWS CORRESPONDENT:  And Martha, before you get to Kellyanne, I want to give you some reaction from Democrats and a little bit of future strategy from the Trump administration.

First we have reaction from Vermont Senator Bernie Sanders, who tweeted, quoting here, "Hopefully, this ruling against Trump's immigration ban will restore some of the damage he has done to our nation's reputation around the world."

Pennsylvania Senator Bob Casey tweeting, quote, "Ninth Circuit ruling is a victory for justice.  It's clearer than ever that Donald Trump's executive order is inconsistent with the rule of law."

California Congresswoman Barbara Lee writing, "People of conscience across the U.S. reject Trump administrations hateful Muslim ban.  Glad the Ninth Circuit upheld this day and reaffirmed.  #RefugeesWelcome."

Though we should note on that tweet, the Ninth Circuit seem very skeptical about the president's executive order being a Muslim ban and in the ruling they said they would not comment about any Muslim ban until more evidence was put forth.  In other words, right now, they simply don't buy it.

The U.S. Arkansas Senator Tom Cotton just wrote, quote, "President Trump's order to temporarily pause the refugee program and travel from seven war torn countries is plainly legal under the constitution and our immigration laws."

And we should note that Catherine Herridge, our chief intelligence correspondence just got this from the Department of Justice, as well as the Department of Homeland Security saying, "They are about to hold a conference call to decide what the next moves will be."

And the questions are, do they file an emergency appeal to the Supreme Court or do they take this back to Judge James Robarts' court in the district in Seattle, which of course where the restraining order came out of and let this whole thing play out.  That might take several months to get through that hearing process.

The danger on the flip side of going to the Supreme Court, Martha, is that there is no tiebreaker.  Right now, if the vote comes out at a 4-4 tie, under an emergency appeal that means the decision goes back to the Ninth Circuit Court.  They would have standing.

The Department of Justice also has one last thing they can do, they can do an en banc, which we heard about several times, hearing with the Ninth Circuit Court, meaning they would have nine or ten judges that would give a separate ruling.

The three judges who made this ruling would be joined by six or seven other judges and they would have a brand-new hearing on that.

As we get more reaction and information about what the next steps might be, we will get back to you.


MACCALLUM:  All right.  Trace, thank you very much.


MACCALLUM:  All right.  We're going straight to the White House.  We have audio comment now from President Donald Trump.  Let's listen.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  The security of our country is at stake.  And it is a very, very serious situation.  So we look forward, as I just said to seeing them in court.

UNIDENTIFIED FEMALE:  Thanks, guys.  Thanks, guys.


UNIDENTIFIED FEMALE REPORTER:  You don't think this undercuts the early powers of your presidency --


TRUMP:  No.  This is just a decision that came down, but we're going to win the case.

UNIDENTIFIED FEMALE REPORTER:  And have you confirm with your new attorney general on this tonight to see --


TRUMP:  No, I haven't.  We just heard the decision.

UNIDENTIFIED FEMALE REPORTER:  How did you find out about the decision, Mr. Trump?

TRUMP:  I just saw it.  We just saw it just like you did.

UNIDENTIFIED FEMALE REPORTER:  Via the news, etcetera, the media?

TRUMP:  But it's a decision that we will win, in my opinion, very easily. And by the way, we won that decision in Boston.

UNIDENTIFIED FEMALE REPORTER:  Are you any closer to the solicitor attorney general who was --


TRUMP:  I'm going to be making new decision over the next week with the solicitor general.


TRUMP:  We will give you a decision in the next week or so.  OK?

UNIDENTIFIED MALE REPORTER:  Are you done for the night?  Are you headed back to the White House?

TRUMP:  No, I have a dinner with the secretary of state.


TRUMP:  He is also at the dinner.  OK?



UNIDENTIFIED FEMALE REPORTER:  I appreciate your time, sir.

TRUMP:  Thank you.


MACCALLUM:  All right.  We are about to be joined by Kellyanne Conway in just a moment.  But we are watching all of this as it comes through and we have Marc Thiessen standing by with us, as well, an American Enterprise Institute fellow and Mo Elleithee, head of the Georgetown Institute of Politics.  Both are Fox News contributors.

Marc, let me start with you.  You heard the argument from the lawyers in Washington saying that they saw this as a basic fairness issue, a civil rights issue, that they felt extremely passionate about, needed to be stopped.

MARC THIESSEN, FOX NEWS CONTRIBUTOR:  Yes.  They felt that way.  And they won in one of the most liberal courts in the country, congratulations.  The reality is that what this is about is about the authority of the commander-in-chief and the role of the judiciary.

The role of the judiciary is not the judge, the president's policy choices.  As Judge Gorsuch said, sometimes you have to come to a decision you don't agree with in order to uphold the law.  And in this case, the law is clearly on the president side.

And what this does, Martha, I think, politically, if you want to see what the political fallout is going to be, this dramatically increases the stakes in the Gorsuch nomination fight in Washington.  It makes it much more likely that Republicans will have to use the nuclear option to get him on the court, because Democrats are going to be under incredible pressure right now to delay, postpone, obfuscate, derail his nomination.  Because right now, they have a 4-4 split court.

And if they've got a better chance of defeating Trump with a 4-4 split court -- imagine if you are the Democratic senator, who gives the deciding vote to let Gorsuch nomination go through and then he rules in a 5-4 court in favor of Trump.  You're going to be castigated by the media and by the liberal base.  So they are going to be under enormous pressure to stop him and to delay and use the filibuster.  And Republicans are going to have -- may have no choice but to go nuclear to get him on the court.

MACCALLUM:  Yes.  I mean, it's a very dramatic situation when you put those things together.  When you sort of pile on top of that, all of the campaign promises that President Trump made, Mo, and chief among them was that he would work to keep the country safe, extreme vetting.

He said, you have seen what has happened in Europe.  You've seen the pushback, the refugees and immigrants piling across the borders there, really putting a strain on the systems in European countries.  He said he didn't want that to happen here.  So now you have judges stepping in and saying that he doesn't have the presidential authority to keep the country safe because they believe that it's a violation of civil rights.

Your thoughts?

MO ELLEITHEE, FOX NEWS CONTRIBUTOR:  Well, I think the court was pretty clear that there is no precedent for unfettered, unreviewable -- in this issue, when it comes to the president's authority on foreign affairs and immigration that the court does have an established precedent in weighing in.

Now, politically, where I think this is actually really interesting, to your point, Martha, about the promises he made that he was going to do all these things, I think Donald Trump just hit a huge brick wall in understanding the authority that the president of United States actually has.  And that's a problem.

I think the shoot from the hip style that brought him to this point, it ended up not serving him well.

MACCALLUM:  All right.  Guys, standby.  Thank you so much.  We're going to come back to you.


MACCALLUM:  But we want to go to the White House and get further response.  Kellyanne Conway, counselor to the president, has been in the process of listening to this, as it came in, with the president.

Kellyanne, good evening to you.


MACCALLUM:  How did the president react when he -- he said he saw it on TV.  What was his first reaction?

CONWAY:  Well, the White House Counsel was in there, as well and told us what the decision said.  And you see the president's initial reaction in his tweet.  He said, we'll see you in court and the nation's safety is at risk.

That's what this has always been about from the beginning, Martha.  Keeping the country safe.  It's not just a promise he made as a candidate.  It's his duty and responsibility as president of the United States and commander-in-chief.  And, in fact, he has promised already to do that under the statute.

This ruling does not affect the merits at all.  It is an interim ruling and we are fully confident that now that we will get our day in court and have an opportunity to argue this on the merits that we will prevail.

MACCALLUM:  So which court?

CONWAY:  Well, we will have to see what happens in these terms.  I haven't read the full opinion.  I haven't been fully briefed by counsel on that particular point.  But we do feel that if you read the statute and the president himself took the unusual and I thought very remarkable and heartening step just yesterday and read the entire statute -- well, read the statute, the first page of the statute allowed to the sheriff's meeting, the county's meeting that he addressed yesterday here in Washington and then made the point that if you read the statute, which had nothing to do with today's interim ruling in the Ninth Circuit, that you see very quickly that a president has great authority to protect the national interest and protect the security.

Let's go back to what his travel executive order really did and what it did not do.  It was narrowly prescribed to the seven countries that were first put forth by President Obama in the Congress.  And it's temporary.

It really is, let's get some better vetting, let's get some, quote, "special screening" in those countries, from those country with foreign nationals from those countries that had been previously identified and on a temporary basis.  And so if we can argue that on the merits and people really look at that statute and not just the TRO, we'll get a different result.


MACCALLUM:  And he's referring to the 1952 statue, which gives the president broad authority when he sees a national security concern to ban people, whether they be from, you know, a country or group of countries, and many believe, and many of the legal experts that we have spoken to here really did not expect this decision to go the way it did in the Ninth Circuit even though it is a very liberal court.

They felt that, you know, based on what was instructed, that they wouldn't stand up.  However, we saw that argument go very political very quickly when we listen to that audio, Kellyanne, that night.

So one of the choices is the Supreme Court.  And some have suggested, including Judge Napolitano that all of these, because there are, you know, 50 something courts that are all bringing these cases, it's not just the one in Washington state and Minneapolis, they are across the country, that the Supreme Court could gather them all together and give a decision based on that.

Is that something that you think the White House would like?  Does the president want this to go to the Supreme Court?  Does he feel confident about that?

CONWAY:  I can't comment on that tonight, Martha.  I can tell you I haven't practiced law in many years.  Happily so.  So I won't give my opinion on that and I certainly won't speak on that.  At the moment, he will be conferring with the lawyers and make that decision, I'm sure.  But you raised a very important point for your audience to know, which is there are different options here.  And I heard what was said earlier about the importance of the Supreme Court, always important, but now with the nomination of Judge Gorsuch, you know, imminently being taken up by the senate, we have our eye on that as well.

We are hopeful that those ten or 12 Democrats that voted to confirm Judge Gorsuch, 10, almost 11 years ago, will do the right thing here and give him a full fair hearing so that we can have a complete Supreme Court.

But that is not a comment on where this case is headed.  Judicial-wise.  It's just a comment -- I'm commenting on our confidence that we have an excellent case when it comes to the actually merits.  And the merits were not litigating.  The merits were not decided upon today in the Ninth Circuit.

MACCALLUM:  You know, with regard to Judge Gorsuch, they are -- you have been watching the news over the past couple of days, and going back and forth on, you know, some of these underlying issues about what he said.  And it was seen essentially as a dig at what the president had said about these judges who are involved in this case.

I know that, you know, the White House has said, or the president said himself that he was misrepresented, but several sources said that, no, that's exactly what he meant.  He meant that the president's comments were disheartening to him.

Did the president speak directly with Judge Gorsuch and ask him what he meant by that?

CONWAY:  I won't comment on private conversations between the president and other people.

MACCALLUM:  So where did the president gather that information from?

CONWAY:  But I will tell you that they support each other.  That's very clear to us.  The president has full confidence in his Supreme Court nominee, Neil Gorsuch.

We are happy that he is out there talking to the different senators and getting acclimated to the process of Capitol Hill.

At the same time, we know that members of the judiciary have a right to speak out, but the president also has a right to speak out.  That's a time-honored tradition.

Our branches of government are independent and equal.  But there is nothing here that is negative in so far as the judge is free to speak his mind.  In fact, I would say two things to your audience tonight, Martha.

Number one is that during the confirmation hearings of cabinet appointees, President Trump made very clear that he respects the men and women to speak their mind and to offer their own opinions under oath in those particular hearings.

Number two, people really didn't get as much done on the latter when President Obama himself chided the United States Supreme Court right in front of them as his guests at the state of the union, directly filing, immediately filing the Citizens United decision.

I mean, really, just try -- I remember Justice Alito literally nodding his head because it was such an inappropriate way to reprimand Supreme Court justices at the state of the union.

So this is something that is done on occasion.  But I think that we should look at the mutual respect these two men have for each other, President Trump and Judge Gorsuch and to recognize that on a list of 21 highly qualified men and women.  Judge Gorsuch is the one that President Trump himself chose to be his first nominee and that speaks for itself.

MACCALLUM:  All right.  So he stands by his nomination 100 percent.

CONWAY:  Absolutely.

MACCALLUM:  That's the way I'm taking that.  And Judge Gorsuch wants very much to continue to be the appointee by President Trump, correct?

CONWAY:  I haven't heard otherwise.  I have no reason to believe otherwise.

MACCALLUM:  All right.  You know, in terms of the Supreme Court decision, I know that the president sat down today with a bipartisan group at the White House of moderate senators who he is hoping will help to push this Gorsuch nomination through.

How confident are you that you are going to get some Democratic support for him?

CONWAY:  Well, I saw one or two of those senators as they were here in the White House.  And we're very confident that they are listening to the constituents back at home.

If you are Senator Manchin of West Virginia or if you are Senator Joe Donnelly in Indiana, if you are Senator Heidi Heitkamp of North Dakota, certainly, you are hearing from the president, but you are really hearing from the residents and the voters in your own state.

These states that President Trump and Vice President Pence carry handily and states where people believe in the rule of law, believe in at least giving this man a full and fair hearing so that he can be voted up or down in a way that is decidedly apolitical.

And look at what just happened to Betsy DeVos, our new secretary of education, Jeff Sessions, our new attorney general.  He went to swearing in today, a very big moment I think for President Trump.  And it's just remarkable to me that not a single Democrat voted for them.

I think in the case of Senator Sessions, one Democrat voted for him.  But it's just -- five, six, seven who are listening to their constituents and saying, I'm going to do the right thing here and give the president the deference and the respect that he deserves to fill his cabinet as he would like.

So we hope that the same politics that seem to have applied in these all-nighters that the Democratic Senate pulled over this week will not necessarily apply to Judge Gorsuch.  And that so it will at least do the right thing and hear him through.  Look at his academic credentials.  Look at his judicial record, his judicial temperament.  Read those opinions.

As President Trump, President-elect Trump and his team had done when they were deciding whom to appoint to this very important position.  We would just ask for fairness and openness.

MACCALLUM:  And Attorney General Sessions voted for Eric Holder because he wanted the president to have the attorney general that he wanted when it was, when the shoe was on the other foot.  And I know that you are hoping that the same thing will happen.

Kellyanne, before I let you go, I do want to ask you about what happened this morning with your comment about, you know, doing a free commercial and encouraging people to buy Ivanka Trump's products.  It got a lot of pushback and Sean Spicer's spoke about it at the press briefing today and said that you had been counseled on the matter and that he had nothing more to say.

How were you counseled?

CONWAY:  I'm not going to comment on that, Martha.  I actually have nothing more to say about it.

MACCALLUM:  What about the letter that has come from Chaffetz and Cummings and the House that has gone to the Government Ethics Board?  And they say that they consider that to be a very serious, potentially a serious violation of the government ethics code.

CONWAY:  We are aware of that letter and we are reviewing that internally.  I'm just really happy that I spent an awful lot of time with the president of the United States this afternoon and that he supports me 100 percent.

MACCALLUM:  So you spoke about that matter and he is not -- doesn't have any intention to suspend you?

CONWAY:  We spoke about a range of matters and he supports me 100 percent.  In fact, it was a very heartening moment.  All I can say to America's women is at some point in your life you ought to have a boss who treated me the way that the president of United States is treating me today.

MACCALLUM:  Kellyanne Conway, a lot to talk about tonight.  We thank you very much for being with us.  We will see you next time.

CONWAY:  Thank you, Martha.

MACCALLUM:  All right.  So here now with more on the Ninth Circuit ruling, Bill Bennett, former education secretary, chairman of the Conservative Leaders for Education and a "Fox News" contributor.

Bill, always good to have you with us.  Good evening, welcome.

BILL BENNETT, FOX NEWS CONTRIBUTOR:  Nice to be here. By the way, those stickers at Nordstrom and Tom Ford and all that, just don't shop there. I'm a private citizen. I can't be counseled.

MACCALLUM:  You can say whatever you want.

BENNETT: I have not interest on this. Just avoid those places, for Pete's sake.

MACCALLUM: All right, well, you're on record as having spoken out on that matter tonight too as a lot of people have talked about today. So, let me get your thoughts on this Ninth Circuit decision. What do you make of it?

BENNETT:  Very serious. I'm totally with the president and what he did, the authority -- his authority to have this ban. Yes, tees (ph) could have been crossed, eyes (ph) could have been dialed a little bit better, but that does not have anything to do with the basic question of law and constitutionality. This is an open and shut case when it comes to the constitution. Barack Obama blocked Iraqis for six months. Jimmy Carter some Iranians from going in to the country.

MACCALLUM:  But let me just stop you there because the argument that the -- I'm sorry -- that the Obama administration gave for that, they said at no time did they stop 100 percent the flow of people from Iraq into the country. And they think that that makes it a different thing. Does it or not?

BENNETT:  Well, in one way, but in a major way, no. Donald Trump has not stopped the flow of Muslims into the United States. Green card holders, people from other countries, and so on. But the president's authority here is the issue that's in question and I don't think the constitution has any ambivalence about this at all.

This is what Donald Trump campaigned about. By the way, I would issue a caution to Kellyanne and my other friends about "I'll see you in court. We'll have our day in court." The courts are the problem! This is what Donald Trump was getting at in the campaign. You may not get satisfaction out of this court. You probably won't -- you won't get satisfaction out of the Supreme Court. Again, this is part of what the campaign was about.

MACCALLUM:  So you think if this goes to the Supreme they will rule against him on this?

BENNETT:  They'll go 4-4, is what I predict. They will be right back where it is today. They'll go to district court and make the case. But I think ultimately, I mean this is an unpleasant fact here and this is an unpleasant thing. But ultimately, I think Donald Trump would be vindicated and God help us and God help the members of those courts -- of that court if we see some terrorist acts as we have seen from people from those countries.

The president is clearly within his authority. He is trying to protect us. And I heard my friend and esteemed colleague, Charles Krauthammer, said somehow that this was almost criminally negligent. I think that he used the word criminally on the part of Donald Trump. No, it wasn't.

Again, the thing could have been more carefully done, but the real aggregation, the abandonment of responsibility was by these judges, who were sworn to uphold the constitution of the United States. And I hope the president just sticks clearly to his guns. But do not expect vindication by the courts. The courts are our problem. Judicial restraint it is not an oversupply right now.

MACCALLUM: But they have managed to stay this round so right now, you know, the court has won in this case. There are 50 something other courts that are also pressing against it. So I mean, that's the way the system works.


MACCALLUM:  And they have put this thing on hold for now. The president doesn't have that many options other than to get them to lift that by continuing to go to court. We know, you know, President Trump, and before that, Donald Trump as a businessman, he does not believe in settling anything. Not that that's a direct option here, but he will fight this all the way.

BENNETT:  Sure, he will fight it. I don't think he will follow the precedent of one president, who said the court has made its decision now let them enforce it. But I do think he might follow the precedent of a Lincoln (ph), who continued to challenge the court, the case of Dred Scott and other situations when he thought it was wrong. And the president has to explain to us why this is wrong.

I think the case being argued in district court needs to be made plainly. (INAUDIBLE) has made this point. He's a graduate of Harvard Law School. He's a real lawyer, I'm not. I'm a graduate of Harvard Law School but not a real lawyer, but I do know this much. The constitution clearly gives this kind of authority to the president.

You know, a lot of us were upset during the Clinton administration with the return of Elian Gonzalez to Cuba. But there was very little questioning about whether the president had the authority to do it. His authority in this area is unquestionable and clear in the constitution.

Again, this is going to be settled in the end, I believe, politically. The president may not win this case in court and any of these courts that we're talking about. But I think the American people who responded so positively to him during the campaign will now see what he was talking about and God help us if we see some terrorist act committed by someone from one of these countries.

MACCALLUM:  You know, the president has essentially said as much, you know, he sort of pushed it back from the court and said I'm trying to protect the American people. But many people see it so differently. And when we listen to the attorneys who were giddy with enthusiasm in the Ninth Circuit --


MACCALLUM:  They talked about civil rights. They talked about protecting the people of, you know, who were trying to get into this country and all of those university professors and students and people who work there who, you know, couldn't get home for a few days, in most cases. And I'm not talking about refugees. That's a different question. I'm talking about the people who were held up who have residence, who have green cards, who were delayed and they're now able to get back. Your thoughts?

BENNETT:  Yes, well, sure, that's right. Put that on one side of the slate. On the other side of the slate, put the last three or four or five years. Put Orlando up there. Put San Bernardino up there. Put Boston up there.

What the president is talking about is not make-believe. It's very, very real and again, we shall see what happens in the next few months. I don't expect that the courts are going to come out the way that the president would like them to but I would like them to -- but most importantly, the constitution directs. I think that this is going to stick in the crown (ph) of the president. It's going to stick in the crown (ph) of the American people too.

Part of what they object to is this kind of judiciary, which doesn't seem to abide or take seriously democracy and the opinions of the American people as expressed by them themselves and in the person of their president, President Trump.

MACCALLUM:  And a lot we're looking for a very narrow decision to be made here based on whether or they could uphold that ban. Whether or not they did the right thing, but they really broadened it out and get a lot of the issues that were underlying and a lot of people feel that that was not the right way to go about, judicially. Bill Bennett, thank you very much, sir. Always good to see you.

BENNETT:  You bet. By the way, I think this strengthens his position on Gorsuch, a real constitutionalist. I think this will strengthen it and not weaken it.

MACCALLUM:  We'll see. Thank you, sir.

BENNETT:  Thank you.

MACCALLUM:  So, the president has argued that this executive order is absolutely supported by federal statutes. Here is an argument we have heard several times from the White House this week. Listen.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  I'd like to almost know, does anybody disagree when I read this? But I'm going to read what's in dispute, what's in question and you'll see this. It's INA 212(f) 8 U.S.C. 1182(f). Suspension of entry or imposition of restrictions by the president, OK. Now, that this isn't just me. This is for Obama, for Ronald Reagan, for the president. This was done, very importantly, for security.


MACCALLUM:  Here with their take from each side on this issue, Brigitte Gabriel, founder and chair of Act for America and Laith Saud, a religious studies scholar. Welcome to both of you. Good to have you here tonight. Brigitte, let me start with you. Your reaction to this decision by the Ninth Circuit court and you just heard President Trump talking about what he want to do in his mind, keep the country safe with this move.

BRIGITTE GABRIEL, FOUNDER AND CHAIR, ACT FOR AMERICA:  Well, Americans are less safe today than they were yesterday because of this decision. We are playing with American lives. The last at least 10 terrorist foiled attacks or terrorist carried attacks were committed by refugees who entered this country.

The last two terrorist attacks, the Ohio State slasher, who went on a slashing spree was a Somali refugee. Two months before that, the Somali refugee who went into a mall in Minnesota and started killing people. When you look at the Iraqi refugee who wanted to blow up the Galleria and Houston, when you look up the other refugees, the Boston Bombers who came here as refugees -- there's a lot of families today who lost loved ones because of these terrorists who came into our country because we opened our arms to them, who are now very disappointed watching the news and wondering, what is going on in our country. We must protect the country from our enemies who wish to do us harm.

MACCALLUM:  what's your response?

LAITH SAUD, RELIGIOUS STUDIES SCHOLAR:  Well, once again, they keep propagating things that are flatly false. This seems to be something that many people in this country growing quite familiar with and comfortable with. The truth of the matter is, refugees are vetted more than anyone else in the world. They are vetted extremely well and in fact, when I hear the last guest, Mr. Bennett talk about San Bernardino, no, that was an American. When we talk about Orlando, no, that's an American.

One of the things that Ms. Gabriel does, is she no longer describes criminality. What happened in Ohio was, a Somali refugee acted like a criminal. Just because that person happens to be Somali does not necessarily make the actions terroristic, but that's that what they do.

They conflate every criminal act that happens to be carried out by a Muslim as necessarily terroristic. And that's a circular argument. It proves itself, that's why they're incorrect. This is more propaganda than reality affect.


GABRIEL:  A criminal does not scream Allahu Akbar as he is slashing people and reciting verses from the Quran like what we have seen from terrorist committing terrorist attacks. This is a huge difference between a criminal act and a terrorist act screaming Allahu Akbar. We must protect the country. These are refugees coming into the country and committing attacks, endangering the lives of Americans.

And this ban or this order is only for certain countries who are harboring terrorism. This is not a ban on Muslims. Look at Indonesia, the largest Islamic country in the world with 204 million Muslims. It's not on the list. Egypt, 80 million Muslims, it's not on the list. Afghanistan is not even on the list!

This ban affects only 10 percent of the Muslim population worldwide and those countries, I mean, he did not even single out Muslims. If you are an atheist coming from Yemen or if you are Christian, you cannot enter the country for 90 days simply because you are a citizen of Yemen.

MACCALLUM:  I mean it's a 90-day temporary ban that prevents people from coming in for a few months. You look at the sort of the history of immigration and what people have gone through to get into this country. I know people who, you know, from Eastern Europe who had to leave the country for six months, for a year, 18 months in order to get to the proper papers to come in and go through the proper vetting process.

So a lot of people look at that, Laith, and say if it makes one person safer, why wouldn't any American, any Christian, any Muslim, who is a resident of this country, a citizen of this country want that? Why wouldn't everyone of any religion want that?

SAUD:  And that's the strength of the politics of it, Martha. We are aware that the president back in December of 2015 said that he was going to ban all Muslims. And this was very powerful political rhetoric during the campaign. And he's continued the campaign.

MACCALLUM:  But that is not the language of this executive order. That changed, I mean --

SAUD:  However, yes, let me respond to -- let me respond.

MACCALLUM:  -- every other politician has appeared -- just let me finish one thing then I'll let you respond, I promise.

SAUD:  Sure.

MACCALLUM:  But every other politician has the right to change their tune on things, whether it be abortion -- I'm talking serious issues, right.

SAUD:  Sure.

MACCALLUM:  The language of that executive order did not include anything about banning Muslims. It's different. And the order should be judged based on the words that are in it.

SAUD:  And in fact, every country listed on that ban or that temporary suspension, we have no person who committed terrorist attacks from those countries! There is something vacuous there.

MACCALLUM:  That's an issue that --

GABRIEL:  Not true.

MACCALLUM:  -- I mean, you know, we have a list of --

SAUD:  It is true. It is true. This has been documented. This is factual.

MACCALLUM:  You guys are never going to agree on that but there are facts to back up the notion that there are people from those countries who have committed attacks in this country. But the Obama administration listed those same seven countries, right. So, I mean, there is obviously reason based on intelligence to say, well, maybe these are places where we want to be a little more careful. That's all this really says. Why is that such a huge mountain to climb over to say, let's be a little bit more careful?

SAUD:  Because we are talking about two things that need to be seen together. We are talking about the legal issue. And in terms of the legal issue, there are still the merits of the case to be argued and as we've seen and as we've been discussing tonight, we see that that's going to continue to happen.

But there is a political context, as well. Let's not pretend that there's not a political context here. This administration has made Islamophobia a centerpiece of its politics, of the way that it's going to talk to the country, of the way it's going to present itself to the world.

So at times, it's exploiting certain avenues within a legal framework to advance what's clearly, politically being portrayed as an Islamophobic presidency, and then quite proud of it, in fact. Steve Bannon, the chief strategic adviser to the president makes Islamophobia a centerpiece of his politics. We can't ignore that. To ignore that would be irrational. It will be to put our heads in the sand.

MACCALLUM:  Brigitte.

GABRIEL:  Well, you would be irrational not to hear somebody screaming Allahu Akbar wanting to cut off your head. There is a reason why Americans are concerned about the threat of radical Islam and the United States. This is not Islamophobia.

Look what's happening in Europe. Look at the data that came out of Europe yesterday. Europeans are afraid. Over 50 percent -- 57 percent of Europeans wish they never opened up their borders --

SAUD:  Brigitte, did the president not say he wants to ban all Muslims? Did the current president of United States not say he wants to ban all Muslims.

GABRIEL:  This is irrelevant to the ban we're talking about right now.

SAUD:  How is that irrelevant? What people say they want to do is very relevant, Brigitte.

GABRIEL:  Non --

MACCALLUM:  It's not the language in the executive order that we're discussing, that's why -- that's why it's relevant.

GABRIEL:  We're talking about an executive order that didn't say that.

SAUD:  All right. But again, that the executive order -- there is nobody from those countries who's created -- have done a terrorist act so I'm at a loss here.

GABRIEL:  I just recited to you people --

SAUD:  You say it but you can't back it up with facts, Brigitte. Brigitte, you cannot back it up with facts.

MACCALLUM:  All right, we got to jump in. Laith and Brigitte, we'll have you back. Thank you very much you guys. We're going to have to cut you off. Thank you very much.

All right. So we continue on big breaking news tonight to get some more political reaction from around the country to all of this. Trace Gallagher, back with us now. Trace breaks down what we're hearing from the West Coast news room at this point in terms of the incoming reaction to this huge decision tonight.

TRACE GALLAGHER, CORRESPONDENT, FOX NEWS:  Yes, we're kind of getting reaction more and we're also kind of scanning through this ruling from the Ninth Circuit Court of Appeals. And we have to note, the government's key argument was that Washington State didn't have the authority to challenge this because the president has unreviewable authority to suspend the admission of any class of aliens, the court ruled.

But although, and this is reading from the thing, although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court, nor our court has ever held that courts lacked the authority to review executive action in those arenas for compliance with the constitution.

On that, President Trump tweeted, quoting here, "See you in court. The security of our nation is at stake." And now, we have just gotten this from Washington State Governor Jay Inslee, he has responded to the president. I just said, the president said, "See you in court. The security of our nation is at stake." And the governor responds, in response, "Mr. President, we saw you in court, and we beat you."

Of course, the Washington State governor is the one that got the ball rolling to the attorney general. The attorney general then handed this off to the district court, James Robart, who is the one who actually made or issued the restraining order against the president's executive order.

And now, the question for the Department of Justice and the Department of Homeland Security, and they are about to hold a conference call or may be now holding a conference call is what the next step is. Do you go to the Supreme Court or do you go back to Judge Robart's district court to try this whole thing all over again?

That might tie this executive order, Martha, up for several months. But the risk if you go to the Supreme Court because they don't have a tiebreaker, is that you come away with a 4-4 tie and then the order from the Ninth Circuit Court of Appeals would then stand.

MACCALLUM:  All right, Trace, thank you so much. So, let's go back now to Marc Thiessen, an American Enterprise Institute fellow and Mo Elleithee, head of the Georgetown Institute of Politics. Both are Fox News contributors. Thank you guys for sticking around during all of this breaking news tonight. We do appreciate it.

Let me get straight to the big political picture from you now because resist and pushback is pretty much all of this presidency has known. And it is only 21 days old at this point. So they've already had their first head-to-head run-in with the courts on something that was a basic tenant of the president's campaign.

And as Kellyanne Conway said a little while ago, she believes it's, you know, a basic tenent of being president. And they're getting an enormous amount of pushback. So Marc, how are they doing, you know? And do they need to do anything differently at this point?

MARC THIESSEN, FOX NEWS CONTRIBUTOR:  Well, I mean, what we're seeing here is just the beginning. This is the only -- the first issue that's coming up for litigation. The Democrats in the left are going to follow a policy of obstruction by litigation on everything Donald Trump does.

When he reveals regulation, they're going to sue. When he approves the Keystone XL Pipeline, they're going to sue. When he replaces Obamacare, they're going to sue. They're going to sue, they're going to sue, they're going to sue. They'll use the court to try and gum up his administration and stop them.

So this is only first skirmish in a larger, loftier battle that's going -- that'll be taking place. And you pointed out earlier in the show, Martha, that there are 50 different cases in front of 50 different courts right now. All of those courts have been stacked over the last eight years with liberal judges appointed by Barack Obama with a simple majority because the Democrats in both the nuclear option in 2013 to make it easier to put liberal judges on the court that will be otherwise on confirmable.

So, you have -- right now, the circuit courts when Obama came to office had 10 of 13 circuits courts, had a conservative majority. Today, it's 9 of 13 have the liberal majority and he's appointed a third of the federal judiciary using this nuclear option and many of those cases. So we have a major fight going forward about the state of the courts.

We're going to have -- President Trump is going to have to make a big push to put federal -- conservative judges on the federal court so we can get good rulings on these cases because right now, he's facing a liberal onslaught in the courts.

MACCALLUM:  Yes. Interesting piece in Time today, Mo, about Chuck Schumer, who has, you know, become the Harry Reid essentially of the opposition, whatever you want to characterize it. But it goes back and traces these two men from New York and how much they have in common. At a fundraiser that was thrown at Mar-a-Lago at one point for Chuck Schumer when he was running for office.

But now, you know, Chuck Schumer had these protesters show up outside his house with signs that said, you know, "Grow a Spine" and things like that. He clearly didn't like that too much. So now, suddenly these people who've known each other for many, many years, and who worked together on a lot of things, and who by the way agree on things like NAFTA and TPP, suddenly seemed to be able to find absolutely no areas of compromise at all. Explain.

MO ELLEITHEE, FOX NEWS CONTRIBUTOR:  I think it probably goes a little bit both ways to be honest. I think the president has drawn a lot of lines in the sand and so has Senator Schumer and so, you know, there's going to be a certain amount of that, of sort of the irresistible, you know, the irresistible force hitting the immovable object. That goes both ways.

But look, you asked Marc a question I thought was very interesting, which is do these guys need to do anything differently. I think there is both a political upside and a political downside here for the president with this ruling. So the downside is, you know, the shoot from the hip approach that is part of his I guess political charm for a lot of people has its limits, and we saw that here.

We saw how badly the rollout of this ban was. We saw that a lot of the rhetoric that was used -- his advisors using the word ban, the president using the word ban and attaching Muslim to that. That sort of I think, it hit a wall here. There is an upside though.

MACCALLUM:  Well as we said here many times tonight, I mean everyone acknowledges what was said on the campaign trail. A lot of things were said on the campaign trail.

ELLEITHEE:  But it's not just the campaign trail.

MACCALLUM:  But it was not part of the executive order to ban Muslims and there are many large nations that are not banned in that order.

ELLEITHEE:  It's not uncommon for courts to look at intent and they did get that but Martha, let me --

MACCALLUM:  Right, finish it up.

ELLEITHEE:  -- let me finish the thought about the upside for the president. There is a significant portion of the electorate out there, of his supporters, who want him to pick fights with institutions, whether that institution is the media, whether that institution is the judiciary. And he got a major talking point in that fight tonight. So, for his supporters -- and we heard --

MACCALLUM:  You're right.

ELLEITHEE:  -- you know, Bill Bennett just now talk about the judiciary. I personally think that is a very dangerous approach, to undermine the American people's faith in our core institutions. I find that dangerous. But for a lot of the president supporters, that's what they want to hear and he is more than happy to serve that up to them. And so I think this fight is really just beginning.


THIESSEN:  Here's an upside and a downside for the president. Not only is that going to energize his base, it is going to rally people around President Trump who aren't normally Trump supporters. There are a lot of Republicans who didn't vote for him and didn't support him and he wasn't their first choice. They were ambivalent about him. And they're rallying around President Trump right now because he's in a fight with the organized left. So this is rallying the country.

The downside for him, going forward is, this fight, if it continues at this pace, is going to suck all the oxygen out of Washington and a lot of other issues, the Trump agenda, tax reform, health care reform, regulatory reform, things that he campaigned on also are going to fall by the wayside because we won't have the time or space to deal with them.

MACCALLUM:  They leap by (ph) over this for a while, you know. They said tax reform is now a couple of weeks away from rolling something out. And just with the Bill O'Reilly interview, the president said it would happen sometime this year. So maybe that they will try to put the focus another for a little while. We'll see. Mo and Marc, thank you very much.

THIESSEN: Thank you Martha.

ELLEITHEE:  Thanks Martha.

MACCALLUM:  Good to have you tonight. So let's check in one more time with senior White House correspondent John Roberts, who's been very busy today as he always is in the Trump presidency in the briefing room right now. Hi, John.

JOHN ROBERTS:  Hey Martha. So here's the situation at the White House. The president is over at the residence having dinner with Rex Tillerson, his Secretary of State, Sheldon Adelson and maybe one or two other people. While Don began (ph), the White House council is upstairs in the second floor here in the West Wing trying to figure out what the next steps are.

We saw Kellyanne Conway a short time ago. I said have you decided what you're going to do? Are you going to go back to the Ninth Circuit Court of Appeals to an en banc section with the nine or 10 justices? An emergency appeal potentially to the Supreme Court or will you fight this out in the district court? She said all of that is yet to be determined. We're working on it. And she said something to me that is going to keep us potentially here for a long time. She said the night is still young, John.

So, I don't know where we're going with this, Martha. But the president said, "See you in court" and thinks this is a political decision. He thinks the Ninth Circuit has made a decision that's bad for the security of this nation. You can bet that tomorrow you're going to hear a lot about that because the president believes that these judges are potentially putting the country at risk.

So, a lot still to be determined and a lot more news to come out of this White House either tonight or tomorrow, Martha.

MACCALLUM:  The tension between these branches, between the executive and the judicial and the legislative is how this country was formed, and you're watching it play out tonight folks. John, thank you so much. We'll see you later.

ROBERTS:  Thanks Martha.

MACCALLUM:  So joining me now is Charles Hurt, Washington Times opinion editor and Fox News contributor. Julie Roginsky, is a Democratic analyst and Fox News contributor, and Matt Schlapp, chairman of CPAC and the American Conservative Union and David Wohl joins us, an attorney and Donald Trump supporter. Great to have all of you here tonight.




MACCALLUM:  Hi you guys. So David, let me start with you actually, the attorney and you are a Trump supporter (INAUDIBLE) now. You know Donald Trump well -- President Donald Trump well. How does he respond to being challenged by these judges?

DAVID WOHL, TRUMP SUPPORTER:  Well, one thing we know is Mr. Trump tactically is a brilliant guy. I mean his campaign proved that. I don't believe he's going to go down the path of the Ninth Circuit Court of Appeals because as Dan Springer said early in the show, 90 percent of their decisions last year were reversed by the Supreme Court. And this is very interesting, Martha. The one judge assigned to Ninth Circuit Ritz (ph) or emergency appeals is Anthony Kennedy.

He's a Reagan appointee. He's a conservative judge. Mr. Trump can go to him tonight to seek the reversal. I wouldn't be surprised. And also Martha, be careful what you wish for because he could present based on the amounts to intelligence, under seal to the Supreme Court, something that the public would not know about and ask for a far greater scope of a ban of travel based on many more countries, based on intelligence they receive.

So, that is a possibility as far as a change in tactics goes. I know it's going to be big. Mr. Trump is not going to take this lying down. He knows how critical it is. Protecting Americans is his number one priority, not banning Muslims. So look out within 24 hours, I expect a big move.

MACCALLUM:  Well, Kellyanne Conway said we may be here all night so, you might be right. Julie, we could get a response from the president tonight. What is your reaction on this?

JULIE ROGINSKY, FOX NEWS CONTRIBUTOR:  Well, certainly the president can do what he wants. He does have a lot of discretion as to how he keeps the nation safe. I will say he's consistently had courts for the most part rule against him in this. Part of it is partially because of his rhetoric during the campaign. Part of it is what Rudy Giuliani I suspect said about wanting to institute a Muslim ban.

So, it seems to me that his own words are coming back to bite him in some ways. We will see this in the Supreme Court I am sure, as David said. And it will be up to the Supreme Court to decide. But ultimately, this also energizes his base as I think, the previous guest have said and it makes the confirmation process for Judge Gorsuch that much more important for both sides if you have a Supreme Court that's either divided on this.

Again, 4-4 or you have a Supreme Court that rules very narrowly against the president, it would make the Supreme Court nomination for Judge Gorsuch that much more critical for his base.

MACCALLUM:  Charlie, it is important to remember where this decision came from, in the Ninth Circuit. And very important to remember that they have been overturned a lot. And when we listen to their audio of their discussion the other night, everyone anticipated that it was going to be fairly narrow, you know, based on the four corners of the page of the executive order and whether or not there had been an irreparable harm to the people who, you know, were delayed, getting back to their university, you know, it's not quite that narrow, but that's part of it. What do you think?

CHARLIE RUTH, OPINION EDITOR, WASHINGTON TIMES:  Well, it's not called the Ninth Circuit for nothing. And the fact that these judges did get so far into the weeds with the particulars of the case, is prima facie evidence -- that these judges are actually legislating from the bench. They think that they are supplanting the president's judgment for their own. And I think -- and this is a fight that we have seen on the national stage for 40 years, 40 plus years. And I think that Donald Trump is -- I think he is eager to have this fight.

It's a fight over a very clear black and white issue between, you know, protecting the homeland and not protecting the homeland. And if he can condense that fight down into why Americans should care about judicial activism, I think that he will campaign across the country on that and I think he will win that fight and it could get Gorsuch confirmed and it could get that another Supreme Court justice confirmed.

MACCALLUM:  Charlie brings up basically something interesting and it's basically articulation, Matt, you know, explaining the argument in a clear way that everybody understands where you're coming from. And some might say that there've been some missteps on that front.

MATT SCHLAPP, CHAIRMAN, AMERICAN CONSERVATIVE UNION:  Yes, absolutely, but Donald Trump has a lot of things going for him. He has the moral case on his side. He has the clear legal case on his side and as Charlie just explained. He's got the political case on his side and I really think Donald Trump believes that he's got to take his issues to the American people if he's to be a successful president.

And I know there are all kinds of conversations about what was in this E.O. what was not in this E.O. At the heart of it is a desire to keep us safe from jihadists. And it's really a very measured response especially in light of the campaign rhetoric, to try to accomplish that. And I think if we are talking about this for a protracted period of time, I think it does help the confirmation of Neil Gorsuch.

I think when Republicans are talking about judges, we are winning, and I want to talk about judges throughout the whole year because we have to radically rebalance how these issues are handled.

MACCALLUM:  Julie, Tom Price is being considered tonight -- supposed to go into the morning. The cabinet acceptance has been held up dramatically during the course of all this. Are Democrats going to find some common ground here at some point?

ROGINSKY:  Well, it's interesting to hear anybody say that because obviously we're still waiting for the confirmation for the last Supreme Court justice that was nominated by the president --


ROGINSKY:  It's not a come on issue.


ROGINSKY:  Well, it's not going to happen, but listen, that's good for the goose. You guys can't get upset and you guys can't upset about that --

MACCALLUM:  So if you think that was wrong, we're going to do the same thing to you. Those are very infantile argument.

ROGINSKY:  Not exactly because I think the problem here is that you have just -- you have nominees who have not gone through government ethics in the way they should have.

UNIDENTIFIED MALE:  That's not true.

ROGINSKY:  An secondly, most importantly, listen, Harry Reid got rid of the filibuster on these justices -- these nominees, go ahead, you got control of everything. I don't know what the holdup is.

MACCALLUM:  I want to thank all of you for being here tonight. Fascinating night to watch all of this unfold and we'll continue to do so throughout the course of the evening. Bill O'Reilly is coming up next with more. Thank you for joining us. We'll see you tomorrow on "The First 100 Days."

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