Is the president within his bounds with the travel ban?

This is a rush transcript from "Special Report with Bret Baier," February 6, 2017. This copy may not be in its final form and may be updated.


PRESIDENT DONALD TRUMP: I think it was very smooth. You had 109 people out of hundreds of thousands of travelers, and all we did was that those people very, very carefully.

BILL O'REILLY, FOX NEWS: Do you respect Putin?

TRUMP: I do respect him.

O'REILLY: Do you? Why?

TRUMP: I respect a lot of people, but that doesn't mean I'm going to get along with him.

O'REILLY: Putin is a killer.

TRUMP: There are a lot of killers. We've got a lot of killers. Do you think our country is so innocent? Do you think our country is so innocent?

O'REILLY: So you are not bullish on Iran at this point?

TRUMP: I am not bullish. I think they have total disrespect for our country. And I understand that deal, I would have lived with it if they said, OK, we are all together now. But it was just the opposite. It's like they are emboldened. They follow our planes. They circle our ships with their little boats.


BILL HEMMER, FOX NEWS: There is a lot to talk about from that interview. I want to bring in the panel right now: Jonah Goldberg, senior editor of National Review; Mercedes Schlapp, columnist for The Washington Times; Susan Page, Washington bureau chief of USA Today, and syndicated columnist Charles Krauthammer. And good evening to all of you. No lawyers at this table. That might be a first. Oral arguments happen tomorrow afternoon. What happens?

JONAH GOLDBERG, NATIONAL REVIEW: It really depends on which charges are doing it. I don't know who they are. It's a very left of center circuit. It has always been. I would think just on those facts my guess is that the Trump administration gets bad news from them. But that said, I think it has more to do with the left-wing politics of the circuit than it has to do with the merits of the case.

Whatever you think of the actual policy, Justice Scalia used to have a stamp on his desk that said "Stupid but constitutional." And I am not saying the Trump policy is stupid. I support most of it. But just because people don't like it doesn't mean it's unconstitutional. The president has broad authority in these kinds of areas both by statute and by the constitution to do these kinds of things. And my guess is if it goes to the Supreme Court, which it would if it goes that way, it would ultimately end up in Trump's favor.

HEMMER: Is he within his bounds, let's say? If you go back to 1952 the immigration act clearly gave the president authority when it comes to national security and who comes in and who doesn't.

MERCEDES SCHLAPP, THE WASHINGTON TIMES: That is the case Donald Trump and his team is pushing for, which is the fact that, yes, it is constitutional. And also not only that but Congress has given the president broad authority in terms of determining who can and who cannot come in the country. There is the U.S. code everyone has been talking about, 1182, saying if it's detrimental to the interests of the United States they should not allow the entry of foreign nationals or aliens to come into America.

So I think it really brings up this broader question, which I do think they have a strong legal argument, but I think the politics involved, and you talked about the Supreme Court, think about it, 4-4, if it ends up at 4-4, if we don't have Gorsuch confirmed, you're going to have the appeals court have that decision and it won't be overruled.

HEMMER: Let me allow Mike Pence from the Sunday, Susan, and I'll come to you on this from the Sunday shows talking about this order here. Watch it.


VICE PRESIDENT MIKE PENCE: Every president has a right to be critical of the other branches of the federal government. I think the American people welcome the candor of this president. We don't appoint judges to our district courts to conduct foreign policy or to make decisions about our national security.


HEMMER: He is making that case, too, Susan. If it does indeed, as Jonah points out, if it goes to the U.S. Supreme Court, this could take months in a 4-4 court for now, at some point, maybe Gorsuch is approved, perhaps that takes longer than some expect. Is there a mechanism by which they can say Yemen, Syria, Libya are failed states and the U.S. president should have some measure of authority to determine who comes from those states into the United States? In other words, can you do a questionnaire of sorts that would enact more vetting, perhaps not extreme, but more vetting?

SUSAN PAGE, USA TODAY: Yes, the United States can set policies that govern immigration, including tough questioning not just people -- people who the American authorities think could be a threat. Although there is a 1965 law that says you can't discriminate in immigration on the basis of national origin. So that may make it somewhat more complicated. Although it is certainly true the constitution and statutes give broad authority to the president here.

I think there is some, on Pence's point, saying that the president is within his right to be critical of the branches of government, that's certainly true. That was true also for Barack Obama. The court decision from the ninth circuit cited the immigration decision that limited President Obama's ability to change immigration law by executive authority. So this is a frustration that he's not the first president to feel.

HEMMER: What is the outcome, and how long does it take?

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: I expect we will get a ruling from the ninth circuit quickly. I think Jonah is right. It's the most left leaning and the most overturned circuit in the country. So that's likely to be anti-the immigration executive order.

And then you go to the Supreme Court which is split 4-4. If it remains so, then the circuit court ruling stands. There is one in the first circuit which is contradictory. That actually will create problems for your going to have two circuits and no way to adjudicate it. Although I would say the case for the legality and the constitutionality of the order is so strong that I wonder whether or not one of the four liberal justices in the Supreme Court would not rule for Trump.

Again, this is saying nothing about the wisdom of the policy but in the ruling from the district court judge who issued the temporary stay, he simply asserted -- what you have to determine if you're going to stay in executive order is to say there was a good chance that the stay would be upheld because the order is illegal. The judge gave no reasoning. He made simply a statement of its illegality. You wonder how they are going to look at it in the ninth circuit. But there is nothing there and it's very hard to make that case.

So I think in the end the legality of it will probably end up being upheld. The wisdom I think is still a major issue.

HEMMER: A tweet from over the weekend, this was Saturday from the president, on screen now, "The opinion of this so-called judge," he tweeted, "takes law enforcement away from our country. It's ridiculous and will be overturned." I think that phrase, the "so-called judge," Mercedes, that got the left --

SCHLAPP: I probably would have inserted "activist judge" instead of "so- called judge" if I were President Trump. The point he was trying to make there is this federal judge went to broad on the ruling. The fact is that maybe it should have stuck to just the states that filed the lawsuits as opposed to a nationwide restraining order. This is Donald Trump. He does not follow the political rules we know of not criticizing judges. But he feels pretty strongly that this judge got it wrong, and he was not shy about it.

KRAUTHAMMER: Look at the upside. He didn't call him a Mexican judge.


HEMMER: There's that. Jonah, what is the calculation when answering questions about Vladimir Putin on behalf of President Trump?

GOLDBERG: I am not sure that there is one. I will be on record. I think that what he said about Putin was indefensible. What he said about the United States of America was indefensible. It was wrong on the merits. He said this several times before, similar things, where he denigrates the United States of America, throws in America under the bus to defend tyrants like Erdogan in Turkey, like the butchers of Beijing, and like Vladimir Putin. And I think he has it in his head that this is what serious countries do is they behave the way Vladimir Putin does.

HEMMER: He has said he wants to get along with Russia.

GOLDBERG: But wanting to get along with Russia in and of itself is meaningless. The point is, to one and? He says it's to fight ISIS. Great, but that is a more complicated argument, and they are not exactly the most reliable ally when it comes to events in the Middle East.

HEMMER: Susan, what is the calculation?

PAGE: And mystifying even to his allies. Even Mitch McConnell has been pretty careful to be supportive of President Trump whenever possible. He distanced himself from his comments equating Vladimir Putin with American leaders.

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