>> i'm curious, do you see this as something that escalated in a heated moment on the floor or a sign of the way the republican majority here is going to run this senate? >> i am not surprised in a mitch mcconnell came up with a procedural way to interrupt what the senate democrats were doing on the floor of the senate. he knows they're there for the second all nighter in a row. he knows they're tired, he knows that's a good time to try to provoke, poke people. that's not politics, that's human nature. what i am very surprised by and i hope it's viewed by republicans as a political failure and not as a political success. what i'm surprised by is that he chose the widow of martin luther king jr. as the hill he wanted to die on here. by using coretta scott king's words as the way that he shut up elizabeth warren, he is

exhibiting the kind of profound indifference to the racial contours of the jeff session nomination that i wouldn't have expected from somebody as savvy as mitch mcconnell. if they did that on purpose to be racially provocative, to stir you racial currents here, i think that's scary and gross. if they did it accidentally, i think it's political malpractice. but i think they've just turned this issue and elizabeth warren and the jeff sessions nomination into a much hotter, more hotly contested and sort of scarier thing that it's been up until now. >> it was remarkable. do you think it changes any votes? that's my last question. >> i don't know. we've seen a lot of republicans say they were willing to support jeff sessions, joe mancion.

i don't know. do you think this will move votes? >> it's hard to know but i think notion of using procedures this way to, as she put it to you, be red carded and a senator literally cannot speak on the senate floor, this is a floor where almost everything can be said because it's a right to talk. it was striking. >> it is striking. mitch mcconnell is a savvy operator. i don't think he usually does stuff that he doesn't mean. if he meant to make this a race fight even more than it already was over jeff sessions, katie by the door in terms of what comes next. >> we have quite an evening unfolding and a lot of news to break this hour. more on that story. but first we're looking at the lawyers here for president trump asking for that urgent hearing tonight, trying to get the travel ban reinstated. they ran into tough questioning by federal judges, as did lawyers for washington state challenging the ban.

>> an extraordinary legal battle over the fate of the travel ban. >> a three-judge panel is considering an argument on whether to keep a hold on the order. >> is there any reason for to us think there's a real risk? >> the president determined that there was a real risk. >> i can't believe we're having to fight in a court system to protect the safety of our nation. >> it seems like trump's real rage is he just found out there were two other branches of government. >> some things are law. some things are common sense. this is common sense. >> the roll-out was disastrous. >> i should have delayed it a bit. >> everybody is talking and dealing, a lot of bad people are thinking about let's go in right now. >> have you urged the president not to make false claims? >> i'm not going to speak for the president. he can speak for himself and

frequently does. >> checks and balances? i thought it was just checks. >> hello, i'm ari melber in for lawrence o'donnell. president trump's travel ban hangs in the balance tonight. the question, should the ban be reinstated or remain paused while cases challenging its legality make their way through the courts? we have a special report for you right now on what went down tonight. the judges' first question is are the doors to the court even open to this case. president trump's lawyers arguing his views cannot be questioned in this area. in lawyer lingo, that means they told the judges this ban is not even reviewable. >> are you arguing, then, that the president's decision in that regard is unreviewable?

>> the -- yes. >> don't count the pause. this is as clear a power clash as you'll hear in court. trump's lawyers telling the judge this is basically none of their business. they do have some law on their side. but one of the questions in this case is whether the government is conducting religious discrimination, which is unconstitutional. the judge asked if this is a religious ban would the court doors be open, could someone have standing for that? the question drew a concession from lawyers that there are court cases, a 1972 case called mandel that would open the court's doors. >> if the order said muslims cannot be admitted, would anybody have standing to challenge that? >> i think mandel and din give a route to make a constitutional challenge if there were such an order. >> then the judges pushed further saying the muslim ban

question was not hypothetical given comments by, yes, rudy giuliani. this was a piece of evidence we reported monday on "the last word" because challengers used it as evidence against trump if their victorious hearing that first blocked the travel ban. >> he called me up, said put a commission together, show me the right way to do it legally. we focused on instead of religion, danger. the areas of the world that create danger for us, which is a factual basis, not a religious basis. perfectly legal. >> that was what the challenger cited last week and it worked in their favor again tonight. maybe rudy giuliani is a secret member for the aclu for all the help he's doing for their cause. another of the judges pressed trump's lawyers on whether they denied giuliani's statements. >> either those statements were made but they're not but if they were made to not be a serious

policy statement -- >> trump's lawyer backed down in his answer. >> well, those are in the record. >> the record is of course the foundation for arguments in this case. the judges are basically pushing trump's lawyers to accept the reality that one of their own advisers, a former prosecutor, said this all grew out of a muslim ban. now, on the other hand, to be fair, the white house has stressed giuliani went rogue and they say the order isn't a muslim ban. then the hearing moved from the government's legal powers to its powers of reasoning. this is where the legal and political debate meet because we're going to hear a lot about why president trump picked those seven countries to ban. tonight a lower court judge citing that in court when trump's d.o.j. lawyers couldn't justify the threat of immigrants from those seven countries. >> the district court asks the representative of the department of justice, you know, you're in the department of justice, how

many federal offenses have we being committed by people who came in with visas from these countries? and the ultimate of the answer is there haven't been any. >> that's true. here was the trump lawyer's answer in court on friday. >> your honor, i don't have that information. >> i don't have that information. but that information is available. there have been no deadly attacks by immigrants from any of the seven countries. the judges didn't bring up that moment to give the laura hard time. the legal reason to cite that moment is because courts may review whether a government decision is rational. this is considered a pretty easy review usually. the government basically needs a rational reason for doing something, almost any reason will do. but the government can't offer a bad reason for no reason, which

could be irrational. and after two weeks the trump team is still struggling to offer that rationale. it cites homeland security but no other deadly terrorist attackers, again, are from the seven countries. and tonight trump's lawyers cited a federal law about vetting for mostly european travelers to explain those seven countries. that may be a tough legal argument, though, because that law had nothing to do with native immigrants traveling from those countries. it was a law that gave extra vetting to european travelers who passed through the seven countries. you can think about it like this. if a british tourist stopped in libya, then the u.s. would give him extra vetting on his way to the united states. that was a security measure applied to the british tourist, not to libyan native immigrants.

bottom line, this was a list of countries that were deemed dangerous to visit, not necessarily dangerous for sending their native citizens as immigrant terrorists to the u.s. now outside the courtroom it may be an effective political tactic for trum top say he got this list of countries from congress and the obama administration, even if it was for a european waiver program, not for banning immigrants. but, for example, inside the courtroom some judges are already probing whether this law is, yes, rational. the government does have huge immigration powers but tonight some judges may further probe whether he is using those big powers rationally. joining me now is bob ferguson, attorney general for the state of washington in his first interview since that hearing tonight. what did you think of the judges' questioning? do you think you will win this

next round? >> thanks for having me on, ari. really appreciate it. yes, i said from the beginning when i filed this complaint on behalf of the state of washington that i was confident we would prevail. we prevailed at the if the district court level and i'm confident we'll prevail here as well. >> when you think about the debate over the seven countries, do you think the judges will dig in deep to look at how the visa waiver program has worked or should they state out of that because even if these seven countries weren't well pick, you can concede the president would suspend immigration from all of saudi arabia on september 12th. >> i'm glad you played in your clip in one one of the lawyers asked the justice department are you saying that the president's actions are unreviewable and after that long pause, the answer was yes.

the president does have broad powers when it comes to immigration, but those powers must be able to be reviewed to see if there was a discriminating intent or motivating factor behind the signing of that executive order. as my assistant general said at the trial court level, that argument by the federal government that we cannot look behind the order at all is truly frightening. >> but can the president suspend, say, an entire state that that we're at war with immigrants? >> this was put together even by the administration's own acknowledgement too quickly, without sufficient thought and clearly violates the constitution and other statuary provisions as well. that's why i think judge robart, who was appointed by george w. bush ruled in our favor and granted the extraordinary relief of putting a state on the whole program.

i think the ninth circuit court of appeals is going to see it the same way. >> your lawyer did have a pretty good day but he did have a rough patch on all of global muslims who aren't affected by this. take a listen. >> do you have any information as to what percentage or what proportion of the adherence to islam worldwide are citizens or residents of those countries? my quick pencilling suggests it's something less than 15%. >> i have not done that math, your honor. >> if the vast majority of the world's muslims are unaffected by this, how does your case credibly state this targets muslims? >> the part that you did not air was noah's answer, which he eventually got to, in looking at whether there's a motivating factor that's discriminatory. it doesn't mean the action has to discriminate against everybody within a particular class, as long as you're discriminating against a group.

we think in this case the evidence is clear from president trump's own word and the judges hammered on that as you pointed out later in the oral argument. >> bob ferguson, thanks for being here. >> you run an organization that has handled many such cases, including challenging the war making power in detention cases. we met many years ago when i worked ccr. there is an argument that this is the heart of presidential power. >> it is the heart of presidential power. think think what's clear particularly when we talk about the discrimination question, i think the attorney general is right in their view that you

don't have to discriminate perfectly, you don't have to discriminate against everyone. for example, if the president came up with some law that said we are going to discriminate against black people in three states in the united states, that doesn't cover everybody in the united states, but it doesn't mean it not discrimination. so i think there's a plausible and a very good solid argument that they're making that it doesn't have to be perfect discrimination in order for it to be unconstitutional and problematic. >> there are so many different lines of attack here, which is common, because lawyers like to put everything on the menu for a judge. putting your litigation hat on, which do you think are most likely to get the ban permanently struck down? >> i think there a range of question. i think there's an equal protection argument with respect to discrimination. i think the first amendment with respect to religion i think is also strong. there are a lot of -- there are state court arguments, state constitutional arguments, a lot of stuff that's in there. i think the strongest piece is

that president trump and his folks said pretty clearly that they wanted to create a ban. they actually wanted to create a ban before he was the president-elect, before he was the nominee. he's been talking about this before he even had access to a lot of the intelligence stuff. i think it's fair for the court to be able to look behind what his claims are now, particularly when you have an administration that doesn't seem to be so happy to tell the truth all the time and that they fudge the facts. i think it's actually not only within the court's power but i think it's prudent to look behind some of those. >> that was one of the roughest parts in these arguments tonight. at one point the d.o.j. was struggling, basically, to provide some of the basic type of record evidence, just the basic facts and precedent that you'd want to provide a judicial and they said back to the judge, well, this is going really fast. the judge pointed out it's going fast because the trump administration asked for this emergency hearing.

>> yes, your honor. these proceedings have been moving quite fast and we're doing the best we can. >> you're saying the proceedings are moving fast but you appealed to us before you continued in the district court to develop the record. so why should we be hearing this now if it sounds like you're trying to say you're going to present other evidence later? >> in your view has there been some subpar lawyering here because the administration has mott put its best foot forward to defend this in court? >> i think it's ad hoc lawyering in the sense that they are making this up as it goes along. the order was issued so rashly and so badly and without any good roll-out, everybody is scrambling to figure out what the legal arguments are. there's one point i think the judge made which was really interesting when he was asking -- one of the judges was asking the questions about isn't true for these seven countries, that congress's response to them was to vet people more in these

seven countries and is there anything wrong with that, is there a changed circumstance? the judge is saying if it ain't broke, why is president trump trying to fix it? and of course the government lawyer couldn't possibly do that. >> what again goes to part of where the justice department does not want to be, which is the innards of this rule. that's why they started with don't even look under the hood. the question is whether the appeals court or supreme court wants to second guess immigration to that degree. thanks for being here, vince warren. >> thanks for having me. >> we have more on the breaking news rachel and i were discussing, elizabeth warren being formally rebuked by republicans on the senate floor for a floor speech where, among other things, she was quote, coretta scott king. there are over 47 million ford vehicles out here. that has everything to do with the people in here.

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responsible for any terror attacks on u.s. soil. and in a meeting with the national sheriff's association today. and in a bizarre exchange, a sheriff was complaining about civil asset forfeiture. and then president trump basically said he would get involved with a threat of payback. he didn't even know who the legislator was yet. take a listen. >> on asset forfeiture, we got a state senator in texas that was talking about introducing legislation to require conviction before we could receive that forfeiture money. >> can you believe that? >> i told him the cartel would build a monument to him in mexico -- >> who is the state senator? want to difficult me his name? we'll destroy his career.

>> joining me now is jeremy bash, former chief of staff to leon panetta. any comment on what i just saw, the president's approach to the federal judge and the federal judiciary's oversight of these issues, which you've dealt with on the national security side. >> the president likes to attacks institutions, he's attacked free press, downgraded the role of national intelligence and joint chiefs. it's an effort when his policy goes forward, he's not constrained by facts, people who are experts in their field. it's dangerous for policy making and i think it's dangerous for national security. >> when you look at the security side, i wonder what your observations are having listened to that hearing. there are certainly times where your old cleagues at the cia or pentagon would say keep the

judges out, we respect them but we would prefer to do our own business and the cia often when it comes to areas where the rest of the government is held to account, they have some exception, some of them well earned, some of them logical. what is your view of the balance you heard in that courtroom today? >> i think the president does deserve some deference in matters of national security. but in this case, the threat was hyped. supposedly there's some secret information or intelligence that would justify an emergency situation like this, that the president should come forward and tell us why we should close our borders to seven countries. >> as i was reporting, there has not been a security-based argument. there was an argument of federal

law dealt with visas -- even that is not about the security threat. do you know of one? >> no, i don't. i've been trying to find one and i think we've all been hunting about the rhetoric about the muslim ban. we can't come up with it. the viewers should look at an important filing made in the ninth circuit that was signed by four people who ran the cia, general mike hayden, john mclaughlin, a career cia analyst, mike morel, also a career national security professional and analyst and leon panetta, my old boss who ran the cia and the pentagon, four men who basically argued there is no reason to protect the country in this way.

there's a reason to protect the country from terrorism, you do it in a focused way, following leads and following specific threat streams. that's how we have prevented another 9/11 in the past 15, 16 years. you don't do it through these blanket bans. and there's no real reason from a national security perspective to do it in this way. and worse, ari, this is what came out in their filing, it would hand isis a major victory, so it could make our country less safe. >> jeremy bash, as always, appreciate your expertise. >> coming up, more on the breaking news. the dramatic turn of events with republicans formally rebuking elizabeth warren and she was quoting coretta scott king. when that pain makes simple errands simply unbearable...

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but it is also about keeping our constitution and our rights safe. thank you, madam president. i yield the turning to some breaking news. the second day of all-night protests of democratic senators to president obama's a nominees took a dramatic turn. senator elizabeth warren was formally rebuked on the floor. she was quoting both the late senator ted kennedy and coretta scott king's opposition to jeff session's 1986 nomination to be a federal judge. >> this is a reminder not pertinent necessarily to what you just shared, however, you stated that a sitting senator is

a disgrace to the department of justice. >> i think that may have been senator [ inaudible ] who said that. although i would be glad to repeat it in my own words. so quoting senator kennedy, calling them nominee sessions a disgrace is a violation of senate rules? it was certainly not in 1986. >> in the opinion of the chair it is. >> so let me understand then -- >> the senator is warned. >> that is certainly an unusual event on the senate floor and one that has some differing precedent, which we will get to. to show you what happened, senator warren interrupted again, this time by senate majority leader mitch mcconnell. >> mr. president -- >> the majority leader. >> the senator has impugned the

motives and conduct of our colleague from alabama as warned about the the chair, said senator warren has used the awesome power of his office to chill the free exercise of rights of -- >> mr. president? i'm surprised that the words of coretta scott king are not suitable for debate in the united states senate. i ask leave of the senate to continue my remarks. >> is there an objection? >> i object. >> the objection is heard. >> mr. president, i appeal the ruling of the chair and i suggest the absence of a quorum. >> the clerk will call the roll.

>> then in a vote of 49-43, the senate held the vote on that underlying issue. the result being to silence senator warren. now, moments ago she spoke out on this. this was her first interview or really public statement of any kind off what again was very unusual on the senate floor. this is an unusual circumstance in the sense that you have the conduct of a senator about remarks of another senator who is also, obviously, up for confirmation. so there's more than one thing going on. here's how she explained it in this new interview with rachel maddow. >> reading that letter out loud, according to mitch mcconnell, impugned senator sessions and therefore i got gavelled and was forced to sit down and i am not allowed to speak on the floor of the senate. i'm not allowed to speak so long as the topic is senator jeff sessions. >> wow. >> i've been red carded on senator sessions. >> for more on this developing news, i'm joined by joan walsh

and jonathan walter. joan? >> it's unbelievable. i mean, to see her being told to sit down is almost painful. the idea that a senator is above criticism, when you nominate a senator for a cabinet position, his colleagues can criticize him is kind of elitist. and he didn't just silence elizabeth warren, he silenced coretta scott king. and jeff sessions was not a senator when these comments were made about him. they're comments that came in the unfortunate senate nomination for judgeship where he was rejected by a republican senate. so the idea that these words that moved a republican majority senate in 1986 are now not fit to be spoken. and she wasn't just prohibited from continuing that statement, she's prohibited from making any

statement through the rest of the debate on sessions. i just didn't know that was possible. >> i just think it's profoundly stupid of mitch mcconnell. i mean, what has he done? he's shone a light on the objections to jeff sessions as essentially a racist, that coretta scott king, who is still a revered figure in this country brought up now the attention of the nation or people who are interested in politics is riveted on this. to use a cliche, the optics are horrendous, as they have been for the trump administration so far. it's almost like the disease of bad optics is contagious and now it's moved to capitol hill where they are doing things that defy political common sense and normally mitch mcconnell, what everyone thinks of him is a smart operator. this was a dumb thing for him to do. >> and to your point, they have

the votes on those of these. the only thing left is a debate on the senate floor, which is not exactly the roughest or toughest opposition tactic. it is literally words in a public debate that then move on to a vote. we'll put up on the screen for folks and most people don't care much about rule 19 but it says no senator in debate shall directly or indirectly by any form of words imcompute to another senator to or other senator any conduct or motive unbecoming a senator. the core of the rule is to try to protect a little bit of comity and good faith between senators. it is not obviously at a basic level confirmation process where their conduct will be assessed on their senator. a lot of unusual things tonight. thech say, quote, senate

republicans have regularly flaunted rule xix in the past, this is a clear case of selective enforcement. only senator warren accurately quoting from mlk's widow provoked republicans to action, joan. >> i'm not a lawyer, i'm not a scholar of the senate, but it clear that is intended to keep certain boundaries around debate and i can understand it. it's not intended to be use in a situation like this. an impartial president, an impartial senate would have looked at this as two senators having a debate. i think he should be voted down because of his racial past and voting rights past first and foremost. i'm not aware of a single republican in danger of voting against him. i wish i could say it was different. are you, john? >> no. and think back to a couple of

years when ted cruz and rand paul were going at it. so for them to choose this occasion to shine a light on it in this way is perplexing. we would not be talking about this. it's not as if the attention of the world was riveted on the senate floor tonight. this was the last stages of something that's a done deal, sessions is going to get confirmed -- >> and the underlying issue is of course the questions that did dog then prosecutor sessions when he was up for the federal judgeship, which is there were accusations made on the record, some under oath, that he had made a lot of racially incendiary comments, that he was basically having difficulty with black colleagues within the prosecutor's office.

now, in fairness, there was a strenuous rebuttal of that at the time and they continue to rebut that. that is something that is up for debate. i wonder how do you talk about any of that fairly, right, without raising the prospect of impugning him as a nominee, whether you were on the attack or defense, you're going to be discussing that alleged conduct. >> of course. and when you're talking about confirming somebody for a position that is this important, to say that, oh, this big chunk of his record, what denied him to be a federal judge in the past, that's off limits because now he's protected by being in the club. you almost think that mcconnell wants to polarize this a little bit, wants to rally the trump folks who are behind sessions so that he has some really adamant supporters when he goes into that job at the justice department. >> jonathan, thank you for joining us. joan stays.

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known as confusing. >> is how president trump described it two days ago. >> i think it was very smooth. it stopped 109 people out of thousands of travelers and all we did was vet them more carefully. >> it is early on for this administration and voters tend to give new administrations something of a honeymoon period. we checked today and it looks like that is not happening. 51% of americans disapprove of how president trump is handling his job. gallup tracking shows 54% disapprove while 42% approve. it took 922 days for president obama's approval rating to 42% in gallup. donald trump has been in office 19 days.

what reportedly bothered president trump most about this snl sketch? the answer coming up. my belly pain and constipation?

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other side effects include gas, stomach-area pain and swelling. talk to your doctor about managing your symptoms proactively with linzess. >> question -- president trump was most bothered by which part of this snl skit? >> i want to talk about the travel ban -- >> it's not a ban. >> pardon? >> it's not a ban. you said ban. >> you just said ban. >> i'm using your words. he's quoting you, it's your words. he's using your words when you use the words and he uses them back, it's circular using of the word and that's from you.

>> the problem is that is what the briefings, it's what they feel like sometimes. but the answer to our quiz for you tonight, according to politico, quote, more than being lampooned as a press secretary who makes up facts, it was spicer's portrayal by a woman that was most problematic in the president's eyes according to sources close to him and the unflattering send-up by a female comedian was not considered helpful for spicer's longevity in the grueling high-profile job. in the article, trump doesn't like his people to look weak added a top trump donor. the internet decided who snl should enlist in its next potential takedown of trump world, we're hearing rosie o'donnell playing potentially steve bannon. turns out rosie herself already weighing in tweeting "available -- if called, i will serve." and there's three exclamation points and in hollywood that

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about potential conflicts of interest within the trump white house. in is all part of a $150 million libel sued filed by first lady melania trump, going after the "daily mail" over an article they have retracted. mr. trump's role as first lady is not explicitly mentioned but refers to an opportunity to launch a broad-based commercial brand in multiple product cart grist, each of which could have garnered multi-million dollar business relationships for a multi-year term during which he is one of the most photographed women in the world. i will start from a criticism here of richard painor. he says there's never been a first lady of the u.s. who insinuated she intended to make a lot of money because of the once in a lifetime opportunity of being first lady. since we're talking lawsuits,

we'll give you the rebuttal. catherine charles harder, melania trump's attorney and a top, well-known attorney in these libel cases and says the is no intention of the first lady of using her position for profit. >> it sounds like she should read her own brief. i don't know how her own attorney can argue within the span of 24 hours that she either wants to capitalize on her new found fame and profile and doesn't want to. >> some of them is second nature to them.

there's nothing wrong if you don't want a career in public service. jay-z said i'm not a businessman, i'm a business, man. nothing wrong with that. we have a country that rewards that. seems the problem is the transition, out of private gain to public service. >> she's in the white house, she is the first lady. i just can't believe that the lawyer would undercut his own real argument for damages here. i also find it hard to believe, ari, that this allegation, which we don't even dignify by repeating was widespread enough to actually cost her opportunities. so i think it's terrible -- i mean, this is kind of an inconsistent argument. i think it's terrible for her to be looking for those opportunities but i also find it hard to believe that this, which

did not circulate that widely, people found the charges radioactive could be blamed for costing her millions in opportunities, even if she decided it was appropriate for her to pursue them. >> and mrs. trump has a very strong case on the underlying issue. the question is whether it worth that many millions, the lawyers tend to do some inflation. they've applied for trademarks for make america great, keep america great, which show a nexus of the political to make money. you don't need to make money to get votes. >> that's why we've talked about the importance of having then donald trump, now president trump, there's a reason we don't want people in public service to be putting themselves in

position to directly benefit from that service, at least in a financial sense. >> thank you both for joining me tonight. >> that does it for "the last word." you can e-mail me at ari at msnbc.com. "the last hour" with brian williams is live starting now. "the 11th hour" begins now. good evening. once again from our headquarters here in new york, this early and continuing battle between the

executive and judiciary branches played out live this evening in court proceedings nationally televised in the form of a cross-country call. three judges for the ninth u.s. circuit court of appeals heard arguments from both the department of justice and the state of washington, representing the other side. the three judges who heard today's oral arguments were randomly assigned to the case. that's important. senior circuit judge william c. canby, still serving senior level at 85 years of age. he was appointed nearly 40 years ago by president jimmy carter. happens to be the brother-in-law of walter mondale. senior circuit court judge richard r. clifton, based out of hawaii, appointed 15 years ago by president george w. bush and circuit judge michelle t. friedland was appointed just two years ago by president obama,