Brooke: With me now, Jeff Toobin, CNN Senior Legal Analyst and former federal prosecutor, and Page Pate is here, CNN Legal Analyst and Constitutional Attorney. Gentlemen, nice to have you on. And Jeffrey Toobin, I think the piece of the story that really jumped out at me was all of what this judge used. It was Trump’s own words, right? It was Sean…even some of Sean Spicer’s words from the briefing, and the Attorney General, Jeff Sessions, all used against them.
Jeff: That’s true, but the basis of this ruling is not really in the Constitution, it’s really in the laws, is that, you know, it is perfectly…the Federal Government is perfectly capable of removing money from States, but it has to be done by law. Congress has to pass a law that says, “This money is taken away.” What the judge’s ruling said, at its core, is that “This was not within the President’s power, under the laws, to take this money back.”
Now, can he get Congress to pass a law like this? Certainly, he hasn’t had much success getting Congress to do much of anything, so far. But this was really a statement that the President can’t do this alone, the Congress has to authorize it.
Brooke: Well, I mean, you have the President, now. He’s essentially 0 for 3, on these major legal defeats, right? You had the two travel ban issues and then now this one, Page. And my question is, I know he has lots and lots of lawyers, why doesn’t…how does this keep happening?
Page: Well, I think what we’ve seen, Brooke, is that the White House is not always listening to their lawyers and certainly not the Justice Department. Even with this particular case, I think we’re seeing some inconsistency between what the Justice Department says is federal policy and what the White House says. We’ve had at least one sanctuary city say, “Look, you’re telling us we have to follow federal immigration policy, does that mean we can no longer prohibit people from getting information about folks that may be here illegally? Or, do we have to honor detainers?” It sounds like the White House says, “If you don’t honor our detainer request, if you don’t keep these folks locked up, we’re taking away your money.” But that’s not what the Justice Department is saying. So I think one thing that needs to be done, first and foremost, is let’s get some clear, legal, constitutional policy on the books so that these cities know what they’re supposed to do and not do.
Brooke: Okay. Let’s move on to just the fact that the President did, again, rip this federal judge. Jeff Toobin, should he be criticizing judges from his perch as Commander-In-Chief?
Jeff: I think Donald Trump is well within his rights in criticizing federal judges. You know, federal judges, they serve for life, they’re unaccountable, they’re unelected, they are very powerful. And they’re big boys and girls, and they should be able to take criticism, just like anyone else. I think Trump has said some dumb things. I mean, he said that one of these judges a “so-called judge.” Another time he said the judge was unelected. Well, all federal judges are unelected, including Judge Gorsuch…Justice Gorsuch, who was just appointed. So, you know, some of the criticism I think has been off-base, but should he have the right to criticize judges? Absolutely.
Brooke: Page, you totally disagree, tell me why?
Page: I totally disagree. I think this statement and his tweets are incredibly dangerous because what he’s doing is chipping away at the credibility of the federal courts. Now, look, I don’t always agree with federal judges in my practice, but I criticize their ruling, I criticize their opinion, I don’t criticize them. I don’t think that helps anything. And when you say to a judge, “Your ruling is a gift to criminal gangs and cartels,” what are you telling the American people? That if we don’t like a federal judge’s ruling, let’s just ignore it because he doesn’t agree with us. I think that’s incredibly dangerous.
Jeff: He never said that. He never said ignore it. I mean I think it’s important to point out that for all that Donald Trump has said terrible things about judges, he has always, at least so far, abided by their rulings. He has not tried to be like President Andrew Jackson, and said, “We’ll let the courts try to enforce it because I’m not gonna do it.” So, I think, you know, he has abided by these injunctions and these prohibitions by these judges, but he’s…
Page: So far.
Jeff: Well, so far, but, you know, I’m not prepared to criticize him for something he hasn’t done yet.
Page: Well, I think he’s headed in that direction. Clearly, he’s taking steps in that direction. First, he wants to undermine their credibility in the public sphere, so that people out there will support Trump when he says, “I’m not gonna follow them anymore. So, let’s wait until it works its way to the Ninth Circuit. If I like that ruling, I’ll applaud it, if I don’t, I’ll criticize it.” That’s not the way we need to deal with judicial orders in this country.
Brooke: I just wonder what the President’s judge sister thinks, when he does this. Jeff Toobin and Page Pate, thank you all very much.
Page: Thank you, Brooke.