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Anderson: Thanks very much. We should point out President Trump just tweeted, and I quote, “The Democrats are delaying my cabinet picks for purely political reasons. They have nothing going but to obstruct. Now have an Obama A.G.” Let’s bring in some legal expertise. Joining us is senior legal analyst, Laura Coates, a former federal prosecutor. Also, constitutional attorney, Page Pate, and Harvard’s Alan Dershowitz. Professor Dershowitz, what do you make of the acting Attorney General’s decision, and how does this actually play out?

Professor Dershowitz: Well, she’s a terrific public servant with a great reputation, but she’s made a serious mistake here. She’s responded to politics with politics. It’s so easy for somebody who is the outgoing acting Attorney General to stand up and be a hero against the elected president. This is a very difficult nuanced question. Some of the executive order is probably unconstitutional as it applies to green card holders. Some of it may be in violation of the statute that prohibits visas from being denied on religious grounds. Some of it may be constitutional as it applies to people who haven’t ever been in the country and are trying to visit. What was needed was a nuanced, calibrated, legal approach instead of a kind of knee-jerk statement, “I’m not gonna enforce it at all.” The president has the right to have a lawyer defend his actions in court. And if she won’t do it, the courts will probably appoint somebody else to do it. So I think it’s a little bit of politics versus politics. She could have done a much, much better job if she had responded to the very, very badly crafted order, something I disagree…the executive order I fundamentally disagree with. But if she had responded to it in a more lawyer-like, careful, nuanced way, she would have had a bigger impact. I think she played into the hands of Donald Trump by doing what she did.

Anderson: So, Professor Dershowitz, what are Donald Trump’s options here? I mean, the Justice Department does ultimately answer to him as part of the executive branch.

Professor Dershowitz: Well, it would be a mistake for him to fire her. That would play, again, the political card. I think what he should do is arrange to have another lawyer defend the actions. I heard earlier that maybe the legal counsel’s office of the Justice Department might have had a somewhat different view of this. I think that he should respond…if he’s smart, he should respond in a more nuanced way than she responded and take the high ground. It’s hard because this is such a bad policy implemented in such a terrible way, but we shouldn’t confuse a bad policy with either an unconstitutional policy or an unlawful policy. Something can be very bad and still be legal. And it’s not the job of the Justice Department to do to quote Sally Yates, what is right. It’s to do what is lawful. That’s her job, not to do what is right.

Anderson: Laura, when the Attorney General, in this case, the acting Attorney General, gives a directive like this, are all federal prosecutors bound to follow it full stop or is there wiggle room? Can they make up their own minds?

Laura: Well, they are bound to follow her. She is their…essentially their commander in chief. But I have to say, I disagree to extent here with Mr. Dershowitz to what she’s saying, because remember, the Justice Department does have a role and that is also to preserve the credibility of the government in making any arguments in front of the courts. And one of the responsibilities of the DOJ is to ensure that it has that credibility going forward and that they have the backing to be able to say, to walk into any court, that what they’re defending and what they’re actively trying to enforce is a lawful, completely lawful act. And here, I think what she’s doing is not just making a political statement. What she’s doing is saying, “Because of the ambiguity in this executive order and because there are portions of it at least that may defy not only the Constitution, perhaps the Establishment Clause, perhaps the really not to discriminate against people for national origin, we cannot make a straight-faced argument in totality in a way that preserves the DOJ’s credibility going forward.” It’s a smart decision.

Anderson: Sorry, but don’t lawyers all the time make arguments based on what their clients believe, not necessarily what their personal beliefs are? Isn’t that how the legal system works?

Laura: Well, you know, that is the pessimistic view, of course, Anderson, of what lawyers do. But it’s true, they do make arguments but they have to be grounded in the law. And remember, one of the issues with this particular executive order is not just the morality portion. Forget the morality portion for a second. Legally speaking, there’s not clear guidance going forward on how to actually enforce the law and whether or not what they’re enforcing is consistent with other objectives. And namely, civil rights organizations talked about this, that we have a responsibility as DOJ attorneys not just to enforce blindly things that are unconstitutional or maybe. There is a responsibility that is higher than just trying to appease the client. And remember, the President is not the client of DOJ, the people are.

Anderson: Page, I understand you knew the acting Attorney General when she was a U.S. attorney in Atlanta. What can you tell us about her?

Page: I’ve known her for a long time, and the first thing that you need to know about Sally Yates is that she is not political. She’s been a career prosecutor for decades. She was an Assistant United States Attorney here in Atlanta. She became the number two in this office under both Republican and Democratic United States attorneys. And then she became deputy attorney general in Washington. She has never made decisions based on politics. She makes decisions based on what she believes is right and in consistent with the best policies of the Department of Justice. Now, I believe that this is something where we need some nuance, but nuance should have come before the executive order was ever issued. And at this point…

Professor Dershowitz: Agreed.

Page: I’m sorry?

Professor Dershowitz: I agree but she can’t respond to lack of nuance with lack of nuance. You don’t fight fire with fire.

Page: But it’s her responsibility as head of the Justice Department at this point to say, “I should have reviewed this. It should have gone in front of lawyers who are not just concerned with the letters that are in the executive order but what’s being said around it, the context, and more importantly, how it’s being implemented.” I think she sees a very serious constitutional problem and it’s her obligation to say something, because nobody else in that administration is.

Anderson: Professor Dershowitz…

Professor Dershowitz: Well, I think that’s right.

Anderson: I mean, how unusual is this? How uncharted waters are we in here?

Professor Dershowitz: Well, it’s very unusual. Usually, when somebody refuses to enforce the orders of the president, it involves a very, very clear case of unconstitutionality unlawfulness. She’s wrong when she says it’s the job of the Justice Department to make sure that what is happening is right, or I think also your other guest is wrong to preserve the integrity of the Justice Department and the credibility before the courts. That may be what they would like to see happen, but her job is to enforce the law unless it is clearly unconstitutional or clearly in violation of a statute. And this law doesn’t satisfy that very hard criterion or its respects. There may be parts of it that are constitutional. Let me give you an example. If you have people who are in Yemen, they’ve never been in the United States, they wanna come here, the President has plenary authority to deny them. We have a long history, a tragic history but a long history of denying people the ability to come to this country on political grounds, we don’t like their ideology, we kept them out if they were communists. That happens to be the law and the precedence. I wish that would change, but it’s not the job of the Attorney General to refuse to enforce a law based on her personal views that it’s bad policy. She can resign.

Page: Alan, this is not a normal law. This is an executive order signed by the President, that was not reviewed by the top level at the Justice Department. And it’s not just what’s in that order, it’s the process. And I think she has an obligation to make sure the process is followed and it clearly was not.

[crosstalk 00:07:39].

Laura: The Justice Department is not motivated by ego, Mr. Dershowitz. Their credibility they’re trying to maintain is a consistency of constitutionality throughout the land. And for the reasons you’ve just stated, that there are portions of it that can be parsed out as unconstitutional. They can’t very well enforce the piecemeal version that you’d like them to do so. They have to enforce in totality.

Professor Dershowitz: Why not? They do it all the time.

Laura: They do not, sir.

Professor Dershowitz: That’s just wrong. They do it all the time.

Laura: They do not. They…

Professor Dershowitz: You have executive orders… That’s just wrong. You have executive orders, and the courts enforce part of them and don’t enforce others of them. They’re severable, and the laws generally are written in ways that are severable. That’s very common.

Anderson: Let’s leave it with the professor here, for now. Page Pate, thank you, Laura Coates as well, Professor Alan Dershowitz. Always wanna bring in the panel. “The Daily Beast” met…

TRANSCRIPT:

Fredricka: Joining me right now CNN legal analyst and constitutional attorney, Page Pate. All right, so Page, what is there to that strategy that perhaps this is, you know, to taint public opinion, as much as it can with the, you know, bully pulpit that the White House has, to potentially avert any legal recourse on impeachment or otherwise?

Page: Well Fred, I think that’s exactly what they’re doing. They’ve decided they’re going to attack not the substance of the investigation, but the investigators themselves. And it’s a strategy you use if you’re concerned about what they’re going to find, if you think you’re gonna have to defend yourself, either in the court of public opinion, or in an actual trial court. I think here, Trump’s lawyers have decided, probably correctly, that the Special Counsel, no matter what he finds, is not going to try to indict the president, so this will all end up in a report that goes to the Deputy Attorney General, and eventually will go to Congress. And so the president and his team are basically saying, “We want half of America at least to think this is a corrupt investigation, it’s a rigged investigation,” as Giuliani said, to really undercut its credibility. I think that’s a bad strategy. I think the opposite strategy, to build up that credibility, and then if it finds you did nothing wrong, then trumpet that. But that’s not the approach they’re taking.

Fredricka: So former national security director Michael Hayden has his own theory about why the president’s going after the Justice Department, and this is what he had to say.

Michael: I think he’s simply trying to delegitimize the Mueller investigation, the FBI, the Department of Justice, and he’s willing to throw almost anything against the wall. Martha, this is part of a stream. Remember? Wiretapping Trump Tower, unmasking U.S. identities, FISA applications that were abused, and now we have this. By the way, all of those are wrong. All of those are incorrect. All of those are stunningly normal in the development of intelligence and law enforcement. But you know what? I talk to a lot of people in the country, and for a lot of people in the country, one or another or many of those things have already stuck.

Fredricka: So is the president winning, you know, in the court of public opinion, or does this potentially make the president or the White House look like there is something to hide and they’re working really hard [inaudible 00:02:08] do so?

Page: Well perhaps both. I think he is winning in a certain segment of the public, the segment that has always believed this was a witch hunt. They’re gonna believe it regardless of what Robert Mueller ends up determining as a result of the investigation. The rest of the public, the ones that really wanna see a credible investigation, I think this hurts the president’s chances of surviving a negative outcome of the investigation, because he’s making it appear to be all personal, and I think that’s a bad idea. Now, again as far as legally, I don’t think we’ll ever see this in a court, so the court of public opinion will be the ultimate jury here.

Fredricka: Hmm. And so if you are a member of the Mueller team, they have to be paying attention to everything that is said, just in case it leads them into a direction, but at the same time, is this not at all influential?

Page: I don’t think so. I mean, the one thing that Robert Mueller I think has done when he selected the people to be on his team is he got the right folks. These are career civil servants, prosecutors, investigators. They’re gonna focus on the ball. They’re gonna do their job. They’re gonna try to put blinders on, not pay attention to what’s being said in the public, unless, of course, it relates to obstruction, and part of the focus of the investigation, but we’ll see at the end of the day, I think, a credible report, and how the president responds to it, that remains to be seen.

Fredricka: Now, you’re not hearing from the White House counsel, but instead, we are hearing from the personal counsel attorney of the president, Rudy Giuliani. What does that say to you?

Page: Well, it says that the White House doesn’t want to get behind this narrative, I think, and perhaps they wanna have it both ways. “As the White House, we’re gonna sit here, let the investigation play out,” which would be the right strategy for the president, but at the same time, the president gets these folks like Giuliani, who’ll go on TV, undercut the investigation, the investigators themselves. They’re trying to have it both ways. And at the end of the day, I think the best strategy is to really support the credibility of the investigation and [inaudible 00:03:56].

Fredricka: How frustrating would that be for White House counsel? Choosing to remain silent, but then the president has his own outside counsel, who is being more than loquacious?

Page: It could be frustrating, or it could be a relief. You know, “I get to stick in my lane here. Let them deal with Mueller, let them deal with the public outcry of the investigation, let them deal with it when the president calls it a witch hunt. I’m just gonna focus on what’s on my desk.” So in some ways, maybe Don McGahn is happy that somebody else is taking [inaudible 00:04:22].

Fredricka: All right. Page Pate, thanks so much. Appreciate it.

Page: Thank you, Fred.