Panel of the ninth Circuit Court of appeals on whether a district judges temporary restraining order of trumps travel ban will remain in effect as this case works its way through the legal system. The decision could be handed down at any moment and if the temporary restraining order is lifted, that would allow the Trump Administration to reinstate its travel ban immediately. Lawyers representing the state of washington, who are victorious last friday before a lower court argued through its solicitor general that there could be an irreparable harm if the Trump Administrations travel ban went back into effect. We had students and faculty in our State University who are stranded overseas, we had pham families that were separated, we had long time residents who could not travel overseas to visit their family. We have lost tax revenue. The Justice Departments special counsel arguing on behalf of the Trump Administration was asked repeatedly if the administration had shown any evidence of federal offenses in the United States committed by people from the seven affected countries. The Justice Department still had not presented any hard evidence but the special counsel tried to offer this. Well, i was just about to at least mention a few examples. There have been a number of people from somalia connected to al shabab who have been convicted in the United States. Is that in the record . Can you point us to where in the record youre referring . It is not in the record. Joining me now is ari melber, msnbc chief legal correspondent. Ari, its difficult as a layperson to listen to these hearings and get a sense of whether one side or the other got the better of the argument. Yourself as a lawyer when you listen to it, did it seem that one side had an argument that seemed to draw more of those judges affirmation . On the lawyering meaning how good a job they did the doj had a harder time. There were times they couldnt answer the question, there were times where they made assertions that werent in the record, the evidence wasnt put before the court. This is an appeals hearing which means if its not in the lower record generally its not going to be used to make the decision, at least technically speaking. So they had a harder time. They still have a lot of president and law on their sides because as we emphasized in our reporting, theres a huge amount of president ial power in the immigration context. I thought the Washington Attorney general side represented by the solicitor general, they made a lot of strong points and in the beginning it was a big discussion and debate over standing, can you even bring this case. And what Washington State is saying backed up by 97 plus companies is, sure, this harms our economy, it harms the people who work here, it harms the people who live here, it harms people who have families here. Even the judge in boston who ruled for the Trump Administration recognized that in basically saying we are a nation with a rich immigrant history we are interconnected and the pain that comes in breaking up families is severe. In other words, even judges skeptical of this have found that to be a strong case. Does the government does the Trump Administration have to prove that this was not, per se, a muslim ban . That did seem to come up. There were even questions about whether there had been evidence submitted, previous articles or previous quotations from the president from Rudy Giuliani, his adviser and friend, saying it was a muslim ban. Do they have to prove its not per se a muslim ban to prevail . Great question. This came up in two ways in the hearing. First it came up over whether this is even reviewable, thats just legal jargon for do you get into court or not . There are certain things, by the way, the president does, drone attacks being an example, where the courts dont consider that reviewable in the normal course. You could imagine a bad faith use of drones that might make it to court but generally no. So what doj is arguing is this isnt reviewable, you dont get to the look at this. And the judges were what incredulous in their own judgy way were saying well, what would we get to look at this . What if this were a muslim ban . Would we get in to review that and they got a concession from trumps doj that basically said if that were the case, yes, but we continue to maintain its not so thats on getting in the door. Once youre in court, the second way it came up was, of course, rudy. Rudy might be the card carrying member of the aclu that we never knew about because he has helped the challenge, the aclu challenge, his challenge, his comments were brought up friday in the seattle courtroom and brought up again tonight basically as evidence, public evidence, that there is an effort to discriminate against muslims, the challengers say, and that Donald Trumps senior advisers basically took that goal and then found a way to sort of whitewash it for lack of a better term through some legal jargon, some lifts on the books and thats what is going on. So i dont know whether their conversations between Rudy Giuliani and President Trump and the doenl but its such a key part of this because the question here is, is this a lawful use of the authority you have or are you taking an authority you might otherwise have . Yes, you can suspend immigration all sorts of ways but youve done it the wrong way. Me thinks the former mayor might have said too much because hes becoming an issue in this case. Ari melber, you are going to be sitting in for Lawrence Odonnell in the last word and i understand you have the Washington Attorney general bob ferguson on tonight. It will be his first interview since tonights hearing. Excellent, well all tune into that. Thank you, ari, appreciate it. Joining me now is the executive director of Muslim Advocates and former counsel to the Senate Judiciary committee. Thank you very much for being here. Lets talk about whether or not the Trump Administration in your view in this hearing managed to convince, in your view, managed to make a convincing case that this was just part of president ial discretion and it was not per se a muslim ban because it didnt apply to every muslim in every country around the world. Well, good evening, joy, and thanks for having me. Let me first say that today was a good day for democracy regardless of the outcome of this case and i know the judges said they wouldnt be ruling today but they will be ruling very soon. And the reason i say that is because i think during the hearing it became very clear that the government judges were not going to defer to the president when it comes to matters of immigration in this context. It seems like they were quite dismissive of that. Thats crucially important because of whats at stake here for peoples lives and because, unfortunately, we have a president who seems to think that he can run the United States like he has his own personal business and and not be accountable to anyone. One of the arguments that was interesting, one of the questions posed by one of the i think he was a george w. Bush appointee was whether or not the fact that the government can make specific policy about, lets say, cuba or north korea, and make countryspecific policy, does that not permit the Trump Administration to make countries specific policy and just pick these seven countries . So i think this your question, joy, gets to the question of when courts are reviewing a president s decision what should be the standard for that review and i think there are two crucial things here. One is a president s decision should be rooted in the facts, it should have a rational basis and it can not be discriminatory. And in both regards the judges certainly displayed a lot of cynicism and i think broadly from the pleadings that were submitted there was a lot of concern about whether this truly was a rationally based policy. Especially after it was just one week after the president was inaugurated and its clear this policy was created basically by steve bannon and a small group of people immediately around the president , there was not a process with key cabinet officials and agencies, in fact, theres a report that Homeland Security secretary kelly was being asked for his input on the order as the president was signing the order. Does the fact that donald trump during the Campaign Said that he was calling for a total and complete shutdown of muslims entering the United States until our countrys representatives can figure out what the hell is going on, the fact that Rudy Giuliani did call it a muslim ban and said that trump called him up and asked how to make it legal, will that wind up being in your view a big factor in how this decision comes down . I think thats going to be a big factor, joy. The reason is because context matters. Its clear the judges are going beyond just reading the literal words on that executive order and they understand theres a context involved here and that includes the president calling repeatedly for a muslim ban and for those people around him, especially steve bannon who had a heavy roll in this policy and his long record of antimuslim an misso thats clear that thats part of the courts consideration. Farhana khera, thank you so much for joining us. Thank you for having me. Joining me now, senator jeff merkley of oregon. I want to play for the audience some town were talking about. Were talking about what trump has said in the past. Lets listen to donald trump during the campaign talking about what he wanted to do regarding a muslim ban. Donald j. Trump is calling for a total and complete shutdown of muslims entering the United States until our countrys representatives can figure out what the hell is going on. On capitol hill while the political reports suggests there was some confusion as to when this executive order was coming down and what would be in it, is there any doubt among senators such as yourself that this was intended to be a muslim ban . None at all. Not at all. Everything President Trump said during the campaign was about a muslim ban. Everything that steve bannon pursued was a muslim ban, Rudy Giuliani called it correctly and its not rooted in the facts of National Security. The individuals from the seven countries have not conducted fatal attacks inside the United States while others from countries that were not included have been involved in terrorist attacks, fatal terrorist attacks inside the United States. So its not rooted in the facts and it has a discriminatory element. It flows right out of the campaign. Its a pretty clear picture. I want to play you a little of the Homeland Security secretary john kelly today testifying before congress about what in his view he should have done differently regarding his executive order. Take a listen. In retrospect i should have this is all on me, by the way i should have delayed it just a bit so that i could talk to members of congress, particularly the leadership of committees like this to prepare them for what was coming. Senator, do you buy that, that the fault lies with Homeland Security secretary kelly . Well, no, he came into this picture a long ways into it after the Political Team crafted it. I did think it was appropriate for him to say, yes, vird consulted. He also should have consulted lawyers, National Security specialists and pursued this from a policy foundation about National Security, not a Campaign Strategy of conducting a muslim ban. I want to just for a moment the producer is letting me know donald trump is live tweeting his thoughts and he sent out this tweet regarding your body of government. He says it is a disgrace that my full cabinet is not in place, the longest such delay in the history of our country. Obstruction by democrats. We do know there was a 5050 vote to barely get betsy devos in, what do you make that . Hamiltons charge for the role of the senate in terms of advice and content was to determine if a nominee from the president was of fit character. Well, many of these candidates are not of fit character, theyre not submitting their forms on time, they have complex lives, theyve gone over the bounds in a number of ways, they dont have the experience appropriate to the office or they want to tear down the institution that theyre being nominated to run. I messaged back to the president a point capable individuals who understand the mission of the departments and youll get a much easier process in the confirmation of the nominees. Are democrats going to stay united . That includes your red state colleagues, people like john tester, heidi heitkamp, joe mansion . Every senator is a force unto him or herself but i think in large speaking largely and not about any one specific individual, theres a profound understanding that theres a lot of problems with these nominees, its different with each specific case that comes before us but look at scott pruitt who will be coming before the senate just 140r9ly or tom price, scott pruitt who wants to tear down the epa and has voted against things that save children lives. Tom price, its been reviewed on the program so much, these are deeply flawed individuals. And very quickly, are you going to filibuster the Supreme Court nominee, mr. Gorsuch . 60 vote standard. Its what obamas team met with his nominees and its absolutely what the nominees should meet coming from President Trump. And youre not worried about a Nuclear Option on the part of your colleagues across the isle . Well, theres already been a Nuclear Option and thats when the republican majority decided to steal the Supreme Court seat from president obama and deliver it to President Trump. Unprecedented in our history, deeply jeopardizes the integrity of the Supreme Court. Sets a precedent that will cause problems for decades to come so im concerned about the entire process and i hope my senators across the aisle decide theyre going to defend and fight for our key institutions in america instead of tearing them down. Senator jeff merkley, thank you for your time, sir, appreciate it. Youre welcome. Still ahead, the white house message to america amounts to be afraid, be very afraid. Well discuss the campaign of fear after this twominute break. The crime and the gangs and the drugs that have stolen too many lives and robbed our country of so much unrealized potential, this american carnage stops right here and stops right now. President Trumps Campaign i should say President Trumps president ial campaign, now his presidency, have been built largely around one overarching theme the world is terrifying, you should be afraid and only i can save you. Its not morning in america, its midnight and theres not a light to be seen. Yesterday the president suggested, absurdly, by the way, that the media ignores terrorist attacks to further an agenda and then the white house released a list of supposedly undercovered attack to back him up. Only many of the incidents that were on the list which included, for example, the 2015 mass shooting in san bernardino, california, were, in fact, widely covered. It should also be noted that the white house list did not include attacks on u. S. Soil perpetrated by nonmuslims and people not aligned with isis, despite the fact that a 2015 study found that since the 9 11 attacks, white right wing terrorists have killed almost twice as Many Americans in homegrown attacks than radical islamists have. Asked about their list of allegedly undercovered terrorist attacks, today the White House PressSecretary Sean Spicer said the Trump Administration needs to remind americans to be frightened. I think what we need to do is to remind people that the earth is a very dangerous place these days, that isis is trying to do us harm and this the president s commitment is to keep this country safe and i think part of this is to make sure the American People are reminded how prevalent some of these attacks are and how much time and attention they have or have not gotten. At a listening session with sheriffs today, trump himself echoed that idea and argued the legal fight over his travel ban is putting americans at risk of an attack. This is a very dangerous period of time while because everybodys talking and dealing, a lot of bad people are thinking about, hey, lets go in right now. Joining me now, sam seder, host of the majority report and david jolly, former republican congressman from florida. David, the earth is a very dangerous place, first of all. Second of all, this sounds and feels familiar, this idea of the federal government, of the administration scaring the bejesus of everybody saying you should be terrified all the time. I want to play one dick cheney on september 7, 2004, talking about the stakes in the 2004 election. Take a listen. Its absolutely essential that eight weeks fr