of a hearing in d. v. that will decide whether a judge's gag order against donald trump should stand. it was a fiery morning in court torques say the least. with raised voices and hours of heated debate. that may give us some clues about their decision, one that could change trump's court cases and his campaign. plus, a second hospital now in the line of fire in gaza, even as israeli forces rescue some of the most vulnerable patients from al shifa, heavy fighting erupts at another medical facility. the israeli military is justifying its actions by claiming terrorists fired first from inside that hospital. the political gut punch from a new nbc news poll, president biden's approval rating falling to the lowest level of his presidency, his numbers crushed by democrats, especially young democrats who are at odds with his stance on the israel-hamas war. pollsters calling it a political stunner. so what can the president do about it? we begin with the hugely consequential case in d.c. what judges described as the test to balance two of the country's core constitutional values against each other, the fair administration of justice and the rights presidential candidate who wants to stretch the limits of the first amendment. the court of appeals hearing arguments regarding a gag order with donald trump's election interference case. the judges went toe to toe with the president's former attorney questioning him for an hour longer than expected and pressing him repeatedly on whether there should be any limits on what trump can and can't say. >> i don't hear you giving any weight at all to the interest in a fair trial. am i right that you don't, that simply because the defendant is a presidential candidate and he wants to speak on anything he wants to speak and he basically indiscriminately wants to post on social media, that there can be no restraint of his speech because any restraint, no matter how tight an axis to protecting a fair trial is overcome by his campaign interest? >> two things in response to that question. one is the speech at issue and the criminal trial are deeply intertwined. the other thing is the statement in the brown decision that talks about absolute freedom. >> so your answer is there is no work that the interest in a fair trial can per missbly do in this situation that could meet the speech standard you would apply? >> i wouldn't put it that way. i would say the showing would have to be extraordinarily compelling. >> on the other side, the spouse's legal team with jack smith following from the front row challenged on whether they were leaving space for former president trump's first amendment rights. >> i asked them about balance for protecting the criminal process. i'm asking your position, which doesn't seem to give much balance at all to the first amendment's vigorous protection of political speech. >> our position, your honor, is not that these statements in a vacuum are unprotected. it's that genteel pre supposes that the restricted language is protected, that cuss political speech directed towards the government. nevertheless, it cub prescribed if there's a substantial likelihood of substantial prejudice to the proceedings. >> i want to bring in msnbc legal analyst glenn kirschner who was in the courtroom. carol leonnig is an msnbc contributor. paul butler is a former federal prosecutors, georgetown law professor and msnbc legal analyst and matthew dowd an msnbc senior political analyst. glenn, since you were in there, give me your big picture sense of how the two sides made their arguments and how they were received by those judges. >> you said in your lead-in, chris, it was animated and voices were raised. i'll tell you, judge millett in particular got very animated. i think it's fair to say she got fairly loud at times when she was pushing donald trump's lawyer, john sauer, trying to get him to answer her hypothetical questions, and he really refused to do it. he wouldn't budge an inch. the other thing that i think was really interesting, this felt like a legal argument that was trying to find its footing in the day and age of the internet, when they're talking about how donald trump is prohibited from communicating with witnesses except in the presence of his counsel, but then the judges started posing these hypotheticals, like, okay, donald trump can't call a witness and say patriots don't cooperate with prosecutors. let's tweet the hypothetical. what about if that witness is in the audience and donald trump is at a rally and he says, patriots don't cooperate with prosecutors. does that constitute communicating with the witness such that it would be a violation of a condition of release. they took it one step further. when he posts something on social media that says hypothetically patriots don't cooperate with prosecutors, isn't that him communicating with everybody including the witnesses which is one of the prohibitions. it was spirited on both sides. the junls were very critical, even skeptical of donald trump's lawyers. they seem to be equally critical and skeptical of some of the lines that the prosecutors were trying to draw between what is prohibited speech under the gag order and what is not prohibited speech under the gag order. >> paul, let's dig a little deeper into the defense attorney's argument. the judges were trying to figure out where the line is, where the kind of speech that prosecutors say amounts to a threat should be allowed. one judge posed the hypothetical that if trump called up a witness and essentially said loyal patriots don't talk to the government, would that be problematic. here is the rest of your question. >> if he does it over the phone to the prospective witness you said first amendment prohibits it. if he says it with a megaphone, knowing the witness is in the audience. >> likely the same scenario. >> if he does it on social media knowing that person is a social media follower of his. >> again, i think you're getting further afield. >> there's the question, paul. where is the line? how do you determine it? is it an implied threat on social media and is it fundamentally different, something that might be made in a call or one-to-one. what's your takeaway? >> chris, legally this is great stuff. there's never been issues like this before courts. previous gag order cases have been about lawyers or reporters, not defendant. of course, no case has been about a leading presidential candidate charged with 91 felonies. yeah. trump's lawyers are emphasizing the first amendment issues, and the special counsel is focusing on the specific danger that donald trump represents. as we heard, no criminal defendant in u.s. history has the megaphone that trump has. the special counsel says not only does trump have the power to insight millions, that's exactly what he did on january 6th, and that's why his speech needs to be curtailed in this case. chris, i predict the court will probably uphold the gag order, but impose some limitations. so trump might be allowed to attack public figures like jack smith. the appeals court also might let trump post on social media about potential witnesses as long as his comments don't relate to their trial testimony. >> so many unique things about this, glenn, but the most unique, of course, is that it's happening in the middle of a presidential campaign. at another point the judges challenged trump's attorney on one of trump's main complaints, that it's unfair to impose a gag order in the middle of when he's running for president. here is that. >> would this position be any different if it were a year ago, just a year ago. much further removed from a political campaign? would your position be the same or different? >> certainly a year ago we would still be in the midst of a political campaign. >> why are we not in a political campaign? >> hypothetical. >> if it was a year ago. if it was last november. >> at a time when he was not a presidential candidate -- >> certainly still engaged in political speech. >> absolutely. >> would your position be any different a year ago? >> i think a gag order would still be unconstitutional. >> would you position be any different? >> i don't see how it would. >> so the fact that we have a campaign going on does not matter, what happens to you is -- this is still political speech which gets very high protection, no doubt. >> as i was listening to that, i thought where does he really stand. he seemed to admit the idea that the idea of a campaign doesn't matter, but that trump has a right to core political speech. can you explain what you heard and why it matters? >> here is how i explain it. he wasn't going to give an inch, chris, even when the judge pushed him to a place where he probably should have said, you know what, there might be a different standard that could be applied if he was not a candidate for president. he fell back on, listen, core political speech i guess because donald trump is a political person, so it doesn't matter if she's running for office or not. here is what the court followed up with. i thought this was a really compelling moment when he said, listen, there was a clear pattern -- that was the language the judge used -- of donald trump issuing statements and witness threats following. they said isn't there an accepted principle in the law that we should apply that people intend the natural and probable consequences of their actions. what they were getting to, chris, if you're not going to answer our hypotheticals and give us some alternative to apply, we are going to conclude that donald trump's speech cannot possibly be unrestrained because we have an obligation to preserve the due administration of justice and to protect people against these natural and probable consequences of donald trump criticizing sometimes viciously witnesses, court staff, prosecutors and others. >> so carol, i think for a long time the public provided a kind of guardrail. if you said something that seemed to be outside the generally accepted norms, you paid a political price. that went out the window, right, with donald trump. one of your colleagues at the post wrote this, quote, trump's coarseness and cruelty have come to define the republican party since his rise to the presidency. many gop voters relish and emulate the approach. talk about what you've seen in your time just as a reporter about how the culture has changed in terms of what is considered core political speech or acceptable political speech. >> well, i mean, there are so many examples, chris. i'm going to give you a tiny potpourri of them. let's start with 2016, donald trump's campaign for presidency where he solicited members at a rally in kentucky to shove and push and basically throw out of the rally stadium a black woman who had come to protest and exercise her first amendment rights to protest some of his campaign philosopies and platform. he said get her out of here, get him out of here, i'll pay your legal bills if you get into trouble. that's one. now let's go to his presidency, chris. i that's tate to say this word, but he's use sod many epithets when speaking to important diplomats, when speaking in the oval office. he referred to a series of african countries, as our colleagues at the post reported, as s-hole countries. pretty horrendous language to use about, okay, maybe countries that aren't equal to the united states in power and gdp, but still many of them allies of ours and important parts of the world that we have to show some respect for. instead they were s-hole countries according to donald trump. and then on the political speech front, as he roars into the campaign, what i find so striking having covered federal court and having covered glenn kirschner's trial, there's a new standard for what essentially he is arguing is fair. honestly, threatening witnesses usually adds to jail time to a defendant's sentence if they are convicted. threatening witnesses is an additional criminal conduct for which someone can get a more serious prison sentence. i'll just remind you guys of roger stone. he was a close ally of donald trump's, has been for many, many years. in that same federal courthouse, he was accused of basically making threatening comments to a witness who could basically give testimony that roger stone had lied about contacts with wikileaks and the hacked emails that could have shown russian interference in the election to help donald trump. and he also posted a visual image of crosshairs over the face or next to the face of the judge who was presiding over his sentencing. sort of a stunning thing that i have never seen happen in federal court. i've seen drug -- gangsters, drug cartel leaders say epithets in court, angry at some witness testimony. i've never seen them post pictures of imagery about shooting a judge. >> so go back, if you will, matthew, to 2004, and the campaign where you were a senior adviser. when you look at any of those things that carol just talked about, including s-hole countries, can you imaine a world in which in 2004, so many things that have either gone unremarked on or have actually helped donald trump would not have been a campaign ender just 19 years ago? >> i can count probably -- and carol can probably will concede to this. i can count maybe 107 campaign enders that donald trump has done in the course of this time that would have ended a campaign in 2004. people recall that vice president cheney made an aside about a reporter, and it became a controversy for days, that he ended up having to apologize for, some aside that he made a comment about a reporter, that that was a controversy in 2004. i think we're at the point in time where sort of any framework on genteel or respectful or political speech has been abandoned by the republican party to a large degree. i hope democrats don't just sort of think this is new ground and conduct themselves the same way. i actually think that would be dumb from a political standpoint. donald trump has reset the map on some many different things in the course of how a political campaign is run. he's completely undisciplined. he says whatever he wants, even if it's the most egregious things in times past. he seems to survive and actually see some success in this. i would say one thing about this gag order about donald trump and how it relates to speech of donald trump. i if i were a campaign person for donald trump, i would hope the gag order is imposed. i actually think donald trump benefits from a gag order in that he becomes in some ways a little bit more disciplined which i think would be helpful. people forget the most successful time for donald trump was in the last 60 days of the election in 2016. he was behind up until that point. he became more disciplined. the campaign exercised more discipline and that's actually when he succeeded. among republican primary voters which he seems to have a 40-point lead, they seem to love the outrageous and the coarseness and crudeness of his speech, i don't know if it's helpful for independent voters, but definitely among the republican base. if he's crude, they like it. >> glenn kirschner, carol leonnig, thank you very much. matthew dowd, you're sticking around. heavy fighting around another hospital in northern gaza and the latest progress on a possible deal to bring a number of hostages home. that's in 60 seconds. but even after all this time your thyroid eye disease could still change. restoration is still possible. learn how you could give your eyes a fresh start at tedhelp.com. the new subway mvp rewards earns you points for every order. this mvp uses it for free subs. you can use your points for anything. like free cookies. whoa, peyton. what — i'm not playing anymore. join now and get a free cookie when you buy a sub. ♪ shelves. shelves smart enough to see, sense, react, restock. so caramel swirl is always there for the taking. heavy fighting has broken out around another major hospital. eyewitnesss and palestinian health officials have been reporting the sound of gunfire in the vicinity of the indonesian hospital. the gaza ministry of health, an agency run by hamas, says the israeli occupation forces put thousands of displaced persons in the circle of death. this new line of attack, the idf released more footage of what they say is a hamas tunnel at the medical complex. nbc news hasn't been able to verify that there's a secret terrorist command center underneath the hospital. there is also some good news today, more than two dozen premature babies evacuated have successfully arrived in egypt for medical care out of an active war zone. president biden just gave us a short, but we hope hopeful answer that they're getting closer to a deal to bring a number of hostages home. >> is a hostage deal near? >> i believe so. >> you believe so? >> yes. >> how soon? >> nbc's erin mclaughlin is in tel aviv. we talked last week about what was going on at al shifa. now we're seeing fighting around the indonesian hospital. what's happening there? >> reporter: that's right, chris. indonesian hospital in the northern gaza area. according to the palestinian health authority, it was bombarded this morning by israeli forces. they hit the second floor of the indonesian hospital which is the floor where they're taking care of patients. they say the hospital is besieged, surrounded by snipers. now, the israeli military telling a very different story, claiming that hamas militants fired from the hospital towards the military. let's pull up the idf statement. they said the following: overnight trifrts opened fire within the indonesian hospital in gaza toward idf troops operating outside the hospital. in response idf troops directly targeted the specific source of enemy fire. no shells were fired towards the hospital, but i was speaking to a w.h.o. official earlier today and he was telling me medical staff within the indonesian hospital have officially requested to be evacuated from the world health organization. that request in addition to the al shifa hospital. that evacuation under way. the w.h.o. tells me they're working the urgently evacuate. according to the official, 24 hospitals in garza, take a listen to what another w.h.o. official had to say earlier this morning. >> when many of those hospitals are non-functioning. the indonesian hospital was partially functioning until this morning. we don't know its current status in terms of whether it's accepting -- >> reporter: all of these patients are having to be evacuated south of the wadi gaza hospital. his real concern is as the israeli military. what can happen to the remaining functioning hospitals, there the israeli military contends that many of these hospitals are being exploited by hamas. >> erin mclaughlin, i want to bring in aaron david miller, a carnegie endowment for international peace and former israeli negotiator. good to have you back on the program. i want to play for you what white house security adviser john intoer told kristen welker about a possible deal on the hostages. >> we are closer than we've been in quite some time to getting this deal done. >> in an incredibly complex negotiation like this one, what counts as closer? can you interpret those words for us? >> chris, first of all, thanks for having me. in middle east negotiations, and these are extraordinary negotiations, indirect proximity talks, maybe in the same building, maybe not, with the qataris acting as intermediary. there are only two speeds, slow and slower. it's not surprising given the stakes here that both sides, hamas and the israelis have demands and requirements. i think it's fine to put out encouraging notes, but this is the third or fourth reference the administration has made to the prospects of an imminent deal. i understand that they want this, for moral and ethical reasons and the safety and security of those hostages and their families, for sure t