good to be back with you in this second hour of "chris jansing reports." ahead, the high intensity at times down right contentious hearing testing the limits of the first amendment, as a lawyer for donald trump fights a gag order in the federal election case. will trump's rhetoric win out or the risk to witnesses? we've got clues from inside the courtroom. developing overseas, israel releases footage it says shows hostages and a hamas tunnel at the hospital that's become a symbol of the war itself. and what we're learning about heavy fighting happening at another hospital in gaza. the 44,000 hours of footage from the january 6th attack being made public as one republican senator pushes yet another conspiracy theory about that day. we've got a fact check. and he's been dubbed the oppenheimer of our age. the truly wild shakeup involving the ai guru, who compares the scale of his work to the manhattan project. our nbc news reporters are following all of the latest developments. we begin with nbc's ken dilanian who's following the fight over a gag order for donald trump. talk about the heart of the two arguments, and do we have any idea when we might hear from the judges. >> this is about a clash of fundamental american values. the right of a presidential candidate to engage in free speech, and the right of a judge to prevent a criminal defendant from engaging in essentially jury tampering or witness tampering, and the question really is when do donald trump's attacks on the prosecutor and the witnesses in this case and the entire system of justice, when is that political speech, and when does it cross the line into something that a judge can prohibit with a gag order? there's an interesting exchange between former president trump's attorney and one of the judges that really illustrates what we're talking about here. take a listen. >> the phrase i believe the fifth circuit used in brown is absolute freedom. >> there is no balance. >> criminal speech obviously is a subject to restrictions but core political speech that's part of campaign speech -- >> i think that kind of labeling it core political speech begs the question of whether it is, in fact, political speech or whether it is political speech aimed at derailing or corrupting the criminal justice process. you can't simply label it that and conclude your balancing tests that way. >> what trump's lawyer was suggesting there, chris, is that only criminal threats would be the kind of thing that could be banned by a gag order. it did not appear that the three judges agreed with that, and a fair reading of what happened today is they appear poised to reinstate this gag order, though they may limit it further and tinker with some of the language. they did express concerns about the first amendment implications, and they should rule any day now or in the coming weeks. chris. ken dilanian, thank you, overseas, the idf is releasing footage claiming to shows a tunnel inside gaza's al shifa hospital. raf sanchez is reporting from tel aviv. nbc news cannot independently verify the video or that it shows what idf claims. what do we know about the situation at the hospital, and importantly, the negotiations we keep hearing about to feed the hostages? >> reporter: so, chris, starting at al shifa hospital, the israeli military over the weekend releasing what it says is cctv footage, showing two hostages being brought to the hospital in the hours after the attack on october 7th began. israel is pointing to this saying this is further evidence, hamas militants were using the largest hospital as an operational center. hamas is saying this is just proof that they were trying to care for the well being of the hostages, that they were trying to get them treated at this medical facility. they don't have a great answer right now to this footage that israel is releasing of what the idf says is a tunnel run by hamas, underneath the al shifa hospital. they say it is 10 meters deep, 55 meters long, and at the end of the 55 meters is a glass door with a firing hole. the israeli military hasn't gone beyond that door yet, but they say they expect it leads to other parts of this vast hamas tunnel network. now, chris, at a separate hospital in northern gaza, the indonesian hospital, israeli forces have surrounded this facility. the palestinian ministry of information says 12 patients have been killed inside of this hospital by israeli fire over the last 24 hours. this is all the way up in the north of the gaza strip. there are still patients. there are still tis placed people there. the israeli military is saying they returned fire after they were shot at from inside of the hospital, but they are denying that they shelled it. now, chris, here in israel, families of the hostages are daring to hope after president biden said a little while earlier that he believes israel and hamas are closing in on a deal to free their loved ones. we spoke a little earlier to yoni asher, his two young daughters, his wife and his mother-in-law are all being held hostage inside of gaza. he has had no information about any of them for 45 days, and i want you to take a listen to a little bit of our conversation. >> are you allowing yourself to be hopeful? >> i have to. this family has no other member but me. i am the father. if i would not be their voice, nobody will. so i have to. i have only one choice. when you have multiple choice, life is hard, but when you have only one choice, life is easy, so this is my only choice. >> referee: and, chris, prime minister benjamin netanyahu is actually meeting as we speak with the families of the hostages at the defense ministry here in tel aviv. sources telling nbc news, it does appear the two sides are getting closer to a deal, but cautioning that nothing is agreed until everything is agreed, chris. >> raf sanchez, thank you. let's go to capitol hill where a republican senator is facing criticism for pushing a january 6th conspiracy, just as new footage of the attack is made public. nbc's ryan reilly has the latest on the reporting. what is happening there? >> so essentially this all starts with one of the videos that was released under the speaker's order last week. one of the videos shows an individual walking out of the capitol as this riot is happening, and sort of quickly flashes his hands, and something is in his hands and some social media users took that and jumped to, oh, that's obviously a badge that's individually showing. oh, this is a fake who is doing this. this is an undercover officer, they suggested, posing as a maga supporter. it's someone named kevin lions. i knew that because i covered him in my bok and covered his sentencing hearing over the summer. he described himself as an iddon -- idiot. senator mike lee said he wanted to ask the fbi director about this conspiracy theory that he had just saw sort of pop up on x, and when i went to senator mike lee's office to ask more questions, they responded with a statement that didn't get to the heart of the issue, and so mike lee hasn't walked away from this yet, but raised yet another conspiracy theory that had been caught up in these videos from the very beginning. it comes at a time when far right blogs like the gateway pundit have been walking away from the conspiracy theory. but senator mike lee has not retracted it yet. >> ryan reilly, thank you for that fact check, much appreciated. the fired head of ai has been hired by microsoft in a move that's sent shock waves through the industry. this is wild. every seems like couple of hours something crazier comes out of this. what's going on? >> yeah, this story is changing hour by hour, chris. we know that on friday afternoon, the nonprofit board of open ai fired sam altman, the public face of generative ai, and the cofounder who helped create chatgpt. he was fired for reasons we don't understand. the board said it was back of a lack of open communication. we don't know specifically how or why he was fired. then over the weekend, various negotiations took place to try to bring him back as ceo, something that people inside the company were angling for, and then midnight, past midnight san francisco time last night, it was announced that he, in fact, is going to start a new job at microsoft, running an advanced research lab. at this hour, chris, more than 650 employees of open ai have signed an open letter calling for all of those board members who fired altman to resign, and to bring altman back. he has this new job. the big winner, chris, and i think this is really important which is microsoft, which had poured more than $13 billion into its partnership with open ai, was incredibly excited about the potential of just being shoulder to shoulder with them. suddenly, satya nadella, the ceo of microsoft gets to call sam altman, and the former chairman of the board and gets it essentially for nothing. it puts microsoft into the running alongside alphabet, meta, and other players in ai. suddenly he has his own lab run by the top people of ai and looks as if the internal people inside ai are threatening to join microsoft to do that. and, again here, chris, we don't know why he was initially fired. whatever it was, microsoft doesn't seem to be concerned about it. sam altman, the face of ai works for microsoft. this is changing hour by hour. we'll stay on it for you. >> keep us posted thank you. the gag order hearing, and whether they can be used to make his case. we're back in 60 seconds. can't stop adding stuff to your cart? get the bank of america customized cash rewards card, choose the online shopping category and earn 3% cash back. he hits his mark —center stage—and is crushed by a baby grand piano. you're replacing me? customize and save with liberty bibberty. he doesn't even have a mustache. only pay for what you need. ♪ liberty. liberty. liberty. liberty. ♪ . following what we'll call a lively series of arguments this morning over donald trump's gag order, we're in a holding pattern because we have to wait for the judges to decide whether the order will stand or not in the former president's federal election interference case. i want to bring in former u.s. attorney and msnbc legal analyst, joyce vance. i want to dig into the argument over what responsibility or ability the court has to proactively limit speech that might lead to violence, and i want to play a little part of what we heard. this is intentionally prophylactic, intentionally protective against harms that are to occur. in a distinctive context of protecting the integrity of a trial process, that can be sufficient interest for a suppression of speech. >> prophylactic in the sa lidty of the evidence shows an impending danger. we are nowhere near that in this case. >> what do you make of that argument, there has to be an imminent danger for the court to act, is that compelling? >> well, for one thing, imminent is in the eye of the beholder. given trump's history in this area and attacks on people like paul pelosi, you can say there's an imminent danger every time he engages in this sort of conduct, but, no, chris, the short answer is that's not the standard that the court is required to tow the line to here, and what happens in cases like this where the first amendment is implicated is that it's inherently an exercise in drawing lines. the judges will want to stay far back from the line that means any chance in infringing on trump's right to engage in political speech. that doesn't mean entitled to unfettered criticism of prosecutor. >> we want to go to the specifics about the nature of the threats that they were talking about. here's the defense that's followed by the prosecution. here are the arguments. >> the only threat they talk about in the brief is the shry decision. i strongly invite the court -- >> and a death threat to the district court judge in this case. >> right. that is the august 5th telephone call. southern district of texas -- >> the day after he said, if you come after me, i'm coming after you, that threat issued. >> i strongly encourage the court to pull both the probably cause statement and the detention order from that case where there's evidence that that particular threatener, there's no evidence of reading of social media. that particular threatener is unemployed, mentally unstable, heavy alcoholic who sits drinking all day, never leaves the department. watches the news on tv, gets angry about it, and makes angry threatening calls. >> numerous people have been targeted as a result of the defense's posts. i think there are 16 people documented in the record, eight of them are from the 2020, 2021 paid, which i believe judge garcia, as you noted is hardly some tangential time period to this case. this is exactly the core of what this case is abdomen, this -- about, the period after the election. we talked about the threat to judge chutkan, threats to the district attorney in new york, threats to the sheriff in fulton county. threats to the former president. these are all from the last weeks. so the notion that there was some dynamic that existed in 2020 that has since abated or gone stale i think is wrong. >> so the defense seems to be saying this is just somebody sitting on the couch making phone calls. the prosecution says, look, we have a ton of instances of people being targeted. so how do the judges from a legal standpoint determine what justifies a gag order in this extraordinary case unlike anything we have ever seen. >> right. the problem for trump's lawyers here is that their argument proves a little bit too much. it proves that there are people at the fringes who are motivated, let's say, by trump's comments, whether they read them on social media or whether they filter out into society. so the panel judges when they look at this based on the record, and appellate judges, by the way, don't consider anything that's out there in the news or the universe. they're constrained by what appears in front of them in the record what the parties have argued in the trial court below. that record reflects a number of instances where trump's words animated people to engage in violence or in the threat of violence. that's the record this panel has in front of them, and that does justify some form of restriction on trump's speech in the interests of public safety. >> joyce vance, always good to see you, my friend, thank you. coming up, why a huge number of young voters are breaking from president biden as he marks his 81st birthday. that's next. insiders are concerned that president biden's chances for reelection could be damaged by his unwavering support for israel but i think the bigger problem for biden is that he's 6 years older than israel. l. -dad, what's with your toenail? -oh, that...? i'm not sure... -it's a nail fungus infection. -...that's gross! -it's nothing, really... -it's contagious. you can even spread it to other people. -mom, come here! -don't worry about it. it'll go away on its own! -no, it won't go away on its own. it's an infection. you need a prescription. nail fungus is a contagious infection. at the first signs, show it to your doctor... ... and ask if jublia is right for you. jublia is a prescription medicine used to treat toenail fungus. its most common side effects include ingrown toenail, application site redness... ... itching, swelling, burning or stinging, blisters and pain. jublia is recognized by the apma. most commercially insured patients may pay as little as $0 copay. go to jubliarx.com now to get started. whenever you're hungry, there's a deal on the subway app. buy one footlong, get one 50% off in the subway app today. now that's a deal worth celebrating. man, what are you doing?! get it before it's gone on the subway app. ♪♪ it's pie season. and while you may have already picked up an apple pie, don't forget to grab pumpkin too. same goes for your fall vaccinations. you may have already been vaccinated against the flu this season, but don't forget to get an updated covid-19 shot, too. i told myself i was ok with my moderate to severe rheumatoid arthritis symptoms. with my psoriatic arthritis symptoms. but just ok isn't ok. and i was done settling. if you still have symptoms after a tnf blocker like humira or enbrel, rinvoq is different and may help. rinvoq is a once-daily pill that can rapidly relieve joint pain, stiffness, and swelling in ra and psa. relieve fatigue for some... and stop joint damage. and in psa, can leave skin clear or almost clear. rinvoq can lower your ability to fight infections, including tb. serious infections and blood clots, some fatal; cancers, including lymphoma and skin; heart attack, stroke, and gi tears occurred. people 50 and older with a heart disease risk factor have an increased risk of death. serious allergic reactions can occur. tell your doctor if you are or may become pregnant. done settling? ask your rheumatologist for rinvoq. and take back what's yours. abbvie could help you save. in order for small businesses to thrive, and ta they need to beours. smart, efficient, savvy. making the most of every opportunity. that's why comcast business is introducing the small business bonus. for a limited time you can get up to a $1000 prepaid card with qualifying internet. yep, $1000. so switch to business internet from the company with the largest fastest reliable network and that powers more businesses than anyone else. learn how you can get $1000 back for your business today. comcast business. powering possibilities. let's than two months into the israel-hamas war, a brand new nbc news poll shows it's having a dramatic impact on president biden's standing with voters, particularly young voters. a strong majority, 70% of 18 to 34-year-olds say they disapprove of biden's response to the conflict. nbc national political correspondent steve kornacki is at the big board. also joining us, robert gibbs, former white house press secretary under president obama and an msnbc political analyst. how much impact does the polling show the war is having on biden, and what are the other issues dragging his approval down? >> there are a bunch of issues we have seen all year that have brought his approval rating down. 40% is his approval rating. lowest we have measured of his presidency. in this particular poll, our last one in september, just a couple of weeks before the events of october 7th, before the israel, hamas war, the biggest single issue in the poll that seems to be affecting biden is that war between israel and hamas. take a look at at this way, overall it is 44-46 trump. we have polled this 16 times, biden versus trump. this is the first time in all of those 16 times that trump has led in our poll. you ask about the ingredients that go into that, looking at the issue of the israel-hamas war, do you approve or disapprove of how biden is handling it. a third of voters say they approve of how biden is handling this war. check this out, the gap, the generation gap on this question is massive, enormous, i can't come up with a word big enough for it. i'll show you, among the oldest voters, 65 plus. 53% of the majority approval of the handling. 41% disapprove. he's in pretty good shape on the this question, plus 12 among seniors. the youngest voters, 18 to 24, as you mentioned, 20 approve. 70 disapprove. that's a 62 point net swing on this question between the youngest voters and the oldest voters of how biden is handling the israel-hamas war. it's interesting, you take a look here, when we polled just, i would look at the 18 to 34-year-olds in the poll. we have trump actually ahead by 4 points right now. a little bit of a margin of error here as a sub sample of the entire poll. there have been a number of other reputable polls over the last month or so that have shown a similar result to this. and i think part of the ingredient might be this. when you look closely at those voters