>> hey, everyone, it is 4:00 in new york. the question of when donald trump's rhetoric crosses the line was a subject of a bit of a lips as pivotal court hearing. prosecutors and attorneys met in front of a three-judge panel in the u.s. court of appeal for a d.c. circuit for oral arguments. the substance was the validity of a gag order imposed on the ex-president that limits what donald trump can say in public about prosecutors, witnesses, and court staff. the heart of arguments, how do you balance the first amendment rights of a defendant who was also a former president and front runner with the need to protect prosecutors, witnesses, and prevent the railing of the justice system? trump's attorney was grilled by the judges for more than an hour, judges pushed back, that they had no right to step in with a gag order. >> essentially what they are finding is we have a past pattern when the defendant speaks on this subject, threats follow. now he's making similar statements again where months out from the trial. this is protectively going to intensify as well as the threats. why is the district court justified in taking a proactive measure not waiting for more and more threats to actively occur, and stepping in to protect the integrity of the trial? >> the pile also did not -- panel did not bide donald trump as a presidential candidate, there are no restraints to what he says in public. >> i don't hear you give any weight at all to the interest of a fair trial, am i right that you don't, simply because the defendant is a presidential candidate and he wants to speak on anything he wants to speak. he basically indiscriminately wants to post on social media, that there can be no restraint of his speech. any restraint, no matter how tight is excess protecting affair trial is overcome by campaign interest. >> speech at issue and criminal trial are deeply intertwined. >> the special counsel team did not get off either with jack smith in the courtroom, they defended the gag order and set a trump's quote well- established practice going after anyone he deems as in his way is a quote significant and immediate risk to the fairness and integrity of these proceedings. the judges pushed back on the scope of the gag order, the ruling is expected in the coming days but is likely to be another legal battle that can sooner or later wind up before the supreme court. that's where we start today with former u.s. assistant attorney, he was inside the courtroom for today's hearing. former chairman at the rnc, michael steele is with us at the table. nbc legal analyst lisa ruben. you were in the courtroom today, what do you make of the judges line of questioning? >> alicea, we that we would be there for a 40 minute argument for two hours and 20 minutes, we came out. i will tell you, it was a spirited discussion. the judges did not let either party off easily, they had very pointed questions, they seemed skeptical of donald trump's lawyer and the lawyer from jack smith's team. i can pretty much sum up what john sauer, donald trump's lawyer argued and maintained throughout his argument. he basically said because everything donald trump says and post is in his words core political speech, there can be no prior restraint. there can be no gag order on -- unless donald trump speech is directly threatening of a witness such that it would violate the federal law section 1512 witness tampering. the judges were having none of it, you just played a clip from judge garcia saying something that the other judge said. let me quote her, there is a clear pattern of donald trump issuing statements and witness threats following, then she pointed to what she said is the accepted principle of law that people intend the national and probable consequences of their actions. it was pretty clear they were not going to let donald trump get away with his code of talking. they were going to likely find there was some balance to be struck in favor of restraining, perhaps very narrowly some of what donald trump is permitted to say and post about, witnesses and perhaps about court staff. you got a little dicier when it came to the questioning that they had for the prosecution's attorney about well, why can't they talk about not only jack smith but members of the prosecution team if donald trump's assertion is that this is a political prosecution, why should they be prohibited from talking about not only jack smith but other prosecutors, and naming them? it was spirited on both sides and i will tell you, i walked out of there not knowing or being confident of precisely what these three court judges may end up ruling. >> talk this through the factors at play, what it is the judges are trying to weigh. one is the first amendment right, two political speech, the other is a constitutional right which impacts the integrity of the justice process. when they expect versus express concern for the safety of jurors, they are concerned as people. their safety and security is secondary to the right constitutionally to have a fair trial. can you have a fair trial if witnesses and jurors feel intimidated or of jurors get the wrong perception of particular witnesses because donald trump day in and day out is posting about them? the judges are trying to calibrate that balance. i agree with glenn, while they are likely to uphold some form of gag order or signal their approval for one. it's not going to be the form it was issued in, it will be a narrower one. >> let's talk about the way it could be narrowed, there seems to be a lot of questioning today , something general millie, former vice president mike pence . versus people who may not have that same type of public platform. how that impacts testimony, that public person, not public person as potentially being one of the ways the judges use to continue to refine this gag order. >> you are exactly right because that was a subject of debate and discussion, a very pointed questioning when it came to jack smith and his team and the arguments they were making, the judges said listen, if bill barr, a public figure holds a press conference and says donald trump lied about x, y, and z, should he be free to respond with and i'm going to use the language of the hypothetical let one of the judges posed that he is a quote slimy liar, then the discussion actually i'm going to use the word evolved into a debate of whether bill barr accuses donald trump of being a liar, can donald trump call bill barr a liar? i think that prompted perhaps the only chuckle in the courtroom when the attorney for jack smith said perhaps he could say he is an untruthful person but not a liar. i'm not quite sure what the distinction is, you're exactly right. they had posts about public figures, isn't it only fair like public figures, bill barr, millie and others will make accusations against donald trump setting aside who is telling the truth and who is not, should it donald trump respond? i think they were trying to distinguish public figures from the witnesses in the case in the court staff who the judges said does he really have a right to start naming or as he did in new york, post a picture of a court clerk so it does seem like they will have to engage in some line drawing and give some direction back to the trial court judge about the constitutional do's and don'ts of a permissible gag order. >> let's talk about political speech, a gag order can serve as a prophylactic to prevent threats. what does it say that this is the conversation that these judges are having in the lead up to this trial and to 2024? >> it's tied into a knot, this is all deliberate behavior. it's all about trying to bend the system to his well, to his direction. confusing political speech with what donald trump is saying. one of the big distinctions for me, i really appreciate the way glenda laid that out. at the end of the day, what the judges -- the data here is the thread, the actions that followers take when they hear the hot rhetoric coming from him, what trump is using is extensively using the first amendment to wrap himself in to say that i can say these things and that i'm not responsible for any of the consequences that come because it is all political. it's not. the person who -- goes after a judge or goes after a clerk, or a prosecutor stocks them at home is no different than yelling fire in a crowded theater. there is a consequence from your words. people are harmed or potentially harmed, that is what the system is trying to safeguard against protecting his rights at the same time trying to protect the rest of us from him. that is really what it boils down to, that's the balancing act that the court finds itself in trying to strike this unique balance because we have a political actor who is distorting what is otherwise in the past been when it comes to behavior and politicians. >> i want to pick up on what he said there, we know the pattern of behavior and yet in the courtroom today, there had to be a reliance of hypotheticals. i want you to listen to a quick exchange. >> the fendant shall not communicate with witnesses, release condition. you keep talking about directly communicate. so is it your position that if he communicates through a social media post, hey. witness ask -- x, i knowthe prosecutor is bothering you trying to get you to say bad things about me, be a patriot. don'actreasonous lee, don't cooperate. >> i am not,it is really, i want an answer to your understanding of the release conditions, this for the record a hythical question. apparently to owledge he has not happened, i want to understand how you, because you said first amendment problem with the release condition. okay, so i have asked you that question. does that communication violate the release condition? >> it is the social media posts, that is a direct communication towitness could well violated. >> no, i'm giving you exactly the content of communication. i don't know much more you want, i'm giving you the text. >> striking to me that a panel that seems really attempted to be dispassionate also got irritated at multiple points with trumps team inability to reckon with hypotheticals. this hypothetical in this case, this premised on a lot of behavior we have already watched in real time. >> absolutely, let me go back to something you said earlier which is that there is a lot of reliance on hypotheticals because there was not real world experience with this sort of and results. that's not entirely true at one point, john fowler kept saying. the kind of threats the special counsel office is siding, they have not happened for the last three years. at one point, judge bradley garcia pushed him and said what about abigail shrike? a texas woman who called the judges chambers, made a vicious threat and is now in federal detention having been arrested and indicted. john sauer tried to push abigail to the side and said that woman is mentally unstable, she has substance abuse problems. she sits on her couch all day long by her father's own admission, watches cable news all day long. she can get that information from social media and in every way possible try to minimize and distinguish. you and i both know that everything that is said by donald trump is amplified and republished 1 million times over including the kinds of channel that we are on right now. although we try not to re- platform him. more importantly, how does john sauer know that abigail is the only person capable of calling the judge in making a threat like that? or calling any other witness or participant, the answer, he doesn't. that's precisely why the special counsel feels this gag order is necessary. >> we are talking about language that is arguably in some cases subjective, i want you to take a listen at a bit of arguments by the attorney for the justice department and we will talk onthe other side. >> postindictment once he knew that general millie was a potential trial witness, was very different than whathi reaction was in 2021 when he was not a potential trial witness against him. so pretty much once there is an indictment, he can't, he's really under his order, he can't say anything about folks who are either known or reasonably foreseeable weaknesses. -- witnesses. >> i disagree. >> what can he say? >> i think there's a perfectly comprehendible line between the sorts of things that use inflammatory language. >> can he say anything disparaging, you just said inflammatory. so take off inflammatory. is he allowed to say anything disparaging about someone, will make it easy that he knows is going to be a witness. now that there's been an indictment between now and the trial, obviously the trial is a different thing. >> i think you can criticize them as long as he's not using inflammatory langwood are attacking credibility in a way that's going to shape how the jury sees them. that's another example of trying the case in the media. >> talk about the first part of that, unknown unknown person. how do you distinguish to the latter part of that between disparaging and inflammatory comments? >> first of all, i don't even know that we need to get there. we can talk what about what happens, when you go back to january 6. think about what donald trump posted about mike pence, it was perhaps minimally disparaging but it certainly was not threatening. what he said is that mike pence did not have the courage to do what he should've done. how did his followers respond? the immediately began hunting for mike pence and broke out in chance of hanging mike pence. i think that's almost folly to pars donald trump's words, are they disparaging or threatening. what they know is that they are received by his supporters and not just this texas woman, i'm glad lisa brought that up because the judges very pointedly said one day, two days after he was indicted. the issues some post that says if you come after me, i'm coming after you. this woman in texas seemingly responding to that threatens the life of the judge and her family. donald trump does not need to threaten people. he can speak in code and the message is sent loud and clear. so, the other thing i found it interesting about the latter part of that statement you played from the attorney on jack smith's team is he actually seemed to kind of contradict part of what the judges order had put in place, because remember her order said you cannot talk about the witnesses or substance of their testimony, it seemed like he was backpedaling and said well, you can talk about the witnesses as long as you were not overtly disparaging. i think the argument will result in something far narrower being approved by the three-judge panel, being sent back to the judge to perhaps take another crack at a more limited gag order. >> i wonder, michael as you listen to all this brilliant legal analysis, how do you see it playing out politically, this conversation about a gag order and the possibility of a heading to the supreme court? >> if i'm called in front of a judge and i say something disparaging, i'm going to claim free speech political commentary. we see a whole different standard for this guy, we are contorting ourselves in ways that we ordinarily would not have. where do we have this conversation, where do we have to do this? even when glenn and others were prosecuting high profile mobsters. you did not have to do was love -- this level of crap. a lot of us americans are looking at this in saying what are we doing here? the guy needs to shut his mouth up, he needs to obey what the judge tells them to do and do it but he doesn't. everybody falls all over themselves to try to fix it because they don't have to get sideways with the constitution or sideways with him. it's kind of black lettering in one sense, be quiet. don't say anything about a judge's clerk, i don't know how complicated that is. here we are. when i say this the other night, this is the best advice i could give. put him in jail if he keeps running his mouth, because that's where i would be. that's where you would be, that's where glenn would be if you followed the gag order, we would not have stuff all the way up to the supreme court through the appellate process. we would not be able to make first amendment arguments because the judge told us to shut up. just understand why we are in this moment and how much more difficult this is going to get because this is being contorted for a reason, dragging this process out, pushing to the heart of the selection and make people think things that are not true, come to conclusions that are not relevant in a room -- ultimately benefit donald trump, that's what we are seeing that we are seeing right now, that's about all i got. >> it gives them occasion to go back to his favorite line which is it is not about me, it's about -- >> glenn kirschner, lisa rubin as always. thank you for spending time with us, when we come back, raffle tickets, lunch specials, grassroots fundraising all conducted by supporters in georgia, we are also talking the prosecutor in the case, lawmakers using newly released january 6th footage. even calling for a new committee, new subpoenas, investigating the investigators. talking about efforts to change the subject with what happened with former member of the congressional committee and remembering rosalynn carter. she was more than a first lady, looking at a different she had on this nation that continues after this. do not go anywhere. anywhere. >> everyone knew everything he did, we were born and raised and still live in plains, georgia. it has a population of 683. everyone has always known everything. everything. ♪ ♪ we're building a better postal service. for more on-time deliveries. and easier, affordable ways to ship. so you can deliver even more holiday joy. the united states postal service. delivering for america. febreze! hi. i keep my home fresh with febreze fade defy plug. and i use this. febreze has a microchip to digitally control how much scent is released so it doesn't fade. ooh. does mine have a microchip? 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(vo) black friday starts now. turn any iphone in any condition into a new iphone 15 pro with titanium and ipad and apple watch se - all on us. the power goes out and we still have wifi only on verizon. to do our homework. and that's a good thing? great in my book! who are you? no power? no problem. introducing storm-ready wifi. now you can stay reliably connected through power outages with unlimited cellular data and up to 4 hours of battery back-up to keep you online. only from xfinity. home of the xfinity 10g network. we start with a story that is still developing. is there a big information gap between what we know and what the government knows? one of these things is not like the other, finally we start to get answers. get answers. as he faces down four criminal trials, ex-president donald trump has been waging his own more in the court of public opinion, attacking any prosecutor or government official that tries to hold them accountable. according to a new reporting in georgia, he's getting health in the state republican party. the constitution rights quote donald trump's allies in georgia are working to undermine fulton county's election interference case far from the courtroom by opening new fronts on the airwaves, under the gold dome and at republican gatherings around the state. >> on saturday, ground zero for the fight was outside a reformation brewery in atlanta's exurbs. where a group called the georgia patriot legal defense fund sold $30 lunch combos and raffle tickets t