chatted with my friend and colleague chris hayes about my new book prequel. it was a life taping of his podcast in front of an audience a town hall in new york. it was tons of fun. we shot it as a tv show. it is now available to watch, to stream on peacock. the easiest way to find it is to go to the peacock up on your tv, on your phone, or on your computer. just search maddow. the top results should be this little illustration with our faces on it. if you click on that, you can watch that really cool thing. peacock, it's up there right now. that does it for us tonight. now it's time for the last word with lawrence o'donnell. good evening, lawrence. >> rachel, i'm so happy that the lawyer's guilt has been able to organize with our coworkers here. as a member of the guild myself, for longer than some of these new members have been alive, i mean, i'm very happy to see them teaming up. and, rachel, before you go, this episode of the last word tonight, i mean, you know what? don't move. stay right near the screen there because this one is going straight to the museum of broadcasting, and not just because we have the team of andrew weissmann and neal katyal with us. but if you hear the chuckling, we are all in the same room together for the first time in broadcasting history. and covid put out, it's the first time we've had two guests in my studio since before covid. >> oh, wow! >> all sorts of historic broadcasting stuff happening. >> live human energy in the middle of your tv show! watch out. >> we're gonna do that. >> thanks, lawrence. >> thanks, rachel. well, each side was given 20 minutes, which is the norm. and it means it was gonna last for 40 minutes. but the appeals court hearing today in washington, d.c., considering a weighty and unprecedented first amendment issue lasted two hours and 20 minutes and here is why. >> would your position be any different a year ago? if the timer were just a year ago, so we are much further removed from a political campaign, would your position be the same or different? >> that is certainly, a year ago, we would still be in the midst of a political campaign. i believe president trump trump -- >> but we are not in a political campaign. >> hypothetically, what you are saying there is -- >> what he was saying there is i don't mean to fight the hypothetical. but donald trump's lawyer did mean to fight the hypothetical. in fact, donald trump's lawyer fought every hypothetical presented to him by the appeals court panel of three judges who were considering donald trump's appeal of a partial gag order issued by federal judge tanya chutkan in the case of united states of america versus donald j trump, and which donald trump is charged with federal crimes leading up to and on january 6th. because donald trump's lawyer fought the hypotheticals, the panel of judges became what lawyers call a hot bench, meaning the judges were very actively and energetically challenging the lawyers on both sides. >> so would your position be any different in year ago? >> i think a gag order would still be unconstitutional. >> would your position be any different? >> i don't see how is that the case. >> okay, so the fact that we have a campaign going on does not matter. what matters to you, and this is frankly still political speech, which gets very high protection. no doubt. >> i would not put it that way. i think the fact that the campaign, and we have a whole series -- >> your position would be no different if it was a year ago? >> my position would still be it's unconstitutional. but the campaign adds a different and very powerful reason why it's unconstitutional. >> that is as far as you are concerned, but it would be exactly the same without a political campaign. >> i would say it's the crown jewel of a -- >> a crown jewel? you think the outcome should be exactly the same, whether or not there is a political -- campaign underway. >> yes, i believe there's at least seven independent first amendment precepts violated by this gag order. and this is one of them. >> in questioning by judge bradley garcia, trump's lawyer said no one should be bothered in any way by the death threat that judge chutkan received in this case because donald trump's lawyer believes the woman who issued the death threat is now criminally charged with that death threats. it did not really mean. >> so essentially what the district court is finding as we have a past pattern when the defendant speaks on this subject, threats follow. and now, he is making similar statements again, we are months out from the trial. this is predictably going to intensify, as well as the threats. and so 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? >> there's an evidentiary burden here. the evidence, actually, it isn't just that there is no evidence. now but the evidence we have now completely counteract that influence because it is undisputed that president trump has been posting about this case almost incessantly since the day it was filed. and they have not come forward with a single threat that's even arguably inspired by any evidence in his social media post. the only threat they talk about in the brief is from the tribe decision, from the center of this trial case, this -- in texas. i strongly invite the court -- >> a council named a death threat to the court judge in this case. >> yes, that is the august 5th telephone call. it's the southern district of texas -- >> the day after he said, it you come after me, i'm coming after you, that threat issued? >> i strongly encourage the court to pull both the probable cause statement and the detention order from that case, where there is evidence that that particular threatener, there's no evidence of any reading of social media, that particular threatener is an unemployed mentally unstable heavy alcoholic who sits on her couch drinking beer all day according to her father, never leaves the apartment, watches the news, not on social media, watches the news on tv, get angry about it and makes angry threatening calls. >> one of the pieces of threatening speech that prosecutors included in their brief was a posed by donald trump about general mark milley in which donald trump said general milley's official communications with china was, quote, an act so egregious that in times gone by the punishment would have been death, a war between china and united states could've been the result of this treasonous act. to be continued. judge patricia millett asked about that statement about mark milley. >> is everything okay, except the punishment would have been death? is everything else okay? >> yes, i would say so. and i think the important context to know is -- >> is he wrong, and i'm not talking factually about this particular situation, but we have other details before us. but is it wrong at least historically, that, again, i'm not talking about this conduct in particular, but some acts of treason were punishable by death? >> no, that's not wrong. and the district court is free to -- >> an obvious statement? >> well, the court is free to decide whether he included that language to make the abstract historical point about what the punishment for treason was in times gone by, or was he saying it to -- >> what are you -- i talked about the need to balance, and you know, somehow i want my children to speak but that's not the question. and so the question is what in here in this post, including the reference to historical capital punishment for treason, connect that to the criminal trial? connects anything about this post additional trial, the criminal process, -- general milley's potential or not, i have no idea, potential participation in the criminal trial? >> so, on its face, it does not collude to this testimony. >> the timing, you don't have the time -- >> we do have an important distinction in timing is that the information about general milley, his conversations with china that all came out in 2020. in 2021. we had a reaction to the news. he was not calling for him to be put to death. he said that death wasn't appropriate punish. so in doing that, once he was indicted -- >> leading off our discussion tonight is our man of the courtroom glenn kirschner, former federal prosecutor and host of the justice matters podcast. he was in the courtroom for today's proceedings. also with us, andrew weissmann, former fbi general counsel and chief of the criminal division of the eastern district of new york. he's co-hosting the msnbc podcast prosecuting donald trump. and neal katyal, as well as former acting u.s. solicitor general and host of the podcast courtside, with neal katyal. they are all msnbc legal analysts. and, glenn, of course we always start with whoever was in the courtroom, and that is you. so how hot was that hot bench? because when i was listening, we just had the audio, i felt like i could hear the judges coming out of their chairs and leaning forward and trying to wrestle the trump lawyer into actually working with at least one of their hypotheticals. >> yeah, lawrence, i fought the urge to loosen my tie, unbutton my collar, and yell out to john sauer, donald trump's lawyer, for gosh sakes, man, just answer the hypothetical. you know, i may not have been in as many appellate arguments as my friend neal, but i argued before that bench and other appellate courts. and you know when judges present a hypothetical they expect an answer, even if it's an answer that is perhaps unduly favorable to your client 's position. but, you know, john sauer steadfastly refused to answer judge millet's hypotheticals. and she let him know that she was really displeased about it. and i don't think it served his client well. what he kept doing, lawrence, was saying the following phrase as if it were a magical incantation. he said everything donald trump does and says and posts is core political speech. therefore, there can be no prior restraint, there can be no gag order limiting his core political speech. and you know, both judge millett and judge garcia very pointedly said there is a clear pattern that has been established. donald trump issued statements, including about witnesses, and witnesses get threatened. so they were having none of this absolute argument that donald trump's lawyer was making. and even though as the argument progressed for, as you say, two hours and 20 minutes, they also had some very pointed questions of the prosecutor on jack smith's team. but it seems pretty clear that they are going to be inclined to perhaps narrow the gag order somewhat, hand it back to the trial court judge, judge tanya chutkan, and perhaps instruct her to impose something that is a little bit more narrow and then what she imposed in the first instance. >> neal, with all your practice in front of that appeals court, i'm just wondering what you were thinking at minute 21, minute 22, when we were still on the first judges questions. no other judges had even gone to speak at that point. >> so, first of all, lawrence, this is our nation's second highest court, the d. c. circuit. they're reviewing a judgment by judge tanya chutkan, a very well respected judge in d. c.. yes, the argument was set for 20 minutes per side, as you start saying at the beginning of the show. but it is not uncommon for this court and judge millett in particular to go five hours -- or last arguments five hours 30 minutes long. and she's extraordinary, the whole panel, this is an extraordinary group of judges. they are really dug in on every case, not just this case. and it's actually a really privilege that the american courts, i think the american public's right to hear this argument. so it's great that we could all hear it live. what did i think it meant in minute 20? the same thing which i thought in minute two, which is mr. trump's lawyer, answer the question, answer the question. she spent 20 minutes trying to get an answer to the simple questions, he could not answer them. i mean, trump's lawyer basically took this kind of go home or big approach, and is going home, basically, at the end of this. you know, i do think the government caught some hard questions, jack smith's team towards the end. they weren't questions really that donald trump's lawyer had focused on, but ones they in their own research did. in particular, i think they were concerned, did judge chutkan's gag order basically reach too far? did it say, for example, donald trump cannot criticize the prosecutor jack smith in a presidential debate or something like that? that, the panel was saying, the first amendment protects. so, i think we may expect some modest trimming of the gag order. but at the end of the day, it sure sounded to me like the gag order will be upheld and history will be made. for the first time, a former president will be gagged by the nation's second highest court and the person to blame for that is none other than a guy named donald trump, who keeps opening his mouth, threatening witnesses, threatening prosecutors, threatening others involved with this, and ultimately undermining a fair trial. >> and of course, andrew, we had no set of precedents to present to this court today. that's why they kept asking these hypotheticals, because they have to carve out something here and that is not sitting there ready to go as a doctrine to youth in this case. and he just had the feeling that the trump lawyer was just never going to admit a thing, for what? so that the next appeal in the supreme court, he hasn't conceded anything. what is that about? >> yeah, so that's one of the reasons to do it, is if you think you are going to lose and this proceeding is essentially stonewalled here, so that there is no concessions that can be left to go on to. but to give an example of what neal is talking about in terms of the question that the court had that was really legitimate was to say, look, it's a given that every defendant when they are released this told do not commit a crime. that includes do not threaten a witness. that's not a gag order. that's just -- you can't commit a crime while out on bail. so, their question to him was, well, what else could the judge do? does the judge have to wait until the crime is committed, or is there any prophylactic step that she can take given this record? and as neal said, there was repeated conduct where he knew he did a call, there was a response. call, response, over and over again. and he would not answer that question. and you know, there's a reason he would be conceding ground to say, yes, the first amendment does take sort of a second place to that balancing that should occur. and that's where the court is clearly going to say the judge is entitled to some prophylactic step to make sure someone doesn't get hurt, and the main issue is just sort of going to be today think as far as judge chutkan when or is it curtailed someone to cover witnesses and jurors, it may be less protection for jack smith and his staff in the court and his staff? >> i think andrew just got it exactly right. the key question, and you showed it in your interchange with judge garcia, the youngest judge on this panel, is he said, look, do you have to wait, does a judge have to wait until someone gets killed or hurt in order for a gag order to exist? and he asked that question multiple different ways to the trump lawyer. the trump lawyer never answered. so, that is where i expect the decision to come down, what andrew is saying, which is absolutely a judge does not have to wait until carmakers. harm occurs. now, the question is what are the contours of that gag order? >> glenn, i always wondered during these appeals sessions like this what trial practitioners like yourself are thinking? and i know you've done both, but that trial side of your brain, were you feeling like some of these questions, some of the judges questions don't really grasp the reality of what we are dealing with? >> oh, i think the judges questions grasp the reality. and you know, you always want to be responsive and respectful to a judge without giving up any ground that you don't have to give up. but you know, i thought there was one observation, i think it was by judge millett, when she was pushing back on trump's lawyer. trump's lawyer was taking the position that you really can't limit his speech. and the only limitation is he is not permitted to issue a true threat. in other words, actually commit a crime that would violate 15 12, threatening witnesses. and that is the only limitation. and the judge kept pushing back, and judge millett said, you know, don't we have a settled principle in the law that someone is inferred to intend the natural and probable consequences of their actions? and i think what she was getting at was, you know, it doesn't have to be a true threat. for example, on january 6th, what donald trump simply said, mike pence did not have the courage to do what he should've done, that was not a true threat. but boy, he sure has seemed to know what he was saying, and he intended the exact consequences that ensued. his foot soldiers, his supporters who were sort of mid attack on the capitol, you know, instantly started hunting for mike pence and began their chants, hang mike pence. so really, truth threats is not the standard. and the judges acknowledge this sort of call and response. and donald trump knows full well what he is doing when he makes the call, and he intends the response. >> glenn, before you go, i have to tell you i was fully satisfied with just having the audio of this proceeding today. and actually think in my case i might've concentrated more because i had absolutely no image distraction in any way. but what did i miss by not actually being in the courtroom sitting beside you? >> well, lawrence, first of all, you have the benefit of hearing the volume of judge millett's voice. and i think you would've appreciated her demeanor, serious as a heart attack. she wanted an answer. and the fact that she did not get one i don't think that was donald trump's lawyer serving him well. but all three judges were very animated, and very determined to make sure they got this right. if they're going to support a gag order on the former president of the united states, they want to make sure they get it right. and it was really a pleasure to watch those three judges question not only donald trump 's lawyer, but the lawyer for jack smith's team as well. >> glenn kirschner, thank you very much for being in the courtroom and joining us with that. really appreciate it. >> thanks, lawrence. >> and we are gonna be right back with andrew weissmann and neal katyal. liberty mutual customized my car insurance and i saved hundreds. with the money i saved, i started a dog walking business. oh. 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