good evening once again. i am stephanie ruhle, live from washington, d. c.. donald trump's lawyers and jack smith prosecutors squared off in a federal appeals court today over the limited gag order in a case accusing him of plotting to overthrow the 2020 election. that order stops trump from publicly attacking prosecutors, potential witnesses, or court employees involved in the case. in court this morning, jack smith's team argued that order is needed to protect the jury pool and to keep people physically safe. trump's team argued thait violates his free speech and ability to camigfor president. >> the order is unprecedented, and it is setting a terrible precedent for future restrictions oco political speech. >> as this trial approaches, the atmosphere is going to be increasingly tense. why does the district court have to wait and see, and wait for the threats to come? rather than taking an action in advance. >> his high-profile public figure who posts to lots and lots and lots of followers. he is expressing his views as the first amendment allows. >> it's the sheer number of occurrences. >> it's not the role of the government to dictate what topics are appropriate or unnecessary to discuss in the context of a political campaign. >> when the defendant engaged in repeated inflammatory there is a causal link between that person then receiving harassntthreats -- >> so, what is not fair game? comment a very critically. >> you sort of inflammatory language that poses a significant risk that they would be subject to harassment and intimidation. >> the judge has given no indication as to when they would make a decision on the gag order. also tonight, a new ruling from another federal court sparking serious backlash. that ruling says only the federal government, not individuals, can sue under a key part of the voting rights act. with that, let's get smarter with the health of our leadoff panel in d. c. tonight. hugo lowell joins me, political investigations reporter for the guardian, and professor melissa murray of nyu law school. she was a law clerk for sonia sotomayor on the federal bench before her nomination to the supreme court. and bob mcquade is here, there and prosecutor, former u.s. attorney for the eastern district of michigan. hugo, i start with you because you were in the court from the audio and the reporting, i want to go through all of it. but i really need just to read for our audience again, to remind them, we are talking about the former president of the united states who is running for reelection. this is a gag order that stops trump from publicly attacking prosecutors, potential witnesses, and court employees. like, that is where we are. help us understand because both sides were very aggressive, what went down? what's in boot here? >> trump's attorneys were saying today that he had this absolute freedom to say whatever he wanted because he was in the middle of a presidential campaign. >> because running for president means you should aggressively attack a judge, a clerk, witnesses. that's normal? >> this is the complication with trump's case, right? he is using his campaign as a shield and a way to insulate himself from the extent of criminal liability that he knows it's coming down the line. and i think the circuit judges noticed that today and they pushed back pretty hard. and they were like, well, what's the point of not issuing a gag order before you have already screwed up the trial? you know, there is only a point and a gag order, to prevent that from being harm done to the jury process. and so, they rejected his argument when he was trying to say, well, you know, you should own, only sanction me, only cutback if i actually intimidate the witness. >> i just want to know why you need to threaten a judge in order to campaign to be the president, and why would that win with voters. jack smith himself was also in the courtroom today. how rare is that? >> we haven't seen him in any of the other hearings. today, it was actually pretty much the entire special counsel 's team. we actually had the lawyers from the classified documents case in the courtroom today as well, sitting right behind the government lawyers who are arguing their appeal, people like david harbach, who's on the classified documents case, as well as the other assistance, special counsel, it was the entire team, and it was very significant. >> melissa, what stuck out to you in the judges questioning of both trump's lawyers and jack smith's team? >> it seems pretty clear, stephanie, that all three judges of the d. c. circuit were trying to probe this fine balance between vindicating trump's first amendment rights, but also protecting the public. to be very clear, first amendment rights are not unfettered. you don't have a broad first amendment right to do whatever you like, or to say whatever you like. and they seem to be trying to parse the question here, like, how far could they go, what could they limit, while also preserving public safety and allowing trump the wherewithal needed in order to mount a successful or at least an effective campaign. again, that is the real question here, how to strike that balance between free speech and public safety. >> barb, the judges posed a lot of, i don't know, possibilities or hypothetical situations for the lawyers. what are they trying to get out with all these different scenarios? >> yeah, they're trying to engage in line drawing. that's what the law is all about. it's about balancing competing interests. on the one hand here, we have public safety. on the other, we have free speech, and what they refer to as core political speech. but i think one of the things they did hear a little bit is sort of take the bait from the trump lawyers who are trying to frame these first amendment rights here as if there is no criminal trial going on. they have got to frame it in a context of that and that is a very important note because gag orders are permissible in trials. it isn't the case that donald trump can't say anything he wants about jack smith. he just can't say it outside of court. if he wants to complain about a witness or a juror, he can still do that legitimately. he just can't do it on twitter or on the debate stage. and so, i am hopeful that the court will see this for what it is. and will ultimately uphold this gag order. but to the extent today they expressed discomfort, i think that's where it comes in in terms of exactly where they want to draw this line and how they're gonna define these terms, so that when there is a violation, if or when there is a violation, everyone will know it. >> hugo, how concerned were these judges about the threat of political violence, or i don't, know the repeat of january six. it almost seems crazy saying that that could happen, but here we are. >> it came out multiple times. you know, trump was trying to argue that there was no evidence in this case, where his posts has led someone to directly attack a prosecutor or a trial witness, or intimidate a potential trial witness. and the circuit court actually pulled up several instances where that actually has happened, including the judge in the trial, tanya chutkan, which a day after that trump post, he said if you go after me, i will come after you -- the very next day, that trial judge got a death threat. and they're also looking at all -- >> and team trump is saying quinky dink -- >> we are all responsible for the parties and that was the argument they made in court. >> but the person who threatened tanya chutkan, what was their connection to her. if you have known who this judge was, why wouldn't they care if she was the judge presiding over this case. >> this came up. the panel was like, what would have happened if you had posted a picture of the judge in your post? and the trump lawyers were trying to argue, well, you know, she was watching the news. she was an alcoholic. and they were reading from the indictment and what the prosecutor's mansion in those charging papers. but you can see the kind of issue that the panel had to grapple with and the arguments they are facing. >> melissa one judge spoke and it was a very funny phrase, using a careful scalpel when it comes to this order. what does that signal to you? does trump's worth of a hammer guy, no scalpel? >> i think it was patricia millett, who is one of the judges on the court. and i think, they're going to be very surgical about. this it is true that there is political speech here, but as barb says, this is taking place in the context of a criminal trial where we do have a real track record of this individual making statements that then perhaps incite other people to violence. and judge chutkan is just one of a number of different people who have been sort of caught up in this in recent years around this sort of trump world. and so, they are trying to be very surgical about this, not to cut out as much speech as perhaps the government would like. but to be very clear that some speech will have to be limited here in order to secure public safety. >> barb, does it sound like this appeals court is leading towards rewriting the gag order, and they're gonna take it back to the judge with new instructions? what's going down? >> you know, it seems to me that, you know, again, reading the tea leaves and what we heard today, they understand the need for some sort of a gag order. but that they want to make sure that the language is clear and that the definitions provide a fair notice about what is or is it prohibited. one of the things, for example, they took issue with is that trump targeted. what exactly does it mean to target a witness or to target a juror? and so, perhaps, you know, a more defined version of that, target, ridicule, scorn, harassment, maybe that's what you need to do. i think it's more likely they would remain in the district court with instructions to further define these things as opposed to try to rewrite the rules themselves. but i think they will provide some guidance about the areas they concern them. >> all this back and forth, melissa, does this have any impact on the timing of the actual trial? because as important as this stuff is, we need to know when this thing is going to happen. >> yes, these are issues that are going to come up. again, we have talked about what the trump strategy would be here for all of these criminal cases. and the strategy i think can be summed up in one word, delay. this is certainly part of the strategy. but i think we thought from the judges today that they are going to be relatively expeditious about issuing an order. i think barb is exactly right. this is a matter of professional courtesy. they are likely to demand this to judge chutkan, to tighten up her gag order and to make some of those terms more clear. but i think we are going to see repeatedly these types of challenges that are being raised, and notably, jack smith noted that some of these challenges can be immediately appealed. so they are -- that can happen right away and that those should be dealt with quickly and expeditiously so it's not to slow this down entirely by waiting for the appellate process to play out. >> barb, i was going to give you the last question, but since melissa is wearing an animal print, she wins the finale. melissa, help us with a new topic, this one new topic. this ruling, explain it to us, the voting rights act. explain what does it mean for voting rights now. i don't understand it. >> stephanie, in 2013, when the court decided, shelby versus holder, dismantling the clearance required for voting rights act, they emphasize that section two of the voting rights act remained as a vehicle for individuals to press challenges on the basis of race or other kinds of discriminatory practices including voting laws and race. now, fast forward to this particular day, we have the eighth circuit issuing a 2 to 1 ruling saying that the voting rights act, section two, cannot be implemented by private actors. it can only be prosecuted by the department of justice itself. so that means only the department of justice can bring claims alleging violations of section two from the voting rights act. most of the voting rights act challenges have been brought by private individuals over the last 50 years. and there is plenty of supreme court precedent making this clear. what these judges said today in the eighth circuit was that there is no explicit discussion of private enforcement in the voting rights act. and therefore, it is an open question. and they are getting this from justice neil gorsuch, separate concurrence in the 2021 case, democratic national committee, in which he noted that there was perhaps an open question about who could enforce section two of the voting rights act. this is surely going to go to the supreme court. there is currently a circuit split between the eighth circuit and the fifth circuit. the court is likely to take a. when they do take it up, there are two votes already to endorse this very radical, very fringe theory. justice gorsuch, justice thomas votes. and the real question will be, and there be three other votes to form a majority of five? because if there is, this is a case that will completely decimate what is left standing of the voting rights act. >> all right then, melissa murray, barb mcquade, hugo lowell, thank you all for starting us off. now, let's turn overseas for the latest on efforts to free hostages that are being held in gaza. today, families of the hostages met with israeli prime minister, benjamin netanyahu. tonight, we are learning more specifics about what a possible deal to release hostages could look like. my colleague from nbc raf sanchez has more. >> reporter: tonight, families of the hostages held captive in gaza, derek to hope. and so is president biden. >> mister president, is a hostage deal near? >> i believe so. but i'm not prepared to talk. >> you believe so? >> yes. >> reporter: but so far, hamas refusing to release the over 200 hostages held since october 7th terror attack, including a three-year-old american girl and a ten month old baby. sources tell nbc news a deal would involve a pause in the fighting in exchange for the hostages. though cautioning talks could still collapse. among those praying, yoni -- >> i am a father of two little girls. >> reporter: this chilling video showing his daughters, wife, and mother-in-law all being kidnapped by hamas. it's been 45 days with no word. >> 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. our thanks to ralph sanchez for that report. >> when we come, back we are still one year out. new polling is signaling warning signs for president biden. jen psaki and michael steele are here on that. high stakes when it comes to a possible second term for donald trump. what it would actually look like? and later, one-on-one with the only rachel maddow. she is here to explain the history of trump's dangerous rhetoric, using that word vermin, and what it actually means. it's an important discussion that you need to hear, especially for thanksgiving. you can educate your family. v 11th hour is just getting underway on a monday night in washington. ♪ ♪ ♪ >> >> he said to me, in a kind of excited tone, well, we don't care, and we're not gonna leave. he said the boss is not going to leave under any circumstances. we are just going to stay in power. and i said, well, it doesn't quite work that way, you realize? and he said he doesn't care. >> leaked testimony, former trump lawyer jenna ellis laid out the stakes for 2024 with a reminder of what happened last time donald trump was in power. the washington post is warning that voters must take the former president both seriously and literally. but we have said this before. joining me now, the one and only jen psaki, former white house press secretary and host of msnbc's inside with jen psaki. and michael steele is here, former chairman of the republican national committee, and former lieutenant governor of maryland. they are in d. c., and i'm happy they are here with me. >> we are in d. c.! >> jen, i'm gonna start with you. we've got several former trump aides saying you shouldn't be president. i want to show what cassidy hutchinson said earlier tonight. watch this. >> with donald trump, if he is elected president again in 2024, i do fear that it will be the last election where we are voting for a democracy because if he is elected again, i don't think that we will be voting under the same constitution that we would be if joe biden is elected in 2024. >> i don't need to remind you, see she said that you three hours ago. she said it, more and more people are saying it. but, a, does it matter, and, b, donald trump doesn't change, whether you are talking this trump aide, that trump aide, jenna ellis was loving on trump five weeks ago. >> yes, and that same washington post story that you referenced, they talk about how these former aides, some of them have been speaking out, they may not vote for biden. they may still vote for trump because they don't want to help the democrats. so, yes, it's good that they're speaking out against the threat he is to democracy. but what the heck! i mean, if you think he is so alarming, why are you still may be considering voting for him. >> but why are they even criticizing him? when i think about some of them, the other reason we have him, right? after january 6th, kevin mccarthy could have said we are done. mitch mcconnell could have said we are done. ronna mcdaniel could've said we are moving in another direction. she now could lose her job. kevin mccarthy lost his job. and mitch has less power than i feel like he's had in decades. they put us in this position? >> they did put us in this position and the fact that they won't let go of the things that has caused, the cancer that is eating them up alive is they can't get over that one hurdle, which is the political party hurdle. at the end of the day, they still remember they are republicans. and so, the party, for them, is still trump's country. and it is still bigger than the country. it matters more to them to vote their party than to vote for their country. so, they will say in one breath, pure major running for michigan u.s. senate, right? one of ten who voted trump, to impeach trump. he came out and said, oh my god, the worst thing after january 6th, get rid of -- what is he saying now? oh, i'm behind the guy 100%, right? because he's running for the u.s. senate in the republican primary, and at the end of the day, they can't get over that hurdle where their party matters less to them than the constitution, the country, the bill of rights. your decision, what to do with your own person had, right? all of that, it doesn't matter. party, trump, trumps it all. and until they get over that hurdle, this is the kind of language and behavior gonna see. >> and they are afraid. i mean, i think they are afraid both of the politics. but some of them, i think, are afraid of the backlash. and they are afraid of the threats. >> yes, they see the threats coming and all of that. but it's still a party thing. i talked to enough of them and i understand, they're worried about getting primary, this and that. at the end of the day, it really is i am a republican. well, i googled without a long time ago. and they should too because the reality of this at the end of the day what matters most to you, does the constitution stand for anything when donald trump says he's gonna tear it up so you can stay in power? if it does, the then you're not supporting that. if it doesn't, then you can come out and say what you are saying. >> jen, you worked for president biden. where is this narrative -- [laughter] where is this narrative coming from that he is so liberal, right? this idea that maybe joe ma