officials say hostage negotiations are getting close to the end. plus, president biden marks his 81st birthday as voters express concerns about his physical and mental fitness. the age debate intensifying with a presidential election now just a year and weeks away. welcome to our viewers. wolf blitzer is off today. i'm pamela brown. you're in "the situation room." and we start with a tense day in court with donald trump's legal team trying to persuade judges to throw out a gag order against him. let's get to evan perez. evan, the judge has expressed skepticism today. >> a lot of skepticism, pamela. these judges were grappling with an unprecedented issue. you have a criminal defendant who likes to speak out on social media and his political rallies. he's also one of the leading candidates for president of the united states. so one of the things the judges were grappling with was how do you protect jury yors and their personal information? how do you stop threats against a judge, prosecutors and more importantly, witnesses. here is one which i think between the judge and the trump lawyer on how to protect a particular witness in this case, mike pence, who is certainly to be on the list of witnesses come march. >> let's assume former vice president mike pence is going to testify. and the it's night before his testimony. could the defendant tweet out, mike pence can still fix this. mike pence can still do the right thing. if he says the right stuff tomorrow. first of all, is that communicating with the witness? >> if it's just broadcasting a statement of political speech on social media, likely not. >> pamela, that's a fascinating hypothetical from the judges there because you'll remember that former president trump put a lot of pressure on mike pence after the 2020 election. >> how can we forget that. were the judges sympathetic at all to any of the trump team's legal argument? >> they were. look, the judges also understood that perhaps there is a way to have a gag order, but to narrow it so that the former president has some right to be able to criticize the people, in particular, jack smith. here's an exchange that tells you a little bit about where they're thinking on that. >> he has to speak those manners while everyone else is throwing targets at him. >> he can't be. that he can't mention mr. smith. surely he has a thick enough skin. he's on this team. >> and pamela, that is exactly what the trump team has now seized on. they are using the language that you heard there from one of the judges. here's a statement from steven chung. he says today's oral argument confirms the government is seeking to unconstitutionally silence president trump's core political speech. the government cannot force president trump to behave like miss manners while his opponents viciously attack him in the political arena. of course no one will ever mistake the former president for miss manners. we'll see where this appeals court comes back with a ruling. probably kwgoing to be in next w days. >> such a fascinating legal issue. remarkable. thanks for that. let's bring in our legal and political experts. does trump being a candidate for president in 2024 change how these judges should think about the case? >> i think they're really grappling with that question, pam. and look, this is, there are many legal questions we've talked about in the context of donald trump over the years. nothing is harder for judges to sort out. on the one side, everyone in america is allowed to speak about the legal system and the process and whatever they want. about american government. on the other side, you can't threaten people. there's a wide gulf of statements in between there for a candidate or not that are going to be very complicated and at some point, a judge has to step in and almost arbitrarily decide what's okay and what isn't. they were clearly grappling with this and i don't know what they're going to do. >> yeah, and how much in your view is january 6th sort of the backdrop of this deliberation for the judges? >> well, i mean, obviously, the fact that there was an incident where by many arguments, the former president in his speech, not just on january 6th, but over time, puts things out in the public that have the effect on causing individuals to engage in violent activity. and so i think that's one way that january 6th affects it. in this particular circumstances, i think another thing that is probably really weighing on the judges trying to walk this tight rope in this decision is that the decision they make is in the conditext o this case concerning the former president but there could be future political candidates who are wrapped up in the criminal justice system that now in the age of social media, this could affect. on the other hand, there are regular criminal defendants who also cannot be allowed to intimidate witnesses. so there's sort of two different spectrums. the public person and private person, all of who might get wrapped up in the criminal justice system and they can't make a rule that is for former president trump only. they can't make a rule that is applicable to all. >> right. the wide ranging implications, not just for trump, but beyond. gloria, at least one of the judges didn't seem to buy trump's argument that this gag order is violating his free speech. how could he continue to use this to rile up his supporters or fund raise on? no matter what happens. >> he'll do it either way. i guarantee you that, pamela. look, his attorneys are arguing that this enfringes on his core political speech as his attorney called it today. and on his first amendment rights. one of the judges was quick to say we're not talking about something that's that broad. we're talking about a criminal case and we're trying, it seems to me they're trying to set boundaries. that's what i think about the attorney here, but i think they're trying to find a way that donald trump can speak and not undermine the criminal process. but in either case, donald trump will use this to say he's been gagged. no matter what they come up with he'll talk about how he's being victimized and how this is unfair when in fact, in court today, you saw them struggling with where to draw the line here. i think it's a difficult decision. >> it is because you have leading republican presidential candidate, right? who's also under indictment. and his right as a candidate to attack the process, right? to speak out about it, but also, you have a concern about possible witness tampering. tainting a jury pool. threats of violence and so forth, elliot. all that combined is what these judges have to look at. in terms of the posting on social media and how that could influence possible witnesses, how real of a threat do you think that is or worry it is for prosecutors? >> it is an exceptionally real threat but again, the complicated issue, this was judge garcia raised the question today. when does a threat become too much? he sort of posed the question wait until somebody's actually threatened. do you have to wait until somebody's hurt and when is the point at which you're getting in the way of someone's right to speak freely. that's a very, very complicated question. but look, we were all, the four of us on this, we're all here in washington, d.c. on january 6th. we are all across america well aware of political violence that can come to the country when whipped up by political leaders. so of course, there's a real threat. the question is how exactly do you police it and i will tell you candidly, our legal system just doesn't have a clear way of dealing with speech. it's very, very hard. >> we saw, it's so interesting the judge used the mike pence hypothetical saying mike pence do the right thing. because we saw trump did that after the 2020 election. we saw what happened on january 5th with the hang mike pence rhetoric. it's interesting this idea of potentially the judges restating the gag order but loosening for trump to attack jack smith, for example. what do you make of that? >> one of the issues here, pamela, is that these actually aren't hypotheticals in this case. the district judge in this case has already been subject to threats. the prosecutor is subject to threats. the prosecutor's family has been subject to threats. the fbi director has talked about the prevalence of threats against justice department officials, fbi officials, people conducting these investigations and pros kuss. in this case, there's an environment and so it's not such a hypothetical at this point anymore. >> all right, thank you all. just ahead, days after -- families are trying to put pressure on the israeli government by meeting face-to-face with prime minister netanyahu. in israel tonight, frustrated families confronted prime minister netanyahu as their relatives have been held captive by hamas for more than days. tell us what happened in the meeting. >> pam, this meeting just wrapped up a few moments ago. it lasted several hours and the defense ministry not that far from where we're standing now. the key from the families we spoke to before the meeting began was that they wanted to know from the government themselves. the war cabinet, that they were prioritizing the hostages themselves and not just the war against hamas. >> my sister was kidnapped -- >> gilly roman waited 45 day es for this moment. his sister has been a hostage in gaza since october 7th and this is the first chance for the families of the hostages to meet with the war cabinet. >> i do expect them to be transparent as much possible about what can be done. we want to see everybody back today. >> frustration boiling over after six weeks and two days of questions. >> translator: something very hard, very embarrassing, that i have to stand here facing so many cameras and i have to go to a meeting in order to hear answers. >> but as the meeting was set to start, not all of the families were allowed in. >> translator: in gaza, there is enough room for the 240 who were kidnapped and in the defense ministry, there isn't room for 130 families? >> translator: for week, some families have slept outside the defense ministry to remind the war cabinet they will not leave and they will not let up. >> from hostages square in tel aviv, they marched to jerusalem, picki picking up thousands of supporters on the way to the prime minister's office. a public pressure campaign to force a meeting with israel's leadership. >> we don't have time. we don't have one hour more. we don't know if she is alive. >> the israeli military says at least two hostages were found dead in the enclave. a 65-year-old grandmother and 19-year-old corporal. now, some families have their own fight. israel in minister of national security is trying to push a death penalty terrorists through the -- which the families say endangers their loved ones in hamas captivity. finn's wife and daughter were taken on october 7th. >> translator: maybe instead of talking about the dead, talk about the living. stop talking about killing. talk about saving jews. this is your job. >> the families say they have a list of concrete questions even if they know they won't get concrete answers. and one of the loved ones of one of the hostages who came out early says he was disappointed not to get any new information. he says a number of others were also disappointed they didn't hear definitively from the war cabinet that they're prioritizing the return of the hostages. meanwhile, we also asked if there's anything definitive for timelines on a hostage exchange in return for a partial cease fire or pause in the fighting, nothing certain there. >> thank you so much. now let's get more on the hostage crisis and where to gauc negotiations stand now. alex joins us. what is the u.s. saying about these talks? >> we are hearing from senior administration officials that there's a sense of optimism they haven't felt before. that they ma be closer to a deal than before. that they are moving along. that, with that optimism comes caution. administration officials know these conversations could fall apart. that the fighting is continuing. that this is extremely tenuous and a very fluid situation. but we heard from the white house's john kirby earlier today. when asked about the state of the negotiation from our colleague, mj lee, he said he believes they are close to the end. >> we believe we're closer than we've been. so we're hopeful. but there's still work to be done. and nothing is done until it's all done. we are citizens being held hostage and we want them out. all of them. everybody should be out now, but here we are in negotiation and we're getting closer to the end, we believe, of that negotiation. >> what would an agreement look like? according to the latest draft of an agreement that sources told us about, it would be hamas releasing 50 hostages from inside gaza over the course of four or five days and during those days, we would essentially see a truce, a pause in the fighting. that's different that ben a cea fire. there are also questions about aid to gaza. questions about how to implement that. there are also questions about whether israel for its part would release palestinian prisoners in their jail. so the gaps are getting narrower. the optimism is rising. this could happen soon but the same time, i want to remind people how many hostages are inside gaza. some 240. so even if 50 come out, around 80% would remain, pam. >> right. i think that's important. so even if this does happen, it's not like hostage ga negotiations would end because there would be still hostages held by hamas. alex, thank you so much. let's turn now to the situation in gaza. another hospital is caught in the cross fire of the israel hamas far. >> darkness and destruction inside northern gaza's indonesian hospital. 12 killed here overnight including patients an a member of medical staff when israeli tank fire hit a hospital. according to health authorities in hamas run strip. the israeli military says they were responding to gunfire from inside targeting their troops but the civilian toll has been condemned by the u.n.'s world health organization chief, describing the attack as appalling. for civilians in central gaza, monday morning brought with it more devastation. local residents say this building struck overnight. blaming israel's ongoing ariel bombardment of the region. locals here say more than a dozen were killed. now buried beneath the rubble. cnn has reached out to the israeli military for comment and allegations of an overnight air strike on the neighborhood. amid the rubble, bodies are pulled out one by one, carefully wrapped in blankets. >> translator: the building collapsed with 30 people. more were killed and there are still people buried under the rubble right now. >> the israeli military says it is targeting hamas. with each passing day, more civilians are kill. among the victims on monday, a young girl carried away by a neighbor, killed alongside her father, a doctor at the hospital. this is not a war anymore. this is genocide, he says. this scene now all too familiar. even for the young. many here are from northern gaza, taking shelter in this embattled town, hoping to move southwards. the u.n. says hundreds of thousands have already fled northern gaza. many seen here over the weekend waving white flags. the injured trailing behind. it is a long and difficult journey. many are exhausted and distraught. >> if we stay one minute, we will die. many rockets fall on our heads. >> he says he was injured following an air strike on a school they were sheltering in in the northern city. now, they are hoping they'll find some semblance of peace in the south. but even here in the very place israel is telling civilians to evacuate to, there is no escape. and as the weather begins to turn, the situation is growing more dire with each passing day. this family now sheltering in a southern city, making do with what little they have left. >> translator: yesterday was very difficult. our tents flew away, the rain came down on us. we were drenched. we just want an end to the war. >> but as the war threatens to intensify in southern gaza and calls for a humanitarian serious fire continue to go unheeded, there is little hope remaining for the people of gaza. today, we heard from the u.n. secretary general describing the killing in gaza as both unparalleled and unprecedented. there are continuous calls now for humanitarian pauses to be accomplished in order to allow for crucial, essential humanitarian aid to get into the gaza strip. the fear is that as bombardment continues and as we continue to see the weather getting worse, the humanitarian situation inside the gaza strip including in the south where hundreds of thousands are now internally displaced, that situation is only expected to get worse. >> thank you. coming up, former president trump releases a doctor's note claiming he's in excellent health. can he and president biden convince voters they're physically and mentally fit for another term? you're in "the situationon room" the power goes out and we still have wifi 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. as president biden turns 81 today, he is tracking jokes about his biggest political vulnerability. his age. >> this is the 76th anniversary of this event. i want you to know i wasn't there. my birthday today, they actually sang to me. i want you to know, it's difficult turning 60. difficult. >> our senior white house correspondent, mj lee, is joining us now. today was biden's birthday but it also comes amid falling poll numbers for the president. how is the white house responding? >> president biden turns 81 today. the white house says the real celebration will take place in nantucket this week with family. but you're right. his birthday coincides with a series of tough polls that have come out about the president, showing that his age remains a real vulnerability for him. questions have been raised about his stamina, health, sharpness, and whether he is too old to effectively serve out a second term. then you asked about the israel hamas war. we saw this new poll that showed his approval rating is falling among younger voters. i raised some of these concerns with the white house press secretary earl yier today. >> what i'll be clear about is we're not going to govern by polls here. we're going to, or poll numbers. we're not going to change the minds of americans. i get that. americans are going to feel how they feel. >> a bit of a surprising response i thought coming from the white house. basically saying they're resigned to the fact they can't change the minds of americans when polling seems to suggest that doing precisely that is imperative for the white house as they try to make a run for a second term. >> that's interesting, as you point out, mj. it also comes amid the cnn exclusive reporting where vice president harris said her and biden will have to earn a re-elect. >> as we've just been talking about, usually when there is bad polling, the white house tends to try to brush aside the surveys saying there are too many polls for them to care about any single one. it is too far out from the election. but the vice president, kamala harris, telling may colleague, quote, she said we are going to have to earn our re-elect, there's no doubt about it. then talking about an incumbent running for re-election. she said the people who want to continue in leadership have to make their case and have to make it effectively. you know, the white house says over and over again that they are very much focused on selling their record. it is why we see them trying to talk about the economy for example and the progress that they've made really since the pandemic, but we've also heard democrats and allies of the white house raising concerns and questions about whether they are selling that message effectively and i think interestingly, the fact that the vice president consistently polls better than the president raises interesting questions about whether she can help close some of that enthusiasm gap, which happens to be a big problem for the president right now. >> thanks so much. let's bring in our chief political correspondent, dana bash, and cnn political director, david cha, to dive in deeper. david, wondering what you make of the strategy by president biden trying to make light of the age issue. >> we've seen it in the last several weeks now. he did this when talking with some union members in illinois recently. poking fun at yourself is a tried and true tradition in washington for politicians to have some sense of humor about vir vulnerabilities. when you talk to biden strategists, they're going to own up to they see this as a potential vulnerability with voters. they're not oblivious to the concern, though they are quite certain they don't think the election is ultimately going to be decided on this issue alone. they think this is one factor that needs to be put in the context of a whole bunch of factors though they know a year from now, he'll be another year older. he's not going to get any younger. i know they're happy this is the last birthday they have to publicly celebrate before the election. >> that's a fair point. dana, donald trump i guess no surprise also weighed in on biden's big day today, releasing this letter from his doctor who notes trump lost weight and his cognitive exams were exceptional. there was no supporting documentation, but what do you make of this? this letter and how trump is approaching this? >> well, it's the most thinly vailed you know, kind of jab as you could possibly get, which is unusual because there's usually nothing thinly veiled about what donald trump does in anything, but particularly when it comes to joe biden. it is noteworthy because donald trump's not exactly a spring chicken. he's 77 years old. he is young. not young, particularly younger than joe biden, but not young in general. so what his focus has been is joe biden's health and so that is sort of the background for donald trump putting out his doctor's note, which as he said, had no supporting whatsoever. and if i may just on the joking that joe biden has been doing. as david said, it is tried and true. you just go back to reagan who by comparison, was way younger than either of these two, said i'm not going to use my opponent's youth and inexperience against him then just shut that down. that's not going to happen right now for lots of reasons, but this is the strategy that politicians who have had this question asked of them have been using since reagan and probably before that as well. >> and it's interesting, david. we were just talking about this last week. i believe it was in new hampshire where the only area where trump did better than biden was with the physical fitness, right? and mental fitness. you look at the bigger picture that our data guru looked at. he writes trump never held quote a lead in any national poll that meets cnn's standard for publication over the entire 2020 cycle. there have been 17 in which trump scored a higher vote share than biden. how worried, david, should democrats be about that heading into 2024? >> democrats and republicans will tell you they expect this to be a close election, pam. we should also note a higher vote share doesn't necessarily mean a lead. there are a lot of them have been well within the margin of error. no clear leader. that's what it's about here. if you look at the totality of the polling, this is going to be yet another closely fought election. just in 2020, pam, 45,000 votes across three states go in the different direction, donald trump's re-elected as president. the fact that would be fought out in six or seven battleground states and come down to probably tens of thousands of votes is the way we divide ourselves politically now. >> this is why every single vote counts. and you know, the biden team is looking at the polling. right? where it shows biden is weak with young voters, black voters, other voters of color and the biden team wants vp harris to reach out to these groups without potentially turning off voters who may not like her. what do you think of that? how do they manage this balancing act? >> well, they've been trying. the vice president has been going to college tours. she's definitely already out there trying to do exactly what you just said. and having discussion with our colleague, isaac is kind of a part of that to make sure people know on a national level what she's trying to do on a local level. going back to mj's report about what the press secretary said from the podium. basically like, we can't do anything about how people feel. that is the opposite of what pretty much every other administration official has been trying to do, which is i think what she was trying to get at, which is we understand you feel bad. we have to do a better job at messaging so that you understand all that we have done. and that certainly is even today. i interviewed the transportation secretary. that's what he said, a little bit of a different take. >> in terms of like these younger voters and so forth. kamala harris is out there trying to get the messaging out. trying to get them excited to vote in the next election. >> david, dana, thank you so much for offering your analysis as always. >> and just ahead, a federal appeals court strikes down a key tool that's been used for decades to enforce thehe voting rights actct. you'rere in "the s situation r " a ruling tool deciding that private citizens and civil rights groups cannot file lawsuits under provision of the law despite decades of legal practice. for more on this, i'm joined by joan. this has major implications. how big of a blow is this to the voting rights? >> it's really big. it undercuts a key section of the 1965 voting rights act and rejects years and years, decades of precedent that it allowed grouped like the aclu, naacp, to bring lawsuit against states based on potential vielolationsf the voting rights act. it's setting up a major confrontation for the supreme court. this particular section, section two, prohibits any kind of electoral practice, redistricting, procedures that discriminate on the basis of race. the law says the u.s. attorney general can bring cases but for decades and decades and decades, private groups have brought cases. so much so that as the dissenting judge said today of the 182 successful cases brought over the last 40 years, only 15 of those were brought solely by the attorney general. david strauss, who's the eighth circuit judge who wrote this opinion said for much of the last half century, courts have assumed section two is privately enforceable, but he add, a deeper look has revealed that assumption rests on flimsy footing. as i said, he brushed aside legislative history, all this precedent, but what he embraced were comments made by clarence thomas. he had been a law clerk to thomas. remarks by thomas and neil gorsuch who in past voting rights cases said it should be a very open question whether these private rights of action could be brought but those were the only two justices who said that. so this court in the words of judge david strauss who by the way was one of donald trump's first appointees to the appellate court is getting out ahead. the next step could be possibly a challenger's list, but it's definitely bound for the u.s. supreme court and it could have very wide consequences nationwide. >> certainly. for context, the reason why doj has filed so fuel is because it doesn't have the resources like these private entities who could be discriminated. huge case. appreciate it. coming up, reflections on former first lady roslyn carter after her death at age 96. a carter family photographer shares his photos and his memories, up next. president biden is paying tribute to former first lady rosalynn carter saying she walked her own path inspiring a nation along the way. the former first lady died yesterday at the age of 96. and with me now is one of the unofficial photographers for the carter family charles plant. i know charles you just told me during the break that you worked with this family for 35 years, taking pictures, capturing memories. you're mourning the loss of rosalynn carter, but we'd love to hear about some memories with them. i want to start with one of her favorite photos that you ever took of rosalynn, this solo picture of her, what's the story behind this photo and what do you see when you look at it? >> well, i see a beautiful lady. she was a perfect first lady, i think, and very nice and very easy to work with, very cooperative and i really enjoyed working with the president and mrs. carter all those years -- they were a great team to work with. >> yeah, she was beautiful and elegant and you really see that so clearly in this picture. tell us what is one of your favorite memories when it came to photographing the couple? >> well, that's hard to answer that question, there's lot of favorite memories, shooting on various occasions, i was called upon to go over to carter home on various occasions to shoot them with people visiting and of course i shot amy carter's wedding when she got married and on her birthday i shot pictures of her in "time" magazine on her 16th birthday. i photographed amy along with her mom and dad there out in the backyard against a i think one of the pictures i gave you all, too, it's hard to answer that question, which one is the favorite? i've got literally thousands of photographs i've shot of them over the years. >> what story do all of those photographs show, if you put them altogether what is the story told? >> well, i think he was a good president. he was very easy to work with and very cooperative in doing the photographs and he was a photographer also, and what was kind of unique about the whole family, it was kind of unique when my phone rang at my house sometimes and i'd answer the phone it would be the president of the united states and that's kind of a unique situation to be in, and i'm always remember that. after the first phone call at my home, after that, every time the phone rang my wife would look at me and we wondered who that could be, so it was very unique to be able to work with him. >> yeah, not very often -- >> sometimes he would call me about photography questions and where to buy this lens or where to buy this or something about the cameras and stuff, and i always tried to help him out, but it was like i said a pleasure working with him. >> and i'm sure his wife rosalynn as well, may she rest in peace and our thoughts and prayers of course are with the former president and the family, thank you so much, charles plant, for reflecting on your memories. we'll be right back. >> thank you. there are fears tonight about potential security threats posed by civilian drones to major events. cnn aviation coimportant has the story. >> reporter: the showstopper at last thursday's baltimore ravens game wasn't a play, but a drone. halting the action at m&t bank stadium twice. >> we saw them up there, the drones. >> reporter: the department of homeland security fears it won't be the last. warning the threat goes beyond just hobbyists. >> a range of adversaries are using drones to advance their nefarious purposes. >> reporter: the justice department said there's threat of a drone attack on mass gathering in this country, warning it's only a matter of time. congress has authorized dhs's counter drone authorities. >> if the department of homeland security and our partners don't get an expansion that will leave americans more vulnerable to harm from drones. >> reporter: incidents are making headlines almost daily. many may police in ohio charged three men with uses drones to deliver drugs to prisoners. a suspected drone at london's gotwick's airport. drones caused delays at pittsburgh's airport earlier this year. the solution is not a shootdown. dhs wants to ground hostile grounds by interrupting the signal. it goes into a lost link procedure triggering a return to the operator. >> flies over a sporting event because they literally want to get the bird's eye view of that activity, maybe be putting the people on the ground in harmful situation. >> reporter: the faa bans drones within three miles of baseball, football and nascar stadiums the agency says most drone operators are law abiding. but it only takes one. >> you purchased an aircraft, so safety is pair mount. >> reporter: the faa said drones are spotted near airports. many are them about to go on sale for black friday. the tsa say those who get them as gifts must know the rules or face a $30,000 fine. pamela. >> peter, thank you so