both sides about gagging donald trump. now, jack smith did win the first round in the d.c. coup case, but that gag order has not been am place. indeed, it was held for this review today. the special counsel's team says donald trump has clearly shown in his violent rhetoric and his calls for violence and his calls for other things that sounds like witness intimidation means he has to be gagged. trump's lawyers say the gag order, first of all, is overly broad. second of all, they think the whole thing in its entirety is basically a violation of the first amendment, first speech rights afforded to everyone, including especially a presidential candidate engaged in free speech, which can include legitimate criticism of the current administration, which oversees the justi department. now, special counsel jack smith was in court today. despite the judge's pushing back at prosecutors at times, we could tell you one headline from "the new york times" is this, they write that based on the arguments we heard today, there's been no ruling, but based on the tenor and substance of what the judges said in their questioning, it looks like the court is poised to hand jack smith a win, keeping the gag order. although the judge is signaling they may narrow it. we have had other court hearings in this case, including at the lower court level after jack smith indicted donald trump as a defendant. i attended one ask told you about it. glenn kirschner and i spoke about it at the federal courthouse. one thing about how we learned things is though district court hearings, lower level, don't give us live audio. what about supreme court, we get a lot of audio. in the appeals court process, depending on the hearing, you sometimes can get same-day audio, which is interesting because it takes us inside the room. if you ever had a text message, it doesn't give you the full flavor of somebody saying the same thing, this is like the court version of that. we have great guests standing by. first, i want to share you with some of these new highlights, audio from today's arguments. >> the order is unprecedented and it sets a terrible precedent for future restrictions on core political speech. >> he's a high-profile public figure who posts to lots and lots of followers. he's expressing his views as the first amendment allows >> it's not the role of the government to dictate what topics are appropriater unnecessary to discuss in the context of a political campaign. >> when the defendant engaged in repeated inflammatory personal attacks on soone, there is a causal link between that person receiving harassment, threats and intimidation. >> that last statement from one of jack smith's top appeals litigators here, you know when you're dealing with something as unprecedented as the federal criminal trial of a former president, you're going to have appeals. jack smith has proven to be organized. this is one of the people he picked to deal with exactly that situation, something that would be automatic in any other case. if you are accused of crimes against the united states government, linked to a violent insurrection and you blatantly publicly attack people, court officials and other things dealing with violence, you'll get a gag order. there are differences that are legitimate, which is to say holding back if someone is a politician. but the public interest issues raised by someone who is running a campaign can be different. and the first amendment does, as lawyers say, care about that. these arguments were of interest to the judges. we cannot predict how they're going to rule. we know the judges were interested because they allotted a certain amount of time. they can go over if they want. they are the judges in charge. and this argument today went longer than the schedule. the judge glling both sides for over two hours. >> would your position be any different if it were a year ago? >> a year ago we were in the midst of a political campaign -- >> but are we not in a political campaign? would yourosion be any different a year ago? >> i think a gag order would still benconstitutional -- >> would your position be any different? >> i don't see how -- >> the fact we have a campaign going on does not matter. >> the judge there doing what appeals court judges do sometimes, which is push the person to concede ordeal with something on the record. the point isn't that donald trump has no first amendment rights but, rather, some of the rhetoric from his lawyers saying, we're in a campaign right now, that's something we know the client, donald trump, cares a lot about because he timed his campaign to start earlier thinking it might help him somehow. the judge is basically saying, if your position is the same no matter what, it's always been that you want the gag order to say it's unconstitutional, it doesn't matter that we're in a campaign. that's an interesting exchange we wanted to highlight for you. we don't know if the judges will come down with jack smith and gag donald trump thoroughly and fully, something in the middle, or overturn the whole thing. "the new york times" reporting, as i mentioned, by the end the judges signaled they would likely narrow the scope of people covered by the gag order, including potentially freeing mr. trump to attack prosecutor jack smith himself, who was, as mentioned, sitting in that high-profile court hearing today. we have more excerpts coming up. we're going to go through this together and make it all make sense. i want to bring in mia wily. i should mention, my former boss. welcome to both of you. david, from the quotes i just showed and any of the other hearing that you gathered, where do you see this headed? >> first, let me say this, it was a fun argument for a lawyer to listen to. meaning it was hot. they focused on this. at the end of the day the bottom line is they're probably going to tinker with this ruling with the gag order and keep it in play but tinker with it a little bit. i think what we're seeing here is a collision between the first amendment protection of political free speech and the sanctity of criminal proceedings. what bugged me about the whole thing, i don't think this is something that's going to resonate with the judges, is that in lots of criminal cases, judges look at what defendants have chosen to do. it's their choice to do and at the end of the day, criminal proceeding takes precedent. they have to make some sacrifices in their own life. in this case, former president trump has chosen to enter a campaign, despite the fact that he knew when he entered the campaign that if criminal charges were imminent and he would have to make some sacrifices. and i think that the sanctity of the criminal justice proceedings here are going to probably win out a little bit here where, you know, the low-hanging fruit, jack smith, the judge himself what he's going to be able to criticize, but to go beyond that to make any sort of statements or actually retweeting as he did earlier today, threatening communications to the general public, i think will be prohibited and i think ultimately should it go to the supreme court will be upheld. >> interesting. i'm going to play more, but just on that point, you're reminding us or showing us how this isn't a black and white one size fits all thing, and going after what might be called the court process and the regular civilians who are called into this, who are called in to do their civic duty might by the judges ultimately be looked off limits, than say criticizing jack smith who is a big boy, part of the government. and to make your case in and out of the court, you may criticize that. >> that's right. i think witnesses are going to be protected. i think jurors are going to be protected. i mean, the type of information that may unfairly influence a jury is going to be off limits. i think there's going to be a lot he can say, critical of the administration, critical of the prosecution, all the things he legitimately should be able to say in advancing his campaign is going to be fine. but those things when he targets -- this is a tough question, targets. when he starts focusing on the things that are only particular to this prosecution -- witnesses, facts and things like that, i think, will legitimately be off limits because it really doesn't go -- this notion, poor political speech, which is what trump's lawyers tried to hide behind, i don't think is going to fly. i also don't think -- the big weakness i saw in trump's lawyers' argument is every kind of hypothetical that was posed to him -- you're right, appeals court judges do this. that's one of the fun things about making appellate arguments, you really have to think on your feet. and in almost every instance, he was responsible depends on the context. if i'm the judge, i'm thinking, okay, i'm giving you all the context, that's it. he kept on pushing. but you need context. guess what, you have to have prophylactic measures here because we're talking about the sanctity of criminal justice proceeding and we're talking about potentially the safety of witnesses. >> i want to echo that. i don't want to overemphasize the point, but if you're trying to have the refs call a game and somebody's standing on the sideline either holding a gun or encouraging a hundred other people to come down and do the violence for them, maybe they're not the type of person that does it themselves, maybe they like the other person to take the risk and do the dirty work, yes, it's going to affect human beings when the spectre of violence is in the air. i bring it out to you and play one more brief part where they brought up -- i'm not exaggerating. donald trump did call or muse about the murder, the assassination of a united states general. take a listen to this part. >> so what's not fair game? he can comment. >> yes. >> and he can comment very critically. what can he not do? >> use the sort of inflammatory language that poses a significant risk that they will be subject to threats, harassment, intimidation. if the defendant were to say, you know, not with any reference to their testimony, but say this person, you know, is a coward, a liar and treason and deserves punishment, without any reference to what the substance of the testimony, i think that would still bother. >> well, yeah, i think this goes straight to what is so complicated and interesting about this process, as david said. i do agree with david that i think there is still going to be some form of gag order here. the question is on what. this is why -- you know, our constitutional order and the first amendment is based on this notion that we want a free expression of ideas, and particularly for political speech, that's the speech we protect the most. and we protect -- particularly care about it not restraining it before someone's able to make it. you know, that's what we call the trial of strength. you can see the judges testing this out. like, what is in the limit? when is a political candidate able to talk about someone because they're a candidate for office, and this is a person arguably attacking them, at least in the form of making statements out in public. so, what can the candidate, what can donald trump do? this interchange is actually a really interesting example of what's the boundary in an unprecedented situation baz this is what is so unprecedented about this. we had a person who has been a president, who is running to be a president again, was kind of like hamilton's evil twin, who just can't stop, just won't stop when it comes to actually inciting his -- he's actually on trial for inciting people to violence. that is exactly what -- >> well, this is -- i'm sorry. sometimes we get lost in this. it's sort of -- he's doing it all out in public. and if this case were not, quote, unquote so politicized, i don't think other individuals, you know, career criminals would get away with it at all because he's invincing the cry lens, which he's already on trial for. that is not allowed. that is certainly not free speech if you prove it with the evidence. you mentioned hamilton. we love hamilton, we love music and culture references around here. some people, why bring the song into it? don't ask me but one of these judges, and this is the second highest court in the land right behind the supreme court, one of the judges turned to the godfather, invoking the film how encoded language can still be wrong. take a listen. >> you'd really have to me the showing, you know, sort the godfather, will someone get rid of the snitch for me, that's one thing. but you have to make that kind of showing. >> and that is exactly a very on-point reference because experienced criminals do not try to give away too much evidence. they use the coded language, cue up "the godfather." >> you look terrible. and a month from now this hollywood big shot is going to give you what you want. >> too late. they start shooting in a week. >> i'm going to make him an offer he can't refuse. >> not a technical confession, but a habit of language that still gets points across and things happen. why do you think the judge brought that up? do you think it is a relevant, fair reference to what defendant trump stands accused of? >> i do because we've heard repeatedly, repeatedly including by michael cohen back a few years ago when trump was still president, we said, this is what he does. he does the wink, wink, nod, nod. he does the exact same thing we see mob bosses do. and just as we see -- i would argue on his social media platforms, he goes further than the wink, wink, nod, nod. meaning he'll say things like, if it was anybody else, that guy would have been hung. i mean, that comes -- that's kind of more than wink, wink, nod, nod, godfather style. but that's actually what the court is struggling with here. what's the line we draw? when is the person, in this case candidate donald trump, being actually charged with inciting violence at the capitol? where is the boundary between those kind of things that he says to people knowing full well, full knowledge, that there is going to be a consequence for the fact that he says them versus as speech. if you just hear the speech, how close does he get to the line where he's actually inciting violence? that's the legal -- the considerations and part of my point about why this is so unprecedented, because we've never -- our political system was set up such that we trusted people to say, we don't want the people to lead us who don't have the concern with the well-being of others. usually that becomes enough of a political test that that would be disqualifying in and of itself. in this case, we have a number of folks saying, not only is that my president, but we've got millions of americans in a recent poll saying that they actually think violence is okay if it's about donald trump being in an office. that's just a completely different context than we've experienced. certainly in my lifetime. that's what makes these such important discussions that the court is having, and also a real struggle because this is not normal. we shouldn't think it is. >> yeah, very well put. i'm glad we had you here as our lead-off guest. the system requires that we be fair. it doesn't require that we close our eyes and be stupid and daft. to go back to the godfather, on the stand they say that was about swimming lessons, we have to look at the whole evidence and the pattern of violence. this defendant is presumed innocent like any other, but we can adjudicate the evidence. the evidence is damning. it's not at this point completely inconclusive. mia, thank you. david, i want you to stick around. there are new concerns about this trump-like figure taking over one of the world's largest countries. that story later. seth meyers had a special word for the msnbc moms, that's a term for "the new york times" he brought up when i got to stop by there. it was a very fun night. i appreciate him hosting us. i'll tell you what he says about msnbc moms. first, david comes back with a special guest on the other part of this quest to gag donald trump by jack smith. we're back in 60 seconds. k smit. we're back in 60 seconds my name's dan and i live here in san antonio, texas. i ran my own hvac business and now i'm retired. i'm not good being retired. i'm a pain in the neck. i like to be able to have a purpose. about three or four years ago, i wasn't feeling as if i was as sharp as i used to be. i saw the prevagen commercials. after a short amount of time taking prevagen, i started noticing a difference-- that i'm remembering this, i'm remembering that. i stopped taking prevagen and i found myself slacking back so i jumped right back on it. prevagen. at stores everywhere without a prescription. we're back with one of the most significant days in court yet in donald trump's coup case because jack smith thinks it's important enough to secure the fairness of the case and the plan to present his evidence and convict donald trump and then possibly send him to prison, that he needs this trump gag order. that went to the appeal today. we have the audio from it. we don't usually get that kind of thing. we have a lot more to get into here. as mia and i and david were just discussing, a big part of this case is not just the gag order, which is procedural in the trial. it's the underlying violence and election crimes being adjudicated throughout the country. you heard me mention people are innocent unless they plead guilty and then they are convicts. not in the georgia case. right now we have the former lawyer for one of donald trump's codefendants in that rico case. former trump attorney cited not only in georgia but also in this jack smith case. i told you about overlaps. he's co-conspirator five, unindicted in the doj case because of the slate that were being used to, quote, obstruct the certification. that's in the federal jack smith trump indictment. he played that role on those electors. we know that. he's convicted for a version of that in the georgia case where he struck a plea deal. we don't know whether he'll remain an unindicted co-conspirator in the federal case, or ultimately having pled to certain issues in georgia, face further charges. we have a special guest as we look at these issues together and we try to understand all of it with the people involved if they are willing to come out and take questions in public. that's what journalism is. the former attorney for kenneth chesboro is with us. manny, thanks for being here. >> thank you for having me again. >> absolutely. >> you're close to this. you have a perspective on some of this. first, what did you think of the arguments trump's defense lawyers were making today? do you think they had any merit? >> i think a lot of this that hasn't been discussed, the gag order stuff is a little bit of a stall tactic. in real criminal trials, and i've been doing this for 30 years or so, gag orders are essentially there to protect the jury pool so evidence doesn't get out or statements get made that could taint the jury pool and delay the process even longer. if someone truly makes a threat to a juror or prosecutor, you just revoke their bond and put them in jail. that's happened to several of our clients with very innocuous statements the government found out about on social media and they locked them up. so, while we're talking about these -- >> let me jump in and say, if you're going in that direction, do you think anything trump has done here in public regarding people like mike pence, bill barr and meadows rise to that level? >> i don't think so. as the court of appeals essentially said these are people their testimony isn't going to change anything, nothing will be different. like the young woman that was the election worker, that person could actually be impacted. you have to take it on a case by case basis. gagging someone isn't necessarily or in my experience the issue. you revoke their bond, put them in jail if you think they threatened somebody. >> david? >> i don't disagree with what he said. as i said at the outset, this is a collision between protected political speech and the sanctity of the criminal proceeding, which is not usual. i think that in the -- if he were to violate the gag order, yes, it would be also, i think, a violation of conditions of release that could justify his imprisonment. but this case is a little bit -- as much as judge chutkan wants to say, we'll treat this like any other criminal case, but tom line, it's not really because you have this parallel track, which happens to be a presidential campaign, in which he's the front-runner. and then you have this collision. it doesn't make it as simple as we're used to dealing with, which i agree. you violate -- you go and threaten a witness, implicitly or otherwise, you're gone. not so much here. >> yeah. i mentioned bill barr, among others. i take the point about who is the person we're dealing with and what is the likely impact in a trial court and appeals court overseeing the fairness of a trial has to care about that. here's one instance that came up today as judges were challenging jack smith's team on how far the limits would go, which is what you were mentioning, and bill barr's name came up. >> bill barr goes on "60 minutes" and gives an interview and questions mr. trump's fitness for office. mr. trump can't go online and say, everything he just said is false? >> if it's a direct attack on credibility or inflammatory comments result in harassment, that's one thing. >> manny? >> you know, these are intelligence people arguing it, but i'm just telling you, down in the trenches when you're actually doing the trial work, i have had very little success going to a judge and arguing first amendment issues on a bond where someone says i can't believe a mom of four would testify against me, something that general. people get locked up every single day. if we go down this contempt issue because there's a gag order in federal court, that's a separate trial he'll get, with a jury. that will just drag things out. so, i respect what everybody's saying, but the reality is if you really think he's threatening people or witnesses or intimidating people, there isn't a first amendment issue there anymore. you have a bond revocation hearing and you take care of it. >> in a way you're talking about how high a bar is it. as you're saying, that's what you're saying overlaps with agreeing with some of the people we've heard from tonight, that if you pass that line, that's it. i appreciate you saying the trenches. i don't know if you know, we had lil durk here on the show friday and he always talks about the trenches of chicago. you might be around some of those issues. in closing because we're almost out of time, manny, i did want to give you the chance if you want to respond on behalf of chesboro, do you think he or any other unindicted co-conspirators have exposure or do you see him fast-tracking this and leaving those others as basically witnesses in those cases? >> can i give a shout out to lil durk. he was a witness in a shooting in atlanta. >> wow. i didn't know that. live tv. you were one of his criminal defense attorneys? >> i was lead counsel where he was accused of shooting up everything outside of the varsity some years ago. that's neither here for their. no need to blow my own horn. >> you say you want to give him a shout out. >> if he remembers me from three, four years ago and they dismissed the charges. i digress. with regard to the other stuff, not only is it arizona investigating and nevada, d.c., there's potential exposure out there, but at some point once a trial happens, and if trump is convicted, i don't know if the state cases are nearly as important with the amount of money and time and effort they're spending. as soon as a case gets started, it might resolve some of the other tangential ones. i think the federal one is the biggest one and probably the easiest one to prove. >> david kelley was here drawing on his extensive experience as one of the most powerful prosecutors in new york. manny here with your knowledge of this case, the georgia overlap, as mentioned, and we learned your history with durk. here we are. thanks to both of you. let me tell folks what's coming up. we looked at the so-called appeal to populism. we learn a lot when we look abroad. argentina held an election and broke with traditional party. they elected a right-wing party going with the maga playbook. >> has also pledged to loosen gun laws, ban abortion and he and his vice president have repeatedly been accused of lacking respect for democracy. donald trump congratulated him on his victory saying he will truly make argentina great again. >> there's a lot going on in the world. some of it has lessons for us. we'll get to all that. we've heard about the first amendment. donald trump's coup trial, what we saw today and where we're headed, will bring up real free speech issues. regardless of how you feel about him as a person, politician or defendant. we have a very special guest on that important issue next. mptao. d deserves it! ♪ (mom) carolers? 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business. powering possibilities. smith's push to get donald trump, the defendant in his coup case, gagged. you may think, okay, if you've seen our whole newscast or tuning in now, we're 30 minutes in covering this, but the hearing alone went two hours. and the issues underneath it are even more significant. that's why we wanted to share with you bit by bit some of the key highlights. airing for the frst time, i want to turn to something i mentioned earlier. there are real first amendment issues, violence and rhetoric, directly calling for violence and inciting it is not free speech, obviously. it is fruits of or part of a criminal activity. but there are some other closer calls. i want to play, the judge asking the prosecution, the jack smith team, about where the line is for the actual real first amendment protection for any defendant, in this case donald trump's right to make political speeches. >> so i'm asking your position, which doesn't seem to give much balance at all to the first amendment's vigorous protection of political speech. and the notion that high-profile public figures or governmental officials who take on enormous responsibilities like prosecuts can't stand up to some inflammatory language, seems to me to contradict supreme court precedent. >> it can be prosubscribed if there's a central substantial likely to the proceedings. >> that was a key question and gave some people following these hearings some pause. you have at least one judge there basically saying out loud, it's in the form of a question, but saying at least one part of the way this gag order was initially written might actually break with supreme court first amendment precedent, and that's pretty significant. as we turn to the legitimate side of first amendment issues, we have manny, who has handled on the prosecution and defense side and has dealt with individuals accused of crimes who then threaten him and his team as a prosecutor. not something we always draw attention to, but relevant tonight. thanks for being here. >> happy to be here. >> we just had three guests on, one that was a former criminal prosecutor like yourself, one is a defense attorney who's actually represented someone who is a co-conspirator in this case, and mia wily an experienced attorney as well. they all agree to a certain extent that donald trump has done things that go as far as over the line. and then the question becomes, do you deal with a gag order or as one lawyer said, you deal with him like any common criminal and revoke his bond. that's been established. i turn to you and ask, what about what the judge said, the part of this where we as a society should still make sure we're being extra careful if a legal proceeding against someone who is presumed innocent could be used on purpose or accidentally and result in really interfering with their free speech rights amidst an important campaign. your thoughts? >> i think all the judges -- we're looking for a way to potentially narrow this order, sharpen this order to reduce these first amendment concerns, particularly since this is potentially not the last court that's going to consider this. this could go right up to the supreme court. you have a defendant who not only is a high-profile public figure, not only running for president, but the witnesses in this case are often high-profile. people like general milley, for example, obviously a public figure himself. i think you're going to actually see the judges here sharpen this order a little bit. for example, they talked at length about allowing criticism of jack smith personally, not just the justice department. make sense? you and i talk about jack smith all the time. i think there are legitimate first amendment concerns about restricting donald trump's ability to criticize jack smith himself. >> yeah, that's a great point because, again, the interference can go in another direction, but the justice department and the prosecutor in charge, their approach doesn't have to be off limits, particularly if there's a public component to this. the judges also raised the idea of how would this even work during a presidentiadete. >> so, tell me about your debate, what your view of debate. boy, that would be really hard in the debate when everybody else is going at you full bore and your attorneys have to ri little things you can say. >> your honor, i respectfully disagree there would be anything particularly challge about a rule that would say naming individual line prosecutors is too hard to follow. >> you don't think he can name line prosecutors by name? >> i think that would be presumptively an act of targeting. >> notice the concession even in the way in which the special prosecutor answered that question, by saying line prosecutors. that's the low level people of the office. almost a concession that people who are leading the prosecution could be criticized, but even there you could imagine, for example, donald trump saying a particular prosecutor said something detrimental regarding him in court or made a filing that criticized him. that could be legitimate. i think one thing that trump has deliberately done to try to blur the lines here and to actually improve his argument is by making all of this a political issue. trying to attack jack smith is sort of part of his republican primary campaign. i think he's deliberately blurring the lines. really the question here is, how can the special counsel and the judges in the d.c. circuit craft a narrowed gag order to reduce the chances of the supreme court reversing this 5-4. >> very interesting. you remind everyone, the supreme court looming in the background. with experience on both sides, thank you so much. let me tell folks by the end of the hour, we have something fun with those hollywood strikes over. well, late night is back. our colleague rachel maddow among the first to hit the stage. we'll share something about that and msnbc moms by the end of the hour. as we see this rise of so-called right-wing populism, economic anxiety and a real challenge to democratic rules and norms around the world, we'll show you what just happened in argentina and why it could affect you. f. 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(♪♪) gain flings. seriously good scent. major news tonight that may strike you as very familiar. scrutiny on the way right-wing appeals to populism also raise warnings about democracy and authoritarian tactics. voters in argentina just elected a brand-new president who many see out of the maga playbook. now, he has his attributes. many voters flocked to him as a rejection of argentina's traditional party at a time of huge economic problems. javier milei is an economist with very little political experience, and beat the more progressive candidate and won big with 56% of the vote. >> right-wing former tv pundit, javier milei, has won argentina's hotly contested presidential runoff election. >> if drawn comparisons to brazil's former president as well as former president donald trump. >> says he'll bring a chain saw to the economy. >> mr. milei has also pledged to loosen gun laws and ban abortion, and he and his vice president have repeatedly been accused of lacking respect for democracy. >> this is clearly and publicly anti-elite and right-wing effort, although tapped into the real economic concerns of that country. and if you're worried about inflation in america, which we have covered and has been a real problem, think about what people in argentina are up against. inflation is not at 5%, 10%, 15%. it has hit over 100%, cutting into everyone's ability to spend and save. the poverty rate in that nation, 40%. but this is a leader who embraced conspiracy theories, pushed extreme policies and seized on those legitimate problems to really go off in his own direction. there are far right tactics familiar to the maga playbook with trump or brazilian president who was in brazil when they had their own mini jan 6 insurrection. pretty familiar. writ large, there's nothing permanent about democracy as a system of government in the world, let alone the west. and democracy is in decline. there' new report on its global state that shows the last six years in a row, democratic norms and what we take as the basic rule of law, democracy is sliding. and they look civil liberties, judial independence and, of urse, the be all end all, do you have credible elections? agnst that back drop is a surge inhoritarian tactics. the report names trump and other leaders ranging from turkey to hungary. there is a global context to what happens when there are big problems that make people open to change, which is fine, or desperate for any change, desperate to try even extreme or untested tactics. that brings risks. this was, best we can tell, argentina should, of course, respect that like other democracies, but where this goes with someone pushing conspiracy theories is an open question. as we mentioned, we have something a little more upbeat as we go forward with the hour, including rachel maddow teaming up with seth meyers. up with seth meyers. and i saved hundreds. with the money i saved, i started a dog walking business. i was a bit nervous at first but then i figured it's just walking, right? 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