donald trump's legal team can show him the sensitive materials in the case, but trump cannot take notes on any information that would identify witnesses and, according to the protective order, quote, during any time that the defendant reviews sensitive materials outside of defense councils presents, the defendant must not have access to any device capable of photocopying, recording, or otherwise replicating the sensitive materials, including a smart cellular device. this protective order was a partial win for jack smith's team, who originally sought to prevent the public release of all evidence given to donald trump. let's not forget these rules for sensitive materials are being enforced on the twice impeached former president who was comfortable with leaving classified documents in a bathroom at his florida residence. donald trump's legal team has stuck to a very obvious strategy in this case. we naked about first amendment rights, delay, and then make it some more and then try the case in the media. before issuing the protective order, judge chutkan addressed all of trump's defense tactics. just this week, donald trump said this. >> she sure would like to talk to you about your case, i'm sorry, i'm not allowed to talk about it? somehow that is not good for -- we say i can't talk, i will talk about, it i will, then they take it away, my first amendment right. >> judge chutkan today said, quote, mr. trump, like every american, has the first amendment right to free speech. but that right is not absolute. that right is not absolute. donald trump does not have the right to bully or intimidate witnesses, or use his social media platform to send posts like this. if you go after me, i am coming after you, all caps. on donald trump's social media use, judge chutkan said, quote, your client's defense is supposed to happen in this courtroom, not on the internet. and to the extent your client wants to mix statements on the internet, they have to yield to witness security, witness safety. that is what i am concerned about. judge chutkan was also concerned about the defense's request to allow more trump aides to review evidence in the case. the definition you have currently is simply too broad. it allows just about anybody you know, i live in washington, everyone is a consultants. trump attorney john laura argued the protective order would put a, quote, chill over trump's ability to defend himself in the 2024 presidential campaign. judge chutkan side, quote, he is a criminal defendant. he is going to have restrictions like every single other defendant. and the fact that the defendant is engaged in a political campaign is not going to allow him any greater or letter -- lesser latitude than any defendant in a criminal case. that means that he can't say exactly what he wants to say about people who may be witnesses in this case. that is how it's going to have to be. meanwhile, after more than two years of demanding the justice department appoint a special counsel to investigate hunter biden, republicans and congress got their wish. today, attorney general merrick garland announced the appointment of u.s. attorney david weiss as special counsel in the investigation. >> on tuesday of this week, mr. weiss advised me that, in his judgment, this investigation had reached the stage at which he should continue his work as a special counsel. and he asked to be so appointed. upon considering his request, as well as the extraordinary circumstances relating to this matter, i have concluded that it is in the public interest to appoint him as special counsel. >> the white house was not given advance notice of the announcement and did not comment. david weiss, a trump appointee, has been investigating hunter biden since 2018. today, prosecutors said in a court filing that plea negotiations with hunter biden 's team on tax charges brought by weiss's office had fallen apart. the case is now expected to go to trial. leading off our discussion tonight, hugo lowell, who covers donald trump and the justice department for the guardian. he was at the courthouse here in d. c. for today's hearing. hugo, great to see you. what was your impression of judge chutkan's first hearing in this case? >> i think that theme was no nonsense and no politics, and the judge made that very clear throughout the course of the hearing. the one thing she kept returning to was, you know, trump is now a criminal defendant. just because he is choosing to run a campaign does not mean that supersedes his requirement that he abide by a protective order or abide by his release conditions so that he won't be engaging -- my chill will rise to the level of witness intimidation. you saw this reflected in the order she handed down. she did grant and the trump lawyers request to have sensitive material kind of support in a kind of bucket as opposed to non sensitive material, which he can't disclose. -- he could disclosed to such an extent that it's difficult to really see it as a win for trump at all, in fact i think most points the special counsel wanted, they won. >> hugo, judge chutkan said this to donald trump's defense team, i caution all of you and your client, therefore, to take special care in your public statements about this case. i will take whatever measures are necessary to safeguard the integrity of these proceedings. did judge chutkan stress this throughout the hearing? >> you could see it kind of themes, but it was a real warning that came at the end of the hearing today. they had wrapped up most of the proceedings, they had wrapped up discussion of the protective order. at the very end she sat everyone down inside, look, this is how this is going to work. this is my courtroom, and there is not going to be any of these politics, this split game going on in my courtroom. trials are not elections, and she sounded this morning that was pretty aimed at trump to say any inflammatory rhetoric is going to push me to schedule a trial sooner, which is obviously not what trump wants, because he wants to delay. that is because i want to protect the integrity of the proceedings and i will ensure that we have a jury pool that has not been tainted. >> all, right hugo lowell at the guardian, thank you for coming to the last word tonight. joining us, now to former federal prosecutors and msnbc legal analyst. paul butler and cynthia -- paul, me start with you. is this protective order a victory for jack smith? >> it's mainly a victory for jack smith. so the judge signaled that she is going to be -- very fair to trump in the way that she has to every defendant, but that she is not putting up with his typical nonsense. and, so she went along with the defense requests that if the protective order needed to be limited. she limited it to sensitive materials, but she has a very broad definition of what sensitive materials me. and the most revealing aspect of the order is a requirement that trump's lawyers review his notes when he is looking at the material to make sure he is not secretly writing down stuff that he could make public later. she said he can't even take his phone in the room when he is looking at this evidence. jonathan, i think she was persuaded by some shade that the prosecutors have thrown. one of the lawyers of the trump house has shown a tendency to hold on to material he should not. an obvious solution to trump's other federal cases. >> i read that particular order, and i was, like how are they going to guarantee this given past practice? cynthia, as we are talking, about donald trump has a habit of taking documents he shouldn't take. what are some of the guidelines for donald trump's legal team regarding who can see the sensitive material? >> only the legal team can see it. his lawyer tried to expand that to include volunteers and people who were helping. the judge said, no, you can't do that. everybody is a consultant in washington and we all know that's true in washington. it's going to be limited, really, to the core legal team, they can only see it, and anybody who participates and looking at it has to sign that they had read the judges order so that they too may be held in contempt if they violate the order. let me say, even though and there are restrictions on trump, who are we getting? it's going to take the guy a -- to violate this order. wait until he reads the secret, there is this tease in the hearing, and they have secret service emails and communications, which he probably has not seen yet. when he sees that, when he sees exactly what pence said, when he was interviewed, when he sees exactly what meadows said when he was interviewed, when he finds out who has flipped against him, there is just no chance and that donald trump can control himself and not comment about that. it's only a matter of time until we are back in court really great relitigating this exact order. >> it said it's going to take a pair of seconds. what happens if donald trump doesn't adhere to this protective order? could judge chutkan issue a gag order? >> so it is when not if, jonathan. everyone in that courtroom knows at some point donald trump is going to violate. judge chutkan actually said she sees the potential for lots of problems. she said witnesses don't have secret service details to protect them. so if, when trump violates the protective order, could judge chutkan find him or even lock him up for contempt. but jonathan, her genius move today was to suggest another sanction moving up the trial date. if anything motivates trump to follow the rules, it might be that. as we all know, he wants the trial to happen as late as possible. >> right, right. cynthia, jack smith's prosecutors are prepared to hand over 11. 6 million pages of discovery to donald trump's defense team. what does that mean for setting a trial date? >> well, it means january 2nd is probably not a realistic trial date. the judge threatened today that she would move the trial date up. it is of course, paul's right, that is a brilliant carrot for the trump team. but she can only move it up so far, with that much discovery, and maintain a level of fairness. you do get a sense today she is very serious about this being a fair proceeding, for trump, and making sure that the jurors are properly not only protected but not -- they don't have any evidence or information before the trial starts and the witnesses are protected. but she is such a fair person. she's not going to move it up too far. that's a lot of discovery. what happens in cases like this is the prosecutors organize it and they say these are the important pieces and this is what you need to look at in an attempt to try to speed things along. but in truth, a good defense attorney doesn't follow that. a good defense attorney goes through all the evidence themselves and makes a decision. i don't think it's possible they can do that by january. it's a lot of discovery and it's going to take a lot of time to be ready for trial. i'm hoping it can be done in march or april, but january does not seem realistic to me. >> let's turn to the hunter biden investigation. now the special counsel in that case has been appointed, what's next? >> first, let me say the appointment of the special counsel was unnecessary. it is merrick garland giving a performative virtue signaling with an infusion of when pianists. he is the most powerful law enforcement official in the country and he really doesn't have to hand off his most important difficult decisions to special counsel's, even if that means people are going to be happy with his decision. so it wasn't necessary, but it's not a game-changer. it's the same republican appointed prosecutor who stays on the case, the plea bargain broke down, but it could still happen. 90% of federal criminal cases are resolved with plea bargains. garland didn't say why he wants wise to be special counsel, but one theory is he will have the power to bring cases in various jurisdictions. but it weiss could've worked that out without being the special counsel. the main difference that it makes is that at the end of the investigation, david weiss will be required to write a report about his conclusions. and garland says he will release as much of that report as possible. paul butler, cynthia alksne thank you both very much for coming to the last word tonight. and, coming up, all signs are pointing to a charging decision in georgia from fulton county district attorney fani willis, coming next week with new reporting about who could be charged and for what crimes. we will have more defendant trump news coming up next. 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>> thank you, jonathan, for having me tonight. the georgia racketeering status applies to the trump case because, as you know, it is broader than the federal statue. georgia has 43 additional state crimes that are named as racketeering credited acts, so the basis for a racketeering charge, including in that list is the computer trespass felony and that is what the allegation is, that happened in the voting machines in -- county georgia, where the gop officials down there went in on looked at what was going. on the did not once, not twice, but three different times. and so that is one potential predicate back and even though it kurt in another county, as long as one overt act for rico occurred in folding county it would stick. >> georgia's rico statute quote requires a pattern of misconduct as shown by violations of two or more cries specified in the statute these predicate crimes can include committing or submitting -- the computer trespassers you just mentioned and influencing witnesses. so, given all of that, amy lee, what challenges could d. a. willis face in pursuing georgia rico charges against donald trump and his allies? >> sure. it is a broad statute, it is supposed to be very liberally constrained, but there could be defenses that people simply weren't acting in concert. that they had gone rogue where they were interrelated, and that everybody was sort of doing their own thing. that seems difficult given the activity that we know about when mr. giuliani goes to meet with georgia legislatures, three different times. when i believe miss powell, sydney powell's foundation assisted in the payment for the voting machine breach, that can be a difficult defense for him because, again, it is a statute that is very broadly construed and covers a wide range of activity. >> new york times reports, emily, nearly 20 people are known to have been told that they could face charges as a result of the investigation. if donald trump and his allies are indicted, will each individual be charged at the same time? >> it is likely. there is one notable exception, and that is the gop, now lieutenant governor is a gop candidate and miss willis was disqualified from this case last summer, but the georgia prosecuting attorney will assign a new prosecutor to look into that. but, likely everybody will be indicted together, jonathan. >> one more question for you, but from what you know of the case, are there any, are there other charges that a potential georgia indictment could include that we have not seen against trump yet? >> yes. georgia has a number of statutes that talk about election interference and title 21 of the georgia code, that is solicitation to commit election interference, conspiracy to commit election interference, tampering with ballots, those have been part of the georgia code for a number of years and could be stand-alone acts independent of rico that the state could bring against mr. trump. >> one more real quick question for you. do you think there is any possibility that donald trump does not get indicted, but everybody else does? >> i don't, jonathan. i just don't. >> i asked that question because generals coleman junior, when he was on my weekend show last week, he said that he thinks donald trump will be indicted in georgia, but he wouldn't be surprised if he weren't indicted. so i'm asking everybody what they think. amy lee copeland, thank you very much for coming to the last word. and, coming up, the seven states both red and blue have now voted again and again to protect abortion rights since the supreme court overturned roe v. wade and both democrats and republicans have noticed. that is why democrats are looking at a national strategy to make as many 2024 campaigns as possible about reproductive health. senator tina smith at the great state of minnesota will join us, that is next. erosion and cavities is strong enamel- nothing beats it. new pronamel active shield actively shields the enamel to defend against erosion and cavities. i think that this product is a gamechanger for my patients- it really works. when i was diagnosed with h-i-v, i didn't know who i would be. but here i am... being me. keep being you... and ask your healthcare provider about the number one prescribed h-i-v treatment, biktarvy. biktarvy is a complete, one-pill, once-a-day treatment used for h-i-v in many people whether you're 18 or 80. with one small pill, biktarvy fights h-i-v to help you get to undetectable—and stay there whether you're just starting or replacing your current treatment. research shows that taking h-i-v treatment as prescribed and getting to and staying undetectable prevents transmitting h-i-v through sex. serious side effects can occur, including kidney problems and kidney failure. rare, life-threatening side effects include a buildup of lactic acid and liver problems. do not take biktarvy if you take dofetilide or rifampin. tell your healthcare provider about all the medicines and supplements you take, if you are pregnant or breastfeeding, or if you have kidney or liver problems, including hepatitis. if you have hepatitis b do not stop taking biktarvy without talking to your healthcare provider. common side effects were diarrhea, nausea, and headache. no matter where life takes you, biktarvy can go with you. talk to your healthcare provider today. life, diabetes. each day is a unique blend of going, doing, and living. glucerna protein smart with 30 grams of protein to help keep you moving. uniquely designed with carbsteady to help manage blood sugar response. glucerna, bring on the day. my most important kitchen tool? 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ask your rheumatologist for rinvoq. and take back what's yours. learn how abbvie could help you save. ♪ limu emu & doug ♪ what do we always say, son? liberty mutual customizes your car insurance... so you only pay for what you need. that's my boy. now you get out there, and you make us proud, huh? ♪ bye, uncle limu. ♪ stay off the freeways! only pay for what you need. ♪ liberty. liberty. liberty. liberty. ♪ i think it was clear in 2022 that abortion and democracy were inextricably linked and it is what propelled the midterm election to the outcomes that it had. i think we have seen everything from kansas a year ago to ohio today and everything in between continue to demonstrate that people just don't like when their freedoms are taken away and they are going to fight zealously to make sure that we are able to secure them whenever abortion is on the ballot. people will come out and vote. >> that was planned parenthood president, alexis mcgill johnson talking about the big win for abortion rights supporters that was won in ohio this week. when given a chance, voters in state election after state election continue to say that trying to take away women's reproductive rights and access to abortion is a losing issue for republicans and tonight there is new reporting that democrats plan to double down on supporting reproductive rights heading into the 2024 election cycle. axios has obtained a memo circulated by the democratic congressional campaign committee that states, it is crucial that democrats remind voters early and often that maga republicans are focusing their power on advocating for dangerous and unpopular abortion bans. if it continues, every single republican incumbent and challenger will have to answer for the gop's extreme anti abortion agenda, both in state and at the national level. next year, abortion related measures are already on the ballot in maryland and new york and following tuesday's win in ohio, planned parenthood and a coalition of advocacy groups launched a campaign in arizona to advance an amendment to codified abortion rights. not to mention, five other states could potentially have abortion ballot initiatives as well. in the post-roe v. wade era supporters of abortion access have the momentum in elections, while republicans are holding on to antiabortion stances that could put their most vulnerable politicians in jeopardy. joining us now is democratic senators tina smith of minnesota, she's a member of the senate committee on health, education, labor, and pensions. she previously served as executive vice president of planned parenthood in minnesota, north dakota, and south dakota. senator smith, it's great to see you again. thank you for being here. here is biden's 2024 campaign manager, julie chavez agree is on the ohio, and watch. >> we are encouraged by what we are seeing in ohio and another data point based on what we have seen across the country and in so many states and throughout the midterm. exactly that point that abortion is a potent issue and it is an issue that is top of mind for many voters across the country. >> so while vice president kamala harris has been very vocal about abortion rights and the attacks by republicans, biden has largely focused on the economy. so the president spoke more forcefully on this issue, or do you see this as a good balance? >> well, i think the president has spoken out about the importance of reproductive freedom and i think voters understand that democrats are to be trusted, they can be trusted to protect women's freedoms and make their own health care decisions, including about abortion, and they get that republicans, given half a chance, are going to look to put forward a national abortion ban if they get control of the white house and congress. i used to be an organizer and i know a galvanizing issue when i see one and this is galvanizing because people care a lot about it, a lot, they are angry about it, and they can see that their vote is going to make a big difference in what happens. so i think this is a very potent issue and i think that republicans don't have a message problem here, they have a values problem because they are not on the side of most american voters when it comes to abortion rights. >> that is an excellent point, not a message problem but devalues problem. despite pushing justices on the supreme court to help get us here, senator, donald trump now says the abortion issue hurt republicans in last year's midterms. congresswoman nasty and see mason, say that republicans need to find the, quote, middle ground, whatever that is. do you see the republican party changing its messaging, if not its values? >> hear what you see is they can see they are not on the side of voters. voters are understanding that and they have lost seven big campaigns in seven different states, including red states like ohio and montana. so what they are trying to do is obscure where they are so they are either doubling down or trying to obscure what their positions are, and i don't think that voters are going to buy it. i think they understand where the republican party is on this, and it's why it is going to matter so much. not to the exclusion of economic issues, but which are always going to be voted important voters, but you can't run away from this if you're republican who wants to be president or senator in ohio or montana or wisconsin, you are going to have to be held accountable for how you are out of step with the voters. >> with your past work for planned parenthood you mentioned this a moment ago, it doesn't surprise you to see red states like kentucky and kansas voting this way? >> well, it is so interesting because i have seen red states like north dakota and south dakota reject ballot initiative is taking away women's freedom to make really often difficult health care decisions about their reproductive lives, including abortion. in some ways it doesn't really surprise me. i think what has changed is that after the overturning of roe, more americans, independents, more than half of all republicans, a little less i should say of half than republicans, who believe that abortion should be legal and all or most cases see that that is really at risk. they can see the impact of this in states like texas and other places, what happens to women's health when they don't have the opportunity to exercise that freedom and make their own decisions. so i think what has changed now is that it is so much more urgent because of what the supreme court that donald trump put into place has done to women's health care in this country. >> we have been talking about the supreme court and donald trump, let's talk about senator tommy tuberville, your colleague. he's been blocking about 200 military promotions because the defense part department provides paid time off and travel expenses for those seeking abortions. do you see at way through this fight when the senate returns next month? >> well, the way through this fight is for senator tuberville 's republican colleagues to hold him accountable and get him to stop it. there is really no other path. i mean if the united states senate were to try to vote on every single one of these military promotions that senator tuberville and his unprecedented way is holding up, it would grind the united states senate to a complete halt and it was set a terrible precedent for other extremists to completely block the senate. so mitch mcconnell and senator tuberville's colleagues have got to get him to stop it. to stop what is a threat to not only our military readiness, about the morale and ability to retain talent in the united states military because of how he is politicizing so irresponsibly such a basic process in the military, which is simple promotions. >> senator tina smith, again, from the great state of minnesota, thank you for coming to the last word tonight. coming up, america got a new national monument this week but for 12 native american tribes it means so much more than that. our next guest has been fighting this fight for more than 30 years and she was there when president biden signed the degree to protect more than 1 million acres of sacred land. carlota lucey, the tribal leader, will join us next. check. psych! and i'm about to steal this game from you just like i stole kelly carter in high school. you got no game dude, that's a foul! and now you're ready to settle the score. game over. and if you don't have the right home insurance coverage, well, you could end up paying for all this yourself. so get allstate, and be better protected from mayhem, yeah, like me. thanks, bro. take a lap, rookie. real mature. rsv is in for a surprise. meet arexvy. 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>> a lot of people sacrificed their time. this was a grassroots effort that begun in 1984 by my tribal elders and they never wavered and they stood firm and we continue to voice our opposition, even though it got hard. we did it as a community, we did it as a family, and we are so happy that this decision was made by the president this past week. >> i don't want to give the impression that the work is done. what more would you like to see happen in your ongoing fight for environmental justice? >> this proclamation was very historic to all the tribes, and we are very happy that we finally have a seat at the table to make decisions on how our ancient sites are being protected. our waters are going to be protected, our prayer, place of worship is going to be protected, and also our ancient burial sites. those are very important to us and, yes, there is still a lot of work that needs to be done and we look forward to working together with the federal agencies to protect our special places, especially our water and livelihood. >> on a personal note your daughter introduced president biden before he spoke on tuesday. what was it like for you to watch that happen? >> it was very emotional for my family and my community, but we were so proud of her and how she took on this task for all the tribes and all the community. we are just very proud of how strong she was and she was evidence of how our elders chose very strong words to protect our community and sacred lands. she took it on like a champ. >> miss tilousi, one more question. when tourists come to visit the grand canyon they can come see this national monument as well. what else about this special place do you want people to know before they come to visit? >> i want them to know that there are 21 tribes in arizona and 13 tribes in arizona hold this place has a holy place and everyone who visits this place should enjoy it and receive its blessing and that you walk away feeling that this place is very special to many, many people and we want to share it with the world that comes in visits. >> carletta tilousi, a thank you so much for coming to the last word tonight. >> thank you for having me. we are very happy. >> tonight's last word is next. power e*trade's award-winning trading app makes trading easier. with its customizable options chain, easy-to-use tools and paper trading to help sharpen your skills, you can stay on top of the market from wherever you are. e*trade from morgan stanley. power e*trade's easy-to-use tools make complex trading less complicated. custom scans help you find new trading opportunities, while an earnings tool helps you plan your trades and stay on top of the market. e*trade from morgan stanley. frustrated by skin tags? 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um, it's called commitment. could you turn down the volume? here, you can try. get way more into what your into when you stream on the xfinity 10g network. people lost everything. homes, jobs, their cars, their pets, there are still people missing. i fought wildfires in california, and i was here yesterday when it flared up, and i've never seen something ravaged so fast and this is going to go on for a while. this is going to take years and years to recover. >> there is breaking news tonight from maui where historic wildfires have now taken the lives of 67 people. the inferno has left thousands homeless or displaced in what officials are calling the worst natural disaster in the state's history. today, emergency officials in hawaii said that warning sirens were not activated as the flames spread across the island, leaving residents with little time to evacuate. officials said that three other warning systems were used, sending alerts to cell phones as well as by radio and television. some residents on the western side of maui were allowed back into their homes today for the first time since the fire started. around 11,000 homes and businesses on the island are still without power. members of honolulu's fire department from the island of oahu arrived maui yesterday with disaster relief aid to help the victims of these deadly wildfires. many climate scientists are attributing the severity of these fires, at least in part, the climate change. the flames were helped by winds kicked up off shore from a category four hurricane that then met warmer, drier conditions seemingly turning these fires into a much bigger tragedy. >> climate change is here and it is affecting the islands, and i think that is what we are seeing with this fire. >> with president biden yesterday declaring a major disaster in the state that has opened up a streams of federal aid and brought in more assistance from the coast guard, the navy, the national guard, and the u.s. army. all of whom are helping in the search and rescue process. here is what vice president kamala harris told reporters today when asked if there were any plans to go to hawaii to tour damage from the fires. >> we are monitoring it, as with most of these kinds of situations, do whatever is in the best interest of folks on the ground and we don't want to distract from resources that need to go into the victims of this tragedy. and of course the first responders have to be focused on that issue and not worried about focusing on us if we are there. so that was always something that we monitor and balanced out. >> and that is tonight's last word. as a reminder, you can join me this weekend, that is tomorrow, 9 am, for the saturday show and again at 9 am on sunday for the sunday show, right here on msnbc. that'll do it for me, thank you for watching. the 11th hour with stephanie ruhle starts now. tonight, the judge overseeing trump's election case lays down the law. saying his first amendment right to free speech is not absolute, while issuing a warning about what he must not do. then, the attorney general elevates the prosecutor investigating hunter biden to special counsel, why now and could the president's son be heading to trial? and our friday night cap crew weighs in on the week from the economy and the race for the white house to the fight over a. i. in hollywood, as the 11th hour gets underway on this friday night. good evening once again, i am stephanie ruhle. it is friday and we have got a fantastic night crap grew recapping week it was, about let's talk about the day that is and we saw major developments in cases that involved the current and former president. judge tanya chutkan issued a protective order in donald trump's 2020 election interference case after hearing arguments from the government and trump. >> she put everything that has to do with witnesses in the compartment of sensitive information. not just grand jury witnesses, anyone that the government had interviewed. that is the first thing. and the second thing is that,