the courthouse. lisa rubin, catherine christian and caroline polisi. thank you all for being with us. in the meantime, ken, what can we expect from this hearing and remind us of the parameters of the current gag order. >> reporter: it prohibits former president trump from criticizing the prosecutor, special counsel jack smith and members of his team, court personnel and witnesses or potential witnesses in the case. it does not prohibit him from criticizing the justice department or the biden administration or saying that this entire prosecution is corrupt. but what the judge concludes is when former president trump makes specific attacks on individuals on social media, it's often the case that those individuals are then harassed and targeted by trump followers. that happened in the case of the judge herself, who was the target of a death threat after former president trump criticized her. so former president trump's lawyers are saying this is a violation of his first amendment rights to free speech and he's running for president. a lot of legal experts think some of the arguments they're making are specious. but the american civil liberties union has weighed in on his side and said, in fact, they believe this gag order as written is too broad, is not specific enough. they're not saying there couldn't be a gag order. what we really have here is a momentous class between twole values, the fair administration of justice and the right of a former president to say things that may be outlandish. whatever happens today, this case will ultimately end up before the supreme court. >> stay with us. our understanding is trump will not be in court. his lawyer will be arguing for him. we do know jack smith is in court, although he won't be the one making arguments on the special counsel side today. what are the stakes here? we know there's already been an arrest for threats linked to the judge in this case. >> i don't want to scare our viewers, but i don't think you can overstate how important the stakes are. we saw the conviction last week of david depape who was the attacker of paul pelosi. he had gone to the pelosis' home in san francisco looking for nancy pelosi because he had been radicalized by what he heard in a far-right echo chamber. there have been a slew of violent incidents already. in the last several weeks alone, there have been further arrests of people who made threats against members of congress. >> stand by. the hearing is beginning. let's listen. >> the united states court for the district of columbia circuit are admonished to draw near and give their attention, for the court is now sitting. god save the united states and its honorable court. case number 23-3119. united states of america versus donald j. trump. >> thank you, your honor. may it please the court? the gag order in this case installs a single judge as a filter for political speech between a leading presidential candidate and virtually every american voter in the united states. the order is unprecedented and it's a terrible precedent for future restrictions on core political speech. the supreme court says the republican party of minnesota against white that we are, quote, never allowed the government to prohibit candidates from communicating relevant information to voters. it's not the role of the government to dictate what topics are appropriate or necessary to discuss in the context of a political campaign. the gag order does both of those things. cases involving gag orders have absolute freedom virtually unrestricted ability to comment on the cases in front of them. this is a radical departure from the only cases that have considered this particular form of restriction, a restriction on a criminal defendant who is also campaigning for public also and it's also in the context of a hotly contested campaign for the highest office in the united states of america. in addition, the gag order, in an another unprecedented break with jurisprudence -- [indiscernible] your statements are going to poison the jury. what you have is a rationale that says this speech, the speech that is targeted by the gag order might -- there's no evidence of this, but it might someday inspire some random third party to engage in some action that might result in that harassment or threats to witnesses. the supreme court is not traditionally restricted to scrutiny that is categorically unconstitutional. we have a compelling reason to do this because the speech that we want to suppress is going to inspire rioting, violence, injury, death, whatever it is and the supreme court says again and again you cannot do that. all the gag order cases relied on the government do not address this particular heckler speech, though, kind of rationale for criminalizing speech. the supreme court has held again and again that is not a permissible rationale. those cases go back decades and that government rationale goes back to new york in the 1860s. >> would you position be any different if it were a year ago? so we're much further removed from a political campaign. would your position be the same or different? >> certainly a year ago we would still be in the midst of a political campaign. >> when are we not in a political campaign? >> right. i understand the hypothetical. >> a year ago. last november. certainly still engaged in political speech. would your position be any different a year ago? >> i think the gag order would still be unconstitutional. >> would you position be any different? >> i don't see how it would be. >> the fact that we have a campaign going on does not matter. what matters to you -- and this is still political speech, which gets very high protection, no doubt. >> i wouldn't put it that way. i think -- >> your position would be no different if it were a year ago? >> our position would be that it would be unconstitutional. but the campaign is a very powerful reason why it's unconstitutional. >> it's icing on the cake, as far as you're concerned. >> i would say it's the crown jewel of at least -- >> you need a crown jewel? you think the outcome should be exactly the same whether or not there's a political campaign under way? >> yes. i believe there are seven independent precepts violated. if we had the same gag order, we would still have a categorically invalid veto type theory. we would still be dealing with political speech. criticism of public figures violates the whole public figure doctrine. >> many sauer, you point to the fact that your client is in the midst of a campaign, but i trust you agree that prior restraint doesn't matter who whom it would apply is subject to the highest level of constitutional scrutiny. that's your argument. >> absolutely. >> and i also trust that you agree that your client is not above the law that applies to all other americans. >> he's subject to the first amendment in principle, but yeah. >> he's subject to the law that applies to everyone. he's not above the law. >> we certainly haven't argued that, your honor. >> the district court found that when the defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently harassed and threatened. >> in a first amendment case, i believe as we cite, the court should engage in plenary review of the record. >> the findings about what happened in the world, we look at that for clear error, then we look at the first amendment implications de novo. >> looking at that finding the court would have to look at it in light of the evidence in the record which shows that's biased -- based on evidence that's three years old. when the case has been pending for other three months and the defendant has made comments about the case almost incessantly. >> this is for purposes of the question and i know you don't accept this, but the government's position is that the district judge is not limited to looking only at the defendant's speech as it relates to this case, but the government identified a dynamic, not just exclusive to this case, whereby when defendant has publicly attacked individuals including but not limited to the fact that those people are threatened and harassed. if we were satisfied and i know you're not satisfied, but if we were satisfied that evidence supported that finding, what more would be needed, in your view, to support the district court's order? >> i would quote from landmark communications in penningcamp against florida, which is that the standard that has to apply to a gag order or even restriction on speech as it relates to criminal proceedings, is that the evil addressed must be extremely serious and the degree of imminence must be extremely high and all that has to be proven by solidity of evidence. there's no evidence at all of threats or harassment in this particular case. all the evidence of threats and harassment go back three years ago to a totally different political dynamic. this points out another problem with this sort of heckler's veto third party argument, which is that they can't draw a causal line from any social media post or harassment when we have wall-to-wall media coverage of this case talking about it all the time. >> again, i know that you dispute this and you think that the record is inadequate. were the record indisputably adequate to support a finding of a dynamic that when people are named, and as you point out this is a defendant who has millions of social media followers, so when people are named on that social media, people are threatened and harassed. also assume for purposes of my question that the threats don't rise to the level of true threats that would be unprotected by the first amendment, but we're talking about in this case, i think trying to protect against threats that wouldn't be excluded. in that situation, nonpublic figures who are witnesses, what about in the interest of the court in a fair and impartial trial is insufficient to protect those witnesses from that dynamic to result predictably in that harassment? >> the finding of a dynamic strikes me a way to bake in speculation and hypothetical as a substitute for evidence. secondly, as the question of sort of witnesses who are not public figures, there is no evidence of a single post about them in this particular case. it's speculation upon speculation. we cited the decision that says you can't restrict base on secondary effects. i don't even have an adjective for how many steps removed it is. it's right there in the rationale of the district court judge is, well, we don't have any threats or harassment in this case, even though we have wall to wall media coverage and public statements going back three months, but there might be threats and harassment to the only public figures they have identified who are at the highest echelons of the government. >> i have focused for a reason on nonpublic and just to challenge you a little more, it's intentionally protective of -- [ no audio ] >> as i was saying about nonpublic figures, there's no evidence of any statement in this case that relates to any nonpublic figure. >> counsel, i think the concern is that it seems at times your position would be that the district court's hands are tied until we actually know there has already been harm to the integrity of the trial, for example, that a witness has already been intimidated. i think the question we're trying to get at, what evidence short of that would the district court need before it could step in and enter an order like this? >> solidity that demonstrates an imminently impending threat. again, the -- >> i think we're going back to the legal standard. you mentioned the fifth circuit's decision in brown. that court rejected the argument you're making today, which is essentially that the district court has no authority to regulate the speech of a criminal defendant if it's entirely unprotected by the first amendment. what the fifth circuit said, drawing on genteel and even the landmark communications case is that the court has drawn a distinction between speech restrictions on those who are participants in the trial and those who are strangers to it. i believe that's essentially a direct quote from genteel. what's your best argument that criminal defendants shouldn't be treated within that category of participants in the trial? >> if you look at the opinion in genteel -- >> which was not a controlling opinion. the controlling opinion is justice rehnquist on the legal standard. >> section two is the controlling opinion of the court, goes on for 12 pages about the specific -- it's all about the special roles of attorneys. it says attorneys are officers of the court. attorneys can be subject to particular restrictions that it directly contrasts with for example the rights of ordinary citizens. >> but it also talks about participants. there are a number of supreme court cases that distinguish participants in a criminal trial from those who are outsiders to the criminal trial. would you at least agree there is that language in supreme court cases? >> there is some language. >> there is that language in the supreme court cases, correct? >> not language that would tie -- >> i want to be a little more precise about this. the quote from genteel is there is restriction on the speech of those participating in the litigation. quote, we expressly contemplated that the speech of those participating in the courts could be limited. you mentioned landmark. that concerned a sanction on the press. that opinion says, if this was limited to those who participated in the proceedings, it might well save the statute. our job here is to read the supreme court cases and it seems like they're drawing a very clear line of participants and non. >> i don't hear anything or see anything in any of that language that says therefore you're subject to the substantial likelihood of prejudicial test. even if that applies, you would have to have much more evidence. justice kennedy's opinion emphasized that the test was to approximate the clear and present danger test that we say applies. he says the difference is likely mere semantics. >> if there is a different standard for participants as opposed to outsiders. >> we're hearing first from the defense lawyer representing trump making his argument before this three-panel d.c. court of appeals judges. so we have three judges here, two obama appointed ones and a biden appointed one. >> immediately he said that there was no speech that trump has done that has inspired any threats. that's false. we know a woman in texas sent death threats to judge chutkan. >> she was arrested for it. >> so that's just a false statement. and that he is being challenged by these judges about the scotus opinions and challenging them about what it means. i think you can fairly say the d.c. court of appeals is very well versed in supreme court opinions. supreme court opinion. >> you're our defense attorney here caroline. what do you think we're hearing from john sauer? >> clearly what we have is a framing issue. sauer would have you believe that the first amendment right is an invaluable right essentially. the circuit court is pressing back saying what would it take -- we lawyers deal with hypotheticals all the time. she's pressing him saying if this doesn't meet the standard of having a gag order in place, which, by the way, a very limited gag order, what would it be? as it stands now trump would be, even under the gag order, allowed to call it a witch hunt, say this was a politically motivated prosecution, all the things he's fond of sayingment he wouldn't be able to make statements that would directly incite violence. i think these vague tweets, whether those are enough to actually say that's a direct cause, a direct incitement of violence. a lot of picky little points. that's how these types of arguments go. >> it was interesting to hear judge moll let say would your position be any different a year ago, if you weren't in the middle of a presidential campaign. slt because he's a candidate or this is a fire department issue regardless of who the defendant is or the timing of this particular case. what are your takeaways, lisa? >> john sauer has been focused on the threats to witnesses and whether they're sufficiently imminent. that's not the only interest at stake. there eve been talking about the genteel case, the supreme court case. there are few of any interests more fundamental than the right to a fair trial by impartial jurors. the special counsel pushed back on the hyper focus of witnesses and participants and threats to them and went a little broader, that the court has a right to impose restrictions on speech to the extent it protects the fair administration of justice. it's also that the jury is unfortunate efficiently impartial and not so biased by the things that donald trump has said over his tweets or truth social posts that it corrodes the way she conducts this trial. i would expect the special counsel to push back heavily on the focus on witnesses and take a wider frame as to what's appropriate here. >> one thing real quick before we head back in, katherine, we've heard john sauer bring up the heckler's veto multiple times. what is that? >> i don't know what that is, other than he's saying -- he's calling what trump is doing, calling it core political speech. talking about jack smith's wife, i don't know how that's political speech. trashing the judge which caused that texas woman to send her death threats. i'm not particularly familiar with that term other than him trying to say that what donald trump has been doing and spewing is core political speech. >> let's head back into this court hearing. john sauer, trump's defense lawyer still being pressed by the judges. my understanding is they're talking about some of the social media posts. >> no, no, because -- i'm trying to make sure i understand -- it may be right, we're dealing with political speech here. but your position is that at least when the participant on trial is engaged in political speech, there can be no limitation imposed to protect the administration of justice in the criminal proceeding, so then the pre-existing pro hib bigs. >> i've been asked for a hypothetical with no evidence at all to show how there might be daylight between the two standards. i'm thinking of all the social media posts in this case and whatever daylight there may be between those, these don't satisfy. >> this is a test you've proposed. i'm trying to see if you have a conception of how it works that would allow the court to still protect the criminal proceeding beyond the prohibition of violating the law. this is your test. so it seems incouple bent on you to be able to explain to me what a court could do to protect the integrity of criminal proceedings that isn't already covered by a don't violate the law, don't violate the criminal law. >> under nebraska press association, the heavy burden of demonstrating, quote -- >> this is oral arguments and you're here challenging an order and asking us to adopt a legal test. what's been crystal clear from the supreme court is they've even said many times recently, clear and present danger isn't a mechanical formulationment it's meant to be a balancing test that balances the interest in speech that you have explained are very high and the interests and protection of the criminal process and criminal pro ed zooing which is also a weighty constitutional interest. the reason i'm asking this question, to see if there's any balance, which is what the supreme court tells us to do, in the test that you propose. so tell me how it balances -- if you can't give me anything other than a criminal law violation that would satisfy your test. >> the phrase i believe that the fifth circuit used in brown, a case heavily relied on the government is absolute freedom. >> so there is no balance. >> criminal speech obviously is subject to restrictions, but political speech that's core political speech that's part of campaign speech -- >> i think that labeling it core political speech begs the question of whether it is, in fact, political speech or whether it is political speech aimed at derailing or corrupting the criminal justice process. you can't simply label it that and conclude your balancing test that way. we have to balance. >> i think in the balance the court should consider the fact that the issuesality stake in the appeal, in the gag orrer the itself, intertwined with the -- >> counsel, you mentioned brown a few times and the fact that that order was lifted in the run-up to the election. what actually happened in that case is the district court at the outset without any evidence, the only evidence was that there was general press attention to the case. it sua sponte entered a gag order. it lifted that in run-up to the election. the defendants shared recordings relevant to the case with the press, and the court stepped in and reimposed a limited form of a gag order. so my question is why isn't the analogy here to that second narrower gag order that the court entered in brown? that's what happened here. the district court didn't act rationally. it waited, back in august it gave clear warnings to the parties not to make the type of statements, the threat issue, the trend continued. now we have an order targeted at the exact types of statements that have been o occurring. that's my question. in brown, they did reimpose an order during an election. >> looking at the facts of brown, i believe it was other defendants, not political defendant who started leaking. the court reissued a gag order that basically said don't release stuff you're getting through the court that is confidential. this is not a situation -- we have a dispute in this case that a district court could say you've gotten access through discovery, like "the seattle times" situation, and you can't release those to the public. then brown goes on to say he was given complete latitude to actually defend himself in the political arena, which is the critical issue, one o of the many critical issues at stake on appeal and saying for the benefit of the case, he has absolute freedom. keep in mind the people voted for a louisiana insurance commissioner. here we're talking about every voter in the united states -- >> i want to get to the scope of what he's able to say which is briefly back to the evidence. you're certainly correct that most of the threats at issue, this pattern of statements followed by threats is from 2020. i think the link might be -- and i wonder what your response is -- that that was all about the same subject matter of this case. essentially what the district court is finding, we have a past pattern when the defendant speaks on this issue, threats follow. now he's making similar statements again. we're months out from the trial. this is predictably going to intensify as well as the threats. why isn't the district court justified in taking a proactive measure, not waiting for more and more threats to actively occur and stepping in to protect the integrity of the trial? >> there's an evidentiary burden here. it isn't just that there's no evidence now. it's that the evidence we have now completely counteracts that inference because it's undisputed that president trump has been posting about this case almost incessantly since the day it was filed, and they haven't come forward with a single threat that's even arguably inspired by those posts. the shry case -- >> a death threat to the district court judge in this case. >> the august 5th telephone call, the southern district of texas. >> the day after he said, if you come after me, i'm coming after you, threat issue. >> i strongly encourage the court to z k34r5u6r 0 -- watches the news, watches the news on tv, gets angry about it and makes any threatening calls -- >> counsel, this might have been partly my fault. image all we had was the 2020 pattern. that evidence is very specific. it's about when the president speaks on this issue and surrounding january 6th and there are very specific threats that people receive, and again, that was a time where -- and the atmosphere was very tense. as this trial approaches, the atmosphere is going to be increasingly tense. why does the district court have to wait and see and wait for the threats to come rather than taking a reasonable action in advance. >> again, the standard is imminently pending. we have an inference of stuff that happened three years ago, contradicted by the evidence we actually have here. they are saying, oh, it's an imminent threat for someone to be harassed. >> let me ask you, mr. sauer, the conditions of release in this case prohibit your client from communicating about the facts of the case with any individual known to be the defendant to be a witness except through counsel or in the presence of counsel. your client signed those conditions of release. counsel before the district court was quite clear that that was not being challenged. how under your analysis would those conditions of release not be invalid? are you taking a position that those conditions of release violate the first amendment? >> no. we've never challenged the conditions of release and the president has complied with them. >> how under your analysis would they not be unconstitutional? >> that might be something that might not be criminal, but a clear and present danger -- >> that would? i don't want mights. i'm trying to understand your legal test. if he were to pick up the phone and call someone that is known to him to be a witness, prospective witness in this case and speak with that person without counsel present, would that -- that would violate the restriction undoubtedly. would the first amendment protect that communication under your test? >> we have not contended that -- >> that's not what i'm asking. i'm asking you to apply the test that you propose -- we have to write a test that can be applied and we have to know how it's going to be applied. so i'm asking your position, your legal position. would that phone call be protected by the first amendment or not? >> is it a phone call saying happy thanksgiving? >> i'm not telling you why because the order -- the release restriction doesn't care about the content. he picks up the phone and calls a witness in direct violation of the terms of release -- >> we do not contend -- >> i'm not contending. that would not violate the first amendment? that's allowed under the first amendment? >> completely consistent with the positions we've taken. >> the next hypothetical, he gets on the phone and says ms. x, you've always been someone courage, backbone, a loyalist, a patriot, and you know, loyalists and patriots don't talk to prosecutors in my case and hangs up. if he said that -- >> i think that would be a clear violation of the terms of release. >> okay. what if he instead gets on a stage somewhere or on social media and says that exact same thing. ms. x, a public figure, is being bothered by the prosecutor. people who are loyal, honest patriots don't talk to the government. >> he hasn't said that, and it is -- >> please answer the question. i'm not suggesting he has said that. to be clear for the record, this is a hypothetical question. does -- can -- does punishing that conduct -- he's not speaking directly to the witness. he's doing this on social media or in a town hall or a news interview. he says that. does it violate the first amendment to say that's prohibited? >> if he's communicating with the american electorate -- >> i told you the facts -- so your answer is no. >> i'd have to no more about the context. >> i've given you all the context you need to know. if he does it over the phone to the prospective witness, you said the first amendment prohibits it. if he says it with a megaphone knowing that witness is in the audience -- >> then you're very likely in the same scenario. >> if he does it on social media knowing that person is a social media follower of his -- >> again, i think you're getting further afield and more into political speech. >> doesn't that have to be your answer? legion are the cases where you have to agree as you did with judge millette, there's no right of a criminal defendant to try the case in the media. that's what the court is for. of course what's difficult about this case is that there is some substantive overlap between what the defendant wants to do in campaigning and what the prosecution here is doing in the case. but to the extent there's an ability to distinguish between trying this case in the media and running for president, clearly he has no entitlement to do publicly what is well established he could not do one-on-one to that witness. >> i would say two things in response to that. one is, there's not some overlap, but complete overlap between the issues in the case and the issues in the political campaign. secondly, the statements in the case saying you can't try your case in the media are all about cases that involve influence on the jury pool. we don't have that in this case because the district court rejected that. >> you said there's a complete overlap. what about the portions of the order that cover the -- let's say the court's administrative stuff. there would be no reason to campaign on any of that. >> that was drawn -- no evidence presented on that issue at all. he's never made a statement about court staff here. if there was core political speech, that illustrates the hazards here. no evidence in that particular case before the district judge who was relying on suwa spon tay reports, in fact, the statements about the law clerk in the pending trial were absolutely core political speech that definitely violated the first amendment. >> i'm talking about this case, though, where there's an effort to protect court staff, and my premise is or my question for you is when you say there's complete overlap, it seems that's an easy case where there actually isn't overlap, that individuals who are working for the judge assigned to this case would be no topic, no topic in a campaign other than an effort to undermine this case. >> a couple things. i think we're talking hypothetical. >> we are. >> the president has never made a statement related to this case about any court staffer -- >> but the order as you well know and as you've challenged, the order applies. >> with no evidence to support it. >> i appreciate that aspect of it, that you've made a point about whether there's evidence or not, but i'm talking about the claimed overlap between political speech and the speech that's restricted by the order. i'm positing that in speech restrict p stricted by the order that would not be campaign speech but for this case. surely you can see that. >> the new york decision -- >> we're not talking about those circumstances. if there were a staffer of the judge about whom there became clear that there was some political bias, nobody disputes that the defendant's team could and would file a motion with the judge to raise a concern about that and comment on how the judge ruled on that. but that's not where we are. we're in a situation of prophylaxis. that's really what i'm asking you about. a prophylactic situation where nobody who works for the court -- these are career people. nobody volunteered for this assignment. none of them have life tenure. they're just trying to do their jobs. nothing about them would be campaign speech in the absence of a case. >> but what we see in new york is, as you enter -- >> this isn't new york. we're not in new york. >> if you enter that prophylaxis now based on zero evidence, no evidence at all, no evidence of what the political bias might be of the court staffers and no evidence of any statement about court staffers. if it later turns out there's an extremely biased court staff, we have a huge first amendment problem. >> let me ask you then in a different way. let's say that kind of situation arose here and the order remains in place and is valid. so the defendant is in jeopardy of violating the order by tweeting about it. nothing will prevent the legal team in that situation from filing an emergency motion with the court, coming up to the emergency panel of this court and saying there's bias here. presumably once that's filed in the court, nothing would prevent the defendant from complaining about the way it's ruled on. >> but that flips the first amendment on its head. >> i'm saying there's a protection there. >> there would be protection of running on emergency motions. keep in mind it's block lighter law, denial for first amendment is black letter irreparable injury. even injecting that procedural delay -- keep in mind we're talking about a prior restraint based on no evidence at all. if it were to become relevant, there could be compelling first amendment issues. in new york a gag order -- >> there's no precedent i'm aware of that requires evidence of tampering with witnesses before a prophylactic order can be put in place to protect tampering with witnesses. am i wrong about that? >> i think the case law says you have to have an imminently impending threat -- >> about communicating with witnesses? >> that's the general standard for all of us. even for the defendants to directly communicate with a witness -- >> or saying publicly threaten things about witnesses. >> what do you mean by threatening? the first amendment has -- >> something that falls short of true threat, because otherwise we wouldn't be here. >> in the context of a political campaign -- here is core political speech. i can't emphasize that enough. the hypothetical is saying what if he makes a threatening statement? what they've described as threats is actually under the supreme court's juris prudence core political speech. it's rough and tumble, hard hitting, but it abc is core political speech. it's directed at public figures in the highest echelons of government, former chairman of the joint chiefs of staff who used to command the entire united states military. the argument is it's going to influence their testimony. >> the conditions say the defendant shall not communicate with witnesses. you keep talking about directly communicate. is it your position that if he communicates through a social media post, hey, witness x, i know the prosecutor is bothering you, trying to get you to say bad things about me. be a patriot, don't act treasonously. >> we have -- >> i am not -- i'm sorry. i really want an answer to your understanding of the release conditions. this is, for the record, a hypothetical question. to my knowledge it hasn't happened. to your knowledge it hasn't happened. i'm not even saying it would happen. i want to understand how you -- because you have said no first amendment problem with the release condition. so i've asked you that question. does that communication violate the release condition? >> it's social media post in direct communication to the witness could well violate it. we'd have to know more about the post. >> i've given you exactly the content of the communication. i don't know what more you want. that's what comes into court. is that a violation? that very well might be. so when you say indirect -- you keep saying direct communications as opposed to, i assume, indirect. what indirect communications with witnesses are allowed? >> a hypothetical that was raised earlier where he's at a town hall speaking to the entire american public televised and says something that's core political speech -- >> if he says the exact same thing, hey, i know witness x is out there -- and this is exactly what i said. >> what i would do is put that in the framework of the comments about vice president pence. >> don't put it in another framework. tell me, does that violate the release conditions? >> before i answer that question, i'd like to make the point that the context may result in a different answer to that question. as you described i, that could well be a violation of the release conditions. the context is absolutely critical. look at the post about vice president pence, they say he's commenting on vice president pence's testimony. what happened there is on august 1st the indictment is released -- >> that's not my hypothetical. my hypothetical was quite clearly about cooperating with the prosecutor or not. >> i think the legal world course of communications related to vice president pence illustrates my response that we must know the context. >> what more context do you want from my thet cal? tell me what fact you need to know from my hypothetical. hey, witness x, i know you're listening. the prosecutor has been bothering you. anyone who is faithful, loyal, won't work with this prosecutor who is out to get me, doing so, lying -- that would be almost like treason. >> what if witness x -- >> what more facts do you need? >> if witness x has said -- >> i'm not asking fair or not. i don't see anything in the release condition says only unfair communications. is that a communication to a witness? >> i think i've already stated it could well be. >> could well be? is there another fact you need to know to say it is a communication with a witness, what would it be in. >> statements made in the political arena -- >> i just said it's a political arena. it's either a social media post or standing in the town hall. it's in the political arena. >> i don't know how to answer it differently. it could well violate it. it seems that would be a violation -- additional facts that could lead to a different conclusion. >> i've been struggling to try to understand what your test captures. so it's in addition to criminal law violations, it captures -- is messaging to at least known prospective witnesses about cooperation. >> it could well do so. >> so the would allow -- you have arguments on both sides, but the first amendment, if the district court concluded factually that that were a communication with a witness without counsel present, the first amendment would allow punishment of that? >> if there were evidence supporting that finding and the finding were made -- >> of course. the recording of the town hall meeting. >> never disputed that. we never disputed that. what i resist doing is trying to try this case based on hypotheticals when the standard is let's look at the evidence. >> no one is trying a case based on hypotheticals. we're testing the legal rule that you wish us to adopt. again, as the supreme court -- i know you have embraced the nebraska test and made very good arguments about that and about the importance of political speech here. you've made very, very important points about that. but the supreme court has said that's not a technical metric to be applied, clear and present danger. it bespeaks a balancing test. i'm trying to understand what in your test balance is, the legitimate constitutionally important values of protecting the criminal trial process. so it sounds like, at least if he's talking about prospective witnesses, there may be room there between what could be illegal and what the constitution may be prescribed through an order of the court. >> i think i agree with that as you framed it. i would say two further things. one is, i direct your attention to heckler's veto cases. they eve been treated as categorically invalid. whatever room there is dealing with the heckler's veto rationale is vanishing -- >> there's also another rule in the law that people can be assumed to intend the known and probable consequences of their actions. that's a pretty settled rule of law as well. and a district court trying to protect the integrity and fair administration of the criminal process, could they consider that well established rule? >> not under heckler's veto theory. >> i'm not putting it under a theory. what i'm saying is could they, if hypothetically -- this hasn't happened. this is a hypothetical -- a statement were made by another criminal defendant who is running for some low level office and made a statement that caused harm -- inspired a third person to engage in harm and it were shown -- it would be a hard showing to make -- that the speaker was aware that there were known and probable consequences of this violent action ensuing -- you're already shaking your head no. >> my answer will be no. >> that rule just doesn't apply. >> first of all, you knew this was going to happen? >> we're balancing against -- >> you knew when you marched through illinois dressed in your crazy outfits. >> those cases didn't involve balancing against another constitutional interest in preserving the integrity of the criminal justice process. and so that's where my question is coming from. they didn't involve the balance that you've agreed -- you agree we have to balance, right? the supreme court has said -- even your clear and present danger test is a balancing test. do you agree with that? >> i don't view strict scrutiny as a balancing test. >> the supreme court has said in straight-up terms that clear and present danger is, in fact, not a technical -- it's simply a balancing test. that's what the supreme court has said. so we're bound by it, whether you agree or not. i assume you agree there's a balance here that doesn't exist in the normal first amendment context. >> i don't dispute there's a balancing to be done. to me the term balance suggests a kind of looseness in legal standards that apply and we disagree with that categorically. >> strict scrutiny is a balancing test. we're balancing -- the supreme court has told us, whether you agree or not, but i'm hoping you will agree because supreme court precedence is quite clear. whether it's clear and present danger or otherwise, the first amendment area, we're in a balancing test here. we're balancing -- particularly in these cases involving criminal process and free speech. they've said time and again it's a balancing test. that doesn't mean it's 50/50. your position of course is this isn't a 50/50 balancing. there's already a lot of weight on the first amendment side, right? >> i don't dispute -- >> -- >> balancing at all. under heckler's veto standard it is per se balancing. if you engage in any scrutiny at all in a heckler's veto context, able to shut down every speaker whoever speaks. >> so if we had a different -- if we -- i'm this is only affecting speech during a criminal trial process for someone indicted as a felon. no one here is threatening the first amendment broadly. secondly, if we had hypothetically a completely different criminal defendant who is running -- let's say a state-wide office, pretty important state-wide office, and this person, hypothetical facts not before us, engages in political speech decrying the process, the criminal process, insulting, beraing and calling terrible names of the prosecute er and the prosecutor's family and starts posting the address where they live, and every time this campaigner does that, someone in his audience goes and tries to execute violence against the prosecutor or family members -- that is not this case. but if that happened, if there were a repeated pattern of it happening, how would that fit into your balance? >> i think the first half of your hypothetical is exactly like the case against congressman ford where he was allowed to say the prosecution against me is racist, i'm being prosecuted by the reagan administration. >> there's a repeated pattern, and so i don't -- i'm not asking for a case citation here. you've done an excellent job in your briefing to give us really important, relevant cases. what i'm asking for in that hypothetical, if there's a repeated pattern in the balancing test, could the district court -- that pattern by third party responding to speech? >> not if that pattern was three years old. >> that's not my question. no, no, no, no. >> again -- >> -- >> posting home addresses of whoever it is, witnesses in trial and there's a repeated pattern of acts of violence against them, i would have to know more about the facts of that case. i could certainly see a situation where that would be justified. i'm not saying it could never, ever be justified with the exception -- veto rationale. >> that is heckler's veto is how third parties respond to the speech. it's definitely what you're calling a heckler's veto. i'm combining that with either intent or at least knowledge or recklessness on the part of the political speaker as to the entirely foreseeable and repeated pattern of consequences from that speech. >> i think my response to that, the state of mind of the speaker is irrelevant in the heckler's veto context. i keep returning the the facts of this case because the facts here don't come anywhere close to justifying this gag order. i know i've gone way over my time. >> that's okay. as long as we have questions -- >> i want to make sure we hear from you on the vagueness argument. it's a little separate from what we've been talking about so far. i think the question to you just to steb back, if the district court is concerned about witness intimidation. it also worked hard to give leeway to the first amendment values. the order it entered is narrower than what the government wanted. there's a carve-out and gives right to close edge cases. i think the question to you is, with the two orders, all the examples in the transcript, what is something that you're genuinely unsure whether mr. trump can say under this order? what's your best concrete order of that? >> half of the social media posts in the record. you go through this, is this general or is it targeting? from the purview of a lawyer who has to counsel clients, because it's so vague, you're steering straight towards the -- >> the district court took a lot of care in an extesive hearing to go through a lot of examples in the denying of the stay. i would love to hear if there's one particular example of those posts that you don't think has been resolved. >> for example, there's one social media post in the record that doesn't mention the special counsel by name but refers to the department of injustice run by crooked joe biden who are railroading for political reasons. is that targeting the special counsel, or is that a general -- >> it seems to me that's exactly what the district court was saying was allowed, statements about the department of justice and president biden, the literal words of the carveout. maybe that's a question for the government. i'm pretty sure it's common ground that that's allowed. >> i would refer the court to the actual social media post. when i read that, i'm like, what would i tell a client? can you or can't you do this? i would emphasize to the court on the standard in genteel. section three of justice kenny's opinion, that's the opinion of the court, what does it hold? the state bar of nevada had a rule that says you can make a general denial of your client's guilt, but you can't be elaborate. justice kenny says this is unconstitutionally vague, the contours are unclear. a lawyer cannot know when you go from the safe harbor of the general to the forbidden sea of the elaborate -- >> i appreciate that argument. i think one big distinction in genteel it was a generally applicable rule. here we have an order that's informed by the transcript and all of the examples that were given. it does seem like the core of what's allowed and what's not is fairly clear. so just, for example, i think this is page 201 of the appendix. your co-counsel says that mr. trump should be able to say a joint chief of staff should not engage in that kind of conduct, referring to milley. the court says, yes, he's allowed to make that type of statement. what he can't to be is go on and say that type of conduct should be punishable by death. it's not a completely abstract distinction, is it? it's whether there's a suggestion of a threat. >> i think what you said powerfully illustrates the vagueness. if their position is there's two statements by general milley, one is okay and the other is not okay, i don't know how as an attorney to counsel a client to comply with the law, how you would say that first one is not targeting of him, it's critical of him. the argument is well, we're in the going to count that one because the first amendment -- >> you see what my concern is. it's not about the abstract meaning we're not asking whether an ordinary person in the public can understand what targeting means. we're asking if the parties all at the hearing can understand. we have that statement and the government makes similar examples on page 40 of their brief that allowed, not allowed. i'm just trying to ask which one -- >> the graded standard is you can't have a situation whether it be ad hoc or subjected application of the standard. we have an order that says don't target, don't target prosecutor, the witness, the court staff. the prosecution comes in and says it would be okay to make a public statement criticizing someone who is a potential witness, and that wouldn't be targeting. at that point from the defense perspective, it's like what does target mean? >> i appreciate that concern about targeting. is it clear or less clear if the order were to say that what's prohibited is comment on any reasonably foreseeable witness because of the witness's potential participation in the trial? let me give you a little context of my thinking on that which is there are a lot of people who are out in public and with whom the defendant has a history and he has reason in the trial that he might want to comment on them. there's also a whole category of witnesses who -- with whom there's no -- who are not public figures and where the reason that you might be tempted to comment on them in the campaign is because they're potential witnesses. that's really at the core of the interest in an impartial trial. does that add clarity to say you can only make comments on potential witnesses, but not because of their potential role as witnesses? >> i think because of would sort of wrap into that standard subjective motivation of the speaker and i think that would be an equally -- a different vagueness problem but equally bad. using the word comment instead of target, that might be clearer. >> it's doing the work of targeting is the because of, which i think is narrower than targeting. it's ana cabrera in new york as we'll dip out for a brief moment to discuss what we've been listening to. this is a hearing in the d.c. district appellate court over the gag order implemented by judge chutkan in the elections interference. trump's team appealed. these judges are listening to their arguments. we'll also hear from the special counsel's side in a few minutes. we expect although these initial arguments by trump's team are going longer than initially anticipated. the three judges have been questioning very incisively the lawyer about this threshold of what is protected speech, what is protected by the first amendment which is a big piece of the defense. it want to bring in former fbi assistant director for counterintelligence frank figliuzzi, one of our msnbc contributors here. he's been listening to these arguments as well. frank, a big part of this conversation has been over direct threats versus vague threats when it comes to speech posted on social media, made at rallies and whether he's talking to a witness specifically or just kind of talking off-the-cuff and throwing things out more broadly. we've heard talked about the potential threat that he made followed by, was a threat against the judge back when trump specifically said, if you come after me, we'll come after you. what stands out most to you about what we've been hearing? >> as i look at this through my threat and risk lens, which is how i view the world as a former law enforcement officer, i'm struck by the trump counsel's repeated theme of that there must be a pending and imminent threat for you to suppress trump's free speech first amendment rights. i have to tell you, if you're looking to prevent damage from happening, what we say in law enforcement is stopping something left of boom, before the violence occurs, i don't see how in the context of speech, unless you're inside donald trump's head, you know what he's about to do and that it's going to cause damage. it sounds to me like you almost have to wade through the violence or damage of threat to the court, to the witness, to the jury, before you can suppress. that's what it sounds like this lawyer is saying. that's simply not workable in this context. secondly, he seems to be focused only on speech related to this trial, and you cited the texas case here with the threat to judge chutkan. really in the threat and risk world, we take everything into consideration. so the new york case, what he has said about mike pence, mark meadows or others, in other trials and situations matters because it shows what the -- what one of the appellate court judges says which is that he should have knowledge of intent and consequences when he has a track record of those consequences happening. >> what stood out to me, too, john sauer, trump's lawyer arguing here said there was no evidence that threats had taken place after comments trump made which the judge actually said what about the threat against judge chutkan in this case by that woman in texas? and the argument we heard from john sauer was that person who made the threat against judge chutkan should be discounted. they were mentally unstable, this person has problems with substance abuse. what do you make of that, frank? >> look, you can make the argument that everyone who has acted out violently under trump's incitement must be mentally unstable in one shape or another. so that doesn't work. the other thing he focused on was the court record in that case says she watched, according to her father, she drank alcohol and watched right wing tv all day. who is not to say on that right wing television she's watching she's not seeing clips of trump or not seeing hosts and anchor echoing trump's statement. you have someone running for president of the united states with an unlimited international audience, it's very hard to discern what people are hearing directly from him or being echoed by him or seeing it in a re-run of a late night clip. that's the challenge here. >> frank figliuzzi, i'll do a quick lightning round. lisa and ladies, we were discussing the line of questions where the judges were talking about the inconsistency saying, yes, the conditions of relief were lawful but this gag order isn't. the judges point pointed out, lisa, in this gag order it's similar to his conditions of release and you can't communicate with witnesses. >> that's right. the conditions of release are the conditions under which trump remained free after his indictment and arrest. those conditions say very clearly that the defendant shall not communicate with any known witnesses about the facts of the case. they don't say he can't communicate directly with them. so the point that the judges were trying to make is, if he goes to truth social or if he gives a speech in which he makes a statement about someone like a mark meadows, mike pence, mark milley, isn't that a communication with that witness and the rest of the world for that matter, about the facts of the case. if you're conceding those conditions of release are constitutional, why is it not constitutional for a gag order to get at some of that same conduct? >> caroline, you also picked up on that, those communications with witnesses and the other piece they were trying to get at is, are communications directly with witnesses different than communications that are maybe directed about witnesses or at witnesses in the social media sphere different? >> this is where you get into some of the nuances here. we have these competing interests here, just as frank was saying. trump's attorneys harken back to this invaluable right of the first amendment that there has to be a clear and present danger in involved in speech in order for it to be protected. a prior restraint in speech is the most serious restraint on speech that one could have. again, as frank said, what would you have? would you have, instead of this prior restraint, let's wait and see because they're saying we haven't had actual instancs in this case which isn't correct. they're saying let's wait and see. the court is drawing out logical inconsistency, perhaps intellectual dishonesties by posing these hypotheticals which really don't add up in the end. it's pretty clear i think, personally, that this panel is going to rule in favor of upholding this, again, very limited gag order in thiscather potential outcome here be the judges making a more limited gag order than what was initially implemented? >> it doesn't appear that they're going to do that. it's clear they're going to leave the part where you cannot target witnesses in. that's clear. i think when the written decision is issued -- all of the judges have repeated this, how important it is for the judge to protect the integrity of the proceedings and the fair administration of justice, which means protecting jurors and protecting witnesses. that's going to be in this decision. it's clear that at least in terms of witnesses, donald trump will not be allowed to target them. >> one quote i wrote down from judge garcia was why isn't a district court justified in taking a proactive stance to protect the integrity of the trial. let's listen back, my understanding is -- >> no public comment about any of the individual jurors. you think it would depend on the context whether that order was consistent with the first amendment? >> -- >> -- protection of the jurors. >> -- >> a non-anonymous jury and the question is whether the district judge consistent with the first amendment can say off limits, to comment specifically about the jurors? >> that's almost identical to the facts in capital media where the judge stayed a rule saying you can't talk about the jurors because what was being said about the jurors was already in the public domain. >> the internet nowadays the address of every juror might well be in public domain. district court issues the order. the district court issues the order that judge pillar referenced. a criminal defendant then tweets out to the world here is the name and addresses of the jurors deciding my case. >> if it got in the public domain some other way -- >> it's already in the public domain. >> what happened in capital city, it was put in the public domain by the court. >> that's not my hypothetical. the world has changed since that time period now, and the amount of information about any individual including their address is pretty easy to find. if the defendant says i can't tell the name of the jurors because i've been told not to, but here is the addresses of the unnamed jurors, which is very easy. that's already out there. you can find that through google. >> let me put it this way. i don't dispute, the first amendment would allow a gag order from promoting individual address information of jurors with the caveat that, again, capital city's media would probably -- justice brennan said there's no possible justification for that. >> what about now? in a situation where there isn't any publication of these individuals' relationship to this case? >> that i think would be a huge problem. as i understand the hypothetical, no one knows who the jurors are, no one can link those names, john smith and suzy jones to those addresses. that's different from capital city -- >> if they were public, if they were public because they weren't sequestered, not yet public. nobody has published that, nobody has put it out. if you have a little bit of information about a person, you can find out a lot. but can the judge say, fine, these people can live in public but can't be posted for millions of people by someone who is -- it's not a heckler's veto really. it's a cheerleading squad that is going to come out and amplify or act on and perhaps overreact. >> i think the case would have to be assessed -- >> -- >> -- we contend protecting the anonymity of jurors is an alternative measure that should have been considered and wasn't. i don't foresee any challenge to it because we would view that as a less restrictive -- >> i'm not trying to manage this case which the district judge we all know is able to do. i'm asking about, again, the hypothetical is to probe the nature of your position. it is revealing of the fortitude that you accord to the first amendment and the really lack of any role for orders protecting the judicial process. that's what i'm hearing. it was instructive to me to hear your answer to that. >> in any event, we ask the court to reverse -- >> can i ask you one more? we'll allow you to rest. it's been a helpful discussion. to be clear -- the prospective witnesses in this case are. but let's assume former vice president mike pence is going to testify and it's the 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 -- >> that would be more problematic than the statements we have in the record. however, you should weigh the fact that is there any reasonable prospect of influencing former vice president's mike pence's testimony. >> i'm sorry, i'm sorry. you're right. i was not specific enough. first, does that count as a communication to the witness? >> again, i would give the answers -- we had a discussion of this before. >> tweeted. tweeted out. that is the full text of the tweet and it's tweeted out on his social media platform? >> is it responding to something former vice president pence said? >> this is the sum total of facts. you're not going to find anymore, not going to get anymore context. this is it. the night before he's scheduled to testify -- i'll give you one more fact. it's public record he's testifying the next day, and that message goes out. is that -- first of all, is that communicating with the witness, violation of the release conditions. >> if it's broadcasting political speech through social media, likely not. >> is that something the district court could prohibit consistent with your first amendment test? >> only if it was based on compelling evidence -- showing actual threat -- >> no more showing. >> only after its happened. >> so you're saying if mike pence then calls in sick the next day, sorry, laryngitis, can't testify, then we can say you can't post about mike pence? that can't be the test. you're saying there's no prophylactic rule. you're saying it doesn't violate communication with witnesses and you're saying there's no prophylactic rule, no circle around that communication with witnesses that the district court could draw, prohibit that statement -- >> that prophylaxis would have to be based on a compelling evidentiary showing -- >> the district court says i conclude that that communication was one attempted communication with a witness and, in fact, likely a completed communication with a witness, and two, was designed to and could affect a reasonable person's testimony before the court. now you've got those fact findings. >> those fact findings have to be based on evidence -- >> you can't the night before trial encourage the content of their testimony. your test doesn't even allow for that? >> if there's no reasonable test -- >> your test doesn't allow for that. >> no reasonable prospect and no evidence that would influence anybody -- >> there's no prophylaxis. when you say i want evidence, was actually going to influence. what you want is it has to be criminal. otherwise the district court can't protect it? if there's actual influence, that's a crime -- actual evidence, that's a crime. just to be clear, we're back i think where we started. >> i would stand on the prior responses. >> okay. any other questions? thank you for your generous time. >> thank you. >> we'll give you some rebuttal time. >> thank you, is that -- >> i think i would stand on my prior responses. >> okay. any other questions? thank you for your generous time. >> thank you, your honor. >> we will give you some rebuttal time. >> thank you your honor, if it please the court, cecil on behalf of the united states. the district court found the defendant well established practice of using his public platform to target adversaries poses a significant and immediate risk to the fairness and integrity of these proceedings. the order that this court crafted to address those risks should be affirmed for three principle reasons. the unusual narratives of the resulting order, third, the recent evidence demonstrating that the defendant is fully capable of understanding and complying with the order while it's in effect fshz. >> i just want to follow up. you said significant and immediate risk. you're not embracing the gentile test? >> to be clear, the gentile test is the constitutional test that applies, significant and immediate risk is the language that the district court found so it sort of assumed. >> those are kind of different words. >> pardon? >> within the law, substantial likelihood of material prejudice and significant and immediate risk are different legal tests. >> i completely agree, your honor, and gentile test is the correct legal test. because the district court incorporated the higher test the defendant proffered, that is the significant and immediate risk test, i think that does inform the scope of the order and informs the findings the district court made. to be clear, the genteel test is the one that applies. >> where is the finding that you're relying on? >> page 2 of the order, your honor. >> the follow-on order? the order that -- >> yes, this is page number 230. >> the court finds -- >> yes. >> that such statement poses a significant and immediate risk? >> exactly. >> that witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted, harassment, threats and two, attorneys public servants and court staff will themselves become targets for threats and harassment. on the second part, number 2 applying to the special counsel and the court, the nexus between the concern that they be targets for harassment and the administration of justice is not entirely apparent from the district court's order. can you help explain that? i mean, for example, the district judge is not -- no speech related to the district judge's guide. >> that's correct. >> and that's in part because we trust that the district judge will not be swayed by anything that the defendant says. how then could the district judge's staff affect the administration of justice. >> the district staff? >> yeah, any effect on them of non-criminal harassment and threats? >> well, i think exposing -- whether those are courtroom staff, line prosecutors or others to the risk of threat, harassment, intimidation poses a systemic risk to the fairness and integrity of the proceedings. >> how so? >> it creates a world in which people who are public servants will have to decide do i want to handle this type of case? do i want to press on with the sort of prosecution that we think the facts of the law demand, or in doing so will i run the risk i will be threatened, my family will be threatened, that, you know, there's a chilling effect,pall cast over the whole proceedings. separately -- >> and that's -- the way you worded that, it made it sound like before they became part of the team, like in the future other staffs might hesitate before joining the team? is your submission also that existing staff might quit? >> well, i think there's certainly a risk of that, and certainly the court doesn't have to ask each staff member how likely are you to quit if your family receives a death threat. i don't think there's any basis to say that in the absence of the likelihood you will be deterred from doing your job, you have to tolerate threats and harassment being directed towards trump participants. >> you mentioned the families and the district court from the bench said that the gag order applied to the families of the staff of the court and the prosecution and the defense counsel, but the written order doesn't reference that provision, but what is the government's position as to whether the order currently applies to family members? >> our position is that it does run for two reasons, first, the beginning of the order of course separates the oral explanations, and as the court said orally, the prohibition on targeting family members, in her words goes without saying, and so i think in the district court's view, because the prohibition extends to these specific categories of trial participants, it necessarily extends to their family members as well. >> so it's -- as i take it, your position is less that it would affect their impartiality but is more a question of whether the people would even be willing and able to do the work? >> it's partially that they -- it would threaten whether they were willing and able to do the work. it could also threaten the way they are perceived by the jury. i know that my friend on the other side suggested the district court disavowed any jury taint as a rationale. what they did disavow post targeting the jury pool in the district of columbia, that can be dealt with through voir dire, i'm not going to prohibit those statements. i think the district court incorporated the idea of trying the case in the media, polluting the jury pool, prejudicing the jury, if the jury is presented -- if the case is presented to the jury by people about whom there's been a month's long processive drum beat about their corruption, you know, inflammatory comments about them in the public that could affect how the jury perceives them. >> counsel, i think -- >> are there findings ability -- about that in the record? >> well, the court clearly was focused very much not only on threats to trump participants but the way that this would affect the view of the administration of justice, the fairness of the trial. that incorporates concerns about how the trial will be presented to a jury. >> the two mechanisms you've identified, one is that individuals would be deenergized and/or deterred from even being on the team, right? and the other is they might be -- their impartiality might be tainted in the eyes of the jury? >> that's right. it's basically kind of a specific example of trying the case in the media, by the day that the jurors walk into court, they have heard derogatory comments and inflammatory comments about people presenting the case. that would threaten the fairness into integrity -- >> isn't that what voir dire is goings to sort out? >> voir dire is moderately well-situated to address those sorts of concerns, yes, but as genteel pointed out, the availability of voir dire to sort out these prejudicial problems is not dispositive. the court should take preventative measures to prevent that prejudice in the first place. >> so i was just going to say, i heard you to be suggesting that it's not just that folks might be deterred from participating in the case, but the fact that they and their family are receiving threats might distract, might interfere with their ability to carry out their roles as part of the system of justice. is that what you're saying? >> absolutely. maybe just one factual point, i know my friend on the other side has emphasized the supposed lack of any submission of threats being directed towards special counsel's office but i point the court to page 85 of the joint appendix where it specifically says special counsel has been subject to multiple threats and the specific -- the defendant has targeted through recent inflammatory posts has been subject to intimidating communication. it's not accurate to say there have been no threats or none were in the record presented to the district court. >> just was going to ask you to elaborate, your three principal reasons was the evidentiary record and i appreciate the point you just made, but in discussing what is unique about this evidentiary record, can you please respond to the argument that at least most of what's being relied on here is from 2020 and the fact that in opposing counsel's view, there's been a lot of intense media attention and relatively fewer threats. i would like to hear what the strongest points you think are in response to that argument. >> yes, your honor, i think it's important to look at two aspects of the record before the district court. the first is the fact that to my knowledge there has never been a criminal case and the defendant certainly has not identified one, or the defendant has routinely -- incessantly taken public posting to a national audience to routinely vilify the prosecutors as thugs, as deranged, as lunatic, to malign the court as fraud and hack and to attack witnesses based on their credibility and the substance of their anticipated testimony calling them liars, cowards, weak, same one deserves a punishment of defb death. that alone would be sufficient for the district court to act. but you combine that with a record going back a number of years continuing to this day in which numerous people have been targeted as a result of the defendant's posts. and i think there are 16 different people that are documented in the record, eight of them are from the 2020, 2021 period, which i believe judge garcia, as you noted, is hardly some tangential time period to this case. this is exactly

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