this case is all about, this period after the election. some of those, of course, go through today. we talked about, of course, the threat to judge chutkan, and then we have threats to the district attorney in new york, the district attorney and the sheriff of fulton county, threats to the former -- judge's chambers providing over the ongoing trial. these are all from the last few weeks, so the notion that there was some dynamic that existed in 2020 that has since abated or gone stale i think is wrong. how do we -- how do we know what he gets held accountable for? i mean, this is the internet era. he's a high profile public figure who posts. he has lots and lots and lots of followers, but it's also covered on news channels that have listeners and newspapers that have readers and all manner of media can communicate his words to people of the public. how -- i mean, how do we -- how does the district court reasonably decide which postings he is responsible for prompting adverse conduct, you know, resulting adverse conduct, and which are -- he's expressing his views as the first amendment allows, and in a social media world cannot be held responsible for what everyone anywhere in the united states does when they hear about it. >> two answers to that, your honor. i think first is the sheer number. certainly if there had been one time that he posted something derogatory about a person and at some point thereafter that person was -- a threat, i don't think we would be here. the sheer number combined with the testimony of the people who experienced it on the receiving end who said what changed when the defendant tweeted about me was i started getting much more graphic, much more specific, much more pervasive threats. as one of the witnesses a poll worker in georgia testified to congress -- >> do you have any of that with respect to his statements about this criminal trial? >> no, none of the people who have been directly threatened as a result of this criminal trial have testified about that exact phenomenon. again, the context around the threat to the district court is worth eemphasizing. the indictment came down on august 1st, the arraignment was on august 3rd, before traveling to the arraignment he issued a public statement saying unfair venue, unfair judge. the next day he posted if you go after me i'm coming after you. and the day after that, the district court received a death threat. so yes, it's a matter of inference, circumstantial evidence. those are findings of historical fact that should be reviewed. >> i know you referred us to the district ja85, special counsel has been subject to multiple threats. that's one thing, but the special counsel's office has been targeted through inflammatory public posts. i guess intimidating communication, and then inflammatory public posts. but doesn't the first amendment protect -- and this is -- to be clear, these comments come in the course of a presidential campaign or i guess at this point a party nomination campaign. inflammatory language? >> so your honor -- >> surely there has -- i asked them about balance for the protecting the criminal process, but i guess i'm asking your position which doesn't seem to give much balance at all to the first amendment's vigorous protection of political speech, and the notion that high profile public figures or governmental officials who have taken on enormous responsibility like prosecutors can't stand up to some inflammatory language, seems to me to contradict some core precedent and very troubling lack of balance on the free speech side on the part of the prosecution in this case. >> our position, your honor, is not that these statements are unprotected. it's that genteel presupposes that the restricted language is protected as justice kennedy said that was classic political speech directed towards the government. nevertheless, it can be prescribed if there's substantial likelihood of material prejudice to the proceedings. >> and how do inflammatory posts about the special prosecutor create a substantial threat of material prejudice to the proceeding? >> that's when we tie it back to the record, which is that there is a pattern. there's a dynamic. it's very clear that when the defendant engaged in repeated inflammatory personal attacks on someone, there is a causal link between that person then receiving harassment, threats and intimidation. >> if there's actual threats, that's a crime, and that can be dealt with. >> yes. but -- >> it's short of that. if it's -- i mean, again, we've had the sixth circuit cases. if you've got someone that prosecutor's out to get me, allegations of the prosecutor's racist in one of the cases, this is all a political vendetta, are those things allowed? they're pretty inflammatory. calling somebody racist is pretty inflammatory. >> yes, your honor, the district court tried to craft a narrow order that allows some ample room to criticize the prosecution -- >> how does it do that if you say you can't target the special counsel? >> well, the district court i think draws a very clear distinction between attacking institutions and processes on the one hand and attacking individual trial participants on the other. so saying that the prosecution is politically motivated. >> the prosecution is a governmental institution, right? it's not a personal job. it is the government, right, when the prosecution speaks, even when it's independent counsel, they speak for the united states government, so i'm not sure that line works so well. >> that's absolutely right. maybe i'm unclear. what i'm saying is attacks on the prosecution, calling it unfair, calling it politically motivated, those are all fair game. >> but you can't say the prosecutor is politically motivated. that would certainly count as targeting the prosecutor. >> i think the special counsel himself is a somewhat unique case because he is both an individual trial participant and very much represents the institutional interests of the department of justice. for him we would concede that merely kind of referencing him or criticizing him -- >> the prosecutors working with him and under his supervision, you can't say they're politically motivated? >> >> if you're talking about individual line prosecutor, particularly if you're mentioning them by name, then, no, the mechanism for that is file a motion. certainly if you think there's some political bias. >> he has to file motion every time he wants to say all the prosecutors in the office are politically biased against me. might not be true factually, i'm not suggesting it is, it's just a question. if in his mind, his view, all the prosecutors in the office are politically biased against me, he has to file a motion before he can say that? that's not much -- taking much account of the first amendment interests at stake. >> i think if it's at such a high level of generality, everyone -- >> how can you tell that from this order? that's definitely targeting the special counsel's office, so it's definitely prohibited, so i think that's why you're saying he has to go file a motion to make sure he's allowed to say that. >> the motion i'm alluding to is not a motion to ask for permission to speak about it. what i'm talking about is avoid ing a two-track process. there are claims that get presented in court and a whole separate effort to kind of malign the people involved, suggest that there's some improper purpose or motivation or bias that is never even raised with the court. the defendant's free of course if he thinks there's a colorable claim of prosecutorial misconduct or prejudice to file a motion seeking disqualification, dismissal, and he can talk about the fact that those findings or filings exist. what he can't do is say i'm going to have this narrative that there is political bias but i've never presented it to the court. >> so imagine -- i understand he hasn't participated in debates thus far, if he were to choose to participate in a debate and the other folks who are competing for the republican nomination, let's just say they spent a lot of time talking about, you know, you're an indicted felon, you're being prosecuted by the united states government. you're, you know, they'll prognosticate, you could be found to be a criminal before the election, and they have all this evidence against you, all the millions of pages they talk about in the record here, so they're going on and on and on during the debate about this criminal prosecution, and you're telling me he can't say public record prosecutors paid by the taxpayers, your names are public record, a, b, and c prosecutors, it's all a political vendetta. they all are doing the bidding of joe biden. i'm not saying anything's true here. he can't stand on the stage and say that? >> your honor he can certainly say this is a politically motivated prosecution bought brought by my political opponent. i will be vindicated at trial, but when he starts naming individuals. >> he has to speak in this manner while everyone else is throwing targets at him? >> it can't be that he can't mention mr. smith who -- i mean, for most people in the united states given the number of legal battles in which this defendant is em broild, the easiest way people refer to this case is jack smith. surely he has a thickening skim. he's on this team. the two interests you mentioned which are, one, the person would be dissuaded, i have little doubt that he will not be dissuaded, and then the other that his impartiality or integrity would be impugned in the face of the jury, first of all, i'm not sure i see the district court having made any such determination or even followed that reasoning. am i missing something supportive of that link? >> well, i think it's very clear that the district court is -- because the whole rationale is premised on ensuring the integrity of the proceedings and the fairness of the trial. of course the court wants to make sure that the jury is not presented with extraneous information that would not be admissible in court that could prejudice their determinations. i think part and parcel of that is how they view the trial participants. to go back to -- >> how can -- i guess already asked these questions, given all of the issues that are both before the court in this case and before the public in the election, it's hard to see how this portion of the restrictive order is going to succeed in preventing a trial in the court of public opinion. >> well, again -- >> i took her order to more be focused on protecting individuals, protecting witnesses from threats, from harassment, from, you know, efforts to positively motivate them and the like. not to shield the veneer, but you take a different view. >> no, i think i would agree that that is the principal motivation certainly, shielding people from harassment, threats and intimidation, both witnesses and other trial participants and certainly that includes, you know, the line prosecutors handling the case. again, special counsel himself is a slightly different case because he is both an individual trial participant and a representative of the institution. and so that's why we would say that merely mentioning him would not violate the order. that would not be targeting, whereas in a debate, your honor, if -- >> i was going to ask a question, but before i do, i'm still struggling with how you distinguish -- i mean, you know, maybe the special prosecutor is in a somewhat different place. that does not mean that prosecutors working with him, assistant prosecutors or whatever the title deputies are not public figures themselves. would you agree? >> they can be public figures for certain cases. >> okay, then, it shouldn't matter. why can't on the debate stage -- i guess now you can do that answer on the debate stage, why can't the defendant say, a, b, and c, whoever is prosecutorial team in the particular case biased, anti-american, whatever deplorable adjectives. >> in context you'd have to view that as the -- why is he mentioning individual line prosecutors but for holding them up to scorn in the public, increasing the likelihood of their being targeted. >> they make a good point that i'm not sure that we'll know this -- meddlesome priest, first amendment debate, you'd have to really make the showing, you know, sort of the godfather. someone get rid of the snitch for me, that's one thing. you'd have to make that kind of showing, but you know, if a high -- if someone high up says, will someone just make this problem go away, could he not say, will someone just make these cases go away. it's a political vendetta, let the american people decide. can he not say that? >> someone making these cases go away, that would be consistent with the order, that would not violate it, yes. >> tell me your view of -- it would be really hard to debate when everyone else is going at you full-bore and your attorneys will have to script little things that you can say. >> your honor, i respectfully disagree that there would be anything particularly challenging about a rule that says naming individual line prosecutors somehow, you know, is too complicated, too hard to follow. he can say everything he wants to say. >> you don't think he can name line prosecutors by name? >> i think that would be presumptively active targeting. context could suggest otherwise but naming -- >> what context do you need? i've got my debate here. it's a matter of public record, you're receiving the pay -- you're paid by the taxpayers, and he can't say by name that person? >> appeared and spoken in open court in the case against him. >> our view is that is targeting within the meaning of the order. >> it's targeting because you're -- special counsel? >> that's right. it's targeting because -- >> what's your definition of targeting? >> targeting in our view means singling someone out for the negative attention, that poses a significant and immediate risk of their being a recipient of threats, harassment, and discrimination. >> district court -- the reason she chose targeting is she didn't want to make it more defensible. i think you're right that the targeting does raise a little bit of clarity. i wonder if you commented on the proposed alternative i mentioned to mr. sauer, which is if the order prohibited comment on any reasonably foreseeable witness or the court staff, but let me limit it to the witnesses, reasonably foreseeable witness because of the witness's potential participation in the trial, because one of the difficulties is disaggregating the public figures who are in the political arena in other ways, writing books, you know, and who aren't anticipated to testify at trial here. is that -- does that do the work that you need? does it pose different constitutional concerns that i'm not appreciating? >> i don't think it poses any additional constitutional concerns. i think that would be a perfectly valid gloss on that portion of targeting. i do think it omits another important component, which is this concern about exposing people to threats, harassment, and intimidation. if the defendant were to say, you know, not with any reference to their testimony, but say this person, you know, is a coward, a liar and treason and deserves punishment of death, i think that would still violate the order. >> couldn't you, you know, given context if there's no other reason this person's being targeted, you say the reason they're talking about that is because of the testimony whereas, you know, when general milley has written a book and has spoken publicly about his efforts to shield the world from the consequences of the defendant's conduct, that has got to be fair game. >> certainly fair game, i don't think anybody suggests otherwise, but i think it's -- >> so what's not fair game, so he can comment. >> yes. >> he can comment very critically. what can he not do? >> use the sort of inflammatory language that poses a significant risk that they will be subject to threats, harassment, and intimidation. i don't think the line between saying conduct like this by the chairman of the joint chiefs of staff is intolerable in democratic society and saying on the other hand this warrants the punishment of death is a particularly abstract or difficult line to draw. >> yeah. so it's comments that will predictably trigger the loyalists or what mr. sauer versus the heckler's veto. it's the triggering third-party conduct what i would tag as the loyalist zeal. >> that's right. >> that's what your aim is, that the defendant can comment on all kinds of things, but when he does so in a way likely to trigger this excessive deal that that is what you're -- how you read the district court is targeting or borrowing that kind of speech. >> yes, your honor. >> and going back, judge to -- >> i'm sorry. didn't mean to interrupt, but then i do want to follow up on this mark milley thing. >> going back to the question of what can he say during the debate. it's worth looking at some of the things he said in tv interviews and even in one of the posts that the district court vees as an example in order to deny the notion stay in what's permissible. in that most he's talking about the political bias in this prosecution, how it's been brought by the incumbent administration. he says at trial we will 100% prove with evidence that, you know, that the election -- that i won the election and so forth. he can always say what every other criminal defendant in every other case says. once we get to trial, i'm going to prove all of this with evidence. the necessity to single out trump participants that have not been the subject of any sort of litigation, just as sort of a, you know, personal singling out just to put their name in the public, i think is presumptively an active target. >> i'm on j 130, which is the general milley post, can you tell me which parts of that were -- because this was the day after general milley did an interview about his book. it wasn't right after the indictment. it says nothing about the criminal trial or general milley's prospective role or not in it, so tell me what of this -- is everything okay except the punishment would have been death? is everything else okay? >> yes, i would say so, and i think the important context, no, in reviewing -- >> is he wrong that -- i'm not talking factually about this particular situation, but is it wrong at least historically -- again, not by this conduct in particular but some acts of treason were punishable by death? >> no, that's not wrong, and the district court is free -- >> isn't that all he said. >> the district court is free to decide whether he included that language to make kind of the abstract historical point about what the punishment for treason was in times gone by or was he saying it to -- >> what are you -- i think for -- because i've talked at least about the need to balance and, you know, it's not how i want my children to speak, but that's really not the question. the question is what in here in this post, including the reference to historical capital punishment for treason connects that to the criminal trial. connects anything about this post to the criminal trial, the criminal process, general milley's potential or not -- i have no idea -- participation in the criminal trial. >> on its face it doesn't allude to his testimony, but it's important to -- >> the timing, you don't have the timing. >> we do have an important distinction in timing, which is that the information about general milley, his conversations with china, that all came out in 2021. the defendant had a reaction to that news then. he was not calling for him to be put to death, death was an appropriate punishment. he started doing that once he was indicted. >> wasn't this the day after general milley did an interview about his book? >> it was in the news again, but his reaction post-indictment once he knew that general milley was a potential trial witness was very different than what his reaction was in 2021 when general milley was not a potential trial witness against him. >> pretty much once there's an indictment, he just can't -- he just really can't say anything about folks who are either known or reasonably foreseeable witnesses. >> i disagree. i think -- >> there's a perfect line between the sorts of things that use inflammatory and disparaging language. >> did he say anything disparaging about something? >> take off inflammatory. is he allow to say anything disparaging about someone -- i'll make it easy -- that he knows is going to be a witness now that there's been an indictment, between now and the trial, after trial is a different thing. >> i think he can criticize them, so long as he's not using inflammatory language or attacking their credibility in a way that is going to shape how the jury sees them. that's another example of trying the case in the media. >> i'm trying to understand with respect to these high public figures, they like everyone else in the country are protected against true threats. they're protected against criminal efforts to affect their testimony. they can be prosecuted for that. the defendant could be prosecuted for threatening that in violation of the criminal law. when we step back and think about a protective order to protect the integrity of the proceeding, the mechanism is that they would be -- their testimony would be affected? >> i think they're -- >> that's very hard for me to imagine. >> i don't think that the test is whether any particular witness who is targeted will actually change their -- refuse to testify. >> or that it will be reasonably foreseeable that, you know, you're right. this is a prophylactic situation. i would assume that their testimony would not be affected, that mr. barr, general milley, vice president pence, i take part of your position to be that there's a performance of their vulnerability that then would affect unknown public witnesses? >> that's right. there's a clear cut knock-on effect. if you're a witness -- and there are many witnesses thatcategoric officials. if they see that general milley can be suggested he can be put to death, they see the former chief of staff can be called a coward, then they are going to absolutely be -- why would i come forward and give the facts that i know about this case if the result is going to be that i'll be subject to the same treatment. >> this is a very small question and it reveals my lack of technical prowess, but is there any way preventively to protect someone's technology? like let's say i'm a prospective juror, can i be protected technologically from like doxing? >> well, you're asking about whether there are available technology that would remove your personal information from the internet. >> just filter if things are coming through so fast and furious from strangers? i mean, because it does seem like it's a real phenomenon that is actually quite disabling and terrifying. >> yes, absolutely there is. >> and -- but i'm wondering whether there are ways in anticipation of that that that can be mitigated. we do have the problem of speech by the defendant, and then it has a knock-on effect with the loyalists' zeal, and that's -- you know, then what causes direct efforts at threatening and harassing individuals, and i just wonder if there's any non-protective order. are there tools? >> i'm not aware of technological tools that would work nearly as well as mitigating this prejudice at the source, if they exist, i think they are not widely used and not easy to incorporate particularly for every witness and every potential juror and so forth? >> can i -- i just want to clarify a few things about the scope of the order as you see it. so you mentioned you think that one of the interests in this order is protecting sort of jury perceptions. so one of the examples in the district court transcript is essentially x is a slimy liar. without any more context s it the government's view that that's prohibited by this order? >> yes, your honor, directed towards the foreseeable trial witness, yes. >> so it's bill barr goes on 60 minutes and gives an interview and criticizes mr. trump's fitness for office january 6th, the events related to january 6th. mr. trump can't go online and say everything he just said is false? >> everything he just said is false i think is different from using either inflammatory language or attacking his credibility directly. i know that that's a little bit of a fine line. but yes, i think if it's a direct attack on credibility or inflammatory comments likely to result in threats and harassment, that's one thing. if it's just a generalized criticism of his -- as the attorney general or disagreement with what he said, i think would be another. >> is liar inflammatory? >> i think it's inflammatory. >> what if he just said he's a liar? >> that also would be a comment on credibility, it would be prohibited by the order. >> it doesn't have to be -- calling someone a liar is inflammatory. >> lying itself would not fall into the category -- >> any attack on the credibility of someone who's a prospective witness. >> yes. >> so it's deeper into the campaign, and someone who is done testifying but the trial is still going on, goes out and campaigns with the democratic nominee. brings them up on stage. this is why you should vote for me for what he said about what would happen? but he had another trump administration, he's got a whole book. it's on sale at the table over there, special discount for people attending the ralrally, now stand up here at the podium, mr. x, and tell us about your experiences working with him and why i should be president instead of him. all this is going on, and you are telling me that former president trump, the first amendment balance in the criminal process would not allow him to say mr. x is a liar. he's lying in what he said. i was a good president. he can't say that? >> he can certainly say i was a good president. i disagree with everything he said. >> i'm sorry, he can say i disagree, but he can't say he lied. >> these are corner cases, i would agree. >> you didn't have any hesitation telling me he can't do it. you said can't comment on credibility. >> yes, we think commenting on a witness's credibility about the substance of their testimony is presumptively -- >> he's commenting on their credibility about what they said at the political rally. >> that's right. and if it goes to the substance of their testimony and about their credibility, it's presumptively -- >> 10% when he said related to the trial testimony mr. x gave the day before and 90% did not but just was a tirade against the political opponent of the person on whose behalf he's speaking. a tirade against the former president trump, in the midst of the election. >> so he has a lot of space to say i disagree with everything that he said, we're going to prove at trial that what he said is not true. but when he's trying the case in the media, look, a single word like that's a lie, that's a liar i think it's extremely unlikely -- the dpoft's not going to be moving -- >> is it covered by the order? i don't want to know whether the government's moving forward, i want to know whether it's in the scope of this order that's being challenged on first amendment grounds. i think you said repeatedly it is. maybe you'll exercise restraint. when someone has just attacked him viciously in the press -- i shouldn't say attacked, unloaded political dynamite against him, and he can't say -- can he say it's untrue? that is untrue? he can say that? >> he can, yes. >> he can't say that person is an untruth speaker? >> if it's about the -- can he say they're an untruth speaker? >> yes. he can say that. >> but he can't say they're a liar. but the sorts of attacks on credibility, he is a liar. >> his attorneys when he says here's my speech, here's what i want to say and they have to x out liar and put in untruth speaker. >> they have to put in untruth speaker. they have to avoid a direct attack -- >> do you have another word we could put in. >> what he said was untrue and here's why. >> no, he wants to talk about that person's character penchant for untruthfulness. >> i think that's exactly the point. if he's talking about his character for truthfulness or untruthfulness, that is trying the case in the media. >> and there's a balance that has to be undertaken here and it's a very difficult balance in this context. we certainly want to make sure that the criminal trial process in its integrity and truth finding functions are protected, but we've got to use a careful scalpel here and not step into really sort of skewing the political arena, don't we? >> i agree with that, but i think the order as properly interpreted strikes the appropriate balance. it leaves ample room to respond to these things, to say these things are untrue. >> what is the strongest? a lot of the cases as you're well aware about the interest in a fair trial are in cases that are protecting criminal defendants against a prejudice process, biased in the process. there are some mostly dicta about the government's interest or the broader systemic interests in a fair trial. what's your strongest support for the order in terms of the government's interest? >> that's right. right to a fair trial by an impartial jury. and as it says in genteel, the state also has a right, an interest in a fair trial that needs to be protected by prohibiting prejudicial speech. the defendant has a right to a speedy trial. he doesn't have a right to delay his trial for as long as he wants because the government and public also have an interest in a speedy trial, even though it's textually vested in the defendant. like wise, the defendant has a right to a trial by jury but doesn't have a right to unilaterally demand a bench trial, there's nothing unusual about saying the right to an impartial jury means that the government also has a right to a fair trial. zblt. >> in the order, one of the terms is political rival. how would you define that? are there no political rivals any longer, or is a political rival really a synonym for public figure for like milley, barr, the like? >> i think the court intended it to be equivalent to people running against him. if the court felt like it was necessary to interpret political figure more broadly to encompass people like the former attorney general, the former joint chiefs of staff, we would understand. that i think could be a permissible gloss if necessary to make this order narrow. what the district court intended was to refer to people running against him. if i may make a couple -- >> let me just ask one more thing. you had -- i believe when you sought the order that's before us, you also asked the district court to amend the conditions of release with similar terminology and the district court denied that. what's at stake as between putting terms like this in conditions of release and doing an order under rule 57? >> so first, which i hope is not -- to your question, i do think my friend's concession that these sorts of restrictions including on contacting witnesses and other portions of the bill are consistent with the first amendment, i think is a fatal concession to their whole legal standard. if it's true that a defendant is consistent with the first amendment can be restricted from communicating with witnesses, associating with other people, just standard of reasonable assurance of the safety of the community, that clear and present danger test and demand for evidence proving its imminence can't be right. what's at stake in doing it -- >> don't individual terms that are imposed under the bail reform act receive constitutional scrutiny? >> constitutional scrutiny, but the test is, you know, will this reasonably ensure their appearance at trial or the safety of any person or the community, it's not -- is there compelling evidence there's a clear and present danger -- >> that's a statutory test. we don't know what the first amendment test is, challenge to the bail conditions, is that right? >> that's right, your honor, i think it would be extraordinary to suggest his pogt here somehow would -- well, i think his position here is carried to its logical conclusion, wouldn't necessarily cast doubt on the constitutionality of all of these routinely imposed provisions of the bail reform act when courts have held those for years. >> i think it would have to be -- there would have to be a constitutional analysis. isn't that what slar know did? >> yes. it'd certainly have to be looked at. >> and it wouldn't be whether it would reasonably assure their appearance at trial. >> these sorts of restrictions are imposed all the time. don't contact this person. don't post the witness list on social media. these are done if they reasonably assure the safety of another person or the appearance of the person and i don't think any court has really cast doubt on their constitutionality. going back to the question -- >> yeah, you had been more broadly responding to the question that i asked about sort of what's at stake, whether it's a rule 57 order or a condition of pretrial release. >> that's right, so we requested modification of the bail conditions in response to the -- >> hello again, i'm ana cabrera in new york, and we're just going to pull out for a quick moment to discuss a little bit of what we've been hearing now as we are approaching two-plus hours into this hearing for a gag order, and the trump team appealing that gag order that had initially been implemented in the d.c. election interference case. we are now hearing right now from the special counsel's office and the attorney here cecil vandevender. i want to go to our ken dilanian outside the courthouse who's been listening to these arguments. and now having heard from both sides at this point, ken, notably a different tone taken in the questioning of trump's lawyer versus the special counsel team. >> yeah, absolutely, ana. the judges really grilled john sauer the former missouri solicitor general representing president trump for 80 minutes and you could hear the frustration creep into their tone, and it's because they were trying to get him to explore the limits of his absolutist first amendment argument. they were presenting him with hypothetical scenarios and saying would it apply in this case or could he be gagged. he wasn't willing to concede anything. that frustrated the judges, and it was a much more gentle tone with cecil van devender. still some important questions. i think a fair reading of listening to these questioning session ss that these judges are leaning towards upholding this order but may narrow it. there are significant first amendment concerns. they've heard this on an expedited basis. we can expect a ruling in as soon as a few days to a few weeks and then i think we can expect this will be on its way to the supreme court. >> we'll let you listen back in, thank you for that. coming to my panel of ladies here at the table with me, lisa, you first, what do you think of the questions we're hearing now against the special counsel's team? what does it tell you about where things are headed? >> i think the judges are going to uphold an order. they are going to tinker with the language at the margins. what i hear from them is there's an acknowledgment that there's a new phenomenon that is dangering -- disabling and terrifying. there's a concession from the special counsel's office that jack smith is a public figure that he can be exempt from an order. they agree that the language of targeting a witness is sufficiently ambiguous, that it needs to be clarified and they, the special counsel's office is saying maybe the standard should be no inflammatory language or broadside attacks on credibility. and then the final thing they're saying is it would be okay for trump to go after people in the public eye, who make public statements or write books. what he can't do is criticize them insofar as it relates to their participation in the trial if they're foreseeable trial witnesses. >> zooming in on specific people, comments against specific people as well as the specific language used in those comments. what are your thoughts on where this is happening? >> my thought is jack smith, fair game. that's because the prosecutor who is arguing conceded that. unlike trump's lawyers who basically would concede nothing. this prosecutor is making the argument for the prosecution was conceding. yes, perhaps we should dial back. yes, i agree, which makes it much more effective and i agree with lisa, the order will be limited. i think witnesses will still be protected unless they are the high profile general milley where you can say he's a horrible general. you can't say he's a liar so don't believe him when he testifies. big difference. >> catherine christian, lisa rubin, thank you so much for guiding us throughout the last couple of hours. that's going to do it for me today, josé diaz-balart picks up our coverage right now. and good morning, 43 past the hour. happening right now at the white house, president biden is speaking as he's about to pardon the national thanksgiving turkey, this year's turkey and its alternative are named liberty and bell, and were raised in minnesota, and we are seeing live pictures from the white house as the two turkeys appear to be a little bit reticent to get on the stage there, but they will be pardoned. let's listen if we could just for a few seconds. >> love honey crisp apples, not bad, huh? ice hockey. i sure in hell would like to see them play ice hockey. thousand lakes and the mall of america. now, just to get here, liberty and bell had to beat some tough odds, a competition. they had to work hard to show patience and be willing to travel over a thousand miles. you could say even it's harder than getting a ticket to the renaissance tour or britney's tour, she's down in -- kind of warm in brazil. folks, based on their commitment to being productive members ofs >> so the president there is actually focusing on those two turkeys that are nervous, but they have no reason to be nervous unlike millions of other turkeys in the next 48 hours. they are going to have a full life going forward. so that's what's going on at the white house at this moment as the president pardons them. we're going to turn now to actual breaking news that is going on in the israel-hamas war. there is renewed hope at ts hour. sources familiar with the matter tell nbc news that negotiators are inchi closer to a deal that would release some hostages in return for a pause in fighting. nbc's keir simmons joins us with the very latest, keir. >> good day to you, we are hearing news that at another hospital in northern gaza there, is fighting and israeli tanks. meanwhile, tonight, prime minister netanyahu and his war cabinet will meet with the families of hostages, it's only the third time that that has happened. they've been missing now for 45 days. >> hope possibly this morning for some of the more than 200 hostages taken by hamas. with many desperate families demonstrating in israel this weekend, sources familiar with the negotiations confirmed to nbc news that talks mediated by the u.s. and qatar! we are closer than we have been in quite some time. >> reporter: nothing is final yet, and those talks have fallen apart before, and this weekend israel under pressure to justify its assault on al-shifa hospital in gaza saying this security camera footage shows two hostages, one thai, one from nepal at the hospital on october 7th. >> with the gunmen. >> hamas admitting it took hostages to hospitals for treatment, it says, but in the footage one is dragged along a hall and israel says at al-shifa, this is a hamas hidden staircase and a 55 meter, 180 foot tunnel with cables and a blast door. nbc news cannot independently verify israel's description of the footage. the u.s. says its intelligence suggests the hospital harbored a hamas command facility. israel says it was an extensive headquarters. this morning, 31 premature babies from al-shifa have been evacuated to a hospital in southern gaza, some did not survive. israel's offensive unrelenting, dozens were killed at a school this weekend, and overnight another hospital hit with 12 killed, says the hamas-run gazan health ministry. we meet hassan who just got news his sister-in-law and nephew were killed in southern gaza. they're slaughtering us he says, he's terrified for his 2-year-old daughter amira and 2-month-old baby alli. while in israel, it's 45 days since mayen's daughters were abducted, their father killed. if israel can't get them back, she'll go to gaza herself she says. >> i just want to hug my daughters, to take them in my hand. >> if there is a deal with those hostages, it's not clear how many would be involved or how long a pause would be, but officials with knowledge of the talks have told us over a number of weeks that it would likely be a number of hostages and then some more over a series of days. meanwhile, for those premature babies some positive news, 28 of them now in a hospital in egypt. >> keir simmons, i thank you very much. let's turn now to 2024. a new nbc news poll finds that president biden's approval rating has declined to the lowest level of his presidency as a majority of registered voters disapprove of his handling of the israel-hamas war. the poll comes as the president marks his 81st birthday which comes just over 11 months before the 2024 presidential election. with us now to take a closer look at this, nbc news national political correspondent steve kornacki and victoria defrancesco soto, dean of the clinton school of public service at the university of arkansas. she is also an msnbc contributor. so steve, what does the poll tell us today about the president's standing? >> yeah, there are a lot of weaknesses in his political standing almost a year out from the election year. you mentioned it, the approval rating in our new poll for biden is the we've measured his entire presidency, it sits at 40%. that disapproval number has crept up to the high 50s. to put that in some perspective, think back to the start of this year, the start of 2023, remember biden and the democrats were many coming in off a surprisingly good midterm election for them. well, this was biden's approval rating at the start of the year. he was at 46, 50. he was almost even there, now at the end of the year he's 17 points underwater, so that's the kind of year politically joe biden has had. you take a look at this. what's the biggest change we've seen recently? it connects to the middle east and foreign policy. his approval rating on the handling of foreign policy and it sits now at just 33%. we asked this same question just two months ago before the events of october 7th, before the israel/hamas war began, and biden, you could see, was a much different story on foreign policy. it's climbed to over 60 disapprove right now. this is the biggest single issue where biden has had negative movement from the last poll we took to this one and you dig further on this asking specifically about the israeli/hamas war, again, biden's approval kind of mirrors his foreign policy number. but the generational gap here is staggering. look at this, biden's handling of israel and hamas, 53/41 with prove. that's plus 12 among voters who are 65 and older. how about voters who are 18 to 34 years old? 20 approve. 70 disapprove. he's 50 points underwater here. that is a net swing of 62 points on this issue between the youngest set of voters and the oldest set of voters, so that was very striking to have shown you biden's weaknesses politically, who are the republicans going to nominate to run against him, well, the story in their poll continues to be donald trump, dominating the republican field, more than 3-1 ahead of his nearest rival. if there's been any movement here in the republican race it can be found in this spot right here, third place, nikki haley. she was 7% in our last poll almost doubling to 13%. the challenge for her she's growing with independents, moderates who don't like donald trump, conservative, very conservative voters, that's the bulk of the party, they like donald trump, a lot of them are for donald trump. she's got to convince them. that's where she's running into resistance right now and, look, if it is trump, if it is biden, if it is a rematch, what did we find in that? here's the head-to-head in our poll, trump, 46 we find. biden, 44. obviously very close race but the significance since the start of 2019 when joe biden got in that presidential race for 2020, we have polled this matchup, biden versus trump, 16 times, this is the 16th time we've polled them. this is the first time in all of those 16 that trump has been leading in our poll. >> steve kornacki, thanks so much. victoria, what do you make of what steve just showed just. >> well, first, the social scientist in me wants to point out we're still warnock the margin of error, that means that this is setting off alarm bells and for me when i look at those youth numbers, that is frightening from the democratic perspective. young folks it end to be overwhelmingly more democratic, but we're not seeing that support here. there is a lot of time before the election. a lot can happen in terms of foreign policy but there needs to be a concrete strategy, and how to cultivate that. we saw the youth vote come out very strongly for democrats in the midterm election. the hope is that that momentum would keep going. we're seeing it go in reverse. how do you stop that trend and shore up that support? as well as enthusiasm. it's not just the approve and disapprove but are you going to get up and vote and get your friends to vote with you? >> and, victoria, on the other side, former president trump was in texas over the weekend to receive governor greg abbott's endorsement as it comes when he prepares to sign a state bill that is a crime to cross the border without any state papers. he said he would carry out the largest deportation in history. who is he playing for? >> it's back to the 2015 launch of his campaign. it's that base, immigration, he'll say throughout the history of our country we've seen immigration be a very emotional issue. right now latinos are the target, but it is the italian americans, german americans. there is that other rising that happens to newcomers and it's an old story that regrettably we're seeing being brought back and again in this campaign, donald trump is launching this. >> victoria defrancesco soto and steve kornacki thanks for being here. the tributes pouring in for former first lady rosalynn carter, who died on sunday at the age of 96. the carter center says mrs. carter passed away peacefully at her home in plains, georgia, two days after entering hospice care. she is being remembered as a tireless humanitarian who championed resources for mental health, social justice and the needs of elderly. she and former president jimmy carter who survives her were married for 77 years. blayne alexander joins us from atlanta. good morning. how is rosalynn being remembered? >> reporter: for all of that and much more, of course. she was a tireless humanitarian, a loving mother, a devoted wife. their marriage was the longest of any u.s. first couple in american history and this morning she's being remembered for her work around the world and her caring spirit. from the georgia governor's mansion to the white house, to her years of global humanitarian work, former first lady rosalynn carter dedicated her life to public service, and to her beloved husband, former president jimmy carter. all while blazing trails in her own right. this morning, the former president is remembering his wife and best friend of nearly 80 years, rosalynn was my equal partner in everything i ever accomplished. she gave me wise guidance and encouragement when i needed it. as long as rosalynn was in the world i always knew someone supported me. the president and first lady writing, rosalynn did so much to address many of society's greatest needs. >> it's now my pleasure to introduce someone whom i love and respect and cherish, my wife rosalynn. >> reporter: the carters' storied marriage stretched for man 77 year, longer than any other first couple in history. born eleanor rosalynn smith in plains, georgia, she grew up next door to the former president. >> he graduated from high school and left home at 16. i was 13. he was way beyond my reach. >> reporter: they married in 1946 and became life partners in everything from the peanut farms of georgia all the way to the white house where she was influential on the campaign to get there. >> people got to know him and when they know him, they vote for him. >> thank you both very much. >> she's completely objective and unbiased. >> i love politics. >> reporter: mrs. carter would often attend cabinet meetings and became the first first lady to hold an office in the east wing. >> i talk to him about what is hatching and give him advice and he doesn't always follow it. >> reporter: she used her position to champion her own causes, a fierce advocate for mental health and better care for the elderly. the carters continued that work when they left the white house founding the carter center more than 40 years ago and in 1999, they were each awarded the presidential medal of freedom. >> i think it's one of the happiest times of my life. there is life after the white house. >> reporter: now, jose, there will be three days of tributes planned ahead for the former first lady including right here in atlanta at the carter center and in her beloved plain, georgia, where she will be laid to rest, jose. >> do we have any updates on how the former president, jimmy carter, is healthwise? >> reporter: well, jose, we know that he has been in hospice care for the better part of this year, for about nine months or so. he is 99 years old himself. you know, we have a producer down in plains, georgia, who has been speaking with him who know him closely and say he's doing as well as can be expected but, of course, all day we've been hearing about their close personal bond. the fact that really she was his partner in every aspect of life. the last public appearance they made together was back in september, jose, it was actually a surprise appearance at the plains peanut festival so certainly we know that they spent every moment together and certainly, of course, so many people are wishing the former president himself well this morning. >> indeed, blayne alexander, thank you so very much. i'm jose diaz-balart. thank you for the privilege of your time, andrea mitchell picks up with more news right now. right now on "andrea mitchell reports," the d.c. court of appeals hears argument from former president trump's lawyers challenging the limited gag order from the federal judge overseeing his trial for trying to overturn the election. with special counsel jack smith's -- >> and then the prosecution comes in and says actually it would be okay to make the public statement criticizing someone who is a potential witness, they contend, and that wouldn't be targeted. at that point from the defense perspective it's like, what does target

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