this space. watch the space, along with all of us. all right, one last thing before we go. i recently chatted with my friend and colleague chris hayes about my new book prequel. it's a live taping of his podcast in front of a -- town hall in new york. it was tons of fun, we shot it as a tv show. it is now available to watch, to stream on peacock. the easiest way to find it is to go to the ppe app on your phone or computer. just search maddow. the top results should be the solicitation with our faces on it. if you click on, that you can watch that really cool thing i did with chris hayes. peacock, it's up there right now. okay, that does it for us tonight, now it's time for the last word with lawrence o'donnell. good evening, lawrence. >> rachel, i'm so happy the writers guild has been able to organize with our coworkers here. as a member of the writers guild myself for longer and then some of these new members have been alive, i'm very happy to see them teaming up. and rachel, before you go, this episode of last word tonight, i mean, you know what, don't move, stay right near the screen there because this one is going straight to the museum of broadcasting, not just because we have the comedy team of weisman and touchy all with us. but if you can hear the chuckling, we are all in the same room together. >> oh. >> for the first time in broadcasting history. and covid footnote, it's the first time we've had two guests in my studio since before covid. >> oh, wow. >> so all sorts of historic broadcasting stuff. >> live human energy, live human energy in the middle of your tv show, watch out. >> thanks rachel,. >> thanks, lawrence. >> well, each side was given 20 minutes, which is the norm. and it means it was going to last 40 minutes. but the peels court hearing today in washington, d.c., considering a weighty and unprecedented first amendment issue lasted two hours and 20 minutes and here is why. >> would your position be any different if you are here a year ago, if the timer just a year ago, so much for the removed from a political , uld your position be any different? >> -- little political campaign. -- the hypothetical. >> what he was saying there is i don't mean to fight the hypothetical. but donald trump's lawyer did mean to fight the hypothetical. in fact, donald trump's lawyer fought every hypothetical presented to him by the appeals court panel of three judges who were considering donald trump's appeal of a partial gag order issued by federal judge tanya chutkan in the case of united states of america versus donald j trump, and which donald trump is charged with federal crimes leading up to and on january 6th. because donald trump's lawyer fought the hypotheticals, the panel of judges became what lawyers call a hot bench, meaning the judges were very actively and energetically challenging thewyers on both sides. >> so, would your position be any different a yearag >> i think the gag order would still be unconstitutional. >> would your position be any diff >> i don't see how -- >>ay, so the fact that we have a campaign going on does not matter. what matters to you -- and this is frankly still politicalspeech, which gets very highecon, no doubt. >> i would not put it that way. i think the fact of the campaign. and we have a whole series of -- >>your position would be no different if it was a year ago? >> my position would still be but the campaign has -- poweul reason why it's unconstitutional. >>-- as far as you're concerned, this would be exactly the same t a litical campaign. >> i would say it's the crown jewel of a -- >> a crown wel? you think the outcome should be exactly the same, whether or not there is a political -- >> yes, i believe in an independent first -- campaign speech is one of them. >> in questioning by judge rally garcia, donald trump's lawyer said no one should be bothered in any way by the death threat that judge shot can received in this case because donald trump believes the woman who issued the death threat is now crumbling charges that death threat. di not really mean it. >> sosentially what the district court is finding as we have a past pattern when the defe speaks on this subject, threats follow. statements again, we are months out from the trial. intensify, as well as the to threats. so why is the district court justif taking a proactive measure, not waiting for more d more threats toacvely occur and stepping in to protect the integrity of the trial? >> there's an evidentiary burden here. it isn't just that there's -- the evidence we have now completely cataracts that influence is undisputed that president trump case almost incessantly since the y it was filed. and they have not come forward with a single threat that's even ipired by any evidence in his social mea post. the only threat they talk about inhe brief is from the tribe decision, from the center of this trial case, this -- in texas. i strongly invite the court -- >> a council named a death threat to e urt judge in this case. jge tribe, that's the august 5th telephone call. it's the southern district of texas -- >> the day he said, it you come after me, i'm coming after you, th threat issued? >> strongly encourage the court to pull both the probable cause statement and the detention omhat case, where there is evidence that that particular brighten or, there's noe of any reading of social media, that particular threaten or is an unemployed mentally unstable alcoholic who sits on her couch drinkingllay according to her father, never leaves the apartment, watches the news, not on social media, watches the news on tv, get angry about it and makes angry threatening calls. >> one of the pieces of threatening speech that prosecutors included in their brief was a posed by donald trump about general mark milley in which donald trump said general milley's official communications with china was, quote, an act so egregious that in times gone by the punishment would have been death, a war between china and united states could've been the result of this treasonous act. to be continued. >> judge patricia mullet asked about that atement about mark milley. >> is everythingkay, except the punishment within death? is everything se okay? yes, i would say so. and i think the import context to know is -- is iran -- i'm not talking factually abt this particular situation where we have details bere us, but is it wrong at least historically that -- particular, but some acts ofn treason were punishable by death? >> no, that's not wrong. e district court is free to -- >> an obvious statement? >> well, the cour free to decide whether he included that language to make the abstract historical point what the punishment for treason s in times gone by, or was he saying it to -- i talked about the need to balance, and you kn, somehow i want my children to speak but thot t question. so the question is what in here ts post, including the reference to historical capital punishment for treason, connect that to the criminal trial? connects anything about this post additional trial, the criminal process, -- millies potential or not, i have no idea, potential participation in the criminal trial? >> so, on its face, it does not collude to this testimony. >> the timing, you don't have the time -- do he an important distinction in timing is that the information about general milley, his conversations with a that all came out in 2020. . had a reaction to thatews then. he was not calling for him to be put to death, he said that death was an appropriate punishment. so in doing that, once he was indicted -- >> leading off our discussion tonight is our man of the courtroom glenn kirschner, former federal prosecutor and host of the justice matters podcast. he was in the courtroom for today's proceedings. also with us, andrew weissmann, former fbi general counsel and chief of the criminal division of the eastern district of new york. he's co-hosting the msnbc podcast prosecuting donald trump. and neal katyal, as well as former acting u.s. solicitor general and host of the podcast courtside, with neal katyal. they are all msnbc legal analysts. and glenn, of course we always start with whoever was in the courtroom, and that is you. so how hot was that hot bench? because when i was listening, we just had the audio, i felt like i could hear the judges coming out of their chairs and leaning forward and trying to wrestle the trump lawyer into actually working with at least one of their hypotheticals. >> yeah, lawrence, i fought the urge to loosen mai tai, unbutton my caller, and yell out to john sour, donald trump's lawyer, for gosh sakes, man just answer the hypothetical. i may not have been in as many appellate arguments as my friend neil but i argued before that bench and other appellate courts. and you know when judges present a hypothetical they expect an answer, even if it's an answer that is perhaps unduly favorable to your client's position. but you know, john sauer steadfastly refused to answer judge millet hypotheticals. and she let him know that she was really displeased about it. and i don't think it served his client well. what he kept doing, lawrence, was saying the following phrase as if it were a magical incantation. he said everything donald trump does and says and posts's court political speech, therefore, there can be no prior restraint, there can be no gag order limiting his core political speech. and you know, both judge mullet and judge garcia very pointedly said there is a clear pattern that has been established. donald trump issued statements, including about witnesses, and witnesses get threatened. so they were having none of this absolute argument that donald trump's lawyer was making. and even though as the argument progressed for, as you say, two hours and 20 minutes, they also has some very pointed questions of the prosecutor on jack smith's team. but it seems pretty clear that they are going to be inclined to perhaps narrow the gag order somewhat, hand it back to the trial court judge, judge tanya chutkan, and perhaps instruct her to impose something that is a little bit more narrow and then what she imposed in the first instance. >> neal, with all your practice in front of that appeals court, i'm just wondering what you are thinking at unit 21, minute 22, when we were still on the first judges questions. no other judges had even gone to speak at that point. >> so, first of all, lawrence, this is our nation's second highest court, the d.c. circuit. they're reviewing a judgment by judge tanya chutkan, a very well respected judge in d.c.. yes, the orient was set for 20 minutes per side, as you start saying at the beginning of the show. but it is not uncommon for this court and judge mullet in particular to go five hours -- or last arguments five hours 30 minutes long. and she's extraordinary, the whole panel, this is an extraordinary group of judges. they really dug in on every case, not just this case. and it's actually a really privilege that the american courts, i think the american public is right here this argument. so it's great that we could all hear it live. what did i think it meant him in a 20? the same thing which i thought and minute two. which is mr. trump's lawyer, answer the question, answer the question. she spent 20 minutes trying to get an answer to the simple questions, he could not answer them. trump's lawyer basically took this kind of go home or big approach, and is going home, basically, at the end of this. i do think the government caught some hard questions, jack smith's team towards the end. they weren't questions really that donald trump's lawyer had focused on, but once they in their own research did. in particular, i think they were concerned, did judge chutkan's gag order basically reached too far? did it say, for example, donald trump cannot criticize the prosecutor jack smith in a presidential debate or something like that? that, the panel is saying, the first amendment protects. so, i think we may expect some modest trimming of the gag order. but at the end of the day, it sure sounded to me like the gag order will be upheld and history will be made for the first time a former president will be gagged by the nation's second highest court and the person to blame for that is none other than a guy named donald trump, who keeps opening his mouth, threatening witnesses, threatening others involved with this, and ultimately undermining a fair trial. >> and of course, andrew, we had no set of precedents to present to this court today. that's why they kept asking these hypotheticals, because they have to carve out something here and that is not sitting there ready to go as a doctor to use in this case. and you just have the feeling that the trump lawyer was just never going to admit a thing, for what, so that the next stage, appealing to the supreme court, he hasn't conceded anything? what is that about? >> yeah, so that's one of the reasons to do it, is if you think you are going to lose and this proceeding is essentially stonewalled here, so that there is no concessions that can be left to go on to. but to give an example of what neal is talking about in terms of the question that the court had that was really legitimate was to say, look, it's a given that every defendant when they are released this told do not commit a crime. that includes do not threaten a witness. that's not a gag order. that's just -- you can't commit a criminal act while on bail. so, their question to him was, well, what else could the judge do? does the judge have to wait until the crime is committed, or is there any prophylactic step that she can take given this record? and as neal said, there was repeated conduct where he knew he did a call, there was a response. call, response, over and over again. and he would not answer that question. and you know, there's a reason he would be conceding ground to say, yes, the first amendment does take sort of a second place to that balancing that should occur. and that's where the court is clearly going to say the judge is entitled to some prophylactic step to make sure it doesn't get heard, that main issue is just sort of going to be today think as far as judge chutkan when or is it curtailed someone to cover witnesses and jurors, it may be less protection for jack smith and his staff in the court and his staff? >> i think andrew just got it exactly right. the key question, and you showed it in your interchange with john garcia, the youngest judge on this panel, is he said, look, do you have to wait, does a judge have to wait until someone gets killed or hurt in order for a gag order to exist? and he asked that question multiple different ways to the trump lawyer. the trump lawyer never answered. and that's where i expect the decision to come down, what andrew is saying, which is absolutely a judge does not have to wait until carmakers. now, the question is what are the contours of that gag order? >> glenn, i always wondered during these appeals sessions like this what trial practitioners like yourself are thinking? i know you've done both, but the trial side of your brain, did you -- were you feeling like some of these questions, some of the judges questions don't really grasp the reality of what we are dealing with? >> oh, i think the judges questions grasp the reality. and you know, you always want to be responsive and respectful to a judge without giving up any ground that you don't have to give up. but you know, i thought there was one observation, i think it was by judge millett, when she was pushing back on trump's lawyer. trump's lawyer was taking the position that you really can't limit his speech. and the only limitation is he is not permitted to issue a true threat. in other words, actually commit a crime that would violate 15 12, threatening witnesses. and that is the only limitation. and the judge kept pushing back, and judge millett said, you know, don't we have a settled principle in the law that someone is inferred to intend the natural and probable consequences of their actions? and i think what she was getting at was, you know, it doesn't have to be a true threat. for example, on january 6th, what donald trump simply said, mike pence did not have the courage to do what he should've done, that was not a true threat. but boy, he sure has seemed to know what he was saying, and he intended the exact consequences that ensued. his foot soldiers, his supporters who were sort of mid attack on the capitol, you know, instantly started hunting for mike pence and began their chants, hang mike pence. so really, truth threats is not the standard. and the judges acknowledge this sort of call and response. and donald trump knows full well what he is doing when he makes the call, and he intends the response. >> glenn, before you go, i have to tell you i was fully satisfied with just having the audio of this proceeding today. and actually think in my case i might've concentrated more because i had absolutely no image distraction in any way. but what did i miss by not actually being in the courtroom sitting beside you? >> well, lawrence, first of all, you have the benefit of hearing the volume of judge millett's boyce. and i think you would've appreciated her demeanor, serious as a heart attack. she wanted an answer. and the fact that she did not get one i don't think that was donald trump's lawyer serving him well. but all three judges were very animated, and very determined to make sure they got this right. if they're going to support a gag order on the former president of the united states, they want to make sure they get it right. and it was really a pleasure to watch those three judges question not only donald trump's lawyer, but the lawyer for jack smith's team as well. >> glenn kirschner, thank you very much for being in the courtroom and joining us with that. really appreciate it. >> thanks, lawrence. >> and we are gonna be right back with andrew weissmann and neal katyal. doing more detergent alone. see? this one looks brand new. saves me money? i'm starting to like downy. downy saves loads. this is a hot flash. this is a hot flash. but this is a not flash. ♪ i got a good feeling ♪ there's big news for women going through menopause. veozah - a prescription treatment for moderate to severe vasomotor symptoms - the medical name for hot flashes and night sweats. with hormone-free veozah, you can have fewer hot flashes, and more not flashes. veozah is proven to reduce the number and severity of hot flashes, day and night. for some women, it can start working in as early as one week. don't use veozah if you have cirrhosis, severe kidney problems, kidney failure, or take cyp1a2 inhibitors. increased liver blood test values may occur. your doctor will check them before and during treatment. most common side effects include stomach pain, diarrhea, difficulty sleeping, back pain, and hot flashes. ♪ i got a good feeling ♪ ask your doctor about hormone-free veozah and enjoy more not flashes. there's something going around the gordon home. good thing gertrude found delsym. now what's going around is 12-hour cough relief. and the giggles. the family that takes delsym together, feels better together. i'm kareem abdul jabbar. i was diagnosed with afib. the first inkling that something was wrong was i started to notice that i couldn't do things without losing my breath. i couldn't make it through the airport, and every like 20 or 30 yards i had to sit down and get my breath. every physical exertion seemed to exhaust me. and finally, i went to the hospital where i was diagnosed with afib. when i first noticed symptoms, which kept coming and going, i should have gone to the doctor and told them what was happening. instead, i tried to let it pass. if you experience irregular heartbeat, heart racing, chest pain, shortness of breath, fatigue, or light-headedness, you should talk to your doctor. afib in