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

but, you know, john sauer steadfastly refused to answer judge millet's 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 is core 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 millett 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 had 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 j

i can pretty much sum up what john sauer, donald trump's lawyer argued and maintained throughout his argument. he basically said because everything donald trump says and post is in his words core political speech, there can be no prior restraint. there can be no gag order on -- unless donald trump speech is directly threatening of a witness such that it would violate the federal law section 1512 witness tampering. the judges were having none of it, you just played a clip from judge garcia saying something that the other judge said. let me quote her, there is a clear pattern of donald trump issuing statements and witness threats following, then she pointed to what she said is the accepted principle of law that people intend the national and probable consequences of their actions. it was pretty clear they were not going to let donald trump get away with his code of talking. they were going to likely find there was some balance to be struck in favor of restraining, perhaps very narrowly some of what donald trump is permitted to say and post about, witnesses and perhaps about court staff

you heard john sauer, the lawyer for trump, emphasizing that any speech he says, because he's a candidateresidency is known as core political speech, which receives historically the highest level. the judges pushed back, say there has to be some limit here. i think you're right, i think the panel will uphold the gag order, potentially in a more limited fashion. >> one of his co-defendants in the georgia election subversion saying, there prosecutors are seeking to revoke the bond. actually they say he violated his pond by posting on social media in a way that shows, to use prosecutors' words, he's a significant threat to intimidating witnesses. if he is not narrowed in scope or limited to the gag order, he would be intimidating witnesses business his posting? >> absolutely. in and of itself, it's not protected, but what does that cover? oftentimes trump will use sort of ambiguous language that has plausible deniability, but however we saw after the truth social post, if you come after me, i'll kim after you, the judge received a death threat. words have power, so i think these two issues a

one thing that john sauer is having some success on is that she is talking about the targeting of the members of the special counsel team, and perhaps a little better wording of the restriction, kate. >> and with this unprecedented setup with donald trump a current and front running candidate for president once again, it sets up that this is a fascinating appeals court setup. i am interested in how this whole discussion goes. thank you, evan. >>> and we have fascinating thingbes to talk about and that why i have the former prosecutor of the u.s. district court with us. great to see you, sara christoph. and i want to talk about the snippet here, because the fight of what is political speech and what is potentially damaging to the judicial process, and this is an exchange between one of trump's attorneys and the panel here. >> criminal speech obviously between core political speech which is part of the campaign speech that is -- >> i don't think that kind of labeling it core political speech begs the question of whether it is in fact political speech or whether it is political speech ai

the unprecedented nature was something that he, john sauer, lawyer for the former president, focused on the idea that the one of the leading candidates "the" leading candidate according to some polls works have his speech filtered, restricted, by a jump. listen. >> the order is unprecedented and it sets a terrible precedent for future restrictions on core political speech. this is a radical departure from the only cases considered this particular form of restriction on a critical defendant running for public office and does so in the context is a hotly contested campaign for the highest office in america. >> and, look, all three judges on this appeals panel were very skeptical of the broadness what he was trying to push on. one thing they pointed out was this really wasn't just about the first amendment. there is an interest for the court to preserve a fair trial. right? not to taint the jury pool, and to protect the safety of the people on the jury and so on. >> and speaking of the jury pool and their safety, the judges did express concern for them. what did they say? >> right. a co

john sauer the lawyer for the former president got a lot of push back from the judges, in particularm patricia millett one of the judges who heard this case. here is her push back on his arguments. >> first of all, i'm not putting down everyone who speaks. this is only -- no one is shutting down -- this is only affecting speech temporarily during a criminal trial process by someone who has been indicted as a felon. so that's a different category first. no one here is threatening the first amendment broadly. >> reporter: and, dana, it's clear obviously, you know, this is a court that does restrictions on people's speech before trial all the time. a lot of defendants face restrictions on what they say. of course, we have never had a defendant quite like donald trump who is running for office, who is leading in the polls. i will say, though, the judges also had some trouble with the prosecution and the way they tried -- they are trying to interpret these restrictions. the broadness of this order from the judge, the judge, especially, again, judge millett had some concerns about how broa

think it's fair to say she got fairly loud at times when she was pushing donald trump's lawyer, john sauer, trying to get him to answer her hypothetical questions, and he really refused to do it. he wouldn't budge an inch. the other thing that i think was really interesting, this felt like a legal argument that was trying to find its footing in the day and age of the internet, when they're talking about how donald trump is prohibited from communicating with witnesses except in the presence of his counsel, but then the judges started posing these hypotheticals, like, okay, donald trump can't call a witness and say patriots don't cooperate with prosecutors. let's tweet the hypothetical. what about if that witness is in the audience and donald trump is at a rally and he says, patriots don't cooperate with prosecutors. does that constitute communicating with the witness such that it would be a violation of a condition of release. they took it one step further. when he posts something on social media that says hypothetically patriots don't cooperate with prosecutors, isn't that him communicatin

let me listen to trump's lawyer, john sauer, arguing about the problem withaving a gag order on dtrump>> a gagrder installs a single federal district judge a filter for core political speec of the leadingredential candidate, and virtually every american voter in the uni states, at the very height of a presidential campaign. the order is predented, and it sets a terrible precedent for future restrictions on core political speech. >> congressman, he also argued that there was no evidence that donald trump's words have led to violence or led to threats of violence or harassment. i would just like to allow you to comment on that and on sauer's arguments about free speech and candidates. >> well, the first part is plainly false, as we saw from january 6th itself, when donald trump, you know, inveighed to the crowd that they needed to go and fight like hell or they wouldn't have a country anymore, and when there's cheating involved, there's a whole different set of rules, and the courts are starting to find exactly what we asserted at the impeachment trial, which is that even if you want to

ensure the safety of witnesses and other participants, but the other thing they didn't buy was john sauer's insistence that anything donald trump has said had concrete impact and they said wait a second, shortly after the indictment, he said if you're coming after me, i'm coming after you, and shortly thereafter judge chutkan was threatened by a woman in texas. he tried to diminish that case, and said that's a crazy alcoholic f you look at her te tension order, there are a number of factors in her case, a long history of substance abuse. and the judges weren't having that either, if you are going to go o social media in this era, how do you know that mr. shry who's the defendant in that case, is the only one willing to follow what donald trump said to its logical conclusion. the answer is we don't. we don't know how many possible lone wolves are out there hanging on his every word. >> i wonder if when this gets decided there might be limits imposed on this gag order making it more limited than it is. judge engoron, he said just don't talk about my staff. would we see a situation where the p

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

new administration of justice, to protect the witnesses, and, you know, donald trump's lawyer, john sauerlike it was some magical incantation, because everything donald trump says andposts the for political speech in his estimation, there can be no restraint, no gag order, no limitation on it. and the judges weren't having it. both judge mow let and judge garcia made identical observations. they said there's a clear pattern here -- donald trump says something, posts something, and witness threats follow. so, it seems pretty clear that it was a wholesale rejection of trump's lawyer's argument, and we're likely to see some sort of a somewhat narrower gag order approved by the appellate court than perhaps the judge put in place in the first instance. >> let me ask you your feeling about where this goes with say a roberts supreme court. the roberts court has been very unsympathetic to donald trump on certainly any questions surrounding january 6th, most questions surrounding his appeals regarding criminal trials and civil trials against him. i'm curious, do you think that would hold up here t