few months after the book came out, that they had actually updated the style guide again and become even worse to the point it was no longer suggested to use pregnant people, but demanded by reporters to use this dehumanizing language about women. i will say there are some scenes that things are starting to change in the media. earlier this year the new york times was accused of transphobia for publishing articles that explored the negative side effects and dark side what the left calls gendzer affirming treatment for minors, which is sex changes for minors. mostly low level new york times staffers, including people who don't even work as reporters, but who work in things like graphic design or social media, things like that, coordinated and sending a letter to the paper standards editor

alongside a separate letter from the gay and lesbian alliance glad that the people had irresponsible biased coverage of transgender people. >> we are going to leave this recorded program now, watch it anytime on our website, c-an.org, live now on c-span2, a three judge panel fr t u.s. court of appeals for the d.c.irit considers whether to reinstate a gag order against former president donald trump in the federal electionnterference case. >> thank you, your honor, may it please the court appearing on behalf of donald j. trump. a gag order is a filter for co speech for a leading presidential candidate and virtually every voter in the

united states it's unprecedented and sets a terrible precedent for political speech. the supreme court said war never allowed the governmen t prohibit candidates from communicating relevant information toots and it's not the re of the government to dictate whatops are appropriate or necessary to discuss i the context of a political campaign. th gag order does both of those things. cases involvi g orders imposed on criminal defendants who are political candidates have both given in the words of brown, the candidate, ote, absolute freedom, virtually unrespected abityo comment on those occasions in front of them and plic the campaign as relates today. so this is a radical departure from the only case that's considered this form of restriction, a -- does so in th contest of a hotly

contested campaign for the highest office in the united states of america. in addion the gag order, another unprecedented break with that, jurisprudence, relies completely, completely on a ckler's veto theory. doesn't sayhey, your students are going to poison the jury pool by communicating directly th the -- dectly with, you know, the membersfhe jury pool. what y he here is a rationale say that this speech taeted by the gag order, there's no evidence of this, but might se day inspire some third party to engage in action that might be harassment to wiess. this is a quintessential heckler's veto. and categorically uncotitional. if you look at the heckr' veto cases, the argument we

ve compelling reason to do this becau t speech that we want to suppre is going to inspir 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 n address this particular heckler'set kind of rational for criminalizing speech and the supreme court has held again and again that's not rationale to silence anyone and that goes back to at leas the city of new york in the 1860's. >> would yourion be any given it it were a yearago? if the were a year ago, mu further removed from a political campaign? would your position be e same or different? >> certainly in the year ago we'd be in the midst of a political campaign-- >> were not in a political campaign? >> hypothetical, you're saying thatt was made-- >> a year ago, if it was last

november. >> at the time when he was not a presidentialandate all the other rationale. >> still engaged in political speech so would your position be different a year ago. >> i think the gag order-- different.our position be >> i don't see how it was. >> the fact that we have a campaign going on does not matter. what matters to you, and t is still political speech which gets very high protection, no doubt. >> i wouldn't p it that way. i think it's back at the campaign. in other words, we have a-- you said your position would be no different a year ago. >> our position would be -- the campaign for a powerful reason it's unconstitutional. >> icing on the cake as far as you're concerned so your position would be exactly the same without a political campaign. >> i would say it's the crown jewel of a series of at least seven-- >> the crown jewel? u think the outcome should be exactly the same whether or not there's a political campaign underway? >> yes, ielieve there are at least seven independent precepts that are viote by

this gagrd and campaign speech is one heckler's speech is anoth one. d if we had the same gag order, dling with a dealing with core political speech and again, still dealing with a siatn where we have restriction on criticism of public figures that violates the public doctrine and unconstituti i'm sorry, your honor. >> mr. sauer, you said your client is in the midst of a to whom it would apply is int su to the highest level of constitutional scrutiny, that's your argument. >> absolutely. >> and so i also trustt you agree that yourent is not all other americans?pplies to >> the first amendment principally. >> applies to erne, he's

certainly not above thelaw. >> we have not argued that. >>o the district court found wh the defendant has plicly attacked individuals including on matters related to this case, those iivuals are consequent teatened and haraed and we view that factual finding a clear error, right? >> no, in a first amendment case, i believe, as we cited in our standard review section unrouston against hill, the cot should engagn a preliminary reviewnd that's a mixed question of fact a law. >> the findings what happened in the world, we look at that for clear error and then we look at the implications denovo. >> looking at that, they have to look in light of the evidence and the records, based evidence three years old and they have no evidence of any threats or harassment happened in this ptilar case, even arguably caused by thepeech challenged here, cases pending over three months and the defendant has made public

comments about the case al incessantly. >> and this is for purposes of the question know you don't accept this, but the government's position is that we don't-- the district judge is not limited to looking only at the defendant'speh as it relates to ts case, but the government identified a dynamic, not just exclusive to this case, whereby, whenhe defendant has publiclyttacked individuals including and not limited to the case that those people are teaned and harassed. if w we satisfied, and i know you're not satisfied, but if we were sised that evidence supported that finding,ha more would be needed in your ew what more would be needed to suor the district court's order, or an der? >> i would quote from landmark communications and pen and camp against florida whichs

standard that has to an i mroo apply to a gag orr, even restriction on speech relates to criminal proceedings that the subsequent -- tha must be addressedust be extremely serious and the degree of evidence must be extremely high and pending a that proven by quote, solidd of evidence. whenouave a situation, you used the phrase included, bu limited to, if there's no idence of threats and harassment in this case. all the evidence of thrts and harassment three years ago to a totally political dynam a this points out another problem with this sort ofecers veto party argument, which is that eyan't draw a causalin from any sorof media post, threat or hassnt when we have wall to wall media coverage of this cas every-- you talking heads on social media, and on cable news and network news are talking about it all the time. >> now, just focus on -- again,

i know that you dispute this and you think that the record adequate. were the record adequate to support a finding of a dynamic that when people are named and as y 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 and also assume for purposes of my question that don'tis to the lel of truth rest that would be protected by the first amendment. we're talking about, i think in this case, trying torotect threats that wouldn't be excluded from personal protection. in that situation nonpublic figures who are witnesses nonpublic figures are goi to be witnesses. what about the interest of the courtsn a fair a impartial

trial is insufficient to otect those witnesses from that dynamic results predictbly in harassment. >> let me say at least three thgs in response that. finally the dynamic strikes me as aay to bake in speculation and hypothetical as a substitute for evidence. if the distrt court said i find a dynamic, i think that would be deeply problematic and probed to see what the evidence was. and the wnesses who are not public figures, there's no evidence about a sine post about them i this particular ca, that hypothetical a speculation appes spulation, say you can't restrict speh on secondary event that's-- i don't remember the adjectives homa steps removed that is. that's on ja230, on the rationale of th dtrict court judge, well, we don't have any threats or harassment in this ca even though we've had wall to wall media coverage and wall

to wall statement from three months. there may be threats and harassment to the only ones they've identified-- >> i was focusing for a reason on nonpublic. and just to maker position, just to challenge you a little more, the order is intentionally pro ylactic, and protecting the trial process, thatan be of sufficient interest for suppression of speech. >> prophylactic in the situio where solidity o the evidence shows imminently impending danger,e're nowhere near that in thisarcular case. as i was sin about nonpublic figures there's no evidee of any statement in this case tha relates to any noubc figure so again, you're piling -- in fact, the court-- >> counsel, counsel, i think the concern that it seems an

at tim your position would be that the district court'sands are tied until wectually know there has already been harmo the integrity of the trial. for example, that a witness has been intimided and so, i think the questions we're trying to get at, what evidence, short of that, you certainly can't be saying that's whate need. what evidence short of that would the district courteed before it could step in and enter an order like this? >> s that demonstratedn imminently impending teat and again, supreme court case la- >> we're going back to the lega standards. you mentioned the decision in brown and that court rejected the argument you're making today, essentially the district has no authorityo limit t speech of a criminal defendant by the amendment and what t fifth ccu said on the landmark communications case, the court has drawn a

distinctnetween speech strictions between those who are participantn the trial and those who are strangers to it, i believe that's a direct quote from genteel. what your best argument that defendants shouldn't be treated inha category of participants in the trial? >> aou look at justice rehnquist's-- >> which isot controlling opinion. the controlling opinion is ste rehnquist on the legal standard. >> exactly right section two of that inion, the controlling opinion of the court, goes on 12 pages about the specific, again and again and again the special rolef e attorney attorneys officers of the court and directly contrasts with the rights of regularizens and-- >> a talks about. i'm sorry, go ahea it also talks about participnd there are a number of similar cases that distinguish participants in a criminal trial from those who are outsiders to the criminal trial. would you at least agreehere

is that language in supreme court cases? >> there's se language. >>hais that language in supreme court ses, correct? >> not languag that would tie individuals to the prejudicial standards-- >> i'm going to be more precise, in genteel, goes on to say o shepherd a case about a trial court's obligation, quote, we expressly ntemplated that the speech of ose participating before the courts could be limited and you've mentioned landmark. it's that concerned a sanction on the press and footnotein of that opinion says if this s limited to those who participated in the proceeding, it might well save the statute. and our job here is to read these supreme court cases and it seems like they're drawing a very clear line o participants and non. >> i don't hrnything or see anything in any of tt language that says therefore

you're subject to substantial likelihood of prejudicial test. we dispute that. even if the test appliesou would have to have much, much more idence. and justice nnedy's says t point of material, prejudice test to approximate, to apprime the test that we applied and he says it's likely mere semantics and whatever the standard is-- >> if there is a different stan for participantss opposed to outsiders, ifhere is-- this is my question to you. if there is different standard for participas than there is for outsiders, so please take that premise, there has to be something difre from clear and present danger because the there would be no different standd for participants. so if we rd these cases to mean what ty say, there is a different standard for

participants than outsiders to the proceedings, dyohave an argument as to wt that standard should be other tn clear and present danger this is sort of like your plan if you have it. if there's a different standard what should i be? >> no one that i'm aware o cited any case lawha specifically addresses that queson >> that's why i'm asking you. >> to my mind that's a powerful reason to adopt a clearnd present dangerstandard. we say clear and present danger they say prejudice. no case adopts an intmeate standard in between the two. you said substantial likelihood is very os >> that's why there's nothing-- >> isn't it substantial likelihood is close enough t clear and present danger. you you haven't td us how to interpret is from clear and present. i'm telling you the answer is it's not clear andrent with different labels. ifhere's something less than clear and present, otherwise

there's noifrentiation between participants and outsiders so if there's somethinges than clear and present danger, how would you articulate it? i'm ready to write. >> the two standards-- don't have a standard to-- >> andur position clear and present danger. >> if that's not what we adopt, then you have no other argument for us? >> i don't have-- i would have to ient a standard. >> i'masking-- well, sometimes that'shat the law requires so if we nee to come up with something that still treats participants different from outsiders, if outsiders get car and present, that necessarily means that participants get something less, that's what thise is about, and you say, you know, the district courtere apply the substantial likelihood test. so you've got nothing in between to offer. >> i would sayle and present danger is the sndard that applies. if the court applies

substantial likelihood and approximates the clear a present dge standard and the case is nowhere near that test-- >> we'll give you whatever time, we'll let you know, when there's-- in your definition or applatn of clear and present danger, and that's an incredibly task, there any on participant's eech. what is capturedhat's not already outlawed b 1512 or something else? what speech would be captured that isn't already iegal in your mind? caou give me example of speech thatould be covered by yo clear and present danger test that isn'tunlawful form of harassment. >> the notion of harassment as we said in the pope raises the problem that some of the cou harassntay be protected speech. i don't think that would be it. are there cases that would address speech that is not

criminal, in other words, you say 1512. >> can you give me an emple of some speech covered by your test that isn't already covered by the criminallaw? >> i can't think of a hypothetical as i stand here. >> so really, your point then is that there can be no limitation on speech because his release conditions already forbid him to violahe law. >> the prisions-- prohibit him from violang the law and you can'tiv me an example of speech that could be regulated that doesn't violate the law. >> i'm thinking of the socl media posts,orexample. >> you can make one up, i'm asking you to make something up here, not refer to something that happened. i'm not asking you to say that. >> i have oue-- i cannot think of a pothetical that would not be a violation of the law becse we're dealing with a heckler ee-- >> no, no, i'm trying to make sure i understand.

and it may be right we're dealing with political sech here, but your position is that at least when the participant, a participant inri is engaged in polital speech, there can be no limitation imposed to protect the administration ofustice in the criminal proceedings other an. >> no the-- >> preexisting prohibition of violating the law. >> no, i've been asked for a hypothetical. >>iv me an example. >> to show daylight between t two. and the social media posts whatever dlit that these don't satisfy. >> this a test you proposed and i'm tryino see if you have a conceptionow it works, that would allow a courto still protect the criminal procdis beyond its prohibition on violating the

law and this is youres and so it seems incumbent upon you toxpin to me what a court could do to protect the integrity of cminal proceedings that isn't already covered by-- violate the law, that don't violate the law. >> the evan had burden demonstred >> this is oral argument and yoreere challenging an order, and asking us to adopt a legal test. i mean,t's been crystal clear from the supre crt is they've even said many times recently cle and present formulation, it's meant to be a balancing test, a test that balances the ierest in speech which you have exained, are very high, and thenterest in protecting the integrity of the criminal pce and the criminal proceeding, which is also a weigh constitutional interest. so the reaso i'm asking this question is to see if there's any balance, which is what the

supreme court tells us to do, in the test that y proposed and so tell me how it balances, if you can't givee anything other than a criminal law violation that would satisfy your test? the phrase i believe that the 5th circuit used in brown a case heavily relied on the government is absolute freedom in the-- >> there iso balance. >> criminal speech, obviously, is subje to the restriction, but core political speech, that isor political speech that's part of campan speech that-- >> i don't know thathat-- i think that kind of labeling core political speec begs the question of whether it is, in fact, political speech or whether it is political speech aimed 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. >> well, i think in the balance, the court should consider the ft that the issues at stake in the appeal

are just absolutely inextricably, and the gagrder and not -- entwined with what was debated-- >> co you mentioned brown a few times and t fact that that order was lifted in the run-up to theelection. at happened the district court at the outset witut any evidence, the only evidence there was general press attention to t case and ordered a broad gag order and lifted tha i the run-up to theelection, but the fendants then started sharing recordings relevant to the case with with the pressnd the court stepped in and impe add limited gag de the question why isn't the analogy here to that second narrower gag order in brn. that's what happened here. the district court didn't act irrationally i warned not to make the statements issued.

the threat continued a n we have an order with the exact statements occurring. that's my question. in brown they did reimpose an order during the elec >> looking at the facts of brown, i believe it was other defean, not the political candidate, who started leaking, you kn, it was confidential transcripts and materials, giving interview about them. theourt reissued a gag order th basically said don't releasetuff you're getting through disve that is otherwise confidential, which is totally different than the gag order here. this is not a situation, we vet disputed that a distri crt could say, hey, yove gotten access to materials only through discovery, ts like the seattle times situation and therefore can't release this to the public. brown goes on to say he was given complete latitude to defend himlf in the political arena, which is the critical issue, one of the many critical issues in this appeal and it may well be t case for the benefit oth electorate as well as himselfe has absolute frdoto discuss, keep in mind that was voting to are

louisiana insurance commissioner. here we're talking every voter in the united stat o america. >> i want theueions of the scope of what he's able to s 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, but i think t link might be, and i wonder wha your response is, that tt was all about the same subject matter of this case. essentially what the district court is finding is we have a pa pattern when the dennt speaks on this subject, threats follow. and now he's min similar statements again, we're months out from the trial,his is predictbly going to intensify, as well as the threats, why nt t district court justified in ting a proacti msure not waiting for more and more threats to actuay occur and stepping in to protect the integrity of the trial? >> there's an evidently burden here, it isn't just there's no evidence now, the evidence that we have now counter acts that inference because it's

undisputed presidentru has been posting about the case almost incessantly and the couldn't come forward with social media posts. the only from the decision-- the shry case, i strongly invite the court-- >> and counsel a death threat to the district court judge in this se >> the august 5th telephone call. if you poll, southern district of texas. the day after he said you coer me, i'm coming after you mapped that issue. >> i strongly encourage the court to probe the probable cae statement and the detention ordered from that case, that particular threatener, a that particular threatener is an unemployed, instable, heavy alcoholic sits on the couch drinking beer nevereas the apartment.

... >> very specichreats that people received. and again that was aime where the atmosphere was very tse as this trial approaches the atmosphere is gngo be increasingly tense here why doesn't this record have to wai and see and wait for the threats to, ratherha taking a reasonable action in advance? >> i can we have stu that happened three years ago, contradicted by the evidence we have here and they are saying imminent threat -- >> let me ask you, let me ask

you, mr. sauer, the cons of release in this case prevent your client from communica with individual accepts the council on the presence of counsel. your client sign those conditions of release. cosel before the district court was quite clear that that was not beinghaenged. how under your analysis with those conditions of release not be invalid? are you taking a positio tse conditions of release and violate the first mix purpose with theirir challenge that and the president has complied. how under your analysis would they not be unconstitutional. >> was a violationf unconditional release -- >> i was wondering about that. >> something that might not be criminal but would be a a cler and present danger. >> that would? m really trying to understand your legal test. if he were to pick up the phone and call someone that i known

to ho be a witness, perspectivwiess in this case, and speak with a person tht counsel present, that wouldn't violate the -- withhe first amendment protect that communatn and that your test? >> we have not contended that. at's not what i'm asking you. i'm asking you to apply the test you have proposed that we have to write a testhat can be applied and with the know-how it is going to be applied. your legal position.osition, th that phone call be protected by the firmendment or not? >> is it a phone call let's say happy thksving or spinach i'm not telling you w because the order, there-release, the release restriction doesn't care about the content. he picks up the phone and calls a witness and direct violation of the terms of release.

>> we do not cte speeders i'm not contending. ay so that would not buy it the not violent first andnt. >> that's completely consistent with t issue with taken. >>the next hypothetical his he gets on the phone and h says, ms. x, you've always been someone courage, backbone, olive oils, patriot and loyalists and patriots don't talk t prosecutors in my case, and hangs . okay? if he says about speech ihink it would be a clear violation of the terms of release. >> so what if he gets on a state somewher o on social media and says that exactam thing? ms. ask, a public figure -- ms. x, being bothered by the

prosecutor. the peopleho are loyal, honest patriots don't tal to the government. >> he hasn't said tt and speeders please ansrhe question. i'm not suggesting he has said is. to be clear for the record this is ayphetical question. does, can, does punishing that conduct, because he's not speaking directly to the witness. he's doing this o sial media or at a tn hall, or a ns interview, he says that. does it violate the first amendment to say that is prohibited? >> if you communicate with the american electorate about matters and speeders i have tol you the facts. so your answer is no. >> i have to know more aut the context. >> i have given all the context you need to know. if he does it or the phone to the perspeiv witness, then

rs amendment prohibits it. if he says it with a megaphone, knowing that when this is i the dience spewed then you're very likely in a senti area. >> and if he does it on social media knowing thatn is a a social media follower of his speedy i think you're getting further afield and more into -- >> but doesn't have that tr an i mean, these cases -- wh judge mille. there's no right of a crina defendant to try his case. as for the court is for. of course what's difficult about this case ishat there's some substantive overlap between wt the defendant wants to do in campaigning and what the prosecution here is doing in the ca. but to the extent there is the

ability to stings between trying th case in immediate and running for president, clearly he has no entnt to do publicly what is well-established he couldot do to that witness. >> i was a two tnk a response. one is there's not tt there's nearomete overlap and issues in the case and the polic campaign. secondly, the states as you can try your case any media, all of the cases that about influence on the jury pool. we don't have tt rational in this case. >> you said is a complete overlap. what about the portions of the order that cover let's say the urts admintrive staff? there would be no reason to campaign on any of that. >> there's novince presint on the issue at all. he's never made a statement about court staff here. [talking over each other] >> no evidence on that

particular case or the district judge of early was relying on media reports when, in fact, t statements about the princal law clerk in pending new york civil trial were absolutely court speech. >> entendre this case of t. there is an effort proactively to protect court staff. and my premise is or my question for yous when you say this complete overlap, it seems that's an easy cas whether tually isn't overlap. that indivua who are working for the judge assigned to this case would be no topic, no tic in a campaign, other than an effort to undermine his case. >> i was a couple things. hypothetical, we've never made a statement related to this case of any court staffer that i endorse. but the order as you well know and as you challenge the order applies to courttaff.

>> with no evidence to support it >> i i appreciate that aspect of it. i appreciat tt aspect of it that you made point about whether there's evidence or not at i'm talking about the claime orlap between political speech and a speech that is affected by the order. and i am positing there's a speech restricted by the order that would not be cam speech but for this case. and you clearly can see that. >> the near decision -- >> we're not talking about those circumstances. if there were a staffer of the judge aboum it became clear that there was some political bias, nobody disputes that the fendants team could and wou file a motion with the judge to raise the conce aut that. and common o how the judge ruled on that. but that's not where we are. we aren a situatif prophylaxis and the truly one of you about. prhyctic situaon where

nobody who works for the court these are career people, , noboy volunteered for this assignment, none of tm have life tenure, they're just try too their job. nothing about them with the campaign speech in the absence of a case. >> but what we see is -- >> we are not in new york. >> if you're into that prophylaxis now, based onero evidence, no evidence at all, no evidence of political bias as to the court staffers and evidence of any statement aboutny court staffers. if it later turns o there's an extremely biased court staffer we have huge first amendment problem. they saw no edence -- >> let me ask you then in a different way. let's say the current situation arose here, and the order mains in place and is out. so tefendant is in jeopardy of vlang therd by tweeting about it. thing will prevent the legal team in theituation from

filing an emergency motion with the court coming up to the emergency panel of this court and saying, there is bias here. and presumably once that is filed into court nothing would evt the defendant from complaining ou the way it's rolled. >> the burden is speeders i just think there's a protection the. >> the would-be protection of the issue of running an emergency motion. keep in mind is black letter law what the supreme court said. which is denial of first amendment even forinal. of time is black letter irreparable injury. sove in checking that the lake that procedural delay we're talking about that anyone can say no evidence at all. when a fact if it were to become revant it could compel the first amendment -- [inaudible] which is what you see in new york with a gag order that is

speedy there is no precedent i'm aware of that requires evidence of tng with witnesses fore i prophylactic order can be put in place to protect tampering with witnesses. emma wrong about that. >> i think the ces f7n italy and pinching threat spanish aboutitnesses, , committee can witnesses? >>hat's the general standd. for definitive directly to make it with the witness, that again is speeders publicly threatening things about witnesses. >> i think what you mean by threatening? eirst amendment has a clear speeders something that fls short of truth because it would behoove the silly thing wh protecting against. >> in the context of a polital campaign speeders but speedy he i core political -- can't emphasize that enough. hypothetical is saying what if he makes a threatening statement? what theyesibe as threats is actually and that the supme court's jurisprudence core political speech. it is rough-and-tumble but it is

hard hard-hitting in many situations but it absolutely is core political speech and all the examples they provide is directed at public figures and high spatial and of government. former vice president, former attorney ger former chairman of the joint chiefs of sta used to command the entire uned states military and it will influence of testimony, that's it. not even compelling. >>ys defendant shall not communicate with witnesses. i think his talk about directly communicating. so is it your position that if he communicates tou a social media post, hey, witness x, i know the prosecutor is bothering you trying to get you to say bad things about me. the a patriot. don't act treasonous late. don't cooperate. i am n, , it is really, i'm sorry but i really want an

answer to your understanding of the release conditions. this is for the recd hypothetical question. to my knowledge hasn't happened. to your knowledge hasn't happened. not eve sing it would happen. i want to understand howou, because you sai no first amendment problem with the release condition. okay. so i have asked you that question ds that communication violate the relee ndition? >> a social media post that is a direct communication to a witness could well violate if you would have to know more about speed no. afternoon exactly the content of the k medication,nd i don't know what more you want. i've given you the facts. so that's a comes into the corporate is that aiotion? that very well might be. so when you say indirect communicate, could you give me direct communicatiss opposed to iso indirect? >> well spit is what indirect communication with witnesses are a lot?

>> at the hypothetical race earlier where he's at a tow hall speaking to the entire american public televised and said something as core political speech speeders ds that same thing, he says exact samehi hey, i knowitss x is out there, and then saysxaly what i said. >> i -- what i would do is put th i a framework of speedy no, , don't put any of the framework. just tell me doesn't violate the release conti? >> i would like to make the point that theonxt may result in a different answer to that question. as you describe it that very udwill be a a violation of the context is critical. inan of these cases look at the post but vice president pence. look, he's commenting on his testimony. what actuay happened is in august was the indictment of belize with the statement about spders that's not my hypothetical. my hypotheticals quite clearly about cooperating with the prosecutor, or not. >> i think the legal world

course of human condition relating to vice preside pence pelleted my response you must know the context what more context you want for m hypothetical? >> look at the vice president -- >>o, , no. tell you what fact you need to know for my hypottil but hey, witness x, know you're listening. if it talks about prosecutor has been bothering y,nyone who is faithful, lal, won't work with his prosecutor who is out to g me, doing so, line, that would be almost like treason. >> what if witness x speedy weight. so whater faxed to get a. >> was what if witness x has a spit asking whether it ishere or not. i do see anything in release ndition that says only unfair mmunications. is that a communication to a tns? >> i think of our stated it could well be. >> could well be? >>again speeders there's

another fact you nee to that tells me it is a key mication with a witness what with fib? >> for example, if the statements be made in the political arena that is that -- >> it is a political arena. i just said it is political arena. it's either a social media post or a stand in a town hall. still in a political risk i thin m entries i just don't know had answer differently. it seemsik the way you're describing thatou be a violation. >> violation. >> it's a -- additional facts would reach two different conclusion i've been tin to struggle understand what your test captures. right? and so i addition to criminal law violations i captures the messaging to at least known perspective witnesses about cooperation. >> they could well do so again at defense speeders because the fstmendment would allow conduit of argumen

on both sides but the first amdmt is a district court concluded factually, thater a communicatio wh witness without counsel present. then that first amendment would allow punishment of that? >>f it w evidence supporting that finding and the finding was made tthere was a violation -- >> the evidence i gng to be the recording of a town hall meeting. >> never disputed that. ver disputed that. now, try this case on hypotheticalshe the states is look at the evidence. evidence we have speeders not trying to on hypotheticals. were testing the legal you wish to it top is against the supreme court i know you have embraced the nebrask tt and a very good argument for that at about the importance of political speech here. you have made very, very portant points about that b

the supreme court has said that's h tackle be applied clear and present danger. bpeaks a a balancing test and so what i'm doing with this argument is tryin t understand what in your test balancehe letite constitutionally important values of protecting the criminal trial process. and so itounds like, at least its talk about perspective witnesses, thereaye some room there between what would be ilga and what could nstutionally be prescribed throughnrder of the court. >> i think i agree with that. as you framed it. and i would say two for the things. one is direct theourse attention to the heckler veto which has been treated as basically categorically. whatever room there is when dealing with the heckler's veto

russia is speeders i know but there'sls another role in the law that people can be assumed to attend the note and probable consequences of their action. that's a pretty settled rule of law as well. and, and aict court trying to protect the integrity and fair administration of a criminal process, could they consid tt well-established rule. >> was not under hkl's veto third. >> i'm not putting it under a theory. what i saying is could they, if hypothetically thist happened because it's a hypothetical, a statement were made by a criminal, another criminal defendant running for me low-level office, and made

a statement that caused and the causing harm inspired some third person to e in harm, and it were shown, a a hard chillingo make, that the speaker was aware that there were known and probable consequences of this violent action, assuming -- you are already shaking her head no. >> i think speedy so that rule doesn't apply? >> theotion that you knew this is what happen, so you knew speeders w are balancing against spit you knew when you marched achy through illins dressed in your crazy -- >> those cases didn't involve balancing against another constitutional interest in preserving the integrity of the criminal justice process. an so that's where m question is coming from.

they can evolve the balance that yove agreed, you agree we have to balance, right, the sre court has said even your clear and prese dger test is a balancingest. do you agree with the? >> we've argued -- >>heupreme court has said, the supreme court has said straight up terms that clear and present danger is, in fact, that a technal threat but, in ft, is simply a balancing test. that'sit the supreme court is said so we're bnd by it with you agree or not b i assume you're great a balance here that does exist in the normal first amendment context. >> i don't dispute that theres a balancing test but to me the term bella suggested a kind of looseness in legal standards that apply we disagree wh that categorically. there's a strictest -- >> it is a balancing test. >>ay that'hy speedy you are balancing, the supreme court is tell us what you agree or not i hope you will agree because the supreme court precedent is quite clear the weather clear

otherwise the first amendment eric y a in a balancing test your and so we are balancing and strictly in these cases involving, processndree speech. they it's a time and againt's a balancing test. that doesn't mn it is a 50-50. your position of course is this isn't a 50-50alcing. those already a lot of weight on the first amendment side, rights? right? >> i don't dispute speeders so the is balancing. >> under the heckler's veto standard it is present in voter all the cases the relied o that you are not heckler's veto cases and thats what the supreme court says because ifnge in any heckler's vetoontext, be able to shut down every speaker ever speaks. >> what if we had a different, if we had -- this is only -- this is affecting speech temporarily during a criminal trial process by someone h

been indicted of the solid so that's a different categoryom first. so n one here is threatening the rs amendment broadly. but secondly, if we had hypothetically a completely different criminal defendant who running for say a statewide office, pretty important, statewide office. and this person hypothetical fasotefore us engages in political speech decrying the process, crina process, insulting, berating and calling terrible names of the prosecuto precutor, and the prosecutor to family, and start posting the address where they live. anevery time this campaigner does that someonen his audience goes and tries to

execeiolence against the prosecutor or family members here dataset ts case. but if that hapn, if you were a repeated pattern of this happening, how would that fit into your belt? >> i think first half hypothetical is exactly lik the case when he was allowed to say the prosecution against his races, i'm being spi the first half, but, of course, the second ha w important and that is -- excuse me. ers a repeated patte. side note, i'm not for a case citation here. briefing briefing to give usto truly important of the cases. i'm ain for is in the hypothetical if there's a peed pattern in the balancing test, could the district court have conduct by third-party responding to speech? >> not if the panel is three

years old speedy that's not my question. no, no, no. >> against spit is if it is immediate. >> in other words, speedy it's an ongoing pattern. >> streeadess, home addresses, you know, whoever whoever it is, witnesses at trial, a repeated pattern of olce against them, i qualify what i say what have to know more about the facts of the case but i could certainly see sa situation where that would be justified. mot saying that could never ever be justified with the exception that veto rational speeders that is heckler's veto. that's how thiarties respond to the speech. it is definitely think which are calling a heckler's veto i am combining that with either intent or at least knowledge or recklessness o t part of the potil speaker as to the entirely foreseeable and repeated pattern of consequences from that speech. >> i think my respons to that is first of all, state of mind

of the speaker is irrelevant in heckler's vet t and with no evidence of imprope ste of mind here. we have an argumentro the district jge. the facts here don't come anywhere close to -- i know have gone way over my tongu >> that's okay. as long as where questions for you. you don't mind spa want to make sure we from you on the vagueness argument. it a look at separate from what we've been talking aut so far, but i think theuestion to you just to stepac the district court is concerned that witness intimidation also worked hard to get some leew t the first amendment. so the order a staar is narrower than what the government wanted. this is significant carveout edit gives rise to close edge cases. i think the question to y is with the to the quarters with all the examples in the transcript, what is something that you are genuinely unsure whether mr. trump can say under

this order, what is your best concrete example of that? >> social media post of the record is this general or is it targeting? as as a lawyer who wantso counl clients, you were staring, because it is so vague your steering straight towards spit i preset that general dashf the district court took a lot of care in an extensive and to go through a lot of examples and referees those in a the ninth estate. what i would love to hear is if there's one particular example those posts that you don't think has bee resolved? >> for example, there's one social media post and recor that doesn't mention special counse rers to the department of injustice, the run like crooked joe biden who are railroading, builtemrs exact words, railroading for political reasons. is that targeting the special counsel o is that that general -- >> seems toehat's exactly what the district court was saying was allowed.

statements about the department ofusce and president biden. the literal words of the carpets i would think maybe that's a question for the government but i'm pretty sure that's common ground that that is allowed. >> i mean i would prefer to the actual social media post tier one event that wha would i tell a client can to do this or can't you do this? that's a chilling effect. i would emphasize to the court the standard juju, the government opinion with section three of justice kennedy's opinion, the opinion of the court. what does it hold? it holds that date the nevada had will says you could make a generalenl of your client guilt that you cannot gdl justice kennedy said this is unconstitutional. it's condors are unclear and lawyer cannot know when you go from safe harbor of the general to -- elaborate. i appreciated thatom i appreciate the argument. i i think one big distinction is that in genteel it was a generally applicable rule.

heree have an order that is informed by the transcript and all the examples that we're given. it does seem like the core of was loudnd what's not is fairly clear such as a for example, i think this is page 201 of the peix. your cocounsel says mr. trump should be able to say a joint chief of staff should not engage in the kind of contact, referring to milli the courtays yes, he's allowed to make upavstatement. he can do is gon and say that that of contact should be punishable by death. so what not sort of a completely stct distinction, is it? whether this is just in a threat. >> i think what you said powerfully illustrates the ca because if t position is that tuesday was about general ll, one is okay and the other is not okay. d't know how- how you would say the first one isot targeting him. it's critical of him.

that would be targeting and the argument well we will not tell the one because the first amendment is a travesty. >> d.c. at my concern is? is not about the abstract meaning. when it asked with an ordinary person in the public can understa wt targeting means people are asking whether the rties were all reps and it at can understand and so we have that the statement, right, and the government make similar examples on page 40 o their brief that allowed, nllowed. just find ask -- >> i think -- the standard is you can'tav a situation with the be ad hoc subjected applicatio ostandards. we haven't ordered this is don't talk, don't target prosecuted, witnesses, court staff. e prosecution comes in is i actually would be okay to make a public statementricizing someone who is a potential tns. that wouldn't be targeting. at that pointrom the defense pepective it's like what does target mean?

spur i appreciate that, that concout targeting. so is it clear or less clear the order were to say that what's prohibited is comments on any reanay foreseeable witness because o the witnesses potential participation i the trial? let me justiv you all a bit of context of my thinking on th, which is there are a lot of people who a out in a bl andit whom the defendant has a history and his might want to comment on thehe back there's also a whole category of witnesses wh whom there is no, who are notc figures and where the reason is because they a potential witnesses. that's really at theore of the interest in an impartial trial.

so does thatdd clarity to say you can only make comments are potential witnesses not because of their potential role a witnesses? >> i tnk because of wt sort of wrapping to that standard subjective motivation of this and i thi that would be equally - tt's a different vagueness problem at equally bad. using the word, instead of target that might be clearer. i would have to look up an addiction whi i what we do with target. >> budog the work of targeting is because of w you think is narrower than targeting because it's about targeting and then linking it to the interest which is the trial, pteing the trial. and it also thi organically stinguishes between the public figures where there would be more reason they woulde fair game and the non-public figures who also at the same time i be more vulnerable. >> if thener the used

because of, tn i think that would be naturally interpreted to turn a a violation ofhe subjective motivation as opposed i think that woulde speeders i'm notur although i think if i were in yourosition i wou embrace and intense standard but i don't see this as anntse standard i think this is as more of a nexus and would have to be assessed. thankou. >> i think that would be speeders and be worse or less unclear? >> mostly fatal sometng equally bad. >> equally bad, okay. >> fro day after the indictment, defendant put out on social media post, if you go after me, i'm comin after you. do you say tt is pteed speech is? >> absolutely. >> if he h sd that right outside the courthouse, speaking

to the public, same answer? >> i think so. >> if you posted with aicture of the district court judge in a rn? >> again i have done the contex othe. >> i've given you the context. at the same identical social media post but has a a picturf the district court judge in the corner. of have to look at case topic that would b more problematic for sure. >>hy >> the because in the context of that, in t context of edit in hypothetical again that i not president, the would be situation where an argen would be made that some kind of reat to the jesse judge which if it were to have read the case law, cannot make a legal dermination but if the rest that level that would not be protecdy the first letter a summer that speeders so same words, there are words that can be said that adding picture will take them outsi t first amendment in your view? >> i am sayin i is getting

closer. for example, the manafort decision those posting a picture of district judge in crosshairs. there you are outside this almost certainly -- >> almost certainly? did you say certainly? >> i have read the true case law but but i bet statements like that would qualify as true threat. >> this gets back the one thing i am finding really elusive in your presentation. i understand you thi the strength strict scrutiny prior standard applies, but even taking that ahe correct position in contradiction to genteel which you rec i don't hear you giving anyeit at all to thenterest in a fair trl. am i right tt you don't? at something because the defendant is a presidential candidate and he wan to speak

on anything he wants to speak d he basically indiscriminately wants to post onocial media, that there can be no restraint of his speech? because any restraint no matter how tight a nexus for protecting a fair trial is over, by his campaign. >> i emphasize t things in respse one is speech at issue in the criminal trial are deeply intertwined. y other is the statement in the brown decision that talks ou absolute freedom. >> your answershere is no, there is no work that the interest in a fair trial c rmissibly do in this situation that could make the speech standard you would apply? i wouldn't put it that way. it would have to be extraordinary can peril and ten compelling a t very least. >> as i share yr answer, as i

share your answer, the compelling showing would have to show the harm has already occurred and that it would likely to repeat. you are not able to object to the notion that would be a prophylactic, a chilling based on some amount of prediction. >> i disagree because the standard we started based on solidity of evidee. so that does say that cld be a restriction that isntered before. >> if the supreme court and nebraska applied an impending test when analyzing this accords ncns about how that was pretrial publicity? i sure don't read it doing that. >> i believe nebraska, the only thing emphasize for example, was need for evidence in the record. >> no, no, no, no, no. i don't see -- probable

publicity, right? it was justified including there would be a blessed base a part of common human experience that publicity might impair the defendtsight to effective sure i rding from 562 year an 5 of the opinion here. a clear and present danger to pretrial public could impinge on the right to aair trial. of cours t conclusion is to impact such a publicity of prospective jurors was a necessity, speculative. factors unknown and unknowable. thatoe't sound at all to me like -- you wrap yourself around nebraska versus stewart such as what is make sure that language from the supreme court which of course is controllingn us, what you're talking about is the predicate for theisict court showing of any to impose some so of restriction. >> i believe the decision goes on to s -

>> the terms of the specifi restriction, but this is do we need to do something? court breaks it up into separate thinks, right? goes onoay there were other aspects of that vy, very broad order. there were problems but the need to do something in the district courts ement to do something that is going to the effect speech can b based on the nebraska. that's your positionse you've embraced that case, correct? >> i don't believe that opinion means the justice speculates th you need a showing on part one. >> i told you what desperate i'm that you can readhe whole paragraph ensure your reddit meantime becau y rely on this case extensively. do you agree, or a you asking us to disagree with that what the sprinkls it was a sufficient predicate for some action, not the order in the case, but for some prophylactic action by the district court to protect the criminal process? >> i believe the court to flow -- >> including that part?

>> i disagree with that. >> mr. sauer, can ask you if it thisd entered an order restricting criminal defendants from making comments about individual jurors, and the defendant were a candidate for public office, would thatrd violate the first amendment. >> it would depend o aan tax but i do see the good effects it canusfy an order like it's worth it would depend on the context? >> i think so. >> the situation in which let's take a district geoe like particularlyas a very powerful and vocal defenda - district judge -- inhe case and jurors are, it is their civic duty toarticipate. as a more on measure than having a sueered jury, the district judge wants to protect the jurors. there is no public comment about

any of the individual jurors. do you think itou depend on the context wheth tt order was consistent with the fir amendment? >> we don't dispute that could be an anonymous jury. the case was a hypothetical eers protection of the jury. >> i think, you are sayin the jurors are anonymous, don't post anythi - >> i'm sorry, non-anonymous a jury, and theuestion is whether the dtrict judge consistent with the first amendment can say off-limits to comments specifically about the jurors. >> decimalidtical to facts capital city media justice brennan i think stayed a rule that says you can't talk about the jurs because what was then set about the jor was already in the public debate. i can imagine -- that's what i say it may depend on the context. >> really? no. the internet nowadays the well be in public domain.ght

sadistic court iss the order, this accord issues at your that judge pillared reference and criminal defendant then tweets out to the world hears the name and address ofhe jurors, deciding my case. if they got in public domain some other speeders it's iy in the public domain. >> what happened is disappointed public domain by the court. therwa an open hearing speeders no, no, no. my hypothetical is this, the world ha cnged since that time now. i mean a lot o information about any individual, inclung their address. pretty easy to find. if the defendants say i can't tell the name of the jurors because i've beenol not to, but hers the addreesf the unnamedurors, which is very easy. that's already out there, gh

you can find that with the google. >> let me put it this way. i don't dispute the first and then would aow i gag from promoting individual address information of jurors with the caveat that i canapal city media would probably govern and situation, that all been publicized by the court, there's no possible justification for that. >> what about now? a situation with it is in any publatn of these iivuals relationship to this case? >> right. that i think would be a huge problem. as understand hypotheticals, no one knsho the jurors are or no one can link those names jn smith and susie to those addresses but the defenses here's the addresses theho of the jurors. that's very different. i don't dispute the fact speeders if it were public, if th were public because they were not sequestered, theyre not yet public. nobody hasubshed that, no

one put it out there but the just are. as judge millett was example of itf information about the person you can find out lot but the t judge say fine, but eyan't be posted for millions of people by someone o is -- it's not a heckler's to really. it's a cheerlein squad that is going to come out and amplifying orct on and perhaps overreact. >> i think the case has to be -- >> do you agree with that? >> we content pteing the anomaly of a juror in this case is alternative measure that should've been considered and was a very sometng we have endvocating for interbreeding in this case. if the situationer persons or not i don't foresee a chosen because we do that as a less reste alternative -- spur i'm not trying t manage of ts case, which the district judge

--'m asking about, again, the hypothetical to probe the nature of yourosion and it is revealing of the fortitude that yo accord to the first amendment and the reallack of any role for protecting the future process. that's what i'm hearing >> and an event for all the reasons we say in our brief we asked the court speeders can ask you one more? then we w let you rest, i apologize if this help with the discussion. pretty clear, what your perspective in this case are, let's assume former vice president mike pence is going to sty, and it's the night before his testimony. couldn't the defendant weed o mike pence can still fix this --

tweet t. mike pence can still do the right thing, if he says the right stuff tomro >> that would be more problemachan to save his life and record however we should with affected is or any recent prospect of former vice presen pence testimony? nobody contends speeders so i'm y, i'm sorry. you're right, i was n specific enough. firs did that count as a communication to the witness? >> i again i would have to say,e had a discussion, depending on -- >> it's tweeted. i haveol you that is the full text of the tweets and it is tweedut on a social media platforms. >> is a respond to something vice president pence that? >> this is a l, the sum total of factor good luck when the fit anymore. you're not going to get a more contt. this is it. the nightefe he is scheduled

to tesla, i'll give you one more. 'sublic record that he is testifying the next day, a that message goes o. and the fact is, first of all is at communicating with the witness? in violation of the release conditions? >> if just broadcasting, likely not. >>shat something the district court could prohibit consistent with your first amendment test? >> only if was based on compelling evidentiary showing actual threat to speeders no, . no more swi. you're rig, so, so you're saying if mike pence then calls in at six the next day, sorry, learned judge, can'testify. then we could say tha effect to be the test. but you're saying they're no proleptic rule -- your thing that doesn't violate to witnesses and you are saying

ers no prophylactic rule, , no circle rebecca medatn with witnesses. that the physical could draw like prohibit that stame speeders that prophylaxis with database o cpelling evidentiary showing likely to inflnc speedy the district court says ionclude that that counication was one tempted communatn with the witness and likely in fact, completed to mrcay witness and two was denying to add couldect a reasonab pson testimony before the corporate tonight have those two fact findings. >> those factfinder could be based on evidence speedy you are just ugl wt the district court say in advance the nht before trialncourage somebody the content of the testimony. your test doesn't even allow for that? >> though still reasonpeers your test doesn't allow for

at. >> if there is a recent prospect and no evidence it would influence any speeders there's not going to be -- >> it's not my speederhen you say on evidence was actually gogo influence, what you want is it has to be criminal, otherwise it is a court can't protect you. because if there's actual influence, that's a cme actual evidence, thas a crime. just to be clear we're back where we started is speeders i would stand on my prior responses. >> okay. any other questions? thank you for your generous me. >> thank you for your honors. >> we will giv y some rebuttal time peray it please the court. ct court correctly found that defendants well-established practice usi public platform to t that including in this case p significant immediate risk to the fairness and int of the preceding. this court should affirmed.

first for the court come second sual narrowness of the resulted order, third, the recent dash into mistreating fully capable of understanding and complying with the order while it is in effect. >> i want to follow come use is significant a immediate risk. so you're not embracing the gentile test. >> was no, your honor. before the. aking chinese] this is astitutional test that applies the significant and immediate risk is a language that the district court of what a sort of assumes speeders kind of different w >> pardon? >> within the laws the significan immediate risk i think are to make differe legal test. >> i completely agree of the legal test but because thect rict court incorporated the higher test, that is the i thinkhat does form the scopeco of the order and it forms of

finding the district court made. but to be clear genteel test is one that i was. >> where, what is a finding you areelying on? >> page two of the order. >> the order -- >> yes. number 230. >> the court finds statement ses an immediate risk. >> was correct. >> witness of being or unduly influenced by the pros of being themselves targeted, ha and two themselves become targets for of threats, harassment. on the second part, numbe two, applying to the staff of the ecial counsel and of the court, the nexus between

concern that they b targetsor harassment and the administration of justi not district court order.m the can you help explain for example, the districtudge if not, no speech relatedo the district judge tag and that's part because the district judge will not bed by anything that the defendant says. how then to the district judges stafect the administration of justice? >>istrict judge the? >> in effect on the of non-criminal harassment? >> i think exposing -- [inaudible] prosecutor or others to the risk of threats, harassment or risk to the fairness andtemic integrity of the preceding? >> how so? creates a world in which public service wan decide do

i want toandle this type of case? do i want to press on wit the law demands, or induce -- how it will threaten my familhat youw, there's a chilling effect over the who proceedings if the trial participants f like they're at risk just a drizzle of being in this case. separately speeders and the way you worded that it made it sound before they became part of the team, like in future, her staff might hesitate before joining the team. a sure submission also that existing staff might quit? >> i think they're surely a whisk of t surely the court doesn't h to ask each staff member how likely are yo quit if a family receives a death threatck i don't thinkhere's any basis is it in absence of the likelihood that you'll actuall be deterred from doing her job,

tolerate threats and arrested being dir >> i had a very specific tion to you mentioned the families, at the district court from the bench said the gag order applied to theiesf the staff of the courtnd the prosecution and the defense counut the written order doesn't reference that provision. what is the government's applies to come over?r the order >> our position it does for two reasons. first the beginning of the order of course incorporates the oral expedition. as a quartz and orally the prohibitioargeting family so i thi in district courtsg. view because of prohibition to the trial court participant and necessary extends tom. >> i take it or position is less cuff that it would affect their impartiality, but is more a question of w the people

would even beilling and able to do the w. >> it would threaten whether they were willind able to do work but it could a threaten the jury.hey are perceived by i know friend on the other side suggested the dish record disavowed any sort of june retained as a rationale but i disagree. what the district court did disavow whe request by the government to include in the order posted targeting the jury pool and the addition of columbus thate dealtith through for deer and it will not preclude those statements. the district court and cor the idea prejudici jury if the juryresented, if the case is presented t jury by people about whom is been a montong persistent drumbeat their corruption, inflammatory comments about them in a public that could affect how the jury perceives t >> counsel speeders are the fi about that in the

record? >> the court clearly was focused very much not only on threats that the way this would affect the administration of jus the fairness of trial and so that i think incorporates concerns but how the triall be presented to the jury. he mechanism you have identified ishat individuals would be, energized and/or deterred from even being the team, right? and the other is they might b their impartiality might be tainted in the eyes of the jury? >> that's right. it's basically cut a speci example trying the case in media by the day they walk in the corporative heard inflammatory comments about the people that sort of threats the fairness andntegrity. >> isn't that exactly what voir

dire is going to sort out? >> voir dire is moderately situated to address the sor of concerns, yes, but to your point about the availab of the voir dire to sort of these types of judicial problems if not deposited. the court should in fact, take preventative measures to reflect measure to prevent that sort of prejudice in first place. >> i wish you good heard i heard you say it's not just folks might be deter them from participating inase but the fact that they end and t family are receiving threats might distract a might interfe with their ability to carry out their roles as part of the system of justice. is that still part ofhich are sinks burbach absolutely. if i cane this one factual but because i i k my friend on the other side supposedly lack of any submission of threats being directed towar special counsel's office but i pointhe court to page 85 of the joint appendix where specifically since special

counsel has been subject to multiple threads and specific special office the defendant has targeted the recent inflammatory public post has been subject to intimi communication. it's not accurate to say there been something of threats organizing. elaborate i think one of your first three principal r recent s evidentiary record, and i appreciate the point you just made, but in discussing what is unique about this evidentiary the argument that most of what is being relied on here is from 2020, and the facts that in ng counsels you there's been a lot of media attention and fewer threats it would like to hear what the strongest point u think are to respond to the argument. >> yes. tonight as fixed of the record. knowledge that there been amy

criminal case and has not fied one in which a defendant has rou i believe is was incessantly taken to public posting a national audience to routinely vilify the prosecutors asgs, as hack into attack witnesses based on thedibility and substance of their antic test testimy calling them liars, cow week saying some need punishment. that alone be sufficient for the district court to a and you combine that with a record going back a back a number of years can continued to this day,erous people been targeted as a result of the defendants post. i think there are 16 16 to te that a document in the record. eight of them are fro the 2020-2021 the 2020-2021 timeframe wycherley judge garcia national there's hardly some tangential time riod to this case. ..

how do we know what hes held accountable for? this is the internet era, high-profile public figure who has lots and lots of followers but is alsoered on news channels the house listeners and

newspapers that have readers in our manner of media can commun words people of the public. how does a district cou reasonably decide which postings he's responsible for prompting offers adverse conduct and the protests express is news i a social media world can i be held responsible? for anyone anywhere when they hear about it? >> first is the sheer numbers, he posted something derogat in the person was ahreat i don't think would be here.

wh changed about me, i started to get more. none ofhe people trend as a result of this. on august 1, the rent was august 3 and he issued the unfairge and coming after you and the after hey received a death threat.

the special cou office targeted through public post, intimidating communications and inflam public host doesn't the first amendment t -- to be, this is in the course of a presidential campaign, the party nomination campai. i ask them about protect me

process, i am asking your position which doesn't seem to give muchatile to the first amendment protections och. this inflammatory language. >> i was critical speech at t >> how d inflammatory posts

ve a substantial threat to the proceeding >> going back to the rec, it is clear they have repeated inflammatory fox. >> actual threats, it's a crime that can be dealt with. >> yes. >> short of thatgain, there been several cases and if got someone who says the allegations in prors and a political vendet it's pretty inflammatory.

>> it allows ample room. >> we can't target the special sel. titutions on the one hand the prosecution is motivated. government, it works so well. >> those are all fair game. >> you cay the pr utors. >> there targeting the prosecutor so him we would

concede criticized. er his supervision h can't say they are? prosecutor in the office are politically biased. and might not b true but it's just a question. it's in his mind, his view of the prosecutors are politically biased file a motion before he could say that?

>> it's definitely prohibited. >> the information to speak about it, avoiding a two track process, the effort to malign people involved and suggest b bias. of course we think there's prejudice and to talk about those that exist. they say going to have this, a political bs i've never

presented before. >> i imagine he hasn't participated debate and the others, spent a lot of time talking toark dripping prosecuted by the u.s. government. you could be found to be the criminal and have all this idence against you and millions of pages the talked t in the record so they go on and on and on about the criminal prosecution a tell me they can't say pub record prosecutors, a bnc prosecutors.

a political vendetta. they are doing the bidding. ot saying anything is true, he can't stand on the stage and >> my political opponent, will be vindicated and all that. >> everyone else was throwing targets of. >> can't mention mr. smith people in the united states given the number files the easiest way check smith. surely he has thick enough skin

and doubt he will not. i'm not sure i see the district court having made a discussions or evell of that. something support of. course the court wanted to make sure the jury is and how they view it. >> given all of the issues

before the court and the election, it's hard to see the order will succeed at preventing a trial in the court public opinion. protecting witnesses from harassme aositively motivate doug not to shield of new. >> i that motivation certainly.

a slightly dnt case's representative and that's why we would say that would not be dark. not public figures themselves. would you agree? why can't the defendant say a, b

d c, whoever is the pre curatorial team? anti-american, whatever the jective. increasing the likelihood. >> i'm not suret will never brittany of this, a more first endmt debate, not to make the showing, a godfather s just make the problem go away.

our politicalendetta. how can the american people decide? >> i would not violate it. >> tell me about your debate what you you. it wou really hard your attorneys will have to go over the things you say. >> particularly challenging about prosecutors, it is too complicated and hard to follow. >> it could suggest that. >> i've got m debate here.

medical public records paid by taxpayers and he can't save money? >> thats within the meaning of theer. >> charting because -- a means you are doing it out and there is a recipient the district cour targeted but i think you are right targeting ways of clarity and i wonder the alternative, if the order

prohibited commenthe foreseeable w -- let me go to the witnesses, one of the difficulties in the political well here.r ways and testify as to different concerns?s opposed >> i don't get pose of that would be a part.ns, i think i do think it omits an important component exposing the correct

testimony this person is a coward, a lia. >> cou you get in c if no other reason, the reason they talk about because general milley spoke publicly about efforts consequences of >> i think anybody does. >> so he can comment very critically, wha? >> deliver inflammatory lay which soaked theine between

the chairman ofoint chiefs of staff and i was the aspect digital. >> t to figure out what he is referring to in the triggering, that's what you're aiming at, the defendant can t all and all kindsf things but when he does it a way likely to trigger this, that's you see it.

>> and going back. >> go ahead but i do want to talk more. >> going back to the question, looking at the thing said so in the post prosecution in the administration and prove the evidence, you can alw say what every othe says. the necessity to single out those that have not been the t of any litn or

personal singling out. >> i a on jake 130, can you tell me which parts -- this was aay after general milley did an interview about this book, there is nothing about the criminal trial in it so is everything okay except the punishment of d >> i would say so and the importance >> is he wrong? is it wrong hcally, not by

this but punishable by death? >> the district court -- this court is free to decide to make points. >> the need to balan. the question is, what in h in this post including t ference historical capital punishment for treason can for the criminal trial? the criminal trial, process and

participation. >> it is important. >> it is ant. the information, it allame out in 2021. be put in so once wfor them to indicted mark was lucas day after he did an interview about s book? >> yesis reaction to it was beautiful going 2021. >> under this order he just who are known for foreseeable

witnesses. >> the sorts of things used. >> did he say anything disparaging foxe off inflammatory, is the anything disparaging between now and the l? >> you can criticize him or talk the court ability in a way that will shape how the jury -- >> i'm trying to understand this high public figure, they like everyone else protected against criminal efforts and it can prosecuted.

the defendant could be prosecut when we think about ping the proceeding, the mechanism is that testimony woul affected. >> out to get us the test, they will change. s reasonably foreseeable, you aht, thiss a proactive situation. i assume that testimony would not be affected. it's your position that there is a performance of vulnerability that would affect unknown

witnesses the mark ifou are a witness andhere are many witnesse, secret service they see general milley's. >> it's a very small question and reveals by lack of knowledge on t but is there a way to protect someone technology like i'm a prospective juror, could be protected? >> your asking whether your

personal information will be revealed. >> and coming throughm strangers -- it does seem there is a real phenomenon that terrifying. >> yes, absolutely. >> i'm wonderinger there are ways that can be mitigated, short up. you appreciate the problem of the defendants andn effect the loyalists and t will causes direct efforts and threatening and harassment in there is any tool.wonder if >> tools that would work as well as mitigating the source and

they are not widely used and not easy to appropriate for. >> one of the examples is essentially x is a slimy wire. other prohibited by this order? >> go far closer 6 minutes and january 6 mr. trump c go online and say everything you said is false.

>> i think it's different from using inflammatory language. but it is a direct attack on harassment. a disagreement of what he said. >> is slimy choir inflammatory? >> inflammatory remark you just said that. >> is that was i would be prohibited by the lawyer. o any attack on a witness. . >> so we bring to the c

campaign's, someone who is done stifying at the trial is still going on, goes outnd campaigns with democratic nominee goes on stage, this is why you should or me k but he's a whole book acial discount attending the rally what is up at theium, tell us about your experience and why i should be pre instead of him. you areng me the first amt balance would not

allow him say he is a liar, lying in what hd. he can't say that? >> i disagree with everything said. >> he can say i disagree but he can't say he lied. >> these are cases where. >> didn't have any publication. you said can't comment on credibility. >> and witnesses crety. >> commenting on the credibility and the clinical valley. not related to theay before and no it is a t against

the political opponents in the midst of the election. >> a law of space to say disagree with everything he said, we will approve a trial but a single w like that's a lie, that's a liar, extremely unlikely. >> is a covered by t order? i want to know whether it's on is. order you said repy it i talked viciously -- not attack

but unloaded his very pol dynamite against him and he can't say -- could they s untrue? >> yes. >> so he can't sayntrue speaker. make say untrue speaker? >> when he says here is my speech, here's what i want say and have to x out wire and put on truth speaker. >> they have to avoid direct. >> another word we pu putting? >> what is said is untrue and he why. >> he wants to talk character for truthfulness. nd that is exactly it,

untrue. >> there is a balance that has to be undertaken here and it is ifficult balance in this context. want to make sure the criminal trial process and integrity and function are protected,. >> i agreeut ample room. >> and a lot of the cases protecting criminal defendants against this process, there are

some whether it'stemic support in terms governmentngest interest? >> a right to fair trial and the the right to a trial andate has it's consistent with how the t treats others. right to a speedy trial but doesn't have a right to d his trial. the defendant has a to trial by jury and demand trial. there's nothing unusual about impa jury.

>> one of the terms his political rival, h wld you define that? rived on the against him in support chiefs of staff could be peble

>> we also court conditions this imilar between terms of and the rule? will think will other if it is from witnesses associatedtricted other people and reasonable return and there clend present danger.

what's at stake -- >> don't they also receive >> not scrutiny buteasonably afford community is danger it would somehow with these provisions and be would have to be nothat did the speech

restriction would have to be looked under it woue for the trial. all the time.rictions imposed goes on and i don't think they would cast doubt on the constitutional but you respond to the questions the condition for t trial. hearing, if there is a violation

or will content in will prove will will work that? ramification of b or violation those. >> rely on the gentile case of theidettorneys choose

the profession and take to the cour i don't know anybody who chooses to be criminal defenda robust protections and through from open they nothing but criminal the criminal defendants to really have special protected

vulnerability to resis government actionhe admission and what the litigation on t other. it was born the case and the restrictions and it might n be prohibited. the attorney be thtification for the jury and it's almost more self evidenced. >> i part of the question

was the emphasis on the history of regulation, are you saying there's a similar tradition history of criminal defendant speech? >> included they needed a justific the illustr part of this event a newspaper n be restricted revealing information so i do think there is a long history.

>> it is by separate order in is case for this kind of ord order. >> even a civil litigant comes through court proceeding the senate will not school because outside patrol and commenters all ppants and criminal fendt. what is in our h allow little defendant equipped them

to defendst the gov government? why doesn't the recall more? maybe not clear and present er but on the other side, is there anything in between that would be appropriate? >> the idea are equal, is contrary to the long history of making them subject to being held in don and all sorts ofestrictions. >> dean being detained is a

showing of actual risk or t to public safety. we are not t about the type of look at that doesn't requirediate facts. wind judgment could be part of it and we live in a rd.iety where it's incredibly to be clear can be done but we don't want to be likther countries. i would ask why that wouldn't include allowing a crimi

det to publicly say that person is a liar. >> my reference to detention close to the most extreme but you look at this format and these are standards on this litigation based on a similar showing. >> we have not seen first amendmllenges. >> i would push back on the first amendment. >> we have a particular

restriction here a particular challenge so it lets you do a lotf things. >> i was trying to answer in the historical context and the historical pe of there's never a thought to violate the. >> you have backup not clear, it's meant to be cal the standard here so the

andard somewhere in between is malleable, don't know that it'secessary but it is danger. >> thank you very much for your time. l right. four minutes for rebuttal. any more questions? all right. thank you for your helpful presentation a patience, dan, please. this honorable court is now adjourned until the 30th 9:30 a.m. ♪♪

>> tonight watch the conclusion c-span series in partnership with the library of congress, books that shipped america will feature the words of caesar chavez, a collection of speeches and writings civil rights activists in recounting the history of farm labor movement and explained how he used nonviolent methods to deliver his message for better pay and working conditions. miriam powell, colonels and other the crusades of caesar chavez will join us to discuss the book. featuring the words of caesar chavez tonight live 9:00 p.m. eastern on c-span, c-span now, free mobile video up or online at c-span.org. be sure to scan the qr code to listen to our companion podcast to learn more about the authors of the book speaker.

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>> trump will be president again whether on the ballot or not precisely because trump is overtaking the republican party. interviews dozens of aides and government leaders and trump 2.0, and more confident and permitted look at the deeply divided nation setting the stage doesn't present an emotional self-critical o portrait and a warning about what happens when we hide the truth from others and most important, ourselves. it is the most vivid account of what trump 2.0 will look like. e national security council and author of hear right matters a complicated, courageous journey to truth through a poignant,

personal and professional pass by msnbc's chris and matt dowd and. quote, quite simply, the best and most frightening book written by an insider at the trump white house by kurt eichenwald, the new york times selling author of conspiracy of fools and the informant, a national security expert who works in washington, dc miles taylor previously served as chief of staff at the us department of homeland security, where he published an anonymous essay, the new york times blowing the whistle on presidential misconduct. he later published the number one national bestseller, a warning revealed to be the author, and launched a campaign of officials to oppose donald trump's reelection. he's worked as a viser to the george w bush administration on capitol hill as a cnn contributor and, is the co-founder of a dc based charter school. multiple democracy reform groups. taylor received his mphil and international relations from oxford university as a marshall scholar and a b.a. from indiana university. as a harry truman, it's our pleasure to have miles and allison here. please help me. welcome, miles taylor and dr. allison gill.

and i would just also like to be the one of the first to announce, as i found out, that blowback is now a new york times bestseller. i just want to say, i want to balance out joe's introduction because there was another review. the book i thought was really good. the office of donald trump put out a review of the book and they said, miles taylor is a loser, loser and a lying sack of i'll censor it for c-span s-word, his book either belongs in the discount bin of the fiction section or be repurposed as toilet paper, so just read all the bad reviews. you didn't do the voice though i was hoping every purpose i was hoping for. it's a toilet paper book. honestly, some of the finest

toilet paper now, i'm first of all honored to be here to speak to you about this. i think that the fact you and i sit here, we are friends and we are working toward same goal is kind of the embodiment of the purpose of blowback itself. you and i have very different political views and we could have discussions about that for hours. however, what we share in common and i think what brings people together in these polarizing times is that we have a common goal of preserving democracy, and we both kind of did it a very interesting way, being anonymous at first. many of you know me a gee, only. to avoid violating the hatch act, but it's what what our common goal that that brings us together. so i wanted to first talk to you about some those common goals in

preventing a second term here. so let's let's start there with the anonymity part of it and that you say know, i know you say in your book that it is a threat anonymity is a threat to democracy. talk a little bit about that. yeah, i would like to address that. that irony upfront. and it's something that i've been adamant about the past few weeks which is it took a long time to come to this conclusion. and in my view, anonymity in a sense really is a threat to democracy now. what do i mean by that. i'll first tell you what i don't mean by that. people who have sounded the alarm, blown the whistle on presidential misconduct and avail themselves of whistleblower protections and anonymity. they deserve those protections. they're enshrined in the law for the right reason the intelligence community whistleblower from the first impeachment investigations to this day remains anonymous and rightfully so.

to protect his or her and friends. but i was sounding alarm about something very different, something broader than one discrete episode of presidential misconduct, a wider civic threat to our democracy and one that could only be remedied not by unelected bureaucrats. me that could only be remedied by. you that could only be remedied by the voters and that require actually attaching my names my names name singular. i'm still getting over the dual identities required. my name to those critiques. and i'll tell you why at first i thought deprive being the president of my name would force people to focus on the message instead of the messenger. and we know donald trump is as an expert at the politics of personal destruction and distraction. and if i had published that original new york piece in my

name, it would have been all about who the hell is miles taylor? and trump would have made the focus on me rather than the fact that i was disclosing that his own cabinet felt that he was unfit for office and that they had even con they even considered the possibility they might have to invoke the county for the moment of the u.s. constitution to effectuate his removal. the severity warranted laser focus on the message and the messenger. i made the declaration publicly to myself and private that i would eventually unmask myself but i like the artist at first i was self-confident and that determination, i would on mask myself message unsettled and then i waited and waited and waited.

allwh the people who come up to you and tell you you are so brave and courageous, i want them to know i was scared and that's why i did not unmask myself because i saw destruction this man i'll talk was capable of doing to people's lives and once i left government i was making money and was in the tech sector and was comfortable and i didn't want to destroy my life but as i was making the rounds after i left trying to recruit cabinet secretaries and other senior officials to convince them comport against this guy person after person said no, they all declined the couldn't figure out in the answer should have hit me like a great train which is if no one is stepping out there, the next person iss not going to, we see this about

people being attacked in the subway systems, it's never an empty subway train, it's full. they always expect someone will come forward when it does, they step into the fray in 18 unmask myself, gave airll cover to folw officials fine happy to show the spotlight at them because jacob the end of 2020 distract our coworkers the largest groupup of nutrition officials ... ... sort being the underpinning idea behind why anonymity is a threat to democracy. you in your book talk you give this