We start with a remarkable day in one of Donald Trump's four criminal cases. Federal courts do not allow live cameras, but today we got to hear live audio in the federal election subversion case. The former President faces charges that include conspiring to overturn the 2020 election and trying to obstruct an official proceeding. Today's hearing was all about challenging a gag order in this case, which put limits on what Trump could say about the judge or witnesses or the prosecution led by special counsel Jack Smith. Trump argued that gag order violated his free speech. And today, before a three-person appeals panel, we could hear in that courtroom audio, Trump's legal team and prosecutors going back and forth about whether Trump's rhetoric might derail this trial or even put jurors and witnesses at risk.

Lawyers for Donald Trump and the Justice Department facing off before a federal appeals court in Washington. In a fiery hearing, lasting well over two hours, the former president's lawyer arguing that a gag order imposed in the election interference case violates Trump's first amendment rights.

The order is unprecedented, and it sets a terrible precedent for future restrictions on core political speech.

The appeals court had temporarily frozen the gag order. A move prosecutors for Jack Smith say allows the former president to continue his attacks on the special counsel and his family. A lawyer for the former President argued that Trump should be allowed to respond to allegations on the campaign trail and has a constitutional right to talk about the election interference case, an argument the judges seemed skeptical of.

Labeling at core political speech begs the question of whether it is, in fact, political speech or whether it is political speech aimed at derailing or corrupting the criminal justice process.

Trump's attorney said witnesses in this case haven't been attacked because they were singled out by the former President.

That's all based on evidence that's three years old and has went against the fact they have no evidence of any threats or harassment that have happened in this particular case.

To which prosecutors pointed to threats against special counsel Jack Smith. He, and his team, and Judge Tanya Cutkin, who is overseeing this case.

Special counsel has been subject to multiple threats, and the specific special counsel's office.

Prosecutor that the.

Defendant has targeted through recent inflammatory public posts, has been subject to intimidating communication.

But the had appointed judges on Monday also had sharp questions for prosecutors about the scope of the gag order and whether it was needed to protect the special counsel and his family. One of the judges said Smith likely would not be intimidated by these posts.

Surely he has.

A thick enough skin. Another judge said Trump could not operate under a gag order on a debate stage.

He has to speak mismanners while everyone else is throwing targets.

At him. The judges also raised the possibility of Trump trying to influence former Vice President Mike Pence's testimony.

Let's assume former Vice President Mike Pence is going to testify, and it's the night before his testimony. Could the defendant tweet out, Mike Pence can still fix this. Mike Pence can still do the right thing?

Drawing parallels to win the former President said this on January sixth.

I hope Mike is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win the election. I want to.

Bring in CNN's Evan Perez and Kristen Holmes, along with former federal prosecutor, Ellie Honey. Good to see all of you. Evan, let's start with you. This specific hearing had audio recordings giving us a rare glimpse into how Trump's speech is being argued in court along with some hypothetical situations. What out of all of it stood out to you?

Well, just the fact that we were able to listen to these judges as they were grappling with what really is an unprecedented question. And by the way, this was a hearing that was supposed to go for less than an hour. It went over to over two and a half hours today. And you could see that they were trying to, with some of the hypotheticals that they raised, for instance, the one about Mike Pence, you can see that they're trying to figure out a way that they can preserve some gag order, something that is... There are many standards in courts, right? Before you go to trial, this is very common for defendants to have some restrictions of some kind. But obviously, this is not just anybody, any other defendant. This is Donald Trump, and he's running for President. So you could tell that they were using these hypotheticals to try to at least pierce through what the Trump team is arguing, which is that his First Amendment rights should Trump everything, as a result of his First Amendment rights and the fact that he's running for President, that he should have no restrictions. Clearly, that's not where these three judges are sitting.

And, Ellie, let's say this appeals court upholds the gag order with some minor changes. How might they strike a balance between Trump's free speech and protecting people from his aggressive rhetoric.

Well, Beyana, there's really more art than science to this because what these judges have to do is exactly that. They have to strike a balance. On the one hand, any criminal defendant has a First Amendment right to speak publicly about his case, even aggressively or in ways that may be deemed confrontational or offensive. On the other hand, a judge, the trial judge does have the right and the duty to protect the proceedings, specifically witnesses, victims, and jurors. The only real principle here is that it has to be as narrow as possible. Any restriction has to be as narrow as possible. And on that note, I do think the trial judge has done a very good job of crafting a very narrow gag order. It's important to keep in mind, DOJ originally brought the trial judge an extraordinarily broad, I think, overbroad suggestion for the gag order. They wanted her to prevent Trump from speaking publicly in any negative way about anything to do with this trial. Judge Chuck and I think, wisely rejected that. Instead, she put in a very narrow order that really is just geared towards protecting witnesses and staff for the most part.

That's what the Court of Appeals is looking at here today. They may tweak it in some respects, but I suspect they're ultimately going to uphold the core of this gag order.

Okay, so Kristen, now comes the tricky question because let's say they do uphold it. If the gag order becomes more limited, let's say, the question then turns to whether Trump would even abide by it.

Right, that's always the question, Mianna. Now I was told by one senior advisor that Donald Trump will go all the way up to the line, have his toes right there, but hopefully not cross it. And this is because he has been advised by lawyers where exactly the line is in the existing gag orders. After he was fined in New York in the civil case for violating the gag order there, he has had extensive conversations with his legal team over what exactly he was allowed to say and not to say. I've even been told that some of his social media posts went through lawyers when both of those gag orders were in effect just to make sure that he wasn't crossing the line there. But it is Donald Trump, and Donald Trump tends to say exactly what is on his mind. So while they don't think, they hope that he will not cross that line, it's very difficult with a client like Donald Trump who tends to not pay attention to the rules and do what he wants.

That's one way of putting it, Kristen. So, Evan, as we know, Trump has already been given a ton of leeway with regards to this gag order. How can it be enforced if the judges then loosen restrictions on top of that?

Yeah, I know that's the biggest problem. And I think the judges raised that a little bit today because at one point, the prosecutors wanted, for instance, this to be attached to his release conditions. And Judge Judkin did not do that. But the question is always like, how do you enforce this? In the end, I don't think a judge is going to throw Donald Trump in jail while he's running for office before his trial in March. That's just not going to happen. So the problem is if you create all of these conditions, all of these restrictions, knowing that he's going to go right up to the line and you're going to be bringing him to court to try to wrestle with whether or not he's violated or not, it's going to waste a lot of time. And so I think that's the biggest issue is that Donald Trump, in the end, knows that there's a lot of reluctance by the judges to actually enforce whatever they do here.

And look, Ellie, to Evan's point, it took more time than had been estimated for this hearing today. As we said, over two hours. This is a serious matter. It appears that the former President has leverage, at least in his mind, that he likely won't be put in jail. So would it still be an effective gag order, even with these possible revisions?

Well, I think it will be effective insofar as it goes, Bianna. I think that if we emerge from this hearing with a gag order that is specifically aimed to protecting victims, witnesses, and court staff, then Donald Trump will be bound by that. But it's really important to keep in mind, even if we emerge with the same gag order that's currently in place, that doesn't mean Donald Trump is going to suddenly become polite and demure and benevolent in the way he talks about this case. He will still have plenty of leeway to attack the case, to say this case is bogus, to say these charges against me are nonsense, to attack the entire prosecution against him. He can do that. He can do that aggressively, even under the gag order as it now stands. What he cannot do is say things that are targeted at witnesses, at victims, and staff. So it doesn't mean he's suddenly going to become easygoing about it, or it doesn't mean he's suddenly going to become silent about this case, even if this gag order stands.

So, Kristen, then how do you envision this playing out for him politically going into the primaries?

Well, look, a big part of Trump's defense, his campaign, is the fact that he says that he is being politically persecuted. They have made this narrative around these various legal battles part of his political campaign. He is the underdog. The government is picking on him. As Ellie says, yes, he can still attack the case. But the one problem when it comes to the former President is that he holds grudges, and he holds grudges towards people specifically. He wants to talk about Mike Pence. He wants to talk about what happened. He believes that people have turned against him. This is that victim mentality that we always talk about with the former President. So it'll be interesting to see how he can actually marry those two and again, abide by those limitations.

Alright, we'll be watching. Thank you all. We appreciate it.