>> dana: fox news alert. moments ago the former president walking into court. he did not speak to cameras today but you got the wave and fist bump and a little bit of that before going into that courtroom where the jury will be giving the instructions. welcome to a new hour of "america's newsroom," i'm dana

perino. good to be here with you. another hour. >> bill: i'm bill hemmer. things got serious it feels like. >> dana: it does. there has been a tone shift. >> bill: the president is in the room. the photographers are in taking their daily pictures and we'll share those with you when they become available. we'll hear from the judge in a matter of minutes giving the jury the instructions. defense and prosecution have spoken and made their cases and right now the judge will have the final word before they go behind closed doors, before they begin deliberations in the criminal trial from president donald trump and try to reach a verdict. maybe emphasis on try. we'll see. eric shawn begins a new hour outside the courthouse. good morning. >> good morning, bill and dana. well, the hour has arrived. the former president of the united states, a felony criminal defendant, waiting to find out his fate that is now in the hands or will be soon, of 12 ordinary americans. as you just said, the former president walked into court

giving a thumbs up but did not make any comments this morning. he has always every morning basically lambasted and criticized this case but in a few moments the jury will finally get it. that after judge juan merchan outlines their jury instructions. the jury instructions is the legal roadmap the jurors will have to apply to the 34 counts of falsifying business records. both sides did have input in what merchan will say in a few moments but largely sided with the prosecution's side in those arguments. trump can be convicted if the jury finds he makes or causes a false entry in the business records, alters a true entry in the business records, owe mitts to make a true entry in the business records or prevents the making of a true entry or causes the emission there of in the business records. that's what the law says. yesterday prosecutor joshua steinglass told the jury trump did cause the falsifications and did that to protect his presidential campaign. but you know the only witness

who directly tied trump to that alleged scheme was michael cohen. steinglass telling the jury, quote, the conspiracy to unlawfully influence the 2016 election, you don't need michael cohen to prove one bit. the name of the game was concealment and all roads lead inescapably to the man that benefited the most, the defendant, donald trump. todd blanche said there is not a shred of evidence that ties trump to any wrong doing and man did he put michael cohen's credibility through the test. you can't convict somebody based upon the words of michael cohen. thank you for paying attention. we went through a lot of evidence but it is important. the former president may not have said something when he walked in but earlier in the last 20 minutes or so on truth social he posted that quote the d.a.'s office was allowed to go on with five hours of bull

yesterday. we may know today or sometime in the next several days after the jury goes through all this evidence if they agree that what they heard was a lot of bull or if it was true. bill and dana, back to you. >> bill: stand by downtown, eric. >> dana: we want to bring in mercedes criminal defense attorney and andrew cherkasky. before we get into jury instructions as we wait for this verdict questions that people might have. what could happen? here is a question. can trump still run for president if he is convicted? the answer is yes. can the jurors talk to the press? the answer is yes. my prediction is probably they will, at least one or two. can trump pardon himself? that's a no because it is a state issue. not a federal one. bragg is talking about a federal crime that he doesn't have jurisdiction over that. mercedes, you were down there

yesterday. it did feel like as soon as president trump walked into court today that there has been a vibe shift that we realize this is a serious situation even though we can look at it and say we have common sense, it doesn't make -- it's not computing for us. how the jury would look at this. but there are some scenarios here where you could have a conviction, partial conviction, hung jury, and then what happens? >> you are exactly right. there are so many things that can happen. andrew and i are trial lawyers. this is really go time. when that journey sits down and listens to those instructions, about an hour and a half. there is -- you can hear a pin drop because of the intensity of that moment knowing your fate is in the hands of 12 strangers and no idea what will happen once they start deliberating inside those doors. it gets very real very fast. this is really the moment that

everyone has been waiting for. what is the outcome of the trial? >> bill: call for number 12. we just talked to andy mccarthy a moment ago about this. jonathan turley wrote it up. it is a long, confounding, confusing way he wrote it up but he did it this way because what jurors have to consider. four jurors can find a state election violation. four can find a federal election violation. four can find tax violations. it will still be treated as a unanimous verdict. is that common? >> it is not common. todd blanche swung for the fences yesterday and did a great job in his closing argument but he has constantly been set back by judge merchan. he has come forward with an extremely unusual jury instruction and we'll hear more about it in a few minutes as he is reading it aloud. we haven't seen a pre-copy of it in the public. but what the idea is with the

secondary crime, that the jury can come back with different opinions as to what that secondary crime was or how it was executed and not be unanimous in their theory of guilt. that is something that has a very constitutional tenuous type argument to it. i have seen it in some cases in a very rare -- >> bill: it does happen? >> it does happen. very few challenges. it is not something that is, i think, well regarded in most courts and appellate courts will be very skeptical of it. the sort of thing that would be a huge issue on appeal if it ever gets there. >> dana: mercedes, on that? >> exactly right. that's one of the biggest criticisms and really the defense bar is looking at this pretty seriously. now this theory of the case is taking the paradigm shift. i've never seen it. you may have seen it in some ran cases but generally not done. you have found him to have been

guilty on all these counts when you talk about the underlying crime itself. there has to be unanimity in that as well. >> dana: congresswoman stefanik wrote this letter. she said one cannot help but suspect the random selection at work in the judge merchan democrat party donor to these cases is not random at all. warning of potential misconduct why acting justice merchan has been assigned to the cases whoever made the assignment intentionally selected acting justice merchan to handle them to increase the chance that donald trump, the trump organization and steve bannon would ultimately be convicted. how do you think of that and do you think that the recipient of the letter, the new york state commission on judicial conduct and the inspector general, would consider it? >> judge merchan and i this i

the whole new york city judiciary needs to be investigated on this. i have heard gossiping in the hallways that judges are being hand selected for the trump trials. it is gossip in the holl ways but a problem if that's what is occurring here and we saw him having a return presence on trump trials. the entire organization in how these trials are set up and who is sitting on these trials and the fairness of the judges is something we have to have great concern over in every case. that's without regard to what side of the aisle you are on. >> bill: go back down to the courthouse with andy mccarthy. the latest email from maria. parties are seated at respective tables waiting on the judge. wants the jury charge begins no one leaves the courtroom. expect to take one hour. we should check for another update. there isn't one. saul wisenberg made this point an hour ago. he said the evidence wasn't

shown physically before the jurors about some of these allegations that the state is making. and what the prosecutor said yesterday steinglass said this case as its core is about a conspiracy and cover-up. then he said these guys know each other well and speak in coded language and speak fast. the assumption there is that they know what they are saying to each other, they know what they are conspiring to do, but it is not written down, it is not in email form, it is not physically before the jurors. is that what the state is asking these seven men and five women to conclude, which i guess it's possible that you could get a conviction on that. but it seems almost as if you have to pull it out of thin legal air. am i right about that or not? >> let me try to explain this as

simply as i can. you cannot have a conspiracy unless two or more people agree to commit a statutory crime. and what the government lawyers here have told the jury is that these guys conspired not to commit a statutory crime, but to commit something that was legal, namely, to suppress politically damaging information in hopes of influencing the 2016 election. they keep calling that the conspiracy to influence the election. that is not a crime. the only thing that can make that a crime, bill, is if you show that they interfered or conspired to influence the election by unlawful means. and the unlawful means in this case is the federal election violation. the problem with that is there is not a shred of evidence in the case that trump was ever even thinking about the federal election laws, much less

willfully conspiring to violate them in 2016 and 2017 when the non-disclosure agreements were being negotiated and when cohen was being reimbursed. the federal laws don't even come into the case until after the "wall street journal" in early 2018 leaks the existence of the ndas and at that point the federal election commission starts asking questions. but that is in 2018. if it doesn't come up until 2018, they can't have been thinking about it in 2016 and 2017, but judge merchan has allowed the prosecutors again and again and again to tell the jury that michael cohen pled guilty to federal election crimes and that's how they are trying to fill the hole, even though that evidence is not admissible against trump. >> dana: is that why you wrote a piece for national review that says merchan and trump conceal the holes in bragg's case, where the former president is likely

to be convicted? >> yes. he allowed -- judge merchan has allowed the federal -- dana, there is a concept-in-law called judicial notice like if it comes up in the case that albany is the capital of new york i don't have to prove that to the jury. i can ask the judge to take judicial notice that everybody knows albany is the capital of new york. judge merchan has treated the federal election convictions of michael cohen like that in this case. it is like the jury doesn't have to worry about proving or whether the government proved that because it is an established fact in the case there must have been a federal election crime because michael cohen pled guilty and told the jury encouraged by the prosecutors to do this that he committed that crime, which is the way the prosecutor framed it, at the direction of president trump. so they think that's already settled. i would be shocked if they thought it was an element of the offense that the prosecutors

actually have to prove. so judge merchan took care of that part of it and then for his part, what trump did was he treated the non-disclosure agreements, which are legal, as if they were radioactive and that he had to stay a million miles away from it. and his lawyers told the jury in the opening statement that trump never reimbursed cohen, when there is a mountain of evidence that he reimbursed cohen and shouldn't have been worried about reimbursing cohen because it is legal to do an nda. so i look at this and i don't -- i don't blame the trump defense for what i think is going to happen here because i think the fix is in between the prosecutors and the judge. and allowing the guilty plea of michael cohen, which is inadmissible evidence against trump. that is very basic. even merchan agrees with that. but he allowed the prosecutors again and again to stress it to the jury. if you are the jury sitting there you are saying to yourself they wouldn't have the

prosecutors tell me that 127 times unless it was important. >> bill: andy, you sound like roy comb. he was a lawyer in new york for a long time, took trump under his wing when he was a much younger man, and he would say don't tell me what the law is, tell me who the judge is. the answer you just gave sounds a lot like what he would say. find me the right judge. do you stand by that? >> well, in that particular bill i will take the comparison to him. i must say i haven't often been compared to him in my career, but i do think it was incredibly important who the judge was and the make or break in this case is that the judge has indicated or allowed the prosecutors to indicate to the jury that the federal election crime has already been proved when in fact -- i can't stress this enough --

the evidence in the case that is admissible -- we aren't talking about the guilty plea or pecker's entry into a non-prosecution agreement. the evidence in the case that is admissible is that the federal election commission and the federal law about campaign contributions didn't come up until 2018. the crimes alleged in the indictment were committed from 2016 to 2017. so it's not possible that those crimes could have been done for purposes of covering up a federal election crime that nobody was even thinking about at the time. >> dana: mercedes, do you agree or disagree, comments? >> definitely there are a lot of issues regarding what the judge is going to ask the jury to do and andrew is right about this whole issue regarding michael cohen having pled guilty to those federal crimes and how that can impact the jury's thinking. that is very clear. with respect to judge merchan i'm a practitioner, i won't be

overtly critical of a judge. the litigants believe this is what they have been experiencing. in terms of what can happen, it can truly happen, a conviction can happen for the various reasons we're talking about. the underlying crime doesn't have to be defined unanimously. >> bill: here is what maria is telling us. the judge has the jury in the room now and instruct them on the law starting with basic instructions. the jury will not receive copies of the instructions. that was something saul wisenberg was hot on. they can be very complicated but they can have them read back to them. the judge will summarize the evidence. expresses no opinion. nothing the judge has said throughout the case, judge reminds the jurors they are trier of fact and he promise to be fair jurors and mindful of

stereotypes. the beginning of the instructions from judge merchan. >> jury instructions are very standard . many of them that are blocked that we know exactly what it is going to be said. if the elements of the crime that we are all i think most curious about exactly how he phrases that to them and what their takeaway is. especially when receiving it orally in that fashion. i practice in many different jurisdictions and many times jurors get a paper copy and easier for them to go back. >> bill: is it smarter to do it that way? right? gowdy says how in the heck can non-criminal lawyers remember these instructions? >> dana: take notes? >> they need to take some notes. can come back and ask for more. in this case it might defer to donald trump's favor they don't have the paper copy if, in fact, these instructions will be as favorable to the prosecution as they seem to be. so now they kind of just have more of this general sense as to what is going on.

i agree if the jury was it wrong to put legal expenses? it is an acquittal all day long. easy oh choice to make for any business they've ever run when you are categorizing a payment to a lawyer you categorize it as legal expense. if that wasn't wrong beyond a reasonable doubt it is not guilty on all charges, no further questions. >> bill: stand by for all of you. let's get a time-out. more jury instructions coming out and we'll read them to you as we get them right after this. >> the jury instructions that get into the law will be detailed coming from the pen from the hand of judge merchan. this is what the jury has as their guide book getting to a decision and that's why they are so powerful and why the judge in a case like this has so much power over the jury. bookkeeper, you're the first to know when high rate debt is stressing your budget. but your family's service has earned you a big advantage. the va home loan benefit.

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>> bill: now the first -- it is a white shirt and yellow tie. >> dana: i like a yellow tie. >> bill: the judge delivering final instructions to the jury before we speak before they deliberate. talk to j.d. vance inside the courtroom prior. good morning to you. one of the things you said, every single person involved in this prosecution is practically a democratic political operative. is that the way you see it? >> yeah, bill, unfortunately that's correct. you have, of course, the number three at the department of justice going to join the new york prosecutor's case to do this. a soros funded prosecutor alvin bragg. a judge who donated to the democratic party and biden's presidential campaign and you have the daughter of merchan raising almost $100 million for democratic candidates off of the

very trial that her dad is presiding over. so why aren't we asking some very tough questions about the corruption of enriching your family from the very trial that you are presiding over? i really hope donald trump gets acquitted. if he does it will be a miracle because of how loaded this judge has been from the start. i think we have to ask tough questions whether his bias was motivated by his family's financial interest. >> dana: you sent a letter from the attorney general. next week the trial of hunter biden begins. i wonder what you think if anything a.g. garland should do in this particular case? >> well, i'm skeptical he will do anything, dana. a.g. garland is completely uninterested in justice and motivated by politics but i want him to do a basic document retention request so a future attorney general could prosecute if there is corruption in this case. it is unfortunately not illegal to be a biased judge, which is

what merchan has been. it is illegal to be a biased judge in the service of your family's financial interest and it is insane to me that they are going after donald trump for a bookkeeping violation with no underlying crime and yet you have the presiding judge getting rich or at least his family getting rich off of this particular trial. this is really, really bad for our country, guys. completely aside from the fact this is donald trump. i'm supporting him for president obviously. what the democrats are doing is shredding 250 years of constitutional tradition to go after their political opponent. democrat and republican that should really bother you. i want to live in a country where we can have our democratic debates, we can fight about politics and at the end of the day you don't try to throw the other guy in jail for winning an election. >> bill: let's see how it comes out. if it's an acquittal or a hung jury. maybe you feel differently. >> well, bill, i wouldn't say i feel differently about the

underlying bias of the prosecution. i think the jury has the final word and have faith in my fellow americans to see through this whether democrats and republicans but we have to be honest how bias this has been from the beginning. the refusal to allow evidence that's good for donald trump. i think you have heard it from many sources, democrat and republican, that this judge has committed a lot of reversible error. so how can we have faith in the prosecution in the presiding judge when the guy is screwing up left and right that only hurts donald trump. i have faith in the jury and hope they do the right thing. it doesn't change my view the judge has really mishandled this case and so has the prosecution team. >> dana: so many democrats thought this was of the four cases against president trump this one was the weakest one. but now that all the others are either falling apart or delayed or going to happen after the election, now they are saying

this is the most important one and he must get convicted on something for anything because they want so badly for president biden when he gives a speech whenever the verdict is read biden from the white house can call donald trump his opponent a convicted felon. have a question there. if you want to comment on my comment. >> dana, that's a really important point here. i've talked to a lot of folks in green rooms, talked to a lot of my democratic colleagues. they were mad at alvin] for bringing this days because it was the weakest possible case. it gave a lot of credence to the idea that this was all a political prosecution to go after donald trump. now that all the other cases have fallen apart everybody decided somehow this case is legitimate. it is not. the only thing that has changed is to your point this is the one opportunity joe biden has to pin this sham prosecutions on donald trump. the one opportunity he has to stand before the american people and say well, i got my political

opponent. my political opponent is a convicted felon. that is not -- that should not be the root of justice in our country. the root should be did donald trump actually commit a crime? i don't think any objective observer could conclude that he did which is why it's all about politics and we can't let that stand in this country. we have to call it out. >> bill: thank you for your time. j.d. vance with us today. back with our panel in new york getting a little more jury instructions. this is interesting. judge merchan is telling the jurors with regard to the fec investigation cohen's guilty plea, two of which were campaign violations, cohen's guilty plea does not constitute a defendant's guilt. in this case donald trump. >> what we've been hearing and heard andy mcgarth ear talk about this. one of the major concerns for the defense is the prosecution

over and over again referred to michael cohen's guilt on that very fact and let it be the this overall cloud of imparted guilt to donald trump. this instruction is legally correct and so even though the judge has not been particularly favorable to donald trump he still has legal requirements that he has to instruct the jury on. this is one of them. it is not really a confusion in the law on this. so that came out. he also reminded them about the burden of proof. it is not sufficient to prove the defendant is probably guilty, he says. so that defines the idea of proof beyond a reasonable doubt. highest in the law. so the judge has to give certain instructions that are very favorable to the defendant even if it is donald trump and we have had what we've had throughout this trial. >> he doesn't get reversed. at the end of the day judge merchan knows this may be appealed. if it is appealed, he does not want to get reversed if there is a conviction. i'm sure an appellate review will follow.

>> bill: he is talking slowly and quietly. it could be used as a youtube sleep aid. i haven't tried that one. back to the serious stuff. the burden of proof is on the people. not the defendant. did the state make its case? >> which is great. he also said that whatever your feelings are, set your biases aside and really just look at the facts. another really key reminder. >> bill: if you are not convinced beyond a reasonable doubt you must not find the defendant guilty. if you're convinced you must find the defendant guilty. >> a great reminder. >> they have to be given in every case. the idea that the defendant has the benefit of the burden. the jury is reminded of that over and over again. so there are certain things that the judge has to give. some of these bigger issues on the elements of the offenses that i think the real legal

analysts are expressing their concern over. >> dana: we have a criminal defense attorney joining us. great to have you with us. we haven't heard from you yet but how do you think the jury instructions are going so far? >> they are all standard in terms of reasonable doubt, right? that's what i've been saying the defense needs to argue that in the worst case scenario, the best that the prosecutors did was prove that trump might have done something, probably i'm not even conceding that's what happened. in the worst case scenario he may have known, he probably -- that's not enough. it is proof beyond and to the exclusion of every reasonable doubt. the highest burden under the law. they have an obligation to acquit unless they have an abiding conviction of guilt, one that does not waiver or vacillate. there is no way on critical disputed issues that they can feel that way because they had to rely on cohen's testimony to

get there. >> bill: shannon says president trump is fully in eye resting mode, which he has gone to at certain points during this trial. one more from maria. the fact the defendant did not testify can't be used against him. that goes to what we said previously. tom dupree. welcome to the conversation. good morning to you. 35,000 feet, where are we, tom? >> well, this is one of the most important moments of the trial. these jurors have been hearing evidence for the last few weeks and today is the day where they actually take matters into their own hands and decide the case. the instructions we've heard so far i agree they're standard instructions. no less critical. they are standard. i think that the defense did a good job in their closing argument on focusing on the prosecution's high burden of proof. the defense did a good job in closing argument hammering away on cohen's credibility and

making clear to the jurors that cohen's testimony was critical to the prosecution's case. all those themes the defense struck will be reinforced in the jury instructions that judge merchan gives today. >> dana: andy mccarthy is with us. i was thinking about being a fly on the wall listening to these jurors because they aren't allowed to talk about the case up until the moment they are in deliberations. so up to now they've been talking about the weather and other things and so this is the first time they will be able to get together. what is that moment like for pros -- a trial lawyer waiting to see what they'll come back with? >> well, it's an especially interesting one in in case because of the two lawyers who will on the jury. you know, i always felt when i was a prosecutor that if a defendant or even a judge was making an argument that was off the rails, i at least had a chance to bring it back on the rails.

but once they are in the jury room you don't really have that opportunity. if you have lawyers in there who are arguing one way or the other and they are making arguments that if you could hear them you could do something about it, you won't have that opportunity in the jury room. i would add, though, to saul's point before, i agree that it's much better if a jury gets the jury instructions especially in a complicated case like this one. but from our standpoint, i think what this means is we'll get a window into the deliberations that we wouldn't otherwise have because if they are confused about something or arguing about some point of law, instead of having the jury instructions there in front of them where they could read them and work their way through it, they have to send out a note to the judge to ask to be instructed on some point of law or get some piece of evidence. so we'll be able to track what it is that they seem to be getting hung up about if that ends up to be what happens.

>> bill: does trump need to be inside the courtroom when that happens or not necessarily? >> any time bill, as i understand it, they will have a place for the former president to stay with his security detail in the courtroom. it is too much of a hassle to bring him in and out security-wise. whenever there is a note when the jury asks for a clarification of law, have some evidence or have a verdict he has to be able to come to the courtroom because he is entitled to be present for those moments. >> dana: andy cherkasky, your thoughts on that as well. they are heading into jury deliberations and how do you keep your client cool? >> i usually have them there with a family member. i don't like to sit there with them. i have nervous energy and they have nervous energy and we can't share that for hours and hours or sometimes days and days. it is a terrible moment. you are waiting and waiting. the jury knows the answer, you don't know the answer. you come back in and they read

off the verdict. it is -- your heart is in your stomach, standing next to your client. it is a very heavy moment and that never gets old. >> dana: the defense attorneys, they have several audiences, right? the judge having to grapple with, jury they can't actually communicate interactively but talking to them, they have the public at large and a client with a high interest obviously into what will happen. >> absolutely. the most extreme measure that can happen against you is to lose your liberty. that's when you have -- it is real go time for your client. the client is so extremely engaged in the process, very nervous about it. i'm with you, andy, i let my client doodle, pray, do whatever it is to ease their pain and their concern about what can happen. anything can happen. >> bill: to mark and tom, i don't know if you read the "washington post" earlier today or not a long piece in there about the potential of a

conviction here and what it would do to a major presidential campaign. andy mccarthy doesn't believe trump goes to ryker's. i don't know how you feel whether or not he would do a day in prison or not or whether you do home confinement or report to your probation officer to get permission to fly from mar-a-lago to a rally in fulton county, atlanta georgia. or reno, nevada, or phoenix, arizona. and i don't know, mark, if we get into that area of law and politics, man, that's a moment america has never seen. >> it would be very unfortunate. i am an ambassador of the criminal arena. this isn't about trump. many people think it. is it is about every single defendant who has come before him and who will come after him. where the burden of proof has to remain the highest under the law and that there has to be

sufficient evidence to prove someone guilty. regarding where he goes, if there is a conviction, look, let's look at precedent. yeah, there is none. i don't know how anyone who runs a jail would say sure, we can make sure we house him and keep him safe as a practical matter, i don't see that happening. >> dana: want to weigh in there, tom? >> i don't see president trump going to ryker's. the first thing to keep in mind in the event of a conviction sentencing won't happen immediately. it will happen many months from now. potentially after the election even. nonetheless the judge is going to understand that he is confronted with a situation that is without precedent in american history. i can't imagine former president trump getting sent to ryker's. i think the more likely outcome in the event of a conviction a sentence of probation, potentially home confinement but probation given the unique circumstances of this case. >> bill: something to consider

for our conversation. we aren't there yet. we'll put that on the back burner and read something from jonathan turley. andy, jump on that. the judge instructed cohen is an accomplice and there is a special concern of his testimony when there are benefits for testimony. there must be corroborating evidence. in other words, turley writes, you may not convict the defendant solely on the basis of the testimony of cohen. so if that's the case, you have to bring in pecker and hope hicks and who else? >> not only that, bill, there are essential parts of this case where cohen is the only witness. so, for example, remember there is testimony about a meeting that involved only trump, allen weisselberg and cohen where it is alleged by cohen that they discussed the details of how the reimbursement to cohen was going

to be booked, how it would be tallied up and how they were going to book it. what cohen basically says is that trump was listening and understood that conversation. well, we don't have weisselberg here. trump didn't testify. the only witness to that is trump -- i think it is a very important link between the defendant and the charges which is the -- it is hard to remember this with all the talk. but the charge in the case is falsification of business records with intent to defraud. >> bill: so in your experience, andy, when the jurors are deliberating, how often is it that a juror says we didn't hear from subject a or b or c? and in this case they could say or one person could say we never heard from weisselberg. >> yeah, and what happens usually with that situation, bill, is there is a standard

jury instruction that is given that's called unavailable witnesses equally or uncalled witnesses equally available to both sides, which means the judge will tell the jury if this is the normal case, not that anything is normal about this, but that if a witness wasn't called, you can infer that if the government didn't call him, it could be because the testimony wouldn't have helped the government. or you could draw no inference. so it will be the jury will have a very wide array of choices when terms of what it can ininformation from the fact weisselberg didn't testify but cohen is the only link in the chain of evidence there. >> dana: thank you, andy. want to bring in matt gorman and kevin walling to get political aspect of it. republican and democratic strategists following this closely. matt gorman, let me open it up to you in particular comment on

the biden campaign, having that event yesterday outside the courthouse. >> you know, that was something that told me for the first time the biden team believes these polls. that they show them behind and if the election were held today biden would likely lose. and pressuring trump to do an early debate tells me they needed something to change the game a little bit. to shake things up. it was a risk. you put a celebrity out there like robert de niro. he got very off message but needed to do something to break through the coverage which they were having trouble with. >> dana: can i add one other thing. one of the things the campaign spokesperson mike tyler who is very talented, a good communicator and maybe he thought it was a great idea or pushed into it. it seems weird that robert de niro was their guy yesterday. he said the reason we're here that's where the media is. whose fault is that?

>> it is true. their audience was the media. hollywood celebrity talking about democracy. polls show the media loves talking about it but not really swaying many votes left or right. that was really playing to the media less so voters, which is another problem. >> bill: do you think it backfired, kevin? >> we'll see in time, bill. i agree with matt. there is a frustration among the campaign that the message is not breaking through. the president, vice president are traveling today to philadelphia to launch blacks for the reelect for biden and harris. there has been very little coverage about that. it has been this vacuum around this trial. we saw it during the republican primary where his opponents in the primary were complaining about trump trial coverage before that started. just the oxygen isn't there to get the message out. clearly they had to try something new to get through. robert de niro voiced one of the ads playing right now currently

on behalf of the reelect. clearly that was an attempt to change that message. >> dana: matt, one of the reasons they need to change the message is because their coalition is falling apart. they are going to philadelphia today after memorial day to try to shore up black voters. and i wonder what you think about that. you've worked on republican campaigns and worked for senator tim scott on his campaign. the republicans have always sort of been not quite able to make the sale with many black americans that they have their best interest in mind. this is who you should vote for. i'm not saying that black americans are pulling away from biden are automatically going to vote for trump. i don't know what they will do. there is a better way, pay attention to me. who do you think is poised best to do that? is biden skilled enough perhaps with kamala harris by his side to try to shore up those voters today? >> they have to work for it. the left. they can't expect black voters

to just come and vote for them as if they owe them something, you know. your fox poll had biden at 23% among african-american voters. 20% is the hinge point. if he is above that he starts unlocking a lot of those toss-up states like georgia and the like where 23 he is running away with it. he doesn't need to come close in african-american voters, he just needs to do well enough. what you saw in the south bronx that rally, look, maybe new york is closer than people think. i doubt trump wins it. sending a signal to minority voters we won't take you for granted and they are affected by the economic issues that affect everybody else. >> bill: thank you both. one from the right and one from the left. appreciate it. thank you, gentlemen. back with our legal eagles. andy, the jury instructions continue on behalf of the judge. by my count it has been 35 minutes. we were told it will go on hour. maybe it does.

one of the things the judge said on this idea of falsifying business records in the first degree that you need to find guilt when intent to conceal another crime of a person makes false or false -- the controller who testified and been with the company for decades, right? his name escapes me. when he was on the stand, when the receipts came in to pay cohen, he explained how the company had this old school ledger system and when he saw cohen's name as a lawyer being cohen, he put it under legal expenses. he did not say that anyone instructed him to do that. does that matter? >> it matters tremendously and you have been hearing me repeat this point over and over and over again and writing about this as well.

it is all about the falseness of the entry, not just the falseness but the intentional falseness of the entry into business records calling it a legal expense where you get reasonable minds together and you think you are paying a lawyer, what do you book that as in your accounting books? you can do it on quick books or do it in this old school ledger. there is only a file -- the evidence in this case -- >> bill: he didn't say that. he was not asked that. >> no. >> bill: can you still find guilt if that particular evidence was not presented before this jury? >> i don't think you can. what i'm saying is i don't think you can even find guilt if they had gotten together and had a meeting about it and thought what's the best way to categorize this, legal expenses. the point being that donald trump is removed from that. the defense talked a lot about how distant donald trump was

from a lot of what was going on. i think maybe they might have gone too far in trying to distance him. some people put him somewhat close. it was michael cohen was the ringleader out in front on this. even if donald trump had background knowledge what was going on, this idea of entering it as a legal expense. if donald trump was covering that up wouldn't he have put construction cost or charitable donation, something more clever to bury it in the books and somebody came to look at it in the future they wouldn't have seen that. >> dana: trump made that point. i haven't heard from you, mark, how do you think the defense did yesterday wrapping up in closing arguments getting to this moment? >> i think they did a great job. i think they called out the prosecutors appropriately when the prosecutors say we have a mountain of evidence and it doesn't matter if you take cohen into consideration, there is plenty of other evidence. they called them out and made sure the jury knows and the

world knows that they were being intellectually dishonest when they say that. then they turn to cohen in relying upon well why did donald trump do all of this fake business records stuff and it is to cohen that they use as a source to say donald wanted to control the election and interfere with it. absent his testimony, you have got other witnesses saying it was he was concerned about his family and his brand. of course they are relying on cohen. the defense did a great job in calling him out as the greater liar of all time, the gloat, and there is no way these jurors can come back guilty, their argument was made, unless they consider his testimony and credit it, which they cannot. >> bill: we hear some jurors paying close attention. you would assume. >> dana: i would hope so. we don't want to stay here any longer than necessary. >> bill: one or two appear to be taking notes and we'll pass more

to you when we get it there. tom, weigh in on the point? >> one of the big problems the prosecution has had from the beginning of the case they know their case rises and falls on michael cohen. it was for that reason they spent days and days and days putting in evidence that wasn't really directly relevant to their case. they spent the days with the "national enquirer," days on stormy daniels. they did it because they knew that if they spent time with michael cohen, that the jury would quickly realize their verdict depends on cohen's credibility. in that universe the prosecution loses. the prosecutors really failed up until closing argument to explain to the jury what the actual crime here was and introduce the evidence they needed to prove it. i think a lot of the jurors will say we heard all sorts of interesting and sordid information about stormy daniels and this whole catch and kill schemes and that sort of thing.

what we didn't hear a lot about what the accounting fraud at the heart of the case. i thought the defense yesterday in closing argument framed it exactly right. when the jury sits down later today to deliberate i suspect one of the first things they'll go to is their record to say let's see if and where we got this evidence of the alleged accounting fraud and intent to tamper with the 2016 election. >> dana: andy mccarthy. seems like the jury instructions are standard. do you think we should read anything into that? it's good that it's standard? >> well, not necessarily. look, they have to give the standard instructions, that's why they are standard. if president trump were to get convicted, what the prosecutors will point to in the instructions are things like see, the judge told the jury they couldn't rely on michael cohen's convictions and that may be true as you look on the cold

page of the jury instructions. but if you were in the courtroom and time and time and time again the prosecutors kept reminding the jury in an offensive way, in a tactically offensive way that cohen had pled guilty and it was a crime that trump directed him to commit, you know, there is a big difference between how the case played in front of the jury and what you would infer from the jury instructions. i don't know that it helps or is comforting that the standard instructions are standard but i would say we heard from jonathan turley, this is anything but standard. the idea that they do not have to agree on what the other crime is. we spent six weeks wondering what is the other crime and at the end the thud we get hit with, there are three or four of them and you could pick one or the other and they don't have to agree on it. >> bill: let me jump in.

kerri urban. may consider violations of the federal election campaign act established in 1971 that regulates the raising and spending of money in elections. two, falsification of the business records or three, violation of tax laws. andy. >> yep. so the violation of tax laws is interesting, bill. the prosecutor summed up on this last night. i've always thought it was hard for them in terms of intent to defraud, part of the crime, because the way they structured the payment to cohen, he laid out 130,000 for stormy. they doubled it and the reason for doing that was the anticipation that he would have to pay taxes. so the way that they structured it was more taxes could get paid not less. no fraud on the state. the prosecutors argue because they consider it to have been reimbursement, which is a

non-taxable event as long as it is a no-interest loan, rather than they made it appear to be ongoing legal fees in 2017, which is a taxable event. what they told the jury is that even if no one lost any money, even if the state wasn't deprived of a dime it is a tax problem because they generated stuff that looked like taxable income record when it wasn't taxable. a head spinning argument and there is no harm out of it. >> one key issue, too, can i meanings with fica. if you go into the website, if the payments for stormy daniels were made for other -- could have been stormy daniels because of the campaign, whatever. it also could be because of his family, brand, business, his wife. if you are able to establish the reasons for the payments were made were made irrespective of the campaign, there is no

violation. that was a big key issue that the defense was arguing last week. we'll have to see how the judge explains it. that is really key when you are talking about one of those elements. >> bill: this is what we're hearing. unlawful to submit fraudulent documents even if it does not result in underpaying of taxes. so you have that document, right, where weisselberg grossed up the amount to cohen to pay him back. not an underpayment. >> it was an overpayment for the taxes like andy describes. it may not be a tax violation. then you have the fica with the other test that can also result in absolution for ab solving him of any criminal liability. the biggest issue is the intent is really faltering here. where has the intent been established? the prosecution did try to do that by going back to the art of the deal and some of the statements that president trump wrote about in his book but that

was back in the early 2000s. >> the judge is saying about fica if a payment would have been made even in the absence of a candidatesy the payment should not be treated as a contribution and an important consideration in how they evaluate this non--- requirement that we all know should be a unanimous verdict but now have three options of the categories that they can place this additional criminal act in. but that requires them to get beyond the baseline misdemeanor underlying offense. i think that's where the strength of the case is for the defense. i think that the lawyers on the panel are likely to see that very clearly. they have to be fraudulent entries. a lot of our discussions about michael cohen and these details about fica or tax based things only come into effect if the jury finds that the entry as legal expenses was wrong and with a criminal intent to do so.

only then do they go to those additional things. tom, make it quick. >> my first thought is that they idea that the jury doesn't have to articulate what the other crime was strikes me as very disturbing and i think it will give trump, if he is convicted, a good appellate issue. the idea you can have someone convicted of a felony with the unanimous consent of all jurors. some jurors say a, b, c, that results in a conviction. that's a problem and could be a winning appellate issue for trump if he is convicted. >> one way i see this going jurors get back and not sure was it for campaign interference, his wife, his business. if it is equally plausible that's not proven. that's not guilty. >> the achilles heel is michael cohen. if he is so untrustworthy, the

gloat, it could result in the prosecution going down. >> bill: have we had a wrench thrown into this with the tax deal? >> no. >> bill: this can all be explained away? >> everything can be especially with the proof beyond a reasonable doubt and they have to get over the baseline underlying misdemeanor offense in the first place. >> dana: stay tuned to fox all day. this jury could take a long time or a short amount of time. might even get this verdict today. >> bill: we don't have time to read all this. harris will. she is coming up next. this is what the judge has just given the jurors on what they should consider. so buckle up, stand by, we'll have it for you. >> dana: historic day. >> bill: is your head spinning? >> dana: a little bit. harris falkler will take you through the next hour. she is next with "the faulkner focus." >> harris: thank you. a proverb ottal moment i