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 in

history unfolding right now. judge juan merchan has finished giving the jury instructions. when that happens, former president trump's fate in his new york criminal trial will be in the hands of the jury. 22 days from opening statements, 22 witnesses took the stand and a marathon length closing argument yesterday particularly from the prosecution. both the defense and the prosecution taking all day long to do that. we've been following it all together minute-by-minute. reminder on the right-hand side of your screen is the box that gives you some color from the courtroom and play-by-play. we also will wait together to see what the jury decides on the 34 felony counts brought against the former president and current presumptive republican presidential nominee. history making indeed. i'm harris faulkner. closing arguments didn't wrap up until almost 8:00.

i was on the air as that was happening at 7:55 last night. in total, the jury was listening to nearly eight hours of summation. three hours from the defense, five from the prosecution. the defense team's final pitch painted the prosecution's star witness, former trump attorney and so-called fixer michael cohen as the greatest liar of all time, the gloat. the prosecution then launched into their extensive rebuttal. they said the former president was involved every step of the way and payments to sex film worker stormy daniels were meant to effect the outcome of the 2016 election. former assistant u.s. attorney andy mccarthy says the prosecution's five-hour argument was meant to dizzy the jury. judge merchan overruling objection after objection from trump's defense team. constitutional law attorney jonathan turley here. >> at one point, the prosecutor

actually said that michael cohen committed election -- federal election violations upon the orders of donald trump. now, merchan has given an instruction that the jury is not supposed to attribute cohen's plea deal as an issue of guilt towards trump. so the defense objected and merchan just overruled it and you a allowed the prosecutor to say federal election violations by trump are a fact and there is not any dispute to that. merchan just sat there. he was as useful as a plant in that courtroom. >> harris: eric shawn kicks us off every day outside the courthouse and starts it for us. eric. >> hello, harris, they promised to be fair and soon they will do

their duty. the trump jury about to get this case. let's take a live look inside the hallway. courtroom doors are on the right and inside in that courtroom judge juan merchan will start jury deliberations and giving the jurors their instructions. he has been spelling out the charges trump faces and explaining legal guidelines jurors use to reach the verdict. the burden of proof is on the prosecutors and that they should draw no inference from the fact that the defendant, former president donald trump, did not testify in his own behalf. he said set aside any personal opinions or bias against trump and focus only on the evidence. he said quote, you are the judges of the facts and you are responsible for deciding whether the defendant is guilty or not guilty. he explained reasonable doubt telling them it is an actual doubt, not an imaginary doubt. it is a doubt that a reasonable person acting in a matter of

this importance would likely to entertain. when it comes to the star witness, the infamous michael cohen the judge explained the jury can disregard everything he said if they find that he testified falsely in one thing. the judge also characterized cohen as an accomplice because there is evidence that cohen participated in a crime as part of the case's allegations. even if you find michael cohen to be believable, he said you may not convict the defendant solely upon that testimony unless you also find it was corroborated by other evidence. the judge has also been going through the 34 counts explaining intent. under the law if the jury finds trump caused the checks he signed for cohen, the invoices and ledgers to be falsified to commit another crime, violating new york state law, that would fit violating the law. new york state election law 17-152 makes it a crime if someone promotes or prevents the

election of any person to a public office. presumably that's the charge dealing with the former president that his alleged scheme to pay off stormy daniels was in order to promote his presidential campaign in 2016. the judge now going through the rest of the charges until the jury gets the case. finally, harris, the president has basically every morning come in an spoken to us. he did not this morning. on truth social he post evidence that the jury yesterday heard the prosecution give five hours of bull. we may know soon or in a few days or even longer if the jury agrees or disregards that. back to you. >> harris: eric shawn. you kicked us off. andy mccarthy, joining me now. all right, look, we can't all be

attorneys and thank goodness you are here and our legal experts today. i have to tell you, to be on that jury you almost have to be one. so what does that mean for the two attorneys on that jury? does somebody take a lead, do you think? >> it really depends what kind of lawyer they are, harris. what i've told people throughout is if this was a real estate case, i have always thought i was a pretty good litigator but i would have as at sea than anybody else. it depends on what expertise they have and importantly, what kind of personalities they are. if they are leader personalities and they have a legal background, they could be profoundly influential in the jury room. that's always very frustrating for the lawyers who litigate the case. if a lawyer in the courtroom makes an argument you disagree with you can try to push back against that. if it happens in the deliberation room there is nothing anyone can do.

>> harris: let me ask you about the three choices. one thing in particular that the judge said the jurors could do. he delivered what is being called really the pinnacle of all of this. there is no need to agree on what has occurred. they can disagree on what the crime was among the three choices. this means they could split four, four, four and the judge would still treat them unanimously. what does that mean? >> well, it is really outrageous. in a normal criminal case every statutory crime has what we call elements of the offense. like in a bank robbery case you have to rob -- it has to be a financial institution, you have to show intent. those are the things the jury has to agree on unanimously that they were proved beyond a reasonable doubt. here what we're doing is taking the element that actually makes

this a felony, because remember falsification of records is normally a misdemeanor in new york. what makes it a felony is that you are concealing or committing another crime. and here the judge is telling them they don't have to agree about what the other crime is under circumstances where that not only is what makes this a felony, makes it a four-year potential prison personality rather than a year or less, but it is also what gets us into the courtroom. if this had been a misdemeanor, the time to bring this case would have lapsed in 2019. the only reason they are still able to bring this case is because it's a felony allegedly and yet now the judge is saying you know, you don't have to agree on what the felony is. >> harris: so where they are right now, does it matter how long this takes? it is my understanding they won't have any of this material in front of them. basically this is a memory

exercise and having somebody to break that down in that jury room when they go to deliberate will be critical. i would imagine, as you say, it depends on what these attorneys are. so one is a civil litigator at a large firm, and the other is a corporate lawyer at a firm focused on start-ups and venture capital. i looked that up while you were talking. i would imagine the onus would be on these experts to at least give some sort of explanation to these complicated from what i'm understanding earlier from you, pretty basic instructions in terms of the law. >> i would think, harris, all things being equal, the civil litigator would probably have some expertise. in litigation this is the way we're trained to think. everybody doesn't look at this the same way lawyers do. we look at statutes whether they are civil or criminal as like

multiple part components that have elements that need to be proved if you are going to establish a claim. that's just sort of the mindset you have. so if you have somebody who thinks of it that way, that could in theory, if the person is being helpful and following the oath, that could help the jury organize how they think about this. but i do think it is an important component here that unlike most of the cases i had in federal court, in this court judge merchan is not letting the jury have the instructions, which means if they get hung up on something and have a question, if they want some point of evidence or law clarified, they have to send the judge a note and then they have to come into the courtroom and we'll get to see what it is they are confused about. so we will actually have a window into their deliberations we might not otherwise have. >> harris: i was still upstairs in my office when you heard you say that. i thought how many times do you do something and you need

further explanation and take a little note? this is a lot in the hands of people who, you know, are tasked with doing the right thing based on the facts before them. andy, i want to ask you to sit by and bring in two more people into the conversation now, paul mauro, attorney, retired nypd inspector and fox news contributor. rebecca rosewoodland. both attorneys. paul, i will stand with you and the choices the jurors have. >> we have a new york state tax crime, a new york state election interference crime, conspiracy charge. that matters. the third one is the federal charge apparently that will be one of those three can be used to bump this misdemeanor, the 34 counts of falsifying business records to a felony. the federal charge, bragg has no jurisdiction over it. the case law in new york supports that.

so i'm surprised they are going with that. even if you go through the legislative intent of that statute you will see it didn't contemplate using a federal election law, a federal law to support that new york state statute. i would argue while that seems to have been the one pointing at during a lot of the trial that would be the weakest of them. the other charge, the state charge is the conspiracy to essentially defraud an election. prevent an election is how the term goes. i would argue it doesn't go to the legislative intent of the statute. what alleged to have happened here doesn't come under that statute. a conspiracy charge. you need two people. in that's what bragg would go with, why didn't he just go with it? the tax charge we're hearing late breaking news with the tax charge they will say even if he paid the taxes if he did it with fraudulent intent is enough. that is a state charge under bragg's jurisdiction.

he could have charged it. the larger issue that andy was talking about, constitutionally this is bogus. here we are, the case is done. donald trump's side has had their say. only now are they finally finding out the specifics of what it is he is actually being charged with. >> harris: rebecca, i want to read what you are talking about. the third their theory is a violation of taxes. even if it does not result in underpaying of taxes. rebecca, your take on that and what kind of -- what does this do in the mix either for the prosecution or for the defense? >> honestly, where was the evidence that the prosecution showed the jury during the trial? where was the evidence to these elements that are now being read back to the jury and the jury instructions? they weren't there. there is not enough evidence to

support the prosecution's claim beyond a reasonable doubt in this case at all i want to discuss something. you say the jury has a lot to take in. this is a tremendous amount of jury instructions. most aren't lawyers. two are. i notice from a lot of people within the courtroom the journalists stating the jurors are taking notes. what can happen is there is confusion amongst attorneys as to what was going on the entire time of these 22 days. what was the prosecution trying to prove, harris? and now lay people and two attorneys are there in a room with notes they took trying to decipher this. there is nothing to decipher. it was all nonsense. six hours from the prosecution. i agree with andy mccarthy, it was dizzying. it was ayman -- exhaust the

people going into 8:00 at night. it exhausts people and you hope they get a bit confused. jurors are great people but not lawyers. >> harris: you don't have to be exhausted to be confused by these instructions. >> right. >> harris: the way the judge was reading this, kerri urbahn it was saying it was so slow going. shannon bream on her email. we get a constant stream from our team said it should be a sleep aid on youtube. it is pretty difficult to remember all of those things anyway and then you have these three legal options. andy, come back to you before you have to go back in the courthouse now. we're so grateful for your time and rejoin us later this hour. of those three, there is no way to read the mind of the jurors, what makes the most sense if you break it down and saying this is

where we'll go? if you split the jury up in pieces as we were talking about before and four go for one, four go for the other and four go for the other you don't have to unanimously agree on one. the judge will take that. >> that's the outageous thing, harris, that they don't have to agree. in every criminal case the jury has to agree on the essential elements of the offense. that's why a conviction is appropriate. the thought that in the first ever trial of a former american president who happens to be the de facto nominee of a major party in the upcoming election. they are making up the rules of criminal procedure as they go along. i think the state, as paul laid out, the state election crime, my belief about that has always been that collapses into the federal crime because what they have to show is that two or more people conspired to influence an

election by unlawful means. the unlawful means as the state pitched it to the jury is the federal election crime. it is circular. they collapse into each other. the important thing to think about with respect to that crime is it's a misdemeanor. that conspiracy offense. what bragg is saying is i can take misdemeanor business records falsification, say it was done to conceal a misdemeanor election crime and i come up with a four-year felony that instead of the thing being time barred in 2019, i can continue to try even today. >> harris: amazing. andy, we'll let you go. you have to get back. we'll talk with you a little bit later in the hour. paul, let's pick it up there and talk about the evidence that was put on or not to show a conspiracy. >> so realistically to make one point. since the jurors will be back there without any jury instructions, it shows the

importance -- it is a simple thing -- of that gloat, greatest liar of all time. you want certain things to stick in the minds of the jurors. that's one of those things that will stay with them as they all get lost in the sauce. remember something, every crime you have to have a culpable mental state and the action. the mental state here is the intent. these crimes that they are alleging donald trump committed need an intent prong in order to go forward. that intent prong under all the evidence we saw goes through one person, michael cohen. and that is my opinion the real weakness of the case here. talk about who made the entries, you could say he caused the entries to be made. the intent to do this stuff fraudulently only comes from cohen. >> harris: is the premise here for the prosecution. there were other voices in the room on some of the -- in some of their so-called evidence that

they -- i don't even know if it counts if you are attorneys really stuck it to you and surreptitiously recorded you. that would be michael cohen, that would be the former president and would that be the former ceo of american media/"national enquirer" david pecker or allen weisselberg doing time at ryker's. where was the conspiracy happening and with whom and what do they have to prove? >> ostensibly michael cohen. >> we know so much more about who would have a motive to lie in this instance and every other instance. he lied to his wife and kids and you read the articles. that's the other person in all of this. >> make it even worse michael cohen from my count committed at least three lies in the courtroom.

the theory here from the prosecution is we know he is a liar. they own that up front. the idea is but he is not lying to you now. that's the basic when you have a dirty witness. what they didn't clean up are three things. the phone call. he says 90 second phone call when he had the conversation with trump. turns out that he had a 90 second phone call with the bodyguard about a crank call he got. two, when he recorded donald trump. he tried to clean that up by saying he was doing it on trump's behalf. then the third one is what has gotten the left attention. he never told the prosecution, his own lawyers, that he had stolen 30 grand from donald trump. that came out on cross examination and that must have been a bombshell in the room. i'm sure if the jurors were watching the prosecutors they must have seen their faces donald trump. only trump's lawyers able to elicit that. they didn't clean that

up-to-date front. they cleaned up all his other stuff. i don't think they knew. when he dropped that he lied to his own lawyers. >> harris: let's talk about the fiduciary responsibility of the prosecution to know that the witness stole from the trump organization. regardless of what he should have told him did they do what they could for discovery on their own witness? >> harris, i think on their own witness they tried to ask as few questions as possible, okay? because he is a gloat. the greatest liar of all time. he lies indiscriminately to everyone. his family, to the banks, he lies to congress. he doesn't care who he lies to. he is looking out for one person, himself and looking ought to make money. how does he make money? by putting trump in jail by trying to put trump in jail. he has no concept of telling the truth and doesn't think there is anything wrong with lying. when you have someone like this.

i agree with paul. the elements of conspiracy lies with michael cohen. without his testimony or if the jury disbelieves michael cohen's testimony, there is no element of intent. he is the only one who testified that the former president allegedly intended for all of this nonsense that michael cohen claims. it is nonsense because the president didn't do any of this. it was a normal business entry as a legal expense. there was no intent to defraud, intent to alter the election. it wasn't there. if the jury believes someone like michael cohen, who is a regular liar, he is a multiple offender, he is a felony offender, please, it would be almost ridiculous for a regular new york jury to not acquit immediately. this should walk in the room and walk out with an acquittal. the problem is this has become a politicized case.

it is a case that is not about the underlying crime. it is a case about restricting your opponent, biden's opponent from campaigning. and when you do that and when you select jurors and you -- and robert de niro goes down they believe that i'm making a decision on the next president of the united states. no you're not. this is a decision based in a crime that the prosecution alleges occurs that they did not make out beyond the reasonable doubt the elements of that crime. >> harris: one more with you. are there any thoughts you have on why the feds did not go after this case? it has been around for six years and we have all talked about the statute of limitations running out on the charges that were misdemeanor and now are felonies or at least we have the election interference part of it that is.

so, you know, what does that path matter for today? we understand alvin bragg is politically thirsty and parched in the desert. i get that. but then how does it go forth like this? how does the judge not see that? does all of that matter? what world are we living in when the feds pass, when former d.a.s in the same office in new york city pass but alvin bragg no, no, no, politically it will make it happen. >> i agree with you. alvin bragg is desperate to move up in his party. desperate for attention. he is desperate to have what he calls a conviction. he ran on the premise of putting trump behind bars. so he is not looking at did any of this meet the elements of the crime. he is looking at how can i get attention to move forward? how can i stop the president from -- the former president

from going out and campaigning? this is how he is doing it. >> harris: forgive me, i usually don't step in but i need to. jury instructions have concluded. parties are at a side bar with the judge. >> looks like they'll go to deliberations today. we won't hear what is going on in the side bar and nuances of things that they thought they had -- the jury instructions were, i'm sure, well battled over in this case. everybody knew how important they were going to be. as we talked about on the show before, the judge is kind of the leader of the jury in the room. he is kind of their big daddy and look to him for guidance, etc. the jury instructions here are vital. the case is so confusing. they will look to him to say what are we going to think here? both sides know that. they must have fought a battle and that's probably what's going on. >> harris: tell me if this helps to eliminate anything.

this is what some of what got talked about. if question on law if you have that send a note asking to review. the first juror selected is foreperson. does not need to write a note or even agree. the foreperson will read the verdict for each of the charged counts. jurors will then be polled and jurors given verdict sheet. additional language. they may not leave the jury room during deliberations. lunch will be provided. given cell phone -- have to give their cell phones. written without articles or prepositions because they are typing fast and filling in all this stuff next to the verbs. give the cell phone for each person to the court officer. you can only deliberate when all are gathered together in the jury room. there is no letting peter, bob go to the bathroom, and then you

work it out. can't do that. plan today is to work until 16:30. 4:30. grew up military. judge is not permitted to have a conversation on facts of the case. any note don't say anything about -- no juror can say the vote of any count. is that basic? >> all this is basic. the jury sheet will be complex in this case. generally the jury sheet is simple with the charges. in this case it sounds like it is not only going to have the three charges that bump it to the felony but also have the vouchers as i said and the checks that go to the charges. this is a comparatively unusual aspect of it. it will be a little more. these are not instructions now. the sheet that they check off as they vote. it will be a little more complicated than normal. nothing all that out of the ordinary. >> harris: what stood out to me,

rebecca, was these people had seven or eight days just this past week to go back to work, to go home, on their cell phones and doing the things they've been told by the judge don't watch tv and expose yourself to media. this is the portal for all things. everybody has a cell phone. it feels like they are more sequestered now than they have ever been. >> yes, it is normal, as i agree with paul when a jury goes back to deliberate those are the normal instructions. >> harris: they should have been sequestered all along. >> we discussed this last week. i believe there was a very big mistake by the judge allowing them to take such a long memorial day weekend home with their families and having access to communication and go out and get on their phone and have to get on their phone to connect to the world. you are telling me as they are scrolling through the phone they don't see any information about

the trump trial that they are sitting and going to decide in five or six days? of course they did. this whole case was taken completely out of the norm. judge merchan was completely biased towards the prosecution and he really allowed things to happen in this trial that you would not normally see. i try cases every day in new york. i'm in that courthouse. we do not see things like this. a gag order only on the defense but no prosecution witness? michael cohen could talk as much as he wanted. the former president couldn't. the whole case is so severely unbalanced. so did we see jurors that may have looked at their phone? it is normal human interaction. now for five days they didn't pick up their phone or talk to anyone about the trump trial? i find that hard to believe. >> harris: let's break in with this news now. the jurors have been dismissed

and we're told they are expeditiously to begin deliberations. again i just gave you that list of notes that the judge gave them. as paul pointed out, he is here with me along with rebecca, those were not jury instructions. that's what they are handed to abide by as kind of rules of the room so you can't leave, you can't deliberate anything unless all of you are together, that sort of thing. it was a long list of to do. the housekeeping, if you will, of all of this. the breaking news is the historic moment. the jury is now deliberating for a former president of the united states. a case of that former president against new york. and they have those three choices that we've been talking about, among them a federal law, paul, you beautifully laid this out on election interference. something this current manhattan district attorney doesn't have jurisdiction over.

did they lay out the case that this jury believes donald trump, the former president of the united states, is guilty of something that he should be found and punished criminally for? go to prison, what would the sentencing look like? all of that has to weigh heavy. the facts better be strong. were they strong enough against donald trump? i'm not finding that even liberal media thinks that they were. even they are worried about this case. i will ask my team if we have a little bit to play. they will let me know. but all of this coming to a head on a day in which it seemed as those decisions by this judge were unfair. it seemed as though even right down to the closing arguments and the time each side was given was not adjudicated equally. that the judge wouldn't really let the defense make its

objections successfully and they were staccato at times with it. it didn't matter. they got blocked. the closing arguments went first for the defense in the state of new york. which means they won't get the last word to defend their client. the prosecution gets the last word. now their last word lasted five hours. that's a lot of words. that's the entire vocabulary of everybody. were they too many? was it too much? let's continue the conversation with my guess, paul. >> as a number of your guests articulated the five hour summation was to exhaust the jury, 34 counts. when you see that sort of indictment. i said this on the air when it came down. that's the kind of thing you start to say it's quantity over quality. there was another thing going on if i can be so bold. i think the prosecution was counting to a large extent for

judge merchan to put a fine point on all those five hours. they say you know what, we have the whole day. let's burn the entire day until 8:00. the deadline last night. they threw everything at the wall and merchan will come in and frame this for us because he has been so prosecution friendly. he is going to narrow this down to what they need to focus on and then he will send them away thinking. but at the end of the day the real paradigm of this entire case, it goes to the five-hour question. it's this. donald trump laid down with dogs and he got some fleas and he tried to cover up those fleas. that's the whole prosecution theory here. it explains michael cohen. what it really comes down to is a, did he even do it, it doesn't seem to be the intent. but b, even if he did, it is not a crime. there hasn't been an actual crime articulated here. the nda influencing an election, that's what candidates do. i have to tell you, if this

thing doesn't get thrown out on appeal outside of donald trump it's a hit to the system. if this survives appeal the effect it will have on future candidates will be profound and unpredictable. something we need to know. a case even bigger than donald trump. >> harris: rebecca, when you look at this and we get the news now that the jurors have begun deliberating, what are we looking at in terms of timing? i want to be careful about reading the tea leaves. i realize every case is different. we catch ourselves in this instance usually in criminal cases that involve violence, well, you know, did the alleged killer -- he didn't testify, she did testify, make an impression on this jury. if they come back with a quick whatever it wasn't a good impression. how does it work in something like this? we're still learning about what the actual crimes they allege

were. >> we are still learning. we just learned what the crimes the prosecution is relying on. it is very hard to tell when a jury goes in a room. some juries get together and take a very long time to go over each element. some juries already have their decisions made. they are less likely to be that concerned with the elements because the crime is maybe very clean cut. in this case, i would hope that there will be people who are rational and say no matter what my political affiliation is, just because new york is so heavily democratic in nature. no matter that i'm a democrat, i don't think it is right to use the jury system, to use this system, to effect a political opponent. i'm hoping that people, when they get in the room, they will be new yorkers who are very, very bright. new yorkers even if they aren't lawyers doesn't mean they don't understand thing. new york juries are very astute.

i see them every day. he hope they can see through the prosecution's bait and switch of all this nonsense work and words that didn't have any basis. there is no substance to the claim. i am hoping when they are in that room they all go through it and say well, even if we're democrats, even if we vote democrat, we aren't voting for a president today. we are voting for the justice system. we are voting for democracy and we have to be fair and this has to be a not guilty verdict. >> harris: i want to revisit a point in the jury instruction. i'm reminding everybody off to the left side of your screen, the new york state supreme court in new york city. the jury has left now for deliberations. so it is my understanding there may not be any more breaks for the day or any breaks for the day up until the point where they would leave the court. they have done that now. we may actually see a break and we'll keep that live shot up.

that's usually where we'll see the former president and his team come out from right to left of your screen. and then, of course, the shorthand for everything is always the right box on your screen. jury currently deliberating is all we have to say until we understand that they come out with a question and a note, whatever that is. all right. before we go to eric shawn i want to get to this point i was setting up. merchan instructed the jury of knowledge of a conspiracy does not make the defendant a co-conspirators. being present with others when they form one doesn't mean the defendant is part of the conspiracy. >> the co-conspirator is michael cohen. you can have two people in form a conspiracy and only one gets charged. in that case the n the juror's mind what the prosecution is trying to say you have two co-conspirators, donald trump

and you have michael cohen. don't impart any significance to the fact that only one of them is arrested and in front of you. generally what happens is you do arrest both. so the prosecution that's why the prosecution did all that stuff about how michael cohen has been arrested in the past for campaign finance violations and that the defense lost their minds. they shouldn't go in.them. the basic paradigm is you can e is necessarily arrested. that's merchan doing a little cleanup work. they have to form intent. he allowed them to show that intent. in a back handed way the two co-conspirators, jury, here they are. >> harris: i'm basic and not from new york and not as smart as the people you know but i'm from jersey. i live there anyway. what paul just described about the judge doing a little cleanup, he has got to be thinking i have to hang onto my

legacy now. if they do go for a conviction here the appeal from everything we've talked about for weeks, for 22 days up until day, has been about how this is going to be overturned on appeal because of all of these reversible errors that have happened. then you have got just an argument for statute of limitation if you throw the federal cause out, then you don't have the felony. so i just want to get your quick thought on that and we'll go jolt side to eric shawn. >> you are bright and new jersey is next to new york. we all think alike here, right? is this reversible error, absolutely. have they shown it throughout the course of the trial? yes. the defense has regularly objected and in new york you have to object to preserve your right to appeal. that is why there have been so many objections. i know people said well, the defense shouldn't be objecting. they have to. you have to preserve your right

to orally objective reing to what you feel is error. the defense has protected and preserved their record for appeal. will this appeal be fruitful if there is a guilty verdict at the court of appeals level? we go to the intermediate level. appellate division, then the court of appeals. i can't be sure because i would never have thought a judge would go this far in a bias to help another political party and he has. this judge has from the beginning committed reversible error by not recusing himself from this case, which arguably is reversible error but one of many points made on appeal. as i've said before we'll go to the court of the appeals at the end. >> harris: the former president of the united states is about to speak. let's watch.

>> thank you very much. i would say in listening to the charges from the judge, who as you know is very conflicted, and corrupt, because of the confliction, very corrupt. these charges are rigged. the whole thing is rigged. the whole country is a mess between the borders and fake elections and you have a trial like this where the judge is so conflicted he can't breathe. he has to do his job. and it is not from me i can tell i. it is a disgrace. mother teresa could not beat this judge. we'll see how we do. it is a very disgraceful situation. every single legal scholar and expert said this is no case. it shouldn't be brought. it certainly could have been brought seven years ago, not in the middle of a presidential election.

it was all done by joe biden. this judge contributed to joe biden. far worse than that. by a thousand times worse than that. the worst i've ever heard but i can't talk about it. it will be talked about but i can't talk about it. it will be talked about in the history books, what is happening here is weaponization at a level that nobody has seen before ever. and it shouldn't be allowed to happen. i will stay around here. five weeks. and five weeks of really essentially not campaigning, although a took a big lead in the polls over the last few weeks. something is going on. because i think the people of this country see this is a rigged deal. it is a weaponized deal for the democrats to hit their political opponent, for joe biden the worst president in the history of the united states. he is destroying our country. he is letting millions of people from jails, from prisons, from insane asylum, from mental

institutions, drug dealers, pour in. venezuela, if you look at their crime statistics, they've gone down 72% in crime because they are releasing all their criminals into our country because of this horrible president that we have. and then they have a protest of robert de niro yesterday. a brokendown fool standing out there. he got maga-ed yesterday. a big dose of it. it is a very unfair trial. it should have never happened. if it was going to happen it should have happened seven years ago. bragg didn't want to bring it. the southern district didn't bring it. the fec didn't bring it. this judge didn't let us use the number one election attorney. he is making the rules. he doesn't know anything about elections, doesn't know anything about voting and vote casts. that is not his profession.

we had the leading election expert in the country, brad smith, ready to testify. he wouldn't let him do it. he wouldn't let another gentleman who represented -- you know very well he saw, the worst i think i've seen the way he was treated on the stand, bob costello. wouldn't let him talk about the hundreds of emails he was sent from another gentleman that was sent. i can't give you the answer to your questions because i'm gagged by the judge. we have a very serious problem here. our country is going bad. remember, let me leave you with this. this is all because of joe biden and -- i don't think he is smart enough to think about it. the people that surround him in the office. they are smart, they are communist and smart and ruining our country. we will win this election. november 5th will be the most important day in the history of

our country. we'll take back our country from these fascists and thugs destroying us with inflation and with everything they do, how stupid they are. allowing 15, 16, 17 million people into our country, totally unvetted and totally unchecked. we'll bring back our nation november 5th. the most important day in the history of our country. in the meantime this trial is rigged. thank you. [shouted questions] >> harris: all right. as we often will do when the former president speaks and sometimes even the current one when people are shouting questions we'll pause for a second to see if trump might turn around and take one of those questions. he has previously. andy mccarthy, former assistant u.s. attorney and fox news

contributor rejoining us outside the courthouse. the former president there saying that five weeks of really not campaigning, although i took a big lead in the polls. he had a lot to say today mentioning that gag order against him and not against anybody else in this case even though some of them are making money, michael cohen, with merchandise with the president's face and lying and going on other networks. he would allow that to happen even though they knew he was lying. all the things this president brought up again and again the gag order. if he wanted to speak about this case, andy, this would be it. >> yeah, of course it is. the unfairness of this, harris, is not just in the four corners of the case. it a peculiar that trump can't speak about various witnesses but other witnesses in the case are not gagged. but the other thing -- and this is what i think is the arrogance of the way the courts have approached their task with these

four indictments against the former president, who is running for election in november. there are things in life and things in america that are more important than the administration of justice in a single case. one of them is the right of the american people to have robust debate in connection with an election for the most important office not just in the country, but in the world. and we have a situation where president trump is the only person who is gagged. so joe biden can say whatever he wants about the president's travails. another opponents of former president trump can say whatever they wants. he can't say anything. that has consequences not just for the administration of justice in this trial, but for how we run our campaigns. >> harris: it is not just that he can't talk. and he said, you know, i took a big lead in the poll. he has done quite well not

talking about this case. he doesn't have to. everybody else is to the -- he sent out robert de niro. he goes outside the courthouse and begins to battle for president biden and trying to soak up some of that limelight. andy, it is amazing when you look at how politically tinged this entire process is and we're still sitting here now waiting for a jury to deliberate. >> here is the amazing thing, harris, this is the trial because it's the state trial that biden would have been able to say that oh, all this stuff trump is saying about how i'm in control of everything, you know, that's a state thing. i don't have anything to do with it. he sends his surrogates here, which basically puts his mark on it. but the other thing i want people to understand is that if any -- in any other context in the united states, if a local

state prosecutor were trying to enforce federal law, the justice department would be papering the state courts and the local federal court with all kinds of motions to try to prevent that from happening. the biden justice department is perfectly content to have alvin bragg enforcing federal law as long as it is against president trump. but he is not enforcing it in a way that is consistent with what the federal election commission and justice department would normally do. and i don't think the justice department would countenance this in any situation other than a prosecution of trump. >> harris: andy mccarthy, great to get you in focus. the breaking news right now the jury is deliberating and this is an historic time. the beginning of the movement now of whether or not they will find former president donald trump historic because he is on trial in a criminal case, a former president of the united states. will they find him guilty or not

guilty? that's where we are now. paul mauro, real quickly, this situation with the judge is interesting. i don't know if you caught this. judge merchan is assigned to be the judge in steve bannon's criminal fraud trial. it has been delayed. "newsweek" has an article and read about it. we'll see more of him coming down the pike. you have some information about this judge we need to know about. >> i have been emailing the chief administrative judge's office to find out how it occurred that merchan caught both the weisselberg case, this case and the bannon case. the answer i'm getting back is that he, judge merchan, oversaw the special grand jury under which all this stuff was brought out and as a result they said okay, he is familiar with the special grand jury and familiar with the case, let him handle both. what i have not got app an answer to is a what is the

general procedure, b, how did he get the special grand jury then? was he in line to get that? how does somebody get chosen for that because he has so many conflicts. in addition to the daughter, remember something else, his wife worked for the a.g. who brought a case against trump who was in that office at the same time, colangelo the guy leading the charge that came from d.o.j. for bragg's office. you have a very almost this situation going on along the players. how did merchan get the case. how did it happen so quickly? remember something, the point of the criminal justice reforms you can't have people sitting if ryker's awaiting their day in court. somehow or other donald trump's case leapfrogged those. as andy says suddenly everybody on the progressive left don't care about the rule of law they were concerned about. trump's case right to trial before the election.

a lot of people are sitting if ryker's waiting for their day as a result. >> harris: how did he get the post? >> the fact he is getting all three. what i have advocated for is congressman jim jordan has sent letters to all the above. not sent a letter yet. stefanik is asking the questions. jordan has an investigation. get some people in and find out what's going on. >> harris: you are on it making calls and doing all the things while sitting next to me. i appreciate your hard work and expertise. we want to thank rebecca for this hour as well. she is with us and so is gianno caldwell. >> i fully agree with the president. we see experts saying there is no case here. it shouldn't have been brought and what i realize is this is

what the democrats had in mind as their solution to stop trump. i think everyone gets that. we saw with the political article said just recently and we saw the manifestation of that panic through robert de niro yesterday saying trump wants to take over the world and destroy it. what has he been watching the cartoon pinky and the brain? this is insane, unhinged stuff we're seeing now and recognize the fact that democrats are in the panic because trump is a direct threat to their power structure. when you get black voters now coming to the table saying they are open to hear what trump says and want to vote for him. you get hispanic voters saying this as well and young people, that's the coalition of the democratic party and how they stay in power. if you threaten that there is no democratic party that has power. so they will try everything in their bag to stop donald trump from being president even

something unethical like we've been seeing in the court over the course of these weeks. >> harris: i have to ask, what happens with this whole situation with donald trump that he goes up in the polls? he talked about it, five weeks i'm not campaigning, although a took a big lead in the polls. what happens when joe biden sends out his presidential re-election surrogates right outside the courthouse? i think it draws more attention to what is going on inside with donald trump. we should send them a fruit basket for getting so many democrats to watch. i notice the other set works didn't sit much on de niro. >> that's right. that's something they plan on continuing. what they want here is a guilty verdict of donald trump so they can run it and campaign that all across the country. they know there are some voters who say maybe i won't vote for donald trump. the truth of the matter is we'll hear from the jury and what what happened in that room today and we're going to hear what people

said. a lot of them are very smart people on this jury. two attorneys. they can say look, it was political. that's what it looked like to us. hopefully donald trump gets the right justice and this is certainly not him being convicted. injustice anywhere is a threat to justice everywhere. i hope that it comes out the way it should and that should be not guilty based on what we've seen. >> harris: gianno caldwell joining me to talk a little politics as donald trump walked out and spoke as the case has gone to the jury for deliberation. let's bring in shannon bream. she is legal correspondent and "fox news sunday" and in court overflow room today for the judge's instruction. we don't have you for long. shannon. >> yes. listen, we -- it was methodical and plodding. the judge spoke with a soft tone and gave that instruction near

the top i don't have an opinion on this case. anything i've said and any inference you've drawn from that is incorrect. don't act as if i'm advocating for the parties here. we got to the underlying crime. the whole thing that takes this from 34 misdemeanor outdate i had and past the statute of limitations to a felony. 34 felonies. so we heard they will give the jury options, three different options, one of them is a violation of federal election law. the defense wanted to call a federal election law expert and it was not allowed and with really strict contours that would have limited just about anything except for reading things. or falsification or tax law violation that we didn't hear much did during the case itself. you don't have to be unanimous on those three options.

the jury is getting a lot of leeway. the judge says i will stand by an wait to see if i get a note from you guys and we'll go from there. >> harris: from what we've known about covering cases and every one is individual. there are three possible scenarios, these three groups of charges if you will. and if there are four in agreement on one set, four jurors in agreement on the second set and four jurors in agreement on the third the judge will take that as unanimous cause it's 12. harder to get four people to agree on each charge than it is to get 12 to agree on one set of them? i'm just really curious about that because hung jury more in play than ever? >> i think he doesn't need them to come to that kind of grouping. he says you guys have to find some kind of underlying decision, underlying crime there and you can choose how you want

to choose it. it doesn't have to be unanimous. if you agree on the first part that president trump took part in falsifying business documents. you have to get to the second thing in order to cover up another crime i don't need you to agree on what the crime was. these are the three theories. you go for it. it doesn't have to be unanimous. >> harris: thank you. you say so much and we appreciate you. trey gowdy, former federal prosecutor and host of sunday night in america here on fox. trey, this is a historic moment. set it up for us with the former president now while they deliberate, the jury and what we should expect. >> it's pretty surreal to see a former president on trial perhaps for his freedom if he were to be convicted of 34 felony counts. certainly an option. a standard jury instruction. one i have heard 100 times. what struck me as being really

interesting is most lawyers couldn't tell you what the judge just said and yet he is not sending the jury instructions back with the jury. he is inviting them to send me questions if you have questions about what i just told you. it was an hour's worth of really arcane legal concepts and he is not sending the written instructions back. the other thing to shannon's point, when does something become a crime? where i come from it becomes a crime when a jury says it's a crime or when you admit it is a crime. so does the jury have to find that each element of one of these so-called additional crimes has been proven beyond a reason doubt and can you pick a crime that the prosecution hasn't even argued? could it be a crime in north dakota? >> harris: that's a lot. we do have two attorneys on that jury and youre