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thank you for letting us into your homes during these extraordinary times. we're grateful to be with ari melber. he starts right now. >> we'll be busy for a while here. thank you, nicolle. >> we'll see you. >> thanks to nicolle wallace. welcome to "the beat." the prosecution of donald trump is making progress today. i have things to tell you right now that we couldn't have told you last night. it's clear in the first ever criminal trial of an ex president, we talk about the mood. this defendant doesn't want to be there. that was clear from the start. the first day focussed on how they hadn't found jurors and projections that picking a jury

could take two weeks. there were clashes over scheduling, evidence and the gag order. they did do vetting of jurors, but not a single juror was picked yesterday. zero jurors selected. it looked like some kind of long haul. we're also hearing today for the first time from perspective jurors who didn't make the cut, which is super interesting, because it's the only people we've heard from yet inside the courtroom with the judge and the prosecutors and the defendant himself. i'll show you that in a moment. first, a break through where the court has selected and sworn in jurors today. zero yesterday. today not one, two, three, but seven jurors have been selected. one added at the end of the day. seven total which makes yesterday look sleepy. only seven jurors constitute about a third of the total

jurors needed. the jury is composed of 12 total and 6 alternates. it's a lot of progress for the first full day of jury selection. if you want to get into the weeds, yesterday they did that, but also other things. today was mostly jury selection and they got a lot done. here's what we know. three women, four men, professions include salesman, nurse, attorney, two attorneys, i.t. consultant, teacher and software engineer. we don't have their faces or names according to the way we're covering this. those boxes are to show you seven people, a third of the total number needed. these are new yorkers with normal sounding jobs, perhaps normal lives. they'll be a part of history. as one of the people that was called into the process and didn't make the cut today, this is a person who went through it. they were sitting in that courtroom as defendant trump did

his thing and she said to our reporters today, once you're in there in that process, you start to view him -- of course, you know he's the former president, but you view him as, quote, just another guy and his fate is in the system of these regular people. that's why it's called a jury of your peers. >> i can be fair and impartial. you get the sense that it's just another guy. not only is someone's fate in our hands here, but the fate of parts of our country's legal system going forward is in our hands because it's unprecedented. >> that's someone who went through this and was not picked on the jury. fact check, truth. the defendant's fate is in the hands of this jury being assembled. it must be impartial. this is unprecedented. virtually all the jurors know that. an impartial jury is not a norm.

it's not just a tradition that may change. it's actually a legal right. it must be afforded to defendants in any fair and legal american trial as the constitution's bill of rights states. the accused has the right to a speedy trial by an impartial jury in the district where the crime shall have been committed. the impartial jury is a crucial step, making it, creating it for the trial that is to come. it is actually the bedrock of any fair public trial. by the way, the defendant's present for the process of selecting the jury. that's one of the safeguards. today that defendant looked on, donald trump. he was pressed on social media posts yesterday. today his lawyers used new yorkers' social media posts to get two of them dismissed. that's fair. it's allowed. you can use public information to remove people from the jury.

trump, though, who is known as a physical lurker -- we have the footage here because we deal in facts. that's him bodying up unusually close to his opponent in the 2016 campaign. you can see him physically lurking unusually close. this is something he's done throughout his life and in public forums. today he was admonished for lurking, to getting too close to standing to perspective jurors. the judge said, i will not have any jurors intimidated in this courtroom. i want to make that crystal clear. that's the pace on a very busy, productive second day of donald trump's criminal trial. we're seeing from some of the initial steps, arguments and rulings on evidence how the d.a.

wants to bust and convict trump. that's the job. they've said here's the evidence. d.a. bragg stressed trump broke campaign laws. his whole motive was hiding the damning material, not in general, but specifically two weeks out from the election. >> less than two weeks before the presidential election michael cohen wired $130,000 to stormy daniels' lawyer. that payment was to hide damaging information from the voting public. the scheme violated new york election law. >> that's the key there. this new jury will be told it was more than a pay-off. it was more than i mentioned, quote, unquote, personal matters or trysts. the d.a. will argue through his team of lawyers that it was about deceiving the voting public before they voted. trump lied in those business records to cover up the hush money payments.

this is courtesy of the d.a.'s office. a lot of that is documented with very detailed receipts. if i were covering this as a journalistic story, he's legally presumed innocent. this part about the business lies, journalistically is basically proven on paper at this time. the lies on the business records are against the law and it's not okay. but under new york law that alone, that type of business lie, is not actually categorized as a very serious crime. it's a misdemeanor. a misdemeanor doesn't carry prison time. at most it carries a bit of jail time and that's unusual for first-time offenders. you can think of the business records part as the misdemeanor elliot part of all this. missy elliot is a popular artist who is not all that hard core.

missy elliot was not a serious offender. she got that nickname because it was a crime for her to have that much talent. the reason there's a criminal trial is that it was more than a misdemeanor according to the district attorney. bragg alleges there was a far more assertive and elaborate case. the larger scheme to distort the election with off the books money is a second crime. that takes that misdemeanor offense and under the law would make it, if proven, a felony. it means, though, that the d.a. has to prove the lies and fraud were done with intent to commit another crime. i showed you the constitution. now i'm showing you new york law. this is important. some people might be following this because they don't like trump or his politics and that's the real world. that's fine. outside the courtroom people can

have opinions. inside the courtroom he's presumed innocent. this is the baseline statute, these words at a high criminal standard is what the jury has to decide. was it done that way or not? as we see the evidence that bragg wants to use, we can see the outlines of the case. trump lawyers have pressed to know more. they say, okay, misdemeanor, we got that. that's the lies. what's the other crime? now, they've been asking. let me tell you how it's going down. some of this is in the weeds. now that the case is going on, i want to update you. bragg said the defendant's not entitled to know which crime or crimes the prosecution will present in advance. they'll get there when they get there. you're just a defendant. you have rights, but you don't get every little detail of this leaked out in advance. they're arguing at the d.a.'s office there's plenty of crimes

to choose from, election law, tax law, penal law and they argue separate federal campaign finance laws. you see the federal election campaign act in this filing. that's how bragg is super sizing this case. i told you before, this is something prosecutors do. they do it in rico cases, mob cases. they have say if you only did that one thing, you might claim ignorance, but we got you on more than one thing. trump has often walked right up to the line of one law. trump observers have documented that. his former friends and allies and aides talked about that how he'll defy a subpoena and he'll demand people break laws for him and then deliberate lie to the

government. to understand this trial, keep an eye on this fault line. we can have opening arguments as soon as next week the judge mentioned today, although they have to pick all the jurors. trump's lawyers might be fine conceding just things about business lies that only go to the misdemeanor or the missy misdemeanor, but they need to shut down anything that could pin down defendant trump on the second crime because then you have a felony. that's the reason michael cohen is so crucial. it's not just he has the receipts. we've heard about that. he's been on our air talking to hosts about that. it's because other evidence also shows not only that lie, but that cohen went to prison for a federal campaign crime, no doubt his indictment during the trump doj era had language matched to

what i showed you bragg, the d.a. used, quote hiding information he believed would have a substantial effect on the election. you're not looking at allegation. you're looking at a convicted federal crime. election crimes under new york or federal law could be key here. cohen spent time in prison. he confessed. he and his team say he came clean. whatever's bad about him is known and whatever's honest and good about him is the key role he'll play here. the defense will be able to use that history to question his credibility. i'm reminding you whatever you think about michael cohen or how he talks or how big he is in the story line, it's not just the receipts. he's the one who served for the campaign felony. we are barreling towards something quite important. the defendant has rights. the defendant is presumed innocent. the burden is on the prosecutor.

these jurors who are being selected, over a third selected today who are needed for this trial, they'll be instructed repeatedly. they've been vetted repeatedly, not to weigh in on what they think about donald trump, whether he should be president again, or even on this sordid tale. they'll be asked about the underlying misdemeanor and whether there's a second crime. we'll bring in two experts. andrew weissmann and a veteran of the d.a.'s office when we're back in 90 seconds.

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detect this: you could stay undetectable with fewer medicines. ask your doctor about dovato. it made the whole thing feel more real in a way because i guess when you're on any jury it's -- you have elements of that person's future in your hands. >> that is the first perspective juror we heard from publicly. she was dismissed. we have seven jurors. if they continue at this pace, the whole jury would be selected friday. i'm joined by andrew weissmann and he's done a lot of this. happy to have you here. and adam kauffman, former chief of the manhattan d.a.'s office

under cy vance. welcome to both of you. andrew, i walked through this fault line because it will matter a lot. to pick a simple example people might be surprised to hear the trump lawyers say, maybe these records weren't accurate. who cares? that's not what's going to bust him. walk us through how this could matter as we watch the opening arguments. >> sure. one thing to focus on is that the defense can essentially put out the kitchen sink defense. even if they don't concede of the misdemeanor elements, in other words, they could say he didn't know about the filings and he didn't think they were false. you heard a little bit of that from donald trump today outside the courthouse. they could say that. you're right that that goes to the misdemeanor component. then you may hear the defense say, even if you found those

pieces, you cannot find the pieces that make it a felony. in other words, there's no federal election interference. he didn't think about this in terms of a federal campaign violation. he didn't know the rules. he didn't know the law. there was no intent. same thing with the state election predicate that would make it go from a misdemeanor to the felony. then there's the state tax offense. that might be harder for him. he paid so much more back to michael cohen than michael cohen paid to stormy daniels. he knew there was a reason for that. it's an odd state tax offense because ultimately they paid more than they should have, but it's still a false filing. >> it shows an awareness it was not a retainer for legal services in 2017, which was the lie. this was paying you back off the books for 2016. >> right. this is one where you are going to hear over and over from the

prosecutors use your common sense. that's where having tried a lot of cases in new york, new york jurors are great jurors to present a case to if you're the government and have a strong case. you basically -- this is the polite way of saying it, use your common sense. they have a meter for detecting spin coming from one side or the other. i think if you have a strong case, it's generally speaking new york's a very good place to try cases. >> adam, you've tried a lot of cases in new york. are you more of a missy misdemeanor elliot fan or felony or neutral? >> i'm neutral. i'm not sure about the missy misdemeanor. i've tried a few cases in that courthouse. i agree with andrew's point about a new york juror and appealing to their common sense and keeping it simple.

the key is to try to prove the felony and they've got to put it into the context of the election campaign. there's been a lot of that in the preliminary motions about what can and cannot come in and trying to show this not as just the simple desk diary entries, but what you need to do to prove the felony. >> we covered a lot yesterday. it's pretty interesting. it speaks to the fairness the judge is trying to pursue. we reported that the judge has had to admonish the defendant because of how he rolls. i showed the lurking because that's unusual. i doubt either of you have had that many cases where some have felt so confident or arrogant to move around the courtroom that way. having said that, we were discussing yesterday the judge in fairness to trump said -- we'll put this up -- the

transcript of the access hollywood tape, along with other things is admissible to go to the fact pattern. inadmissable, the video. on "the beat" we try to be clear. here's why. he looks like a despicable, terrible, loathsome jerk to any normal citizen and it's not fair to make out that the defendant is a jerk. he's not on trial for being a jerk. he's on try for whether or not he had a campaign motivation. i say that to say -- i know on the internet they might clip that. i say that to say that he, as a defendant, should not be mistreat and they shouldn't throw anything at him to make him look bad. it's only the campaign motive. what do you think about that distinction and that the judge did that in a ruling that's in an abundance of fairness to the defendant. >> i think you're exactly right.

we don't put people on trial to prove they're a jerk. we do that to prove they've committed certain acts that are a crime. along the same lines the judge's rulings that a couple allegations of sexual inappropriate or sexual assault that were only rumors are not going to be admitted. you can look at that and see judge merchan making sure he's keeping this by the book and everything's straightforward and he's protecting the defendant's rights, which every judge should do. >> andrew, your thoughts. >> i totally agree. there are places he could have ruled for the state's position, even a tape recording. there was an argument for that coming in. he understood its relevance. there's no way that some version of it had to come in. he decided it could come in in

the most benign way possible. meaning, the prejudicial aspects won't come out. i think he was bending over backwards. if people are thinking, is this what would happen in a normal case, the answer is yes. judges want to make sure there's a fair trial. you're seeing really good lawyering on both sides. that's the way it should be. there's been comments in some of the civil cases that that's not the case. people have thought that donald trump's lawyers could have had a better selection. in this situation you're going to see what you want to see, which is a fair trial with good lawyering on all sides. >> you mentioned new york jurors. there's an old saying, you get what you pay for.

>> yes, that is true. >> lawyers can tell who the experienced members of the bar are who have an advanced retainer -- i don't mean a hush money coverup payment, but i mean a real retainer. andrew, is it a strength or weakness the d.a. is throwing out this other crimes? >> i think it's a strength as long as it looks like an overreach that you're not presenting one that's really weak. you have one going to the jury that could affect everything else. you have three different choices here, any one of which is sufficient to be a felony. where you hurt yourself is where you look like you're stretching because a good defense lawyer is going to say that. why did they do this? why are they presenting something to you that's so weak? are they stretching to see this person committed a felony?

that can backfire. >> interesting. appreciate it andrew weissmann and adam kauffman, thank you. this is the first full episode of "the beat" since the trial began. how do you know it's going badly for trump? instead of reporting what happened, fox had to make things up and lie. we have the fact check as we look at the wider implications and reaction around the nation and the world to the day donald trump didn't want to have happen. he delayed, blustered and lied, but he couldn't stop it. we have the headlines and what about the energy levels? this isn't my particular focus. the world and the comics are watching. >> imagine committing so many crimes you're bored at your own trial. n trial. with breztri, things changed for me.

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and the process. i quoted from the constitution tonight to talk about the rights afforded to the defendant. we talked about the district attorney's arguments for convicting trump. we talked about the jury process. they've picked seven. that's a lot of the law. the pressure of a criminal trial is a human matter and many have noticed that even at the early state, before the accusations and all the witnesses and all the people he knows telling on him, the first days might be getting to defendant trump. >> the wheels of justice grind slowly. i didn't think they would grind so slowly that they would rock the defendant to sleep. >> imagine committing so many crimes you get bored at your own trial. >> he appeared to be asleep. repeatedly his head fell down. >> if you call your opponent

sleepy joe, you have one job. >> it's going to take a toll on anyone, particularly someone in his late 70s. >> this was day one. this is weeks and weeks of this. >> passed him notes for several minutes before trump appeared to jolt awake and notice them. what? oh, my god, i was having the most terrible dream that i had to read something. >> dream or nightmare, it is reality. today the court's sketch artist captured this moment and the sketch artist is the person most authorized to show us what it looks like because they don't allow still or video cameras. the sketch artist is lazier focussed on the key players. what i'm showing you is this sketch artist captured this moment by observing and deciding

that an accurate sketch would show the defendant with his eyes closed. the implication he nodded off now the second day in a row. a reporter from law 360 reports, quote, trump's head slowly dropped. his eyes closed. it jerked back up ward. he adjusted himself. then his head droops again. he straightens up leaning back. his head droops for a third time. he shakes his shoulders. eyes closed still his head drops. finally he pops his eyes open. it may not be hemming way or the most important moment in this serious trial that alleges campaign crimes, but it is part of why being a defendant sucks. you're out of control and the

things you're used to are not afforded to you. if you're in this situation, a position more fatigued or an elderly person, no disrespect, being stuck in there four days a week is a crushing new reality. this is life as a criminal defendant. showing up in court in the new york system is mandatory. i'm joined by molly john fasse, an msnbc analyst. that's the pros. your thoughts? >> so trump has made his whole case against biden that he's younger and spryer. he calls joe, sleepy joe. he is only three years younger than joe biden. any time you start on that attack, it's a really sort of dubious -- what happened is he started this attack and, when he does things like fall asleep or

mix up names, it ends up blowing back on him. so, you know, i think that chris had a good point when he said, if you're going to call your opponent sleepy joe, you need to not fall asleep place. >> we'll put the sketch up again. the artist, miss rosenberg clearly made a decision this is not an editorial cartoon, it's not "the new york," it's a sketch. in new york they don't let cameras in there. according to this visual reporting he's two for two in nodding off, two days in a row. >> a lot of pool reports have used all the words to describe the act of sleeping. we don't know what's in his heart and mind. what you said was important before. this is one of the first times

donald trump is being treated like everyone else. he's a defendant. the judge says you have to come in mondays, tuesdays, thursdays and fridays. he has to come in four days a week and sit there and be like a normal defendant. even though he probably would not be thrown in jail for violating a gag order -- he's had leniency there. he's still being treated like a normal defendant. i'm sure that enrages him. there was a lot of early talk about two things that haven't yet on the maga trump side. one that this unprecedented event would knock the foundations of our precedent that people would be upset. none of that has really been happening. he's not being railroaded and being held in prison as many poor defendants are. that's one.

hasn't happened. two is the idea that this will become campaign events for him. we showed the montage of news coverage, different channels and comedy culture late night, internet memes as well. the idea that he can transpose this into great days of campaign coverage, i can't tell you -- also, to the viewers, i don't know what's going to happen. maybe there will be twists and turns. second day in a row these aren't great campaign visuals. >> i thought the idea that this was a great campaign event for him was completely crazy. i think where it came from was the idea that when he had been in the primary challenge he had won the primary on those indictments, i always thought that was wrong too. i thought he won because he was the o.g. and everyone was pretending to be lesser versions of him. if you're going to have a lesser

version, why not have the o.g.? i never subscribed to this that being a defendant would make him a better candidate. the idea of not charging someone because it might help his career is insane. >> it's not supposed to work that way. the substance is do anymore people have concerns about donald trump based on the evidence and facts of case, that's generally been negative for both candidates. it doesn't help bob menendez that the evidence shows gold bricks. that's pretty damning evidence when you're saying do you trust him to do foreign policy? doesn't help him, whatever party. number two is the optics. it's a narrower, little more -- what's the word -- silly or

vague thing, but the optics of the sleeping isn't playing well on the comedy circuit. molly, we'll keep having you back. appreciate your time. we look at both the legal and political side of all this because it's a big deal in america. still ahead we fact check the lies that fox had to use because what happened in court didn't fit their agenda. first, the whole world is watching what's happening in this new york courtroom. we have our brilliant friend michael beschloss to help us make sense of something that sadly may have become normalized but is still a big deal when we come back. when we come back.

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what you are used to is not necessarily normal. indeed the whole idea of normal can be quite confusing because what is normal over the last year, a former president running for office with four different criminal indictments, has never happened in american history. it's dominating headlines not only in our country, but i want to note around the whole world, all of it emphasizing history being made at this trial. >> historic moment inside a manhattan courtroom. >> donald trump will become the first former u.s. president to stand trial in a criminal case. >> his motorcade weaved through the streets of manhattan to arrive at this intersection of american history. >> lawyers have gathered in a

new york courtroom for the first ever criminal trial of someone to have served in oval office. >> the historic hush money trial of donald trump. >> history playing out in lower manhattan. >> this historic hush money trial. >> this is one of those moments no matter where you are in the country you're probably talking about this or heard someone talking about it. >> we showed you some people discussing whether donald trump was fully active and awake. there's an old saying, wake up to find out you're the eyes of the world. the eyes of the world are on this trial and the eyes of americans from coast to coast seeing headlines like this. it is dramatic, it's states red and blue, it's coastal and rural. "washington post" says trump hush money trial opens.

"chicago tribune" and the photos and photos. not the images donald trump wants to project. as we take in history, we want to understand it and also make sense of it with an expert. michael beschloss is the msnbc presidential historian. thanks for being here. >> my pleasure, ari. that was a great piece. >> our whole team were going through it and finding a lot of places abroad are covering this and we didn't play a ton in foreign languages to caption it. what does it mean in many other countries it's already playing as a slightly bigger deal than it may be for some exhausted american audiences? >> because they've watched america. america has been the super power of the world preeminently since 1945. there are more in most cases

aware of american history than sadly we are of the history of many other countries. you know, just let's widen the compass for a moment. yes, trump is the first president, ex president, to go on criminal trial. you know, let's widen it to vice president. only two of those. 1807 former vice president aaron burr plotted against the governor of the united states, thomas jefferson, the president, thought he was guilty. he was acquitted but became a public pi rye i can't. spiro agnew to avoid being convicted of tax evasion, he agreed to resign as vice president of the united states. agnew was a pariah and nonperson for the rest of his life.

richard nixon came close to this. he was driven out of office in august of 1974. copped a pardon from gerald ford so he wouldn't have to go on criminal trial which he expected to lose. he thought he would go to jail. for the rest of nixon's life he never went to a political convention. wasn't a nonperson, but was written out of the family. donald trump is going on criminal trial. we don't know whether he'll be declared guilty or not guilty. as you said, we can't say that often enough until there's a verdict. that having been said, you know, with this thunder cloud over his head, he's asking americans to re-elect him. that's the big departure from history. >> i have about 45 seconds. can you say what matters more to history, that this is happening or the outcome is what registers

whether it's important or not? >> even if he's declared not guilty and this will be in the first sentence or two of what's written about donald trump in history books in the future. if he is declared guilty, we know based on what he said he's going to say the problem is not with me. the problem is a corrupt legal system. i'm innocent. we're about to have a classroom lesson, we americans, about ourselves. will americans go for that? i am not so sure they will. we may see unexpected things. >> fascinating. michael, we'll be calling on you as we cover and live through history together. thank you, sir. >> would love it. thank you. when we come back, i mentioned it went so poorly fox had to lie. we'll explain. cashbacking. cashback like a pro with chase freedom unlimited. how do you cashback? ( ♪ ♪ )

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with disabilities out there. people like me. please join easterseals with your monthly gift right now. ( ♪♪ ) trump has been testing the jugs tis system and teeing up multiple clashes with the judge. he asked that he be able to attend a family graduation. the judge says it depends so we will see. no ruling whatsoever. immediately after that donald trump, who clearly cares more about the propaganda or lying about this than just keeping it going to see if the judge will let him go be with his family lied to reporters. >> it looks like the judge will not let me go to the graduation of our son who's worked very, very hard.

he's a great student and very proud of the fact he did so well and was looking forward for years to have graduation with his mother and father there. >> again, by trying to argue that it was all but done deal rejected he is trying to put forward some sort of grievance to suggest the judge is being unfair but fundamentally he's lying about one of the smaller items in scheduling in court and fox ran with it. >> he gets denied the opportunity to go and see the son's graduation. >> donald trump isn't even allowed to attend his son baron's high school graduation. if he tries to go the judge will throw him in jail for that too. >> the judge in trump's trial said he would arrest him if he goes to his son's high school graduation. >> that is not what happened in court. indeed, the ruling might ultimately allow him to go. if he can't go, the jail part is not exactly where we are. no judge in any of these cases has suggested trump is about to

go to jail, although defendants do go to jail sometimes before trial, it hasn't happened to trump. what you see here is how quickly the lies get spun around. if you talk to someone who watches those shows and thinks that's true, you'll start hearing that. they'll be repeating that. remember, it's not really about the graduation, it's about having something to complain about other than what's actually happening inside the trial. trump may be nervous that all of this could wind up with him in jail at some point and he has spun things in his favor to try to score political points over and over. this is a little bit of how that works and how you need to inoculate against people who might be repeating those false claims. we'll be right back. uncertainty. hidden fees, surcharges... who knows what to expect! turn shipping to your advantage. keep it simple...with clear, upfront pricing. with usps ground advantage®. ♪♪

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>> it's the good stuff. >> election night in america, that can only mean one thing. the legend at the map. steve kornacki. >> you know, i'm a diva, honey, and that's what we do. >> here we are trucking. this is what it looks like when we do a news show from the road. >> picture today. >> you see gray. >> claccie. >> in brooklyn. >> if it's friday. >> you know it's time to fall back. >> hey. >> shout out to brooklyn and all the postal workers. find me on tiktok @arimelber. i've heard from some of you there taking questions. i send out my free writing and newsletter. connect with me. if the internet is not your thing, that's fine. i'll meet you back here at 6 p.m. tomorrow night. "the reid out" with joy reid is here up next. tonight on