former trump officials including former high-level trump aids. do you read anything into that? >> this is not subtle, alex. in 2012 netanyahu supported mitt romney. he was very close to donald trump. they named streets and settlements in israel after donald trump. there is every reason to believe that netanyahu has a preference for trump in this election and again that is not a new dynamic. part of what is so frustrating to me is that we continue to be kind of surprised that netanyahu would completely ignore the u.s. president. would undermine the u.s. president. well, he has been doing this to democrats as long as i have been around. the eight years that barack obama is president and now the four years that joe biden is president. democrats have to get their

minds around that we would like to project on israel the kind of government we would like there to be in israel. we have the government that there is. netanyahu is beholden to the most far right elements ever in a coalition and that is the reality staring us in the face. >> ben rhodes, thank you for your time. that is our show for this evening. now it is time for last word with lawrence o'donnell. >> good evening, alex. it was a shorter day in the courtroom, but an important day in the courtroom. everyone at the table was in the courtroom today. the regular gang, lisa rubin, andrew weissmann. we are done now. the evidence is in. we can make evaluations about where the evidence stands in a more important way tonight than before. >> and important questions i am sure they will have thoughts on that the judge will have to answer in the coming days.

have a good show. well, at 10:11 a.m. today donald trump's lead criminal defense lawyer todd blanche stood and said, your honor, the defense rests. the truth was, there was no defense. the team of high-priced trump defense lawyers are actually paid by the deluded people who send in contributions in response to donald trump's relentless begging for money from people he promised he would never ask for money. when donald trump began his first presidential campaign his major selling point to voters was he was so rich you could pay for his own campaign and therefore was incorruptible and would never ask them or anyone else for money. then donald trump proceeded to never spend a penny of his own money on his presidential campaign. he loaned his first presidential campaign some money at the beginning, but of course the campaign paid him back through the donations of those poor, deluded people who send money to a liar who

promised he would never ask for money and now their money has gone to a high-priced legal team who could not come up with any defense at all in donald trump's first criminal trial. they came up with conflicting defense theories that they offered in cross-examination questions of some of the witnesses who testified for the prosecution, but an actual defense in a criminal case is not measured by questions defense lawyers ask in cross- examination. those questions are not evidence. next week when judge merchan is instructing the jury, he will tell them that lawyers questions are not evidence. witnesses answers are evidence. and so the trump defense presented no evidence. none. in defense of donald trump

against the crimes he is charged with. none, no defense. the first witness they called was a technical witness who did not add any evidence or information to the case whatsoever. a young, paralegal assistant who works for the trump defense team who had created a spreadsheet of a list of phone calls. that was it. his testimony took only a few minutes and the document he created was accepted as an exhibit in the case and that was that. and then yesterday the trump lawyers, possibly at the insistence of donald trump, made what every fair-minded observer of the trial has called the grotesque mistake of calling criminal lawyer robert costello, whose chief currency as a criminal lawyer, judging by his emails exposed in this trial, is that he is a close friend of the deranged rudy giuliani.

rudy giuliani was robert costello's boss in the 1980s when giuliani was the manhattan u.s. attorney and costello was a federal prosecutor working for giuliani. his turn under oath yesterday was the witness stand equivalent of drunk driving. at this hour last night i read you the full transcript of what judge merchan did when robert costello decided to vocally disagree with the judge's ruling on objections while he was sitting on the witness stand. the transcript entry that we, in the courtroom all heard, shows robert costello saying -- the chosen spelling by the court reporter. that is what we heard. i could hear it in the last row of the courtroom yesterday and none of us in the courtroom had ever seen anything like that or heard anything like that, especially from a witness who is a lawyer and should know

better, much better. judge merchan was shocked. he leaned forward. he asked costello to repeat himself, to which costello said strike it, which is lawyer talk for nevermind what i just said. then as we found out later the judge saw costello continue to signify his irritation with and disrespect for the judge in ways that we could not quite see from the audience and the judge ordered the courtroom cleared so he could talk about it directly to costello. clear the courtroom. words no one in that courtroom had ever heard before, before the judge said that, including the court officers. they had never had to do that before. with everyone out of the courtroom we learned later in the transcript that was kept of what happened when we were out of the courtroom, judge merchan said to costello, sir, your conduct is contemptuous right now. i am putting you on notice that

your conduct is contemptuous. if you try to steer me down one more time i will remove you from the stand and strike the entire testimony, do you understand me? mr. bove, yes judge, i understand. when he said yes i understand, he and the rest of the legal team also fully understood what a catastrophic mistake it was to put an uncouth buffoon on the witness stand as a defense witness for an uncouth buffoon. at 9:29 a.m. today, robert costello, the red- faced, white-haired 76-year-old criminal lawyer entered the courtroom again to resume cross- examination by assistant district attorney susan hoffinger, who the day before costello had insulted by telling her to speak into the microphone. ordering her to speak into the microphone, when she was

already speaking into the microphone and everyone in the courtroom could hear her. that was a moment that no doubt helped expose more of the ugly essence of robert costello to the jury of seven men and five women. when the jury entered the courtroom three minutes after the witness this morning, the community of the courtroom that the jury had come to know so well had changed dramatically. the presence of armed court officers who have been the most courteous and helpful guides to all of us, taking our places in that courtroom every day, had more than doubled. where there used to be one court officer standing in the center aisle, there were three. at the back of the room where there used to be two, there were four. there were more high-ranking officers in the room than we had ever seen at one time. one of the courts administrative officials who had been especially helpful to members of the news media and

who was rarely in the courtroom was now standing in the back of the courtroom observing everything. this dramatic demonstration of extra control of the courtroom by the court officers was completely lost on the defense lawyers and defendant and prosecutors, because they had their backs to that part of their room. they were facing front, where they could see the judge and the witness and some of the jury, but the jury could see everything in that room. the jury could look and see at least double the amount of those friendly court officers who they have come to know. more than double of those court officers than they had ever seen in that courtroom before and the jury could not know why. they had been sent out of the room by the judge yesterday the first time the judge decided

to, as he put it, speak directly to robert costello about what the judge called the decorum in the courtroom. it was only when costello continued his disrespectful courtroom conduct that the judge cleared the courtroom of all of the rest of us. the reporters, everyone else in the room, and the judge had a more private, one-on-one with costello while the lawyers were still present. the jury could not know that this huge, new show of force and control in the courtroom this morning was all because of the contemptuous conduct of the only witness, donald trump's team brought into that courtroom to offer actual testimony in this case. and his testimony had absolutely nothing to do with the crimes donald trump is charged with.

robert costello was one of the lawyers who the prosecution's star witness, michael cohen, consulted after the fbi executed search warrants at his home, the hotel room where he was temporarily living, and his office. when michael cohen became a cooperating witness and the fbi investigation, it eventually led to michael cohen pleading guilty to crimes, including crimes involving the payoff to stormy daniels, which michael cohen said was done at the direction of donald trump. under cross-examination today it became clear that robert costello was eager to become michael cohen's lawyer, so eager that he wrote an email to his son boasting about how he was on the verge of becoming the defense lawyer for, quote, the personal attorney to donald j. trump. he told his son, quote, i will be on the team. the trouble is, his emails revealed that the team was bigger than michael cohen.

in cross-examination it became clear that michael cohen was not robert costello's primary interest. it is customary for lawyers to ask witnesses to read their own emails allowed as evidence. assistant district attorney susan hoffinger tried that yesterday on cross-examination, but costello could not do it, he could not read his own emails without constantly inserting new editorial comment on his own emails, so today susan hoffinger read the emails herself. can you please blow up the last paragraph, please, in yellow? then she read robert costello's email to his law partner. quote, our issue is to get cohen on the right page without giving him the appearance that we are following instructions from giuliani or the president. in my opinion this is the clear, correct strategy. that is not a strategy to help

michael cohen. yesterday when the district attorney asked robert costello to interpret one of his emails, costello's answer was that the email, quote, speaks for itself. and so today, after reading that email that i just read to you, district attorney said, question, as you said yesterday, the email speaks for itself, correct? answer. sometimes. and it got worse for robert costello. district attorney hoffinger quoted another email to his partner about michael cohen. this is a quote from the email. what should i say? he is playing with the most powerful man on the planet. now that email certainly speaks for itself, does it not, mr. costello? answer, yes it does. it is clear that costello was interested to be not on the

team of michael cohen, but the team of the man who costello thinks of as the most powerful man on the planet. the man sitting across the room from robert costello in the defendant's chair. robert costello left the witness stand in disgrace at 10:11 a.m. this morning after 42 minutes on the witness stand this morning, establishing absolutely nothing. for donald trump's defense against the criminal charges of falsifying new york business records in order to illegally help his 2016 presidential campaign. the judge then explained the scheduling dilemma he faced. he told the jury that he likes to keep the final arguments by the defense and prosecution together so that they are not separated by a day or a weekend and that he would need additional time to prepare his legal instructions for the

jury, so he pointed out that because they were already scheduled not to meet wednesday of this week, that the earliest they could begin the lawyers summations without having to break them up would actually be sometime maybe on thursday of this weekend that might not allow everything to be completed before the memorial day weekend or he would send the jury into deliberations at the end of the day on friday, so the best way for the judge to handle it, he decided, was to send the jury off today into what will become memorial day weekend and that happened after the last witness today when costello left the witness stand. the judge then spent the afternoon considering arguments from both sides about what should be included in the judge's instructions to the jury that will probably be delivered next wednesday, the day after the lawyers make final arguments to the jury on tuesday, which will of course be the day after the holiday,

memorial day. so here we are. the case is in. there will be no more evidence. the prosecution has presented evidence to support every element of the crimes donald trump faces in the courtroom. the jury of 12 manhattan residents will begin deliberating next week. on the question of whether the evidence presented by the district attorney amounts to proof beyond a reasonable doubt that donald trump committed those crimes. there is nothing about the jurors themselves that gives you the slightest hint about how they might be leaning in the case or what evidence they think is important, but they are always very attentive to everything in that room, especially judge merchan's instructions and they will surely be very attentive when the judge delivers the last words they will hear before

they begin deliberating in this case. the judge has said that he hopes to keep his instructions to about an hour or less and this afternoon in a hearing without the jury present, lawyers on both sides argued about what those instructions should be. it did not go well for the trump criminal defense lawyers. they brought up something that the judge had ruled out of the case a very long time ago. long before the trial began and this was frustrating for the judge. judge merchan said look, this is an issue that has been going on for a very, very long time. i wrote a decision on this and my decision is dated february 7. that decision directed the defense to provide notice of disclosure of your intent to rely on the defense of advice of counsel by march 11, 2024, and to produce all discoverable statements and communications within his possession and control by the same day. what that means is the judge

told the trump defense team, if you're going to use the my lawyer made me do it defense, you have to tell us before the trial, because there are many evidentiary requirements for making that defense. the defense would essentially be i just followed the advice of my lawyer, michael cohen. there are technical requirements for making that legal defense, which donald trump's lawyers chose not to do. and so when his mounting frustration this afternoon the judge said, later on, the defense on advice of counsel moved into, morphed into something called the presence of counsel, which i had never heard of and i was not familiar with, but i addressed it and the motions and at that time i indicated that you are precluded from arguing this legal claim of presence of counsel.

there was no such thing. it is just a way to get around having to turn over documents related to the advice of counsel. now this term, presence of counsel, has morphed yet again into something called involvement of counsel. my answer has not changed and honestly i find it disingenuous for you to make the argument at this point. bove attempts to get up at that point and the judge says, please don't get up. i let you speak, let me speak. all right. it was concerning when the term was changed to presence of counsel. i couldn't believe when i saw it again, calling it involvement of counsel and i understand the argument that you are making. i'm telling you my ruling is the jury will not hear that instruction from the bench, nor are you permitted to make that argument. the trump lawyers cannot stop testing judge merchan's patients, but in the process they can't stop humiliating

themselves in their representation of the uncouth buffoon they sit beside all day at that defense table. our discussion is next with adam klasfeld, lisa rubin, and andrew weissmann. we have all been in that courtroom. we will be right back. r click . get your free gutter inspection on your schedule and get leaffilter installed in as little as a few hours. you'll never have to clean out your gutters again, guaranteed. get leaf filter today. call 833 leaffilter or go to leaffilter.com as easy as 1, 2, 3

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klasfeld, a fellow at justice security and in the courtroom every day. also with us is lisa rubin, msnbc correspondent who has been in the courtroom every day. and andrew weissmann, a msnbc legal analyst and co-author of the new york times best-selling book, the trump indictments. i want to begin with the witnesses were not called. the witnesses who the defense left out, beginning with the defendant. let's take a look at what the defendant said about this today. >> why did you decide not to testify in your case? do you not want to take the stand? >> yeah, that is everything he said about deciding not to testify in this case. andrew, he has not figured out his public lie yet about why he did not testify and of course this program never pretended there was a decision to make.

as soon as there was an indictment with his name on it we knew he wasn't going to testify in his own defense, but you have a jury and you have important scenes that donald trump was in. a meeting with allen weisselberg and michael cohen and donald trump talking about this payoff scheme and other things. that defendant can take the witness stand and really help the jury and he did not do it. not only did he not do that, he could not even keep his eyes open during the trial, which all of the jurors did all the time. >> a couple of points. one, i think he did mention how he wants to testify. >> that is the lie he tells every time. >> but his lawyers tell him not to. that is absurd because actually, legally, it is his decision. he will say it, but he can't credibly say it. welcome to a list of many things he can't credibly say. the jury is going to be instructed strongly by the

judge that they cannot in any way consider the defendant not testifying. there is a constitutional right that we all have to just sit back and let the state prove their case. they have to carry a high burden and the defense does not have to do anything. will some jurors think about it? they may think about it, but i think they will adhere to that instruction. that being said, the danger of what the defense did, which is to actually present the case, raises the issue of not so much the defendant not testifying, though somebody will be thinking about that. you know when you do that and you are the person you present, blows up in your face and is just a terrible witness. he was the best thing that ever happened of the prosecution. the best exhibits were exhibits 35 and 36, the handwritten notes. no i think one of the best

exhibits is the one you started the show with, which is we have to give the appearance we are representing you, but we are actually working for that man, the defendant. it puts him at the heart and top of the conspiracy. i think that in many ways subtly works to shift the burden because you have taken on the burden and it has been terrible. the jury is allowed to consider that, which is that you presented a defense and that's it and that is not considering the defendant not testifying, but i am a lawyer so i separate the two. i'm not sure how much a jury will do that mental gymnastics. >> i've never known a criminal defense lawyer to be confident in the judge's instruction to please ignore the fact that the defendant did not testify in this case and please don't think you should hold it against him in any way. >> and i don't know a lot of criminal defense lawyers who

are confident about the missing witness charge that might be given as well. in addition to donald trump being absent, the other person who was glaringly absent is allen weisselberg. it did not come up this afternoon, the possibility that there could be a charge that you are not to deduce anything from the absence of other people that you heard about, but i have to imagine that that is something both sides agree upon. were i a juror that would be the number one question in my mind. where was allen weisselberg during all of this? i don't know that i could resolve that to my satisfaction. >> i think there are three big ones. donald trump, allen weisselberg and keith schiller. we saw that photograph that was fought into evidence yesterday. brilliantly done by the district attorney. there is the photograph. there is donald trump's head and that red necktie is on keith schiller on your screen and that is at 7:57 p.m.

on a night when michael cohen says he called keith schiller's cell phone at 8:02 p.m. to have keith schiller pass his phone to donald trump, because he knew they were together like that. he is his bodyguard and they are always together. so that he could have that conversation which lasted a minute and a half according to the cell phone records, getting the okay from donald trump on the stormy daniels payment. not the only okay he got, but one of them. keith schiller could have come into the courtroom and said i never got that phone call, i never handed the phone to donald trump. there are so many things keith schiller could've testified to. he could've come in the courtroom and said stormy daniels is lying. i didn't bring her to donald trump's hotel room. i didn't stand outside his hotel room while stormy was in there with donald, that is a complete lie. but keith schiller who is very much under the control of this defense was not called into

that courtroom. >> absolutely and todd blanche placed such a bet on the keith schiller conversation with michael cohen. everyone agrees that it was the highlight of his cross- examination. >> he especially agrees. he keeps bringing it up. >> absolutely and as you said not only was keith schiller at the center of stormy daniels, he was literally said to be standing outside the hotel room during her recitation of why the power dynamic was off. so this was another situation where both sides could have called him, but because of the decisions of todd blanche there was a very strong reason for the defense to bring him as a witness and they didn't deliver. >> andrew, i was thinking, and we've all seen this version of a trial, where you are not

going to present a defense, so you don't present a defense. you don't call anyone and you have the boldness to suggest to the jury in effect, they did not prove anything. i have a burden only when they prove something and they proved nothing, so i am presenting nothing. what the trump team did instead was they presented no defense, but they called two witnesses. in the presenting of no defense, which is not quite as bold. it is messy. >> i think it is worse than that. remember the witness, the paralegal who first testified was basically only there to say what todd blanche was representing to you and to michael cohen is actually misleading, because he tried to get him to say there were 75 calls and the paralegal is like i'm not down with that, it is not 75. there is certainly less. there's a lot of double counting. a small point, but not good. the second one was

spectacularly bad. it was an exhibit for why michael cohen is credible. an exhibit for why donald trump is the leader of an obstruction plan and it's going to be front and center of the summation. just terrible. it solved one of the issues. ending the prosecution case with michael cohen, very bold move. that didn't in fact happen because the prosecution case ended with costello. so it is just a terrible strategy. i cannot believe, lawrence, that susan necheles, who is an extremely experienced lawyer, that she was thinking this was a good idea. i don't think todd blanche, even with all of the things we have picked up, thought that was a good idea. i mean, this is donald trump.

i'm going to do better in the second e. jean carroll case. i don't need you. i know better. $85 million later. so he has gotten what he deserved by presenting somebody who is such a reflection of himself. we will see what the jury does, but to me it is a spectacular backfire. >> we will squeeze in a quick break and when we come back we will hear more about what happened later in the day, especially this crucial issue of what will the instructions to the jury be? we will be right back. amucil everyday can help. metamucil's psyllium fiber gels to trap and remove the waste that weighs you down and also helps lower cholesterol and slows sugar absorption to promote healthy blood sugar levels. so you can feel lighter and more energetic. lighten everyday the metamucil way. feel less sluggish & weighed down after just 14 days. sign up for the 2 week challenge at metamucil.com

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we are back with our courtroom experts adam klasfeld, lisa rubin, and andrew weissmann. we were discussing three big witnesses who were identified that the jury would love to hear from. donald trump, allen weisselberg, keith schiller. the prosecution cannot call donald trump, but they could have called keith schiller and they could've called allen weisselberg. what is the decision on the prosecution side when they are thinking okay, we have the picture of schiller, we have the phone records, why don't we call to say did you walk stormy daniels to the hotel room? did you take a phone call from michael cohen and hand the phone to donald trump? i imagine on the phone call thing schiller could have a pretty easy i don't remember, but what is the prosecutor's calculation?

are they just going to hope that the defense calls schiller? what is the calculation? >> if you have a witness like schiller day >> former nypd, longtime personal bodyguard to donald trump, as loyal as they get. >> yes and let's say there are substantial issues beyond this case that they would be aware of. so here is the issue. one, they may have in fact spoken to his lawyer and said we want to speak to him and we won't necessarily put them in the grand jury. you don't have to come to an interview, but you do have to respond to a grand jury subpoena. he may have taken the fifth. >> in the grand jury or set i will, so they don't bother to bring it. >> exactly, because that is a normal courtesy. just to be clear, he would have a valid fifth amendment and you respect that.

we all have a valid fifth amendment, the same way the defendant has a right not to testify. the second issue, i suspect he did not say i'm happy to come in and talk to you. again, it is guesswork. i don't think he would do that. you could decide you would immunize him. that is a complicated decision. >> so you give him immunity so he cannot incriminate himself. he can safely answer any question without getting in trouble. >> unless he lies. >> there's that. >> exactly. you are immunized unless you commit future crimes. so that is a complicated issue. do you decide, what do i have toehold to have him tell me the truth? buying a so-called pig in a poke, as we say in manhattan. that is a joke, by the way. i'm not a funny person, so i have to say when i'm telling a joke.

you don't want to buy a pig in a poke if you don't know what the person is going to say or you don't have enough to hold them to the truth. sometimes you would say to the witnesses lawyer, you would say lawrence, i'm willing to give your client immunity. can you give me a proffer of what he would say? then if the person is relatively friendly and they want to tell the truth and there isn't this sort of loyalty bond with a target, the person might say this is great. i would love to get immunity for my client and the discussion about that sounds great and then you might go ahead and immunize a person. what you don't want to do also is if someone has substantial liability, the idea of giving them a complete pass and immunizing them for what they have done in the past is something that sticks in the craw of a prosecutor and even this former prosecutor where you really think long and hard about who you are immunizing.

>> lisa, you have seen allen weisselberg in court, so you have had it personified for you. in this case, thinking about calling allen weisselberg to try to get him to testify against donald trump. >> it is a no-brainer. no, literally, it is a no- brainer, because let's remember why allen weisselberg is at rikers island now. he is at rikers because in the last trial he testified he was accused of lying on the stand, the civil fraud trial in which he is also a defendant and has been held liable. the d.a.s office prosecuted him for that. he pled to attend is now serving a sentence for perjuring himself and literally the second to last manhattan trial donald trump was involved in. knowing that history and knowing that he very narrowly escaped a similar accusation in the trump organization trial, where he

also already pled out and testified. and therefore, the only thing you could do is subpoena him and then see what he says and you don't want to take that chance because you have seen the guy liable for. there were representatives of the d.a.s office in the civil fraud trial. they were very noticeable to people who came to watch michael cohen for example. i have no doubt they were also present when allen weisselberg was there. >> the lawyers argued for the judges benefit today. he wanted to hear points of view about what should be in the judge's instructions. the judge suggested, we will see a written version of his instructions possibly this week. >> and some of the arguments

really suggest where the judge is leaning. i will get to that in a moment. i just want to add one thing about what lisa said about the testimony during the civil fraud trial. i remember we were in the same civil courtroom and i remember running with the headline that his memory failed him more than 90 times before lunch. i do not recall, we counted the variations. to your question, lawrence, there was a key victory by the prosecution during this charge conference on the question of unlawful meetings and whether the jury needs to, when they reach unanimity, have the same theory of what the unlawful means of the conspiracy was. and what happened during this exchange was very telling. i will point to the transcript here. bove said we have a motion pending from yesterday still. assuming that this is going to the jury and the way the

statutes are being used in this case, which there is not much of any president, we submit that the jury should be required to make very specific findings. as specific as your honors discretion would permit so it is very clear what happened at this trial. the judge, do you agree it is not normal -- not normally required? bove, certainly. >> so that should be the end of it. >> and it was, but the judge let him continue. we think it is important under the circumstances and that it is in your honors decision to make clear the record. the importance of the law is not to deviate from the law. it is to apply the law as consistently as possible as the court would do in every other case. that is, there is no reason to rewrite the law for this case. judge merchan, i agree. i think i understand what you are saying. what you mean when you say it

is an important case, what you are asking me to do is change the law and i'm not going to do that. there was a moment where bove shifted his arguments and he had some success today, but where he failed was when he shifted from the law to rhetoric about how important the case is and how this is all unprecedented. >> we will squeeze in a break. the important casey simply meant important defendant, right? quick break. we will be right back. i needed something to help me gain clarity. so i was in the pharmacy and i saw a display of prevagen and i asked the pharmacist about it. i started taking prevagen and i noticed that i had more cognitive clarity. memory is better. it's been about two years now and it's working for me. prevagen. at stores everywhere without a prescription. you know, i spend a lot of time thinking about dirt. at three in the morning. any time of the day. what people don't know is that not all dirt is the same.

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and we are back with the court room crowd. andrew, what is at stake for each side in the judge's instructions to the jury? do people overrate how important judges instructions are, and it must very that in some cases it is very important and in some not so much. >> that's right. i think with two lawyers on the jury, i think it is going to be quite important. because you can't just sort of say oh, a kind of just is is he guilty or is he not? i think it will be highly scrutinized. and obviously nonlawyers might do the exact same thing. i think that there is a lot at stake. one thing i want to make sure people keep their eye on is there are things like you have talked about, how judge merchan that i'm not going to allow you

to argue this, i have made my ruling, you cannot do it. next tuesday when there are summations, the judge and the prosecutors are going to be walking like a hawk. i can tell you the number of times that i have been sitting there where the judge has made a ruling and said you cannot do it, and the defense does it. over and over and over. and -- >> they have nothing to lose. >> well, that i >> well, then have to go pretty far with it. the prosecutor says objection, they stop, and they try to slip in another one. >> yes, i have had experience judges take, throw the jury out, bring the defense lawyer over, and say if you do that one more time i am going to cut your knees off in front of the jury. now, there will be a cost to you in front of the jury to try to stop it. but i think it will happen once. just to be fair, the defense lawyers will have some theory of ambiguity. they have to have something to

say to the judge when he comes down on them. but that is what is going to happen. as much as we can sit here and say oh, you know what, the judge ruled against them. they will be deciding which battle they are going to pick and actually defying that. >> lisa, is there a particular instruction of the jury you are looking for that could be among the most important or the most important? >> yes, and it concerns what it means to cause the falsification of business records. >> seems pretty clear. >> well, it's one of those, it depends on what the definition of the word cause is. and right now judge merchan says his inclination is not to use language that the prosecution very much wants, that essentially says the defendant causes false entries when he sets a scheme into motion, and the false entries are reasonably, foreseeable consequence of that action. what the defense wants is

something are more concrete, that i actually have to direct you to do it. that there is instruction or communication. you can see why the prosecution believes it should be something else, and they fought very hard today to try and preserve that language supported by the case law. there are others, our friend andrew included, who would say it is not of that much import because you could sort of get around it through an instruction on accessorial liability. meaning if you act in concert with someone you are still responsible for their actions if you are part the same scheme . but with a prosecutors prefer this language in there? absolutely. >> adam, what we be looking for in the judge's instructions? >> that's the first thing i'm looking for. after that accessorial liability, that was something that they started here. it was important enough to the prosecution to ask the jurors if they can follow the concept of accessorial liability.

so, to your point, lawrence, i do think that one of the first cases i ever covered was in federal court, one of the u.s. embassy bombings plotters. and be point is that jurors pay attention to the instructions. and the instructions in that case were conscience avoidance, that the defendant didn't know. and the jury sent a note saying , and the judge said i have been thinking of this before trial began. that is the type of perceptiveness the juries will have. >> andrew weissmann, adam klasfeld, thank you for once again covering what happened in that courtroom. we will be right back. .. are forever in bloom.

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