heart. i had the pleasure of joining lessons in dyslexic thinking podcast. that you are probably thinking that is why she can't read the prompter, you are right. you can check this out on the made by dyslexia youtube page or listen on apple podcast. on that note, i wish you all a very good night. from all of our colleagues across the networks of nbc news, thanks for staying up late. i'll see you at tend of tomorrow. tonight on all in. >> and the jurors have been sent to begin their

deliberations. >> the jury finally has the case. >> the former president now awaiting his fate in a criminal trial. tonight, the testimony the jury wants to hear from david pecker and michael cohen and why getting to this point is a positive sign for the rule of law. >> it will be talked about in the history books but i'm not allowed to talk about it. >> samuel alito warms up the bus. >> when i saw the upside down american flag, i asked my wife to take it down but she refused. >> chief justice roberts must step in and make sure that he does not have any role in deciding these cases. >> when all in starts now.

>> good evening, i'm chris hayes, the criminal trial of donald trump was turned over to the jury today. 12 of trump's fellow new yorkers, i say that somewhat tongue in cheek, deliberated four-and-a-half hours today before being dismissed for the day. shortly after 4:00. this afternoon, the jury sent two notes to the judge requesting to rehear four sections of witness testimony. court will reconvene tomorrow morning at 9:30 with the court reading them back before the jury continues deliberating. now, the one consistent rule about juries is that you just do not know what they are going to do. when you put 12 random strangers in a room, the outcome is never obvious. but there are three possibilities broadly. the jury could acquit donald trump on any ieor all of the 34 counts against him. all 12 jurors have to agree on that unanimously. we could get a hung jury if all 12 jurors cannot agree either way. it only takes one hold-out for

that outcome. or the jury could decide to convict trump if they agree he is guilty beyond a reasonable doubt. again, there are 34 separate felony count ins play here, so this could be mixed and matched in a variety of ways. understandably, a lot of people are very invested in the outcome of this trial. i do think it matters but no matter what happens, i do believe the process has already been a victory for the rule of law. and a rebuttal to the most dangerous aspects of trump. the no one is above the law in america. of course, that is not donald trump's vision of the law. in his view, there is no such thing, crucially, as a neutral free and fair process, a trial or an election. all that matters is outcome. if he wins, it was fair, if he loses it was rigged. he has said this about everything from his legal trials to multiple presidential elections to the emmy awards.

that is donald trump's authoritarian view of the world. power trumps all and the powerful dictate what happens. it is the opposite of our core commitments of equal rights, equal protections and equal justice under the law. that we are all subject to the same fair processes and we respect the outcomes of those processes. it's the basis of the liberal democratic process. this will be a big test for america. for the first time in our history, a former president has been prosecuted and tried for committing a crime. we know this process works in some of our peer democratic countries. france, south korea, taiwan. we have seen the process play out here on the state level. four governors of illinois have been sentenced to time in

prison. most recently, rod blagoyavich. rowland. the former state's attorney of baltimore was sentenced to a year of home confinement after being convicted of perjury and mortgage fraud. this principle of equal justice for all in america is a pretty bedrock one. it used to be a consensus one. people going to new york dressed like donald trump, they all reject it. and yet this trial is a real success in its own rights. for weeks donald trump has had to sit in the courtroom where the justice is dispensed to regular citizens. faced a judge who is fair and firm while both sides presented their cases to a jury of his peers. all that happened while another group of trump lawyers are trying to convince the supreme court he has a special status

as a former president. a special kind of citizen unbound. he has access to wealth, lawyers than 99% of all criminal defendants who step into a courtroom in america. and yet, the process played out as it should for any american. he went through the full normal process of a trial. that is what mais at stake in t courtroom and at stake. ultimately, our d entire libera democratic order rises and falls on our ability to produce fair and neutral processes that apply equally to everyone. if it fails, we have trumpism. authoritarianism. so whatever the jury decides in trump's case actually is important as that process, the trial of donald trump i believe has proven that process works.

independent of the outcome. that alone is a rebuke of everything he stands for. katherine christian spent over 30 years a prosecutor in the mat hat tan district attorney's office. as people, as someone who worked in that office and been in the trial every day, do you agree with that assessment? that as a process, as a test of equal justice under law, that this has been a success? >> i agree it has been. forgetting that it is donald trump and former president of the united states, this trial was orderly. he, donald trump, inside the courtroom, behaved himself relatively. the jurors came on time. no hiccups throughout the trial. and most trials are like that. some, there are hiccups and you're right. he is not above the law. no one should be. and most defendants in many ways, he has received special treatment in some of his cases

in just that he has four indictments and he is free. so, that is one thing. but it is good for people to see, whatever the verdict is, that is how the system works and you have to respect that. >> it is important. beautiful really. he had to do as others do. and it was a full and fair oversight by judge merchan. but he is really channeling the law here. it was the law that made him sit and show up and subjected him to the same thing that happens to everyone else. people are understandably jittery now. there be a hung jury? but unanimity is one of the features of due process that he received and in a way, that is secondary. it is possible a political response, he could be convicted and sail through. but the fact that the process

has happened, it is majestic. >> yes, this is my point. we don't know what the jury will do. and i almost feel, if this was the january 6 trial where i feel like i know he is guilty. i saw it. i read the report. in this case, i think it was a compelling case. i would probably think he is guilty. but that independence of the process. one of the things i have balanced here is that at one level, you don't want to be like everything that run dit i american justice system is great. because it is not. we know this and you know it having been in that building for 30 years. so i don't want to say well, if he is convicted it is fine. but people get wrongfully convicted all the time. at the same time, there is something so insidious to me about the entire republican party marshaling behind as a kind of party line that this is a corrupt enterprise to its core. >> and that was to me the most offensive part of the trial.

which wasn't about the trial. but the speaker of the house of representatives, senators, congress people outside of a courthouse trashing the process, criticizing the judge. criticizing the judge's daughter. that was a statement against the rule of law. i mean, the trial was ongoing. and they were doing that. and that was shameful to me. >> and that kicked up a notch the last few days where you have republicans lie. either they are stupid or pretending to be stupid. you have marco rubio and others, propagating these lies against merchan and the whole process. happening now. >> that is exactly right. but that's the political sphere, somewhere in a courtroom, a homely courtroom

in manhattan. everything elthat we hold dear happened. and it really demonstrated his being subject to the same processes. just that part itself in fact, kind of brought him down. he is someone who embodies the principle that no one can tell me what too do. here the law told me what to do and forcefully for several weeks. >> so i want to just talk about these sort of potential outcomes. and your experience with it. acquittal, hung jury, and conviction. each of those apply to rythe ea of the 34 counts. jury cans say we are unanimous on these 12 and hung on these 22 or any combination there of. >> they could say look, the signatures are nine checks, he is guilty on that. you could have some jurors say i'm not so sure about the ledgers and the invoices. so you could have conviction on the checks. hung jury on e the invoices. not guilty on the invoices or ledger. so sometimes you have that when you have these multiple counts. >> have you experienced that?

>> and i don't have to worry about it reversed on appeal. because it shows the jury was thoughtful. they went by each count. so, that may happen. i don't know. i can't read tea leaves. i do not think there will be 12 members of the jury who will say not guilty on 34 counts. >> ari melber made this point. >> that is a bold prediction. >> i could be wrong. >> ari melber talked about the difference between a hung jury and acquittal strategy. in the oj simpson, it was acquittal. because here is a comprehensive theory that could explain away the evidence. he was framed but racist lapd. and that is an acquittal strategy. here, the defense has anoffered no real acquittal strategy. there is no comprehensive reasonable alternate theory. that i have seen. where you could say like, yeah,

he had nothing to do with the whole thing. >> no counter narrative. >> that's right. >> no naalternate story. >> just teyou shouldn't believe michael cohen. what is indicative of that is the way that todd blanche led out the prison point that he was so castigated for. that is kind of can i get one. there is no prospect of an acquittal. if it happens it's a political triumph. but a legal victory as well that it goes through the process. >> all right, thank good. appreciate it. coming up, why the judge spent more than around hour getting detailed to the jury

weighing the guilt. what to make of the questions the jury sent back, that's next. the jury sent back, that's next.

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a few hours after the jury began deliberations in donald trump's new york election interference trial, two notes were sent from the jury room to the court. the first asked for testimony from former national enquirer publisher david pecker and michael cohen to be read back. an hour later, a second note asked for the jury instructions to be read back. the judge dismissed the jury saying that the refreshers will

happen when they are back in session tomorrow. and they will have the option to work late going until 6:00 tomorrow night. george grass is a a judge and veteran of the police department. and a civil rights and criminal defense attorney are here to talk with us. judge, let me start with you. let talk about the process that produces those instructions. so, judge merchan gave the instructions from an hour this morning first thing. >> hour-and-a-half actually. >> 10:00 to 11:30. >> exactly. >> judge invited both parties to submit proposed instructions. the defense got to submit proposed instructions. the da got to submit proposed instructions. and then, last friday, there was a charging conference. both sides got to make certain points. the judge made certain points.

in some areas he seemed to be leaning the defense way. in others he seemed to be leaning the da's way. we expected to see these instructions a little earlier. >> did you get an impression of them? >> i was caught by surprise by one particular instruction. when the judge laid out the pathway to the felony, right? >> this is the fact that the misdemeanor had to be committed in furtherance of some other crime. >> right. so, there's the 34 misdemeanor counts for donald trump falsifying business records. i have been to trial every day. i think there is abundant evidence to support them. starting with the nine checks he signed. but to get to felony, they have to be to conceal, or commit another crime. so, what was also in the instructions which was not a

surprise, that the object crime the people designated, we knew that last week, actually during the charging conference, the object crime is new york election law. now what everyone had been assuming including me is that, the essenes of that is two or more people to conspiracy charge, act in a way to prevent or get someone elected by unlawful means. so the trick there is unlawful means. so, everybody was thinking unlawful means is bringing us back to fica. the federal election campaign act. fica is in there. that's not a surprise. the surprise is the judge added another menu in the instructions. i don't know if i remember hearing this discussed. if i did, i probably would have remembered it. when i heard it today i was like okay. that lays four separate

additional falsification of business records as a path. >> can i read? i just want to read this. you must conclude unanimously they conspired. you may not be unanimous as to what the unlawful means were. you may consider the following. violations of the federal election campaign act. the falsification of other business records. violation of tax laws. >> the falsification of other business records was the surprise. and the falsification of records relating to michael cohen, there is extensive testimony and records that when he created this resolutions consulling, the vehicle to get the $130,000 under the table to stormy daniels. he didn't say this was for a porn star. he lied on the application. so, another false business record that is in there which i

think is really a potential big, big problem for trump is the falsification causing a 10- 99 to be made for michael cohen for $420,000 in income that there is just a mountain of evidence that is reimbursement. so trump will have a hard time distancing himself from that if cohen's testimony is to believe with respect to a key january 17th meeting in trump tower, he said he attended with alan weisselberg. >> that's the one with the stuff written on it. >> that's a pathway though. >> they have also asked to get the instructions read back. in new york, you don't get them printed out. so if you want them again, you have to get them read again. >> that's correct. the fact they are asking about the instructions this early. >> and the testimony. >> what it says is these are

complicated. and they want to understand them. a lot of people thought going into this, oh, it is very straightforward. and i have been telling people repeatedly, it really isn't. particularly, the misdemeanor is very straightforward and easy to understand. but to get to that felony, that is where it gets complicated and that is where the jury is getting hung up. it also tells me they are going about, looking at this case. and their deliberations in an organized and serious fashion. we did not want a verdict on day one. that would have shown they didn't take this process seriously. the fact they are asking for the particular read backs, they are likely corralling the evidence. starting at the beginning. and when they talk about the elements of the crime, i would imagine that they are taking the evidence that they have to the testimony they have received, and matching that with the evidence to see if these elements have been met beyond a reasonable doubt. >> how often have you been shocked by a jury in your

career? >> shocked by a jury? i don't know if i have ever been totally. >> were you were like i definitely know the outcome? >> no. no. no. >> what does that mean? >> mean what? >> that you haven't been? >> or you reserve judgment sitting in the chair. >> you give people the benefit of the doubt and see which direction they are going to go. i have never been like totally stunned one way or the other. >> as a lawyer you learn to reserve judgment until you get the judgment. until you get the verdict. there are signs you have a sense when you are trying a case of who might be with you. the other thing is that we have no idea as to what those juror dynamics are going to be in that room. there may be a juror who is on your side, so to speak, but may cave to pressure because they don't necessarily have the strongest voice in the room. >> that's the other thing.

the whole conceit here is that average citizens with irrational faculties can discuss, argue, and persuade. are open to reason. and collectively can make a decision. >> and you hope for that. not to the point of favoring a consensus, but favoring what is reasonable. and what is appropriate. and what eres on the side of justice. >> what would shock me would be an acquittal. >> i think everyone is on board with that. >> that would be shocking. i think everyone is on board with that. >> thank you gentlemen. still ahead, samuel alito answers calls for his recusal on january 6th cases with a, well, wife-blaming extravaganza for the ages. she won't take down the flags! that jaw dropping term next. that jaw dropping term next.

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today, democrats on the house judiciary committee led by jerry nadler sent chief justice roberts a letter seeking more information about what he knew about samuel alito's multiple pro insurrection flags and when he knew it. pointing to the code of conduct the court adopted last year. how do you plan to enforce it? and he asked roberts does the chief justice have an obligation to report political

speech or other violations of the code to congress? remember, alito's explanation to the scandal to reporters was that his wife martha anne was confronted by their liberal neighbors and called a vulgar name and she responded by hoisting an upside down u.s. flag, a distress signal that had been adopted by the stop the steal supporters. i will say to my mind, that in and of itself never made sense. weirder that the alitos have offered no explanation for the flag over their summer house. the reporter raises serious questions about the story alito told. the neighbors in question told kantor. they put signs in the yard saying trump is a fascist and

you are complicit. the couple says there was no confrontation then. the signs came down quickly at the request of parents. then on january 17th, martha anne alito hoisted her upside down flag. but if it was a message to the neighbors they didn't see it. their house is not in direct view of the alito residence. so what about the confrontation? the first came on january 20th. joe biden's inauguration day which alito didn't attend. the neighbors drove by to see what they were up to that day. according to the neighbors, the text they sent to friends at the time. mrs. alito was outside and ran toward their car and yelled something to them t. wife of the supreme court justice appeared to spit at their card. one of those neighbors did admit at the time she called ms. alito a vulgar name. that was in a shouting match the following month in

february. a shouting match that led the neighbors to call the police on martha anne alito weeks after they had flown the flag. you might think given all these developments and the growing calls from the senate judiciary committee, alito is reconsidering the story. you would be wrong. today, alito sent a defiant letter to the senators. on his supreme court letterhead. he says he is under no obligation to recuse himself. intimating he is obligated not to which is unclear. and adding wild details to the story. quote, i had nothing do with the flying of the flag. i was not aware of the upside down flag until it was called to my attention.

i don't know. alito continued. as soon as i saw it, i asked my wife to take it down. but for several days she refused. everyone just take a minute to imagine those two days. if this is in fact accurate. now, i will say this, there is alito respecting one woman's right to choose. to an impressive extreme because he pinned the second flag on his wife as well. saying i recalled my wife did fly that flag some period of time. what is most relevant here, i had no involvement in the decision to fly the flag. my wife is fond of flying flags. i am not. what can you do? my wife is crazy about flags. now, alito's stories could be true. i don't know. but in the end, as all the judicial experts who follow this say, the point of these ethical codes, the things that apply to every federal judge is to avoid the appearance of

impropriety or bias. if you are flying a flag with a big message doesn't help and flying a treason flag over your house on the inauguration of joe biden telegraphs the appearance of some bias, wouldn't you say? as congressional democrats have pointed out, there is someone in charge of policing those. that would be the chief justice of the court. john roberts. who crucially still has yet to say anything. so where is he hing. so where is he

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today, we finally heard from supreme court justice samuel alito. he explained why two flags associated with the insurrection flew at his two homes. refused their request to recuse from current cases related to donald trump and january 6th before the court. there is one key figure we have not heard from yet. that is the chief justice of the supreme court who has said nothing about the myriad of scandals undermining america's confidence in his court. roberts has not responded to two top democratic senators who wrote him last week asking him to ensure alito recuses himself and asking for a meeting as soon as possible to address the supreme court ethics crisis. they offered a letter to justice alito calling on him to recuse. it was signed by 43 of his colleagues and he joins me now. well, you got a response.

>> yeah. >> what is your response to the response? >> it is pretty shocking. the fact that justice alito thinks that he can be the judge and jury of his own impartiality flies in the case of supreme court precedent and the constitution and federal law. and completely misapply it is standard that he is supposed to be applying even given the fact that there is no binding code of ethics on him. and he essentially gets to decide this himself. but, the standard is whether a reasonable person could think he has some degree of a bias or partiality. it is not whether he does or doesn't. it is whether, it is reasonable for someone to conclude he has an appearance of a conflict of

interest. and, for him to actually say in this letter that it is completely unreasonable to think when he flies a stop the steal flag or a stop the steal flag is flying from his home, that somehow is not reasonable 11 days after to think that he has some political bias about a case relate today stop the steal that flag in january 6th. is just bewildering. >> my wife did all of this. and, she is an independent woman who co-owns her house. so i can't control it at all. and no reasonable person could think that i have to recuse. therefore i won't. seems all this is pointing to the constitutional standoff

between the branches. their assertion, the court's current assertion is you can't make us do anything. no one can make us recuse about anything and you should take a long walk off a short pier, congressman. that is really what they think. >> 100% which is baffling. the funding that we give to the judiciary as a coequal branch. we obviously have oversight and leverage over the supreme court. otherwise, we don't have coequal branches of government. but, even under is supreme court's precedent itself, recently, a judge's spouse is sufficient to implicate a judge in whatever conflict of interest there may be. this is not old 100-year-old. this was justice kennedy and jamie raskin has a terrific op ed in the new york times which really goes through the actual

case law as to why it is not just up to justice alito. and the supreme court with their nonbinding advisory code of ethics unlike any other judge in the land. but they are required to recuse if in a circumstance like this, there is an obvious and reasonable appearance an a conflict of interest. it doesn't have to be an actual conflict. an appearance is enough and it is absurd for justice alito and justice thomas as well given his wife was involved. >> gave testimony at the january 6th committee. >> and was involved texting mark meadows related to the same conduct. the same facts that are before this court in two cases. >> yeah. >> it is not just that they have a bias toward donald trump so any executive action that donald trump made, you would do. it is the same factual pattern before the court that if you believe justice alito, both of

their spouses made political statements about. that is obvious. at a minimum, it is reasonable to think there is an appearance. >> there is the federal criminal case fence donald trump. and the fisher case before the court. one of the charges which is conspiracy to obstruct official proceeding which is before the court as well. i guess the next question is, it is notable to me, you guys wrote to alito, right? on the house side. the senate judiciary wrote to roberts. and they got a letter back from alito. itself is kind of wild. >> look. >> they didn't write to alito. they wrote to roberts and got a letter back to alito. okay justice roberts, you are the person who comes before the court. we want to talk to you. so far, nothing.

>> it underscores the problem the supreme court has right now. technically, chief justice roberts doesn't have any authority over justice alito to require him to recuse other than as part of a larger court decision if there were to be a request. but, what is shocking about this is that we are now about on the precipice of an irreparable harmful decision by two justices who to any other federal judge in the country would recuse. and it is up to chief justice roberts to save the court's legitimacy right now. and for him to not respond to senator durban and senator whitehouse. and for alito to respond to them is truly flouting congress' oversight authority and congress' role as a coequal branch.

and it does not bode well for what is to come over the next few weeks. when i think the biggest travesty in supreme court history might occur if these two justices rule on cases about which they are clearly conflicted. >> ethical. biggest ethical. >> just wanted to be clear on that. >> thank you very much. still to come, how is the guy awaiting potential felony conviction polling ahead of the current incumbent overseeing the strongest american economy in history? new data provides fascinating clues next. new data provides fascinating clues next.

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we are five months out from election day. the most illuminating aspect of the polling, it is this chart here. and it compares the preferences of registered voters. blue means more support for president biden. the red means more support for donald trump. this tom line we are showing you now. it shows support for the

candidates among registered voters who voted in 2020. and you can see that biden has lost a little bit of ground. but on the whole engaged voters support joe biden. this shows the polling preferences of register voters who did not vote in the 2020 election. this may be the source of the passive polling swing in donald trump's favor. trump holds a lead of 14 points for people who did not show up. there are two ways to interpret this. one way is there is enormous pool of dissatisfied americans who don't usually vote. the other theory is this is kind of noise. because those folks at least from a electoral standpoint

might simply stay home again. it might be the access on which our politics is currently split. explains why less engaged voters are now warming up to donald trump. it is consistent with a realignment along lines of trust. and there are some direct evidence that biden trump race is cleaving high trusters from low trusters joining me now, eric levetz. i liked the piece. i thought it was very thoughtful. what does it mean for american politics to be if it is in fact polarizing on trust? >> that means voters vary in terms of trust. how much trust they have in

various government institutions. whether they think the government try to do the right thing and whether they feel other people, their fellow americans, can generally be trusted to treat them fairly or whether you think you can never be too careful with people. they might try to take advantage of you. and in the trump era, there is some evidence that this has become increasingly predictive of whether you favor the democratic or republican party. if you are high in trust, you support democrats and low in trust, you support republicans. there are many implications of this change. but i think one of them is especially relevant to the current moment is that if you are a low trust voter. if you don't trust america's institution to be legitimate, then, a guilty verdict against the nominee in a court, well, the court isn't right. this also happens to correlate very much with how reliably you turn up for elections. more likely to show up every two years and cast your ballot. >> and so one of the things i think is interesting about is,

is we keep talking about the split between special election performance and polling and what we have seen is in special election after special election, in the last years, particularly since the dobbs decision, democrats have really overperformed. and, one of the points that cohen has made and is pointed to your analysis here is there will be a high correlation between those showing up in low turn out elections. and relatively high trust individuals. people who think basically, they trust the system will work. it doesn't necessarily tell you what is happening in the broader electorate. >> that's right. and it is complicated. on the one hand, all else being equal, you would like to be the party of highly engaged people who regularly come out in elections. democrats are very long time, in the position of being 2 coalition that relied more on

less reliable voters and that didn't always work out well for the party. >> and they got creamed in a new midterms because of it. >> and you can also be caught off guard. which happened in 2016 and 2020 where democrats underperformed polling significantly. possibly because the nature of polling is that you are measuring the opinions of people who trust other people enough. >> this is where the confounding happens. you are capturing higher trust people. this is something that pollsters are wrestling with. and there is something pernicious for democracy. trump really does, like, he really is a low trust guy. everyone is basically, everyone is a mark or a con man. everything is a cynical game of

power. there is no such thing as the rule of law and everything is rigged. one of the things we see in international settings. and you mentioned this, is that trust and democratic health are pretty correlated. it is hard to run low trust democracies. >> it's a tricky thing for liberals and progressives. if you cultivate a situation where you don't trust the government, it is hard to increase the government's authority over regulating the economy. et cetera. you need a certain baseline level of trust and in institutions to advance a wide variety of liberal goals. >> do you agree to the thesis this is correct. there is also the information

environment. biden is up at 50 points. people that don't seek out any political news, trump is up by 50 points. if you are getting information sort of catch all way, how do you reach the voters? >> it is tricky. biden is advertising a lot more on tiktok now. trying to get to voters, these voters where they are. so you can go after the platforms. it is tricky how you craft a message of change that will resonate with people. biden is trying to do this with his rhetoric about junk fees. corporate greed. but it is a tricky needle to thread. >> eric, thank you very much. that is all in on this wednesday night. alex wagner starts now. wednesday night. alex wagner starts now. wednesday night. >> tiktok is going t is that where we're at? >> i think it's totally