tem of the senate. that's going to do it for me on this busy hour for a monday. stick with us for more coverage of the kyle rittenhouse trial as closing arguments start pretty soon. "andrea mitchell reports" starts next. good day, this is "andrea mitchell reports" in washington. we are awaiting closing arguments after an ongoing lengthy meeting of jury instructions by judge bruce schroeder in the kyle rittenhouse murder trial in kenosha, wisconsin. rittenhouse is facing charges including reckless homicide and intentional homicide for his actions during an august 2020 protest that left two people dead. a random selection of 12 jurors from the 18 chosen to sit for the trial should get the case this afternoon after a closing argument from the rittenhouse defense attempt and rebuttal from the prosecution. it's a day of celebration for president biden with the white house hoping today's signing

ceremony for the bipartisan infrastructure bill will halt the slide in his polls. and in advance of his virtual summit with china's president xi jinping, some republicans who voted for the bill and have been invited to see it be signed into law are expected to be no-shows today. donald trump has slammed the legislation and congress members who supported it are being hit with a torrent of violent threats. and former trump white house adviser steve bannon surrendered to the fbi today. he'll appear in court this afternoon to face charges of criminal contempt of congress for defying the january 6th committee subpoenas. his indictment is a warning to former trump chief of staff mark meadows who also failed to show up for testimony on friday, but we'll begin with the courtroom in kenosha. a city bracing for a potential controversial verdict this week with the deployment of hundreds of national guard troops. joining me now nbc's gabe gutierrez in kenosha, and

veteran prosecutor paul anderson, take us through what we've heard through the course of the morning from judge schroeder on the jury now considering lesser charges as well. and the closing arguments to come. >> hi there, and yes, jury instructions are underway now. i want to talk about what's been happening in the last few moments, that is another disagreement between the prosecution and the defense on these exact jury instructions. they took a short break where, for example, there was discussion as the judge was reading these jury instructions that if the jury is unanimous in convicting rittenhouse on any one count, then, yes, that is a conviction. but if they are not -- if they are unanimous in finding him not guilty on the most serious charge, can they then consider those lesser charges or if they say that it's unanimous not guilty, do they, you know, have to move on entirely? that was the discussion that's underway right now.

there's some legal my knew sha there, that's what's happening. after this we will go into closing arguments. the prosecution will go first, basically two hours or so for each. the jury could get this case by late today. i also want to discuss something that happened this morning, very significant. the sixth count that was dismissed, one of the charges against kyle rittenhouse, it was a misdemeanor gun possession charge by a minor. that was a misdemeanor charge. kyle rittenhouse now faces five felony counts, and the reason the judge dismissed this, andrea is because the state statute in wisconsin makes it illegal for minors to carry a handgun or short barreled shotgun or rifle. however, the statute does allow teenagers to go hunting with rifles and shot guns. there was a debate in the courtroom about the length of that rifle and the prosecution admitted the barrel was longer than 16 inches.

so not a short barreled rifle. the judge dismissing that sixth count. so while it is only a misdemeanor, andrea, that is seen as a blow to the prosecution because many legal analysts thought that that was perhaps the greatest chances they had of an outright conviction, and again, that's tossed out now. kyle rittenhouse now facing five counts related to his shooting two people and wounding another that night of unrest during the unrest last summer, andrea. so that's where we are right now. jury instructions still underway. we're expecting closing arguments soon. >> danny cevallos, i want to play an early portion of the judge's instructions focusing on self-defense. >> the law of self-defense allows the defendant to threaten or intentionally use force against another only if he believed that there was actual or imminent unlawful interference with his own person

and he believed that the amount of force which he used or threatened to use was necessary to prevent or terminate the interference, and his beliefs were reasonable. the defendant may intentionally use force, which is intended or likely to cause death or great bodily harm only if he reasonably believed that the force used was necessary to prevent imminent death or great bodily harm to his own person. a belief may be reasonable, even though it is mistaken. a standard is what a person of ordinary intelligence and prudence would have believed in the defendant's position under the circumstances that existed at the time of the alleged offenses. >> so danny, first to you, and then to paul on what you infer from the way the judge presented that. >> all right it's very confusing. it's the nature of jury instructions, and we'll likely see when the jury starts passing notes asking for some more definitions because jury instructions can be confusing.

but boiled down, self-defense in wisconsin is basically the rule that the prosecution must disprove self-defense beyond a reasonable doubt. they can do that a number of ways. they can disprove that beyond a reasonable doubt that kyle rittenhouse believed imminent attack is imminent. in other words, threat to hurt you next tuesday is not the same as an imminent threat. they can argue that kyle rittenhouse used disproportionate force. he was attacked with some force but he used deadly force. the burden is always on the prosecution to disprove one of those crucial elements of self-defense. >> and so, paul, what does the kenosha assistant district attorney thomas binger need to do with his closing argument to make the case after such a rocky prosecution and so many rulings against him by the judge.

>> yeah, he's got a lot of ground to make up. that's exactly why these jury instructions actually matter because after the conclusion of the arguments. after the conclusion of the evidence, these are the rules that the jury is going to follow in that room by themselves to try and interpret, and a lot of it is in legalese. the prosecution's case is going to hinge on them being able to unpack a pathway that leads to conviction or guilt, and that's part of why the dismissal of the misdemeanor count is a punch in the gut. that is a gateway conviction that is statutory that leads them to interpreting the evidence that they've seen so far as guilt. that's why it's such a big blow. as we were just talking about with the self-defense issue, the prosecution has to make that presentation, which they should be comfortable doing, articulating, and this is their strongest argument that that use of force and the self-defense argument has to be applied three

separate times for each of the defendants, for each of the victims in this case. and so they have to explain and unpack to this jury that that fear had to be reasonable and that the use of force was justifiable in each of these cases. so for victim number one, they're going to spend a lot of time talking about why he was shot four separate times. for victim number two, they're going to talk about how he was shot in the back. for victim number three, you know, that was why it was such a big blow when there was ambiguity in the cross examination as to how he was shot before or after he raised the gun and pointed it at the defendant. i mean, that really undermines a lot of the challenge to self-defens the prosecution was planning on presenting. that's why all of these instructions, and there's so much back and forth, and they are literally fighting over language as to what gets presented to this jury. keep in mind, the jury is the determiner of facts. the judge is the determination

of law and the fight back and forth about what law gets presented to this jury could be outcome determinative for the jury when they start evaluating this case, and we've already seen based on the rulings how the judge either feels about the prosecution's case or the lawyers for the prosecution as they're trying to present and put in this very difficult case that has gone south and almost crumbled underneath them based on the rulings and based on the evidence that's going into this case. >> that's exactly why it's so complicated, why these are critical moments. thanks so much. i know you're going to be staying with us for the rest of the hour as we sort through this and go back and forth with whatever happens in court. also due in court here in washington, trump ally stephen bannon. steve bannon turning himself in on contempt charges to the fbi today. the warning that it sends to ere trump era officials.

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former trump white house adviser steve bannon surrendered voluntarily at the fbi field office today in washington before a scheduled court appearance this afternoon. he's facing charges of criminal contempt of congress for refusing to testify or deliver documents to the january 6th committee investigators. the indictment is unprecedented in that bannon, who left the white house in 2017, is the first person to be prosecuted for contempt of congress while asserting executive privilege. bannon's case is a warning to the nearly 20 trump associates who have been subpoenaed by the january 6th committee, including former trump chief of staff mark meadows who declined to appear friday for his deposition. joining us now, nbc news correspondent ken dilanian at the federal court, nbc justice correspondent pete williams, "new york times" chief white house correspondent, peter baker

and melissa murray. what do we expect when bannon appears today? >> hey, andrea, excuse me, we e believe he may already be inside that courthouse behind us, and this is going to be an arraignment, so the charges in the indictment will be read, and he'll have a chance to enter a plea. he's represented by david schoen who viewers may remember was one of the lawyers for donald trump in the second impeachment trial, and look, this is the beginning of a long legal saga for bannon. this case could take as long as a year. these charges carry a penalty of a minimum of 30 days in jail and a maximum of a year per count along with a fine, but what this means, andrea, is that in all likelihood, unless steve bannon decides to cave and cut a deal, the committee will not have his testimony because the calendars just don't match up here. this criminal trial will take some time and the select committee is trying to put out a report as soon as the spring. and so what they're hoping is that this will serve, as you

said, as a deterrent effect to the other many witnesses that they have subpoenaed, some of whom are beginning to defy these subpoenas to show there are real consequences to this. you can't just not show up when congress demands your presence. there are potentially criminal penalties, andrea. >> pete williams, let's talk about the fact that what is not determined by this at all is for him to turn over any documents or to testify if it were civil contempt, he could be jailed if convicted, jailed until he finally agrees to testify. but under criminal contempt, he could serve his time and they would never get his testimony. >> reporter: that's right. it doesn't matter when the trial ends because even if he's convicted, he still doesn't have to testify. all this is is his punishment for refusing to testify to congress. the problem, as ken said, is not only is he not cooperating or bringing documents, he wouldn't show up and answer at all. and some of the other witnesses

that have been subpoenaed by the january 6th committee have at least said that they'll show up and then take questions case by case, which is the way this normally works when there's an assertion of executive privilege. civil contempt, you're right, is often contempt of court. you're locked up until you agree to testify or produce the documents or whatever this is different. this is contempt of congress. now, in terms of how long this is going to take, andrea, the last time there was prosecution for contempt of congress in washington was during the reagan administration, a former epa official, that trial took just two months from the time she was indicted until she was ultimately acquitted. so this could go fairly fast, and of course bannon will be out on bail. he won't face bail because it's a misdemeanor. he'll be out, he'll be free until the trial begins. and he's clearly relishing the attention. >> indeed. peter baker, let's talk about what's been going on in

washington with this, and there's also a decision that just came down with alex jones, by default found guilty by a superior court judge in connecticut in his libel case. there were eight sandy hook families because he had accused them and the federal government of a conspiracy saying that their children weren't actually murdered. it's just incredible. melissa, if you want to talk about that as well, and then peter baker, i want to talk about alex jones as well. >> sure, andrea. this is a really momentous ruling. these were defamation charges. alex jones refused to show up in court and what the trial court judge here has done is issued a default judgment in favor of the sandy hook parents. >> i just heard that closing arguments are starting. let's check in with the rittenhouse trial. let's find out if this is indeed closing arguments. >> antioch, illinois, and

staying out after a city wide curfew. >> your honor, i would object. there's no curfew charge anymore. there's no gun charge. >> although he claimed -- >> there's no charge, but -- and there has been some discussion about the lawfulness of the curfew, not in this case, but elsewhere, so it's -- but there had been a curfew announced. that does not mean that it was technically lawfully -- legal curfew, but there had been an announced curfew, and i'll leave it at that. >> and it was a curfew that all the rest of us here in kenosha were aware of, and i think most people, most reasonable people obeyed. although the defendant claimed to be protecting a business that he wasn't familiar with, the actual killings in this case had nothing to do with that. and he also spent the entire

evening lying about the fact that he was an emt. none of the things that i just told you are in doubt in this case. so when we think about the defendant, i'd like you to consider as you think about this case what his true motivations were. was this a situation where he sincerely cared about car source, even though he'd never heard of it, never bought anything there, never worked there, and not even its owners were out there that night protecting it. was he genuinely interested in helping people, he ran around with an ar-15 all night and lied about being an emt. does that suggest that he's genuinely there to help? he's not there for the same purpose as the protesters, so why was he there that night? when you think about these things, i think there are some things that we can all agree on. in america it's hard these days. people are polarized, and

there's a lot of political issues back and forth. the judge has made it clear, this case is not about politics. there is common ground here. we have all agreed -- and i asked you this two weeks ago -- raise your hand if you agree life is more important than property, and all of you raised your hand. we also agree that no one person's life is more valuable than another. you don't get to kill someone simply because they're a drug dealer. you don't weigh a pastor's life over a teacher's life. you don't weigh a police officer's life over an engineer's life. all life is sacred. i think we can also agree that we shouldn't have 17-year-olds running around our streets with ar-15s because this is exactly what happens. and finally, i want you to keep in mind that we've all read stories and heard about heroes that step in to stop an active shooter or to give their life to save others.

in fact, many people in wisconsin went out and got carry and conceal weapon permits just so they could be there in case there was an active shooter and wanting to stop them. so when you consider this case, look for the truth. so many people look at this case and they see what they want to see. they have a preconceived notion, and they tailor the facts to fit whatever they believe, and you all agreed to keep an open mind. you all told us you didn't have any of those preconceived notions. now you've heard the evidence, and it's time to search for the truth. so consider, for example, whether or not it's heroic or honorable to provoke and shoot unarmed people. consider whether it makes someone a hero when they lie about being an emt. i think all of us are familiar with someone who does the sorts of things that the defendant has done. they enjoy the thrill of going around and telling people what to do without the courage or the honor to back it up. and without the legal authority

to do so. and when you think about the defendant's behavior in this case, contrast it with anthony huber. a man who was there because he knew jacob blake, who carried his skateboard everywhere and who rushed towards danger to save other people's lives. so when i talk to you here in my closing argument, i'm going to focus first on the murders that the defendant committed. second, i'm going to address some background issues, give you some context and talk about some of the things that i don't think are relevant to this case. and finally, i'm going to tie it all in to the jury instructions that the judge just gave you. as prosecutors in this case, my colleague jim kraus and i have tried to present you with all of the relevant evidence that we think you should consider in this case, and i told one of you in jury selection that at the end of this, you would be the expert. you would have all the information. you would be the one who would

know all about this case and make this decision. and that's what we've tried to do. so let's go to august 25th, 2020. the defendant came from outside our community carrying a gun that wasn't his because he expected and anticipated violence that night. and he pretended to guard what turned out to be an empty building owned by people he'd never even met, while fraudulently claiming all night long to be an emt. there were a lot of people out that night. some people stayed home protecting their homes and their families. others went to their businesses, boarded them up and protected them, and a lot of those people had weapons. a lot of them had guns. there were other people who came along to protect car source or ultimate gas or other businesses, and many of them were armed with ar-15s just like the defendant. in fact, you're going to see a video -- and you've already seen

it -- of a clash between people with ar-15s at ultimate gas and other folks that are i guess protesters, and there's people getting in people's face. there's yelling. there's shouting. there is even shouting, and yet in this entire sequence of events from the shooting of jacob blake on sunday, august 23rd, 2020, all the way after that, everything this community went through, the only person who shot and killed anyone was the defendant. yes, there was property damage. no one's here to defend that. no one's here to tell you it's okay to commit arson or looting. no one's here to tell you it's okay to be rioters. i'm not defending any of that. you know because you've been told in the testimony, i'm prosecuting joseph ziminski for arson. that's not okay. but what you don't get to do is kill someone on the street for committing arson. so let's keep that in mind when

we're talking about the people involved in this case. so let's begin with the provocation and the murder of joseph rosenbaum because it's all captured on video. as the defendant and mr. rosenbaum arrive at the 63rd streetcar source, mr. rosenbaum is ahead of the defendant. and as you see in the fbi video, when mr. rosenbaum starts to run, the defendant starts to run as well at the same time as if he's pursuing him. mr. rosenbaum could not have possibly have known the defendant is behind him. there's no indication in this record that he knew the defendant was there. it's not an ambush. it's not a situation where he goes there and lays in wait for the defendant. the defendant arrives at that location and you hear him yell friendly, friendly, friendly because he's aware of the fact that the people that he's about to confront are hostile to him. and i'm going to show you in a moment the video in which the

first thing he does when he arrives at that location is drops the fire extinguisher that he's holding in his left hand so he can raise the gun with his right and left hands and point it. this is when you hear someone -- i think the testimony is rosenbaum. it's not clear to me, but either way, yelled gun, gun, gun. and then mr. rosenbaum charges around to try and stop the defendant from pointing his gun or shooting anyone. so let's take a look at some of that video. this is exhibit 73, the full drone video. and as we've pointed out to you before and jim will point out to you here in a second on the screen, when the defendant originally arrives at that scene, the first thing you see him do is drop the fire extinguisher and point his weapon at people.

and then the chase occurs right after that. and you're going to see that entire sequence of events here on the full drone video. the defendant turns as he's being pursued and points the gun at mr. rosenbaum, and then as he enters the area between the parked cars, he slows and turns and before mr. rosenbaum can even come close, he fires at him. shooting and knocking him to the ground. now i'm going to show you the slowed down and zoomed in video

of the defendant when he first gets there, and mr. kraus is going to help me by directing your attention on the larger screen here to exactly where you will see the defendant. i'm going to replay it a few times so you can see quite clearly that the defendant sets the fire extinguisher on the ground with his left hand and then brings his left hand over to the gun and raises it and

points. guys, check the gun, make sure it's empty. under wisconsin law, you're not allowed to run around and point your gun at people. this is the provocation. this is what starts this incident. the defendant rushes in and immediately points the gun, and as you'll see in a little bit, mr. rosenbaum doesn't take kindly to people pointing guns. i don't think anyone does. that's not unusual. no one wants to have the gun pointed at them, and no one wants to watch anyone else do this to someone else. we have the gun. it is in evidence as exhibit no. 28. i'm having the detectives check it to make sure that it is safe.

the defendant comes running in and drops the fire extinguisher on the ground like this. and then raises his left hand to the gun and points. this is what we see in the video, him putting the fire extinguisher on the ground and raising the gun. >> he's facing the wrong direction. >> that's an argument. >> i'd like to actually have -- i'll leave it alone. >> so what you see in that video is his left arm reaching for the gun holding it up. you can see it again on the video here. his left arm reaching up towards the gun. that is what provokes this entire incident, and one of the things to keep in mind is that

when the defendant provokes the incident, he loses right to self-defense. you cannot claim self-defense against a danger you create. that's critical right here. if you're the one who is threatening others, you lose the right to claim self-defense. then we have the chase that occurs after that, and we have taken that drone video, and we have slowed down portions of that chase for you. so what we have right here on the screen, this is exhibit 84, and this is the middle portion of that incident, and you can see mr. rosenbaum chasing after the defendant throwing that plastic bag and then the defendant turns and points the gun back at mr. rosenbaum, and this is the moment in time when mr. rosenbaum essentially does sort of a little hop with both of his hands in the air. the defendant has testified he saw at that moment that there was nothing in the defendant's

hands, or mr. rosenbaum's hands. he was unarmed. there's the defendant turning and pointing the gun. mr. rosenbaum leaps, his hands out to the air, and then watch here at the end. this is where the shooting occurs. mr. rosenbaum is not even within arm's reach when the first shot occurs. i'll play that again. the defendant is pointing the gun at mr. rosenbaum. mr. rosenbaum raises his arms off to the side. the defendant approaches these cars and slows down, and then turns and shoots mr. rosenbaum. finally, i'm going to play you exhibit 86. this shows you the final part of that zoomed in and slowed down. here is the defendant running in

between those parked cars slowing down, and you can see just how close or rather how far away mr. rosenbaum was when the defendant shot him. you can see from this video that mr. rosenbaum is not even within arm's reach of the defendant when the first shot goes off. the defendant fires four shots in quick succession, and i'll come back to this in a moment, but you'll note during this entire sequence, it's the defendant who chooses where to go. he's the one who decides to run where he runs. and he slows down right as he gets to these parked cars. that's what allows rosenbaum to get closer. we've seen this on the aerial footage from the fbi, and i want you to see that perspective as

well. this is exhibit 25. this is the annotated aerial footage. you see the defendant approach running in the same direction as mr. rosenbaum. this is where the pointing occurs in the direction of the ziminskis. you can see josh ziminski right there on the screen. i'm going to put the cursor over where the ziminskis are. they're right in there. the defendant is pointing his right here, and he's pointing it in the direction of the ziminskis because they're standing next to that car, and then the chase occurs. now, what's interesting to me is watch when the crowd starts to

run. the crowd's already starting to run here even before the defendant has fired a shot. that's likely because they heard the first shot from joshua ziminski, and the crowd starts to run away. the defendant has testified that that shot from mr. ziminski had nothing to do with his decision to kill joseph rosenbaum, and i'll come back to that in a second. finally, i'm going to show you this incident from the perspective of drew hernandez because he is behind all of this, and then he comes upon mr. rosenbaum's body. >> is that audio playing?

is brian around? he's not. can you text brian, please? >> at this point the defendant has shot and killed joseph rosenbaum, and mr. rosenbaum is laying face down. that's where he falls. richie mcginnis actually rolls

him over after trying to stem the bleeding here. you can see in the foreground that plastic bag that mr. rosenbaum threw on the ground, i don't think there's any dispute there was nothing harmful in that bag. it was a clear bag containing some clear items. >> objection, there is a dispute what's in that bag. >> then you can make that dispute in your argument. >> it's argumentative, you'll be allowed to respond. >> you can see in this video the crowd is attempting to save mr. rosenbaum's life. >> keep your eyes open, keep your eyes open. >> you shot him? >> put pressure, got to keep him alive. >> so we have shown you the defendant murdering joseph

rosenbaum from three different angles. the drone footage, drew hernandez, and also the fbi video. the defendant admitted that during this entire incident he knew that joseph rosenbaum was unarmed. i'm going to come back to this in a little while, but there's this alleged threat that mr. rosenbaum made earlier in the evening to kill the defendant. i will debunk that. that did not happen. it is the one fact in this case the defendant wants you to believe that there's no video of, and in fact, i have the video of the entire incident. i've played it for you, and i'll show it to you again. there's no threat. there's also no evidence that mr. rosenbaum ever wanted the defendant's gun. he never said i'm going to take your gun. he never said i want your gun. there's no indication of that. dr. kelly has testified that the first shot that the defendant fired at joseph rosenbaum hit

the victim in the right pelvis fracturing it. mr. rosenbaum was incapacitated at that point. he is -- whatever threat he might have posed, it's over. there is no further threat. he is falling to the ground, and the defendant doesn't stop after that first shot. he tracks mr. rosenbaum's body all the way down firing three more shots. a second shot, which goes through mr. rosenbaum's hand, and then a third and fourth shot, one that grazes the right scalp and one that goes right into mr. rosenbaum's back, and that is the kill shot. that is the one that took mr. rosenbaum's life. there is no evidence that mr. rosenbaum was reaching for the defendant's gun, and after that first shot, there's no way mr. rosenbaum could have taken that gun even if he wanted to.

he is already falling to the ground. he is helpless. he is vulnerable, and as i said, the kill shot is the one to the back. this is that wound, dr. kelly testified that the angle of this shot was from the left shoulder towards the center of the back and the bullet continued on down towards the right lower back area tearing through bodily organs and killing mr. rosenbaum. here is a picture of the wound to the hand. there's been a lot of testimony about this wound. this is one in which the evidence suggests that mr. rosenbaum's hand was most likely turned in this position palms outward with his thumb to the ground when the wound, the bullet goes through the area in between his middle finger and his ring finger and penetrates the lower knuckle of the middle

finger and the index finger before exiting. dr. kelly testified there's soot in that area suggesting that the hand was close to the end of the defendant's barrel of the ar-15 at the time of that shot. the defense wants you to believe it's there because mr. rosenbaum is deliberately reaching for the gun. well, that doesn't make any sense. first of all, this occurs after mr. rosenbaum has been shot in the hip and has got a fractured pelvis at that point. he is falling. he is not able to walk. he's probably not even able to control much of his movements at this point. when you're reaching for that gun this is not the way you're going to do it. this is not going to be effective. i submit to you, ladies and gentlemen, to the extent mr. rosenbaum's hand ever got close to the end of the defendant's gun, it was completely inadvertent, not at all

intentional. now, we've heard a lot about the ziminskis in this case, and i just want to carve them out of this case right now because it's a red herring. it has nothing to do with any of this. there's been some focus on that because i think the defense was hoping they could work this into their self-defense claim and make an argument that that first shot by joshua ziminski somehow made the defendant fear for his life. unfortunately, the defendant wasn't on board with that because in his testimony he told you that that shot had nothing to do with his thought process. it didn't affect him in any way. he said he didn't think the shot came from joseph rosenbaum. he knew joseph rosenbaum was unarmed, and he admitted to me, you can't kill joseph rosenbaum for something joshua ziminski did. so let's just carve joshua ziminski out of this case. i'll deal with him on his arson trial in january. but until then it doesn't factor into any of the decisions the defendant made.

and in fact, as you see on the fbi video, the ziminskis continue walking straight on down the sidewalk. they don't pursue the defendant. they don't threaten the defendant in any way. now, the defense wants you to think joseph rosenbaum was there to attack the defendant. we'll never know what joseph rosenbaum was thinking because the defendant killed him, so we're just guessing. but let's assume for a minute, yeah, joseph rosenbaum is chasing after the defendant because he wants to do some physical harm to him. he's an unarmed man. this is a bar fight. this is a fistfight. this is a fight that maybe many of you have been involved in. two people hand to hand, we're throwing punches, we'reshoving,. what you don't do is you don't bring a gun to a fistfight. what the defendant wants you to believe is because he's the one who brought the gun, he gets to

kill. so i want you to contrast this, two different scenarios. one scenario where there's two guys who are throwing punches at one another like a bar fight. i think we'd all agree you can't kill someone. you can't punch the guy and knock him to the ground and get on him and strangle the life out of him, that's murder. so what's the difference here? the only difference is the defendant brought a gun. he brought his ar-15. that's why he's got to come up with this cockamamie theory that joseph rosenbaum was not only going to take the gun but take it and then turn it on the defendant. and the defendant actually told you that he thought joseph rosenbaum was going to take that gun and not only kill him but kill other people, which is really ironic considering the defendant is the one who killed people in this case and the only one. but putting that aside, they have to convince you that joseph rosenbaum was going to take that gun and use it on the defendant

because they know you can't claim self-defense against an unarmed man like this. you lose the right to self-defense when you're the one who brought the gun, when you're the one creating the danger, when you're the one provoking other people. the defendant fired four shots at joseph rosenbaum and caused five wounds total. the first shot fractured joseph rosenbaum's pelvis. this causes him to be helpless. he is falling face first to the ground, and he is vulnerable. the second shot went through his left hand, probably ricochetted off the ground and hit his lower left thigh. it's a flesh wound, i'm sure it hurt, but probably not all that serious. the third and fourth shots are as mr. rosenbaum has fallen almost completely to the ground. he is parallel to the ground. he is almost face first to the ground. the defendant fires a round into his upper back, which is the

kill shot and another round which grazes his right scalp. at this point, as you saw in that video, a crowd rushes to that body to try and save joseph rosenbaum. they're trying to put clothing on the wound to stop the bleeding. they're going to take him across the street to a hospital. kmh, freighter south is literally right across the street, and this crowd, except for the defendant are all focused on trying to save this person's life. a person, by the way, they probably had never even met before because that's what most people do. richie mcginnis testified i rode with rosenbaum in the back of that suv. i told him we'd have a beer together when this was all done. mr. rosenbaum was unable to respond. the defendant decided to pull

the trigger on his ar-15 four times. that was his decision. and he is responsible for every bullet that comes out of that gun. he doesn't get a pass by pulling the trigger fast. he could have chosen to stop after the first shot, after the second shot, after the third shot, and assessed whether or not there was still a need to keep firing. but he went four times in 0.76 seconds. the defense has made a big point of this, how fast he fire department -- fired, as if that somehow excuses him? he controls how quickly he pulled the trigger. he is in control of that decision-making process. no one else made him do that. and this is indicative of someone who doesn't care about the consequences, doesn't care to stop and figure out am i good?

do i need it stop? or i'm just going to keep on going. as i said, he tracks the body all the way to the ground with those second, third, and fourth shots. the only way that you could possibly justify the murder of joseph rosenbaum is if you believe that joseph rosenbaum was actually reaching for the defendant's gun and that a reasonable person in the defendant's position with that ar-15 strapped tightly to his chest would think that joseph rosenbaum was even capable of taking that gun away as he's falling to the ground with a fractured right pelvis. and then not only all that, you'd also have to believe that joseph rosenbaum was going to turn that gun around and use it to kill the defendant. you have to believe all of those things to justify the murder of joseph rosenbaum.

that's why the defense is trying so desperately hard to convince you that joseph rosenbaum threatened to kill the defendant, which never happened. that's why they're trying so desperately hard to convince you that joseph rosenbaum was reaching for that gun because if he's for that gun, and he's not going to use it to kill the defendant, it is not justified. there is no valid self-defense claim. one of the things the judge instructed you is when the defendant provokes the situation, he has to exhaust all reasonable means to avoid killing someone. did he? he didn't have to shoot. he's the one who chose where to run. he chose to run between the parked cars. he slows down as he gets there. the crowd is already running away. the defense wants to make a point. there's a bunch of people over there doing stuff to cars and the defendant had no escape

route. the crowd is already running away at this point. they've heard the first gunshot from za min ski and they're starting to scatter. but if you look on the video, there's a huge open space in that lot where the defendant could have circled back around, and he does after killing rosenbaum where he could have gotten away. he has to exhaust all reasonable means of escape before killing mr. rosenbaum. your honor, i do have some more video i want to play. i'm having technical problems i'd like to work on. i think this would be a good time to pause, if that's okay. >> okay. >> thank you. >> please don't talk about the case during the break. and we will begin again at 1:45 too soon? >> as they take a break, joining us now, nbc news shaq brewster

and danny have a vaul us. >> we're hearing argument that is a little bit challenging, a little bit on o jexable. you hear the defense objecting different things. he mentioned the curfew. that charge was dismissed. he's arguing essentially that the jury must believe in order to believe self-defense that joseph rosenbaum was attacking essentially kyle rittenhouse. that's not exactly the burden here. it really is the prosecution's burden to disprove beyond a reasonable doubt any of the elements of self-defense. so the prosecution being very ambitious here. they're making points about hey, should kyle have been on the street at 17 years old with a firearm? that's not really relevant to either provocation or self-defense. but as predicted, what you will hear and what we have heard so far is the word provocation many, many times. this is the trump card for the prosecution, because if the jury

believes it, if they accept provocation from the prosecution, it effectively negates self-defense by rittenhouse. rittenhouse then must in order to reacquire self-defense, retreat from the dispute and communicate his withdrawal. that's a steep burden for rittenhouse to acquire. the prosecution is going to put all of its chips into provocation, and hope that the jury believes that kyle rittenhouse somehow in photographs and video was the initial aggressor in the encounter with rosenbaum or the other person. if the prosecutor wisely said, don't worry about him. i'm going to prosecute him for arson showing the jury that look, i'm an equal opportunity guy. i prosecute all the bad guys on either side of the dispute. >> and shaq brewster, what is going on in the city of kenosha? we know that the national guard is at least prepared in case if there's a verdict this week,

there are some protests. >> yeah. you have those 500 members of the national guard that have been activated and a handful of protesters outside and a large media presence. this is something people in kenosha have been watching own waiting for closely. this is something they know. they experienced it before. we know last year what this town and what this community went through. this is definitely going to be a focus there. and people are waiting for the trial to essentially be wrapped up. one thing we got that we learned from the arguments this morning is a little bit of the sense of timing over when this can actually be wrapped up. the judge took a poll of the jury, 20 members or 19 now of the jury panel there, and asked if closing arguments, if those closing arguments wrap up around 4 p.m. or 5:00 p.m., would you want to start deliberations now or is that something you want to wait and start fresh for tomorrow? and it seems as if the jury was split. half of them said they wanted to start tonight. the other half said they wanted

to start fresh tomorrow. so that gives us an idea of when deliberations can start. >> thanks so much to shaq and danny. i know throughout the afternoon you guys are going to be available for the trial coverage. meanwhile, president biden has a big die. -- big day. signing to pour money into the country's roads and bridges as well as expanding broad band access around the country and other things. the white house invited members of congress who supported the measure, but after mitch mcconnell said he wouldn't go, although he voted for it, donald trump slammed the bill as well and some republicans who voted in favor of it are receiving death threats and other threats. so how many republicans will actually show up? joining us now, nbc news national political reporter sahil kapour and peter from the new york times. peter, let's talk about how unusual it is that a bipartisan infrastructure bill, infrastructure used to be the most popular thing in washington politically. how could this become so -- how

could this situation become so toxic that people like fred you wanten of michigan are getten threats and other republican members getting threats flooding their offices and even after marjorie taylor greene let people know their phone numbers, all kinds of calls coming into the hill? >> yeah. we've never seen anything quite like this. obviously there have been times in american history, even recent american history that triggered people's emotions in strong ways. you have calls of treason and traitor debate. that threat. not usually over an infrastructure bill. not over roads and bridges. this is the kind of thing that's traditionally bipartisan. you can imagine in the reagan and clinton era, even the obama era, both parties showing up for a signing ceremony. that's what's done. who wanted one before biden? trump. he wanted a $2 trillion infrastructure bill. it's not like infrastructure was somehow anti-republican. you can take issue with this bill and say it should have been

more of this or that, but they're not the kind of differences of opinion that usually trigger people to have the kind of violent response you're seeing on the part of at least a small amount of people threatening members of congress. new roads and new court facilities and water facilities and things like that. >> i know the white house wants the victory lap. the polls have been sagging but the moderates should take note of people saying this bill is not inflationary. it's an investment. neither would be the build back better bill. both should be signed and they would help the economy. >> that's right. this is about short-term versus

long-term investments in the economy. we will see the president take that victory lap today here at the white house surrounded by democrats and some republicans. but then passing the second part of his agenda gets increasingly more complicated. because of those new inflationary figures that we have been getting, and that you've all been talking about, and because of moderate joe manchin's reaction to them. he last week said that it is something that washington, that the white house that congress need to deal with immediately. and that has raised some real concerns about whether he is going to be able to get behind the build back better spending and climate plan. which is, of course, what the progressives wanted to be voted on at the same time as the infrastructure bill for this very reason. they were concerned that if it didn't all pass at once, that this second tranche would be difficult. we're going to see the president turn his attention to try to get it over the finish line.

i asked the president moments ago if he's confident it will pass the house this week. he said he's confident, but there's a lot of skepticism. we'll see. >> we got less than a minute, i think, sahil. do you think that members of the house leadership are confident they can get it through this week? >> well, this week seems difficult, andrea, unless the cbo gives enough fiscal information. that's the word they're using to satisfy house democrats. the five centrist members in particular who have said they're not ready to vote on it yet. they have not defined what it means. they have said it doesn't mean a full fledged score of the entire build. that's coming later. that's not going to come this week. it's really in the minds of the five centrist democrats as to whether the congressional budget office, putting out information about the various tights little by little is going to be enough. of course, the later this gets, the more you brush into the thanksgiving deadline and the congress is already facing a jam packed december to fund the

government. for today the white house wants to celebrate the bipartisan infrastructure bill and nbc news confirmed some republicans like moderate senators murkowski and collins and trump adversaries like mitt romney and bill cassidy will attend. as you noted, one notable nonattendee is mitch mcconnell, the republican leader. >> thank you very much. and arguably to lisa murkowski and susan collins, it's in their political benefit to attend. we'll be back tomorrow. follow us online @mitchelreports. garrett haake is in for chuck todd. stay tuned at 2:00 for the return of katy tur from maternity leave. welcome to "meet the press