that special counsel jack smith appointed by the attorney general why didn't you make it before. you had a bunch of different motions to dismiss on a number of different grounds. why didn't you make it before? the reason is clear, because it's a loser. >> but justice thomas suggested it could be a legitimate motion to dismiss. >> he did. he did that without any briefing. neither party, not even trump, had raised this argument to justice thomas. and he took it upon himself to decide in concurrence that this was an issue when it hadn't been briefed. that is highly irregular. and improper. >> kristi greenberg, i have a thousands questions for you. but that's going to do it for our coverage now. i hand off to my colleague jose diaz-balart who picks up our

coverage right now. good morning, 11:00 a.m. eastern. 8:00 a.m. pacific. i'm jose diaz-balart. and we begin on the breaking news on the legal drama surrounding former president donald trump. a judge is holding an election in trump's federal election hearing case. the first hearing in nearly a year. trump is not at or attending today's hearing. his lawyers entered a not guilty plea on his behalf to a revised version of the indictment filed last week. now today's hearing comes just over two months after the supreme court's landmark ruling that former presidents have broad immunity for prosecution for official acts. judge chutkan is expected to lay out a schedule for how the proceedings will take shape over the next couple of months. with us now, nbc news justice and intelligence correspondent ken dilanian, katie fein, the katie fein show.

and maya wiley, former assistant district attorney. ken, what has been happening in that courtroom over to? >> reporter: well, jose, first, i'll tell you about the atmosphere and tone which is important then i'll tell you about the substance. in terms of tone, this hearing could not be more different than the ones we've been covering for a year down in florida in that now dismissed case on classified documents from judge cannon. judge chutkan has no patience on any argument from donald trump's lawyers that he's special because he was a president. and running for president. and judge chutkan responded i'm not talking about a presidential election. i'm talking about a four-count criminal indictment. she said what you're trying to do is prevent evidence from being presented because it might be impinge on trump's election

argument. it goes where we go from here in this case and what evidence will be put before the election, that's one of the most consequential things on what can be included and what must be excluded. and where we are right now, judge chutkan said she will rule on the scheduling matter by the end of today which is another contrast to judge cannon down in florida who took months at times to rule on these motions. what the special counsel wants to do, for both sides to file detailed evidentiary briefs making their arguments what should be considered immune and included based on the new superseding indictment. and that could include grand jury evidence that they have not seen. before voters go to the ballot box in november, they're going to learn very serious things in the criminal case of donald trump which accuses him of

trying to defraud the united states of america. so trump's team wants to delay this thing. they want to argue when the special counsel was appointed inappropriately before they get to this question of immunity. judge chutkan seems to be moving very quickly. so we'll know probably by the end of today how this case is going to shape up over the next few months, jose. >> katie, what do you make of what's happened so far? >> i think it's predictable. if you watch judge chutkan, she's efficient and she does not suffer fools. the brakes were kind of hit on this because everything went to the supreme court. we saw her moving at a pace -- remember, this was set for trial in march of this year, jose. >> right. >> she's basically putting everyone's feet to the fire, in fairness to both sides, saying, hey, what's the delay here. critically, what we're seeing happen right now is important, one, trump wants to have the issue dealt with preliminarily.

we saw that was the basis for judge cannon to dismiss that in florida. judge chutkan said to john lauro, the lawyer for trump, saying there's d.c. precedent that says the special counsel isn't presented in that. she also making a dig at judge cannon, she said that's another district court and i do not find that to be binding on me. she said, look, i'm going to allow you the following which is not a green light. she says to trump's counsel i'll allow you to file a motion for leave to file a motion. >> explain that one. >> okay. normally, you can file a motion if you are within the time frame to do so. in this instance, they said, trump, you had time to do it, you didn't do it before, i'm going to allow you to ask me for permission to file that. you're going to have to explain why that d.c. binding presa sent that i have that tells me that

special counsel jack smith can be your special counsel, why that doesn't bar the motion you want to bring. this is important because trump wanted to delay the immunity exception to way into december, almost january of 2025. so if this is dealt with cleanly and quickly, we can get to the immunity issues very quickly. >> so the issue of the special counsel jack smith legality has already been dealt with? >> already been dealt with in judge chutkan's circuit. she said there's a higher court, called the appeals court, that has told me that special counsel jack smith can continue and be the special counsel. it hasn't been dealt with in the case, why, because trump was asleep at the wiehl. >> maya, what are you looking at for today's hearing? >> rationality. katie just laid it out quite well that judge chutkan is being very rational about managing her

courtroom. i feel the real mic drop which will we just talked about which ken named is the fact that she said i'm not looking at this as an election. i'm looking at this as a four-count indictment, meaning she's doing her job. and on the special counsel question, this is exactly to the point of her doing her job. she's saying, yeah, defendants get the right to map legitimate offenses. but you don't get to do it any way you want to in order to delay this so potentially you can just delay it out of existence. she's saying there is an indictment here. my job is to address it. and, by the way, the immunity questions here are history-making. i do want to say that you know, you if really want to get to the meat of the questions here, it is the question of whether mike pence, as a candidate, talking to his ticket mate, is or is not, engaging in official acts in those conversations.

in terms of what the president is doing. and i think that is both history-making. this is going to be the first court in the land that will be looking at and applying this very radical new supreme court precedent. and the whole special prosecutor discussion really is a distraction. and it also serves a political end for donald trump, the candidate, which is to continue to lay a foundation that says, our elections aren't free and fair. this is election interference, and that is not true. and her job is to get to what this case is really about. and i think that's what we're seeing. >> yeah. and katie, just wondering what both of you just mentioned about the whole issue of smith and the legality behind it. there is no, legally speaking, requirement for one courthouse or judge to accept another judge's decision on something like this.

because of jurisdiction? or is there? >> yeah, that's an important kind of distinction with a difference here. i kind of look at trial courts and appellate courts ultimately, the supreme court is over everyone. when it comes to federal courts there are different jurisdictions as you know. because a trial court decided with judge cannon that it couldn't go forward with special counsel jack smith being special counsel, chutkan said i have an appellate court above him called the d.c. court of appeals that has ruled that jack smith could proceed. and jack smith has been deemed to proceed. and she's like, i appreciate that, but it doesn't move the needle for me. i'm more focused on whether or not the immunity can be dealt with in an expeditious manner. and she's telling the lawyer for trump, i don't care if there's a presidential election. this case has to move forward. it's been on the back burner for

a year and some change and we need to have some speed. you have to appreciate the reality that's going on here, she made it clear at the beginning of this case with donald trump she was going to treat him like any other defendant. no special dispensation, no favors, and making it clear because of an election that doesn't require her to be worried about that. she has a mission and job, and that's what she's going to do. >> maya, if you would describe to us that aren't so seemed in the legal world, the whole issue of what you were talking about, the historic nature, right, of what this case is looking at. and i just wonder when you talk about immunity and not immunity, the scotus case that narrowed one of the issues on trump on immunity. how is the issue of immunity, to use your words, historically different? and what are the implications there? >> just remember, historically

speaking, during watergate, there was no question to the special counsel in the watergate case that richard nixon could be prosecuted. the decision not to prosecute him wasn't that it wasn't constitutional. it was the embedded assumption in our legal system and generally accepted that, of course, a sitting president is not immune from criminal prosecution. particularly, after office, after leaving office. and if you notice what jack smith did in his superseding indictment and in his revised indictment, he used the language very clearly. this is about citizen trump, this is about candidate trump. and if you are having a conversation with your vice president because you are the president, the vice president is the president, and you're doing the people's business, that is one thing. but the historic nature of

saying you actually have to decide if a conversation between a candidate for office and his running mate, about whether or not they're going to use the powers of the office to thwart an election count, that is embedded in the constitution in terms of power of congress. and of which there is a federal statute. and of which, even mike pence as both a vice president candidate thought, no, i can't do this. this is the question. a question that none of us in the legal -- i won't say none. but the vast majority in the legal profession would have never understood it to even be a question. that's what we're looking at. that's what judge chutkan is looking at. and this is going to be the first federal court in the land to take up the question in this case, or any case, now that this is binding precedent on every single election, every single

president, and what every single president does from here on out, as long as this is a supreme court case that is not overruled. >> monumental is what this really is all about. and, ken, with all of these issues that have to be decided and handled by the judge, right now, they're saying two discovery-related motions that you filed, the judge is telling the defense, those are awaiting reply briefs from the defense. ken, what's the process going forward today? and how long will this possibly last? >> reporter: that's a big question, jose. so the defense is obviously trying to delay. they want judge chutkan to rule on these other motions including separate motions to dismiss the indictment before she gets to the heart of the motor which is which conducts can stay in the indictment and which can be excluded based on the supreme court decision. the special counsel wants to take that first because that's the super bowl. that's everything.

once you decide that, you shape how this case goes forward. just so folks understand whatever judge chutkan decides that can be appealed to the supreme court. it's interlocutory appeal before the trial. and it's also the reason there's not a trial anytime soon even if donald trump losing the election. if he wins the election in january, he's going to order his justice department to make this case go away. if he loses the election, it will be that he stands trial but not for some time. >> thank you all three for being with us. we'll keep monitoring what's happening in court and bring you, of course, updates throughout this hour. still ahead, we're just five days away from the first presidential debate, what we know about the rules trump and vice president harris have just agreed on. plus, another community in mourning after a deadly school shooting. what we're learning about the victims and text messages shared

between a mom and her son during the shooting. we'll speak with her about what she calls her worst nightmare. we're back in 90 seconds. you're watching "jose diaz-balart reports" on msnbc. . hi, my name is damian clark. if you have both medicare and medicaid, i have some really encouraging news that you'll definitely want to hear. depending on the plans available in your area, you may be eligible to get extra benefits with a humana medicare advantage dual-eligible special needs plan. all these plans include a healthy options allowance, a monthly allowance to help pay for eligible groceries, utilities, rent, and over-the-counter items. the healthy options allowance is loaded onto a prepaid card each month. and whatever you don't spend, carries over from each month. other benefits on these plans include free rides to and from

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and two teachers. nine others were injured. all of them expected to recover. the suspect, a 14-year-old student, who officials say was previously investigated in connection with threats to carry out a school shooting. he's expected to appear in court tomorrow. two students who were killed were 14 year olds. mason schermerhorn and christian angulo. mason always had an upbeat attitude and loved playing video games and disney. and christian's family said he was sweet and loved by so many. richard aspinwall was a teacher and worked with the football team. as a husband and father to his two daughters.

christina irrimmie was a teacher. making everyone feel loved in the class. jesse, i know you were at last night's vigil. what was it like, and how is the community doing today? >> reporter: yeah, jose, that vigil was almost entirely silent. i could hear the grass moving under foot. that's how quiet it was in that crowd. there were dozens of people gathered. there were candles being lit, balloons being released. you could see people wiping away tears, clearly a visceral moment for this community. it was largely focused around prayer that vigil. one of the moments that stood out to me, someone at the podium, leading the group in prayer, asked for prayers as well for the suspect accused of four people and injuring nine more in this mass shooting. and just speaks to the conflicting moments of emotion. and prayer. in a time like this. i was able to speak with a young

woman who says she's a 15-year-old student at the school and described hearing and seeing this horror unfolding. here's part of what she shared with me. >> our teacher tells us to go behind his desk. all we could hear is boom, boom, boom. and like the shots stopped for a good ten seconds. all i heard was bloody murder screams and saying help me please, why are you doing this, stop this, please. and it just -- the shots continued. and then whenever they said that we were all clear, we were walking out and i had like the smell, distinct, of the gunpowder and just seeing blood all over the floor. it was just really traumatic. >> reporter: and that teen told me, jose, that she feels no matter what you do, you cannot be safe. and i just think, such a stark thing to hear from a young

american student. >> really, really is, jesse. meanwhile, jesse, what's the latest on the investigation? >> reporter: so, we're learning more about what's unfolding now, as well as some old information, jose. the fbi has confirmed that last year, the suspect from this shooting who was 13 at that time, was looked into for potential threats of violence against schools back then. but authorities say there was not probable cause for arrest. meanwhile, a short time ago, our team set to do an interview with the sheriff in this community in winder. we were told yesterday was effectively the real first day for this suspect. he enrolled two weeks ago. school was in session, august 1. he just enrolled in the district, second day in school. yesterday was described as the first real day. the suspect colt gray, 14 years old, is expected in a virtual

court appearance tomorrow. and we are told he is going to be tried as an adult, jose, in this case. >> jesse kirsch in winder, thank you very much. and we're going back to washington where that hearing in donald trump's federal election interference case has just wrapped up. i want to bring in nbc news and justice correspondent ken dilanian, ken, exactly what happened? >> reporter: a remarkably efficient hearing from judge tonya chutkan, jose. it adjourned around 11:15, about an hour and quarter of argument. essentially what judge chutkan said at the end, she is going to issue a scheduling order in this case, probably by the end of today. but she's not going to set a trial date because she knows any trial date she would set would not hold. because whatever she decides in terms of immunity issue and what conduct can be admitted to trial will be appealed, potentially all the way to the supreme court, and that will take some time. what she's going to do by the end of today is enter a

scheduling order on how they proceed from here. and the reason that's important for all of us, beyond this case, is that it could mean that the public will learn new facts about the evidence against donald trump before voters go to the ballot box in november. because what the special counsel clearly said he wants to file evidentiary briefs that could include other evidence which isn't in the indictment which is all very detailed, all of this to support the idea that this conduct by donald trump when he tried to stay in power and overturn the results of election, that those were not official acts, but acts of a candidate, a private person. and the trump team wants other issues to be considered. but that's the big one. and we're going to find out later today exactly how this will proceed. jose. >> and so, ken, this adjournment is -- that's it, that's a done

deal, on this specific phase of it? >> reporter: yeah, that's right, this could be the most scrutinized scheduling in history of the usa. only one hour and 15 minutes got the business done. judge chutkan in contrast to aileen cannon in florida, she wants to move things along. she's not concerned about the presidential election in her words. and the public as well as the defendant has a right to a speedy trial and she's trying to move toward that end, jose. >> ken dilanian, thank you very much from washington, d.c. appreciate it. i want to bring in legal correspondent lisa rubin who has been inside the courtroom all morning. lisa, bring us up to speed on what was going on insidy. >> reporter: well, jose, the first thing i want to share with you and our viewers is just how much security was in the courtroom which is something that you probably wouldn't hear from those who weren't in the courtroom. i counted more than a dozen

different marshals and other protective services. and that's because two of the participants in today's hearing, at least, have been subject to multiple death threats and other threats. that's judge tonya chutkan and the special counsel jack smith, each of whom were escorted into the room by their own personal security. let's get to the substance of what's really going on here and that is the future schedule and how judge chutkan plans to deal with immunity. there were sharp disagreements between her and lawyers representing former president trump how to deal with that. lawyers representing former president trump told the judge she should deal with what will they call the gateway issues at the beginning, specifically whether or not the allegations about former vice president pence belong in the case. because from their perspective, she doesn't need any evidence to decide that it's purely a question of law. and if she decides that those allegations should come out of the case, they say the entire indictment should fall under the

supreme court opinion because essentially the indictment had then been, i'm going to use their words -- infected -- with immune evidence. she told them that's not how she understanding the supreme court decision at all. she said what's left for her to decide say mixed decision of fact and law. there are fact-bound determinations across the board for her to make. and that if the supreme court which had the same indictment that she did wanted to make judgment calls based just on the language of the indictment, surely, they're empowered to do so. what it looks like the judge is going to accept is a proposal from the special counsel's office to put forward an opening brief in about three weeks that will set forth why they think they complied with the supreme court ruling and on the basis of what evidence. what's important to the special counsel's office, jose, they told her, is that there's only one round of appeals between now and trial. they recognize that this is going to go back up to the

supreme court and back down before there is a trial. but they want to do it only once. and that, from their perspective, entails putting forward for her in a brief grand jury transcripts, interview transcripts, fbi 302 forms which are the forms of interviews that the fbi may have conducted with witnesses. and of course, documentary evidence that they say they want her to see it all, so that she can make a determination about what's in and out of the case both in terms of charges and evidence. and it looks like on today's conference that the special counsel's office will get their way. >> and, lisa, it's also very clear by the judge's statement, today that she feels that the -- that the special counsel has legal standing? >> reporter: i think that's true. and, you know, she's a little bit differently situated i think than other judges might be in this circumstance because there is, what she called binding precedent in the d.c. circuit.

that's the appeals court that sits directly above her that says that the special counsel has been appropriately appointed. that was, of course, a decision made in the context of special counsel robert mueller. but there is precedent that said that the special counsel can be appointed, in compliance with the federal constitution. but when she asked are you really asking me to set aside binding evidence because you got concurrence by another judge references aileen cannon that she said she didn't find per persuasive, the answer is yes. and as long as it happens within a schedule that allows me to be briefed first there's really no harm for me doing so but they're going to have to file a motion

for leave first, basic telling her why, in light of that binding precedent, they should still be able to file that motion in the first place, jose. >> and, lisa, is there anything behind it being so efficient and so quick? >> well, i think part of what is driving the efficiency and the quickness. first of all, let me take a step back and say judge chutkan was very quick to sort of chastise former president trump's lawyers who accused her to rushing to judgment. accused the special counsel of trying to rush to judgment. she said, you know, counsel, it's been almost a year since we've been here. it's not exactly like we're sprinting to trial. so, i want to make that point first. but in terms of the efficiency here, she believes that the supreme court's opinion directs her to consider immunity first and foremost before anything else. and she was persuaded by the government that they're going first, by laying out why they believe they've complied with

the supreme court's decision and what evidence they're relying on and why it's not prone to immunity by the former president. given that, the fact that they want to submit a brief in three weeks, while that's quick, it's not exactly as quick as make the special counsel's office even promised in the joint status report they filed last week. they said they were ready to file a brief such as soon as she would have it. three weeks is maybe longer than she anticipated. >> lisa rubin in washington, thank you so much. imagine, for a minute, if you would, getting this text from your child. school shooting right now, i'm scared. after the break, we'll talk to the mom who received those texts from her son yesterday. you're watching "jose diaz-balart reports" on msnbc. (jalen hurts) see you sunday! upset stomach iberogast indigestion iberogast bloating

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33 past the hour. this morning, authorities still searching for answers after two students and two teachers were shot and killed in apalachee high school in winder, georgia. just in the last hour, county officials say the suspected gunman, a 14-year-old suspect, will appear in court tomorrow. joining us, a retired fbi agent. she created the program which she ran for five years. thank you for being with us. such difficult moments, you know. i was wondering, the suspected gunman was investigated last year, in light of online threats

about a school shooting. apparently, he was 13 at the time. what do you make of that? >> yeah, i think that's the challenge that we face with information that comes in. it's vague, we can only do so much with it. we, in terms any of law enforcement, or any investigators, even the school itself, it's a situation where, according to the reporting, the kid, somebody typed in, you know, online, online gaming. the fbi said it received several tips about that. they gathered that information up. they got the search warrant they needed to find the ip address. they made the contact to find out what location, where the house was. where the threats were made. about i'm going to do some undetermined school shooting somewhere by somebody. they called the jackson county sheriff's office. i saw the sheriff interviewed earlier today. she said, yeah, we did go out there, we talked to the father,

we talked to the child. the child denied he did. the father said, yeah, we have hunting guns, but they're locked up and the child doesn't have access. at that point, the system doesn't allow us to keep someone on radar like that. it does speak to the fact there are holes in our system keeping track of each other, and those holes can't just be law enforcement. or they can't just be the school principal or the teacher or even just the parent. >> yeah, i mean, meanwhile, the georgia bureau of investigation said the protocols at that school actually prevented this from becoming a larger tragedy. teachers apparently have a button that sends an alert to local authorities of an active situation. is this something that you think did indeed make a difference? >> well, the law enforcement, from my understanding, the school resource officers arrived after the shooting stopped. but i don't know what that timing is. and if the sheriff's deputy -- if the sheriff said it did, i am

certainly not going to question that. i think we've begun to see, since sandy hook, all kinds of security regulations, options, pieces of equipment. and in this case, these were lanyards right around the necks of teachers. i've seen those before. there are also buttons on walls, state laws that require push buttons on walls or panic alarms. and it brought the ssos to the direction of where they're getting the page from. that's fantastic. it's a big school, right, 2,000 kids. nearly, so you can only have so much resources there in terms of law enforcement. but it certainly appears that the fact that they were on scene is what prompted the shooter to put his gun down. and that is good news. >> yeah, you know, kathryn, how do you -- you organize a thorough program yourself. how do you protect the children,

educators in that school from someone who goes to that school? there's difficult -- how do you harden it? >> it's -- you know, harden is a great word. because we think of a physical thing. but it's really both, physical and nonphysical. you harden the school, protecting the school by a layered approach. you certainly can have law enforcement there. you certainly can have panic buttons and alarms and security systems and gunshot detections. and ballistic, bulletproof doors, those are all targets to harden physically. but you can also do it in a nonfiscal way and that includes making sure the school has a threat assessment team so parents and school knows what the threat assessment team is, meaning that's a location where information of any concern can be collected together and looked at as a whole. and so, you have to have anonymous tip line, you have to have a regular tip line.

you have to have a way for students to access the way that they can tell people if they're concerned about something. you have today indicate students and parents, to understand that snitching is telling to get somebody in trouble, right? but telling is getting somebody help, right? you don't want to teach them to snitch. nobody wants to be a snitch. but we want people to help. >> thank you very much. we really appreciate it. and joining us now, erin clark whose son ethan is a senior at the school and was in a classroom at the time of the shooting. erin, i think so much for being with us today. you shared this text exchange with your son as the attack unfolded. your son writing to you, school shooting right now. he said, i'm not joking. i love you. erin, take us back to that moment. >> well, i was at work. and i have an apple watch.

so i first got the messages on my watch. i threw my helmet off. i'm in disbelief. i'm like what is happening right now. is this really happening. and i ran into a truck to call him. and he didn't answer. which scared me even more. and then that's when i texted him and i just said, i'm leaving work. and i just -- i ran -- i ran out of the warehouse. and went straight to the school. i knew on the way that i wasn't going to be able to get to him right away or get to the school. as i was driving, as i got closer to the school there were ambulances and cops passing us. parents had to park on the side of the road and started walking to the school because we couldn't get to the school. there were cars everywhere. all along the roads, blocking some of the roads. it was on a hill. and then once we got closer to the school, officers, they

were -- had big guns and they had like tan clothing, i don't even know what branch they are. but they said, they directed parents to go to the football field. and stated that the students would be released there. soon. and i just saw parents being reunited with their kids, hugging them, crying. and relief, that they laid eyes on them and they were able to hug them. it was heartbreaking. very heartbreaking. >> yeah, yeah. is it something that -- i mean, i imagine, and i've spoken to parents who have actually lost their children. in these horrible instances. and one of the things that, you know, i oftentimes hear, i just never thought it could happen here. >> yeah. >> i just wonder, winder is -- >> -- small. >> -- there's a small town

feeling to it in many ways. it's only one of two schools in the whole area. >> right. >> how do you process that? >> i'm still processing it. i mean, every time i woke up last night while i was sleeping i was like, whoa, this really happened. today. i'm still in disbelief. it's just -- i just keeping my head at it. like i cannot believe that this has happened. i talked to my daughter who graduated from there last year yesterday. and she was like, mom, i don't understand how gwinnett county didn't have this before us, like they're bigger than we are. bexar county has come up lately over the last few years. we're considered a small county. it's mind blowing. >> what did you tell your son? and how is he doing today? and what are some of the things -- you know, how do you think you can help your son going forward with this. obviously, you yourself, and

everything that you've had to deal with. and then just to think of those four people that, you know, aren't coming home. >> that's so sad. my heart breaks for those families. unfortunate, ethan, he didn't witness -- he didn't see the gunman or any blood or any of the poor victims. i'm so heartbroken for the people that had to witness that and the families that lost their loved ones. it's horrible. ethan is actually doing really well. i expected him to be in tears and a wreck when i got to him yesterday. when i saw him on the bleachers, he was so calm and collected. he stated that he heard eight or nine gunshots. and some of the students thought it was a prank like something would be banging on something. but he said that he knew it was gunshots, so he got up and he closed the door. and then another student helped him to put desks in front of the

door to barricade so the gunman couldn't get through. i'm so proud of him. i can't -- i can't imagine what that was like for him. it's just so scary. and i'm so proud of him. he did so good. >> erin clark, i thank you so much for being with me this morning. >> yes, sir. >> we'll be thinking about you and your family and certainly those who lost their life. thank you. >> yes, thank you. >> we'll be back in a moment. you can stay on top of the market from wherever you are. e*trade from morgan stanley

♪♪ 45 past the hour with breaking news. moments ago, we are learning that hunter biden, president biden's son, is expected to change his plea in his federal tax evasion case in los angeles. joining us now is david noriega and katie phang is back with us. david what do we know about

this? >> reporter: we're just getting information literally by the second. it was just announced by hunter biden's counsel that he's going to enter a plea, to except a guilty verdict, but maintaining his innocence, actually speaking to the allegations against him. now the judge in this case was a trump appointee in the central district of california does not have to accept that outward plea. it's unclear how this is moving forward. what was supposed to happen, the trial was supposed to begin on monday, in court that we just heard a few minutes ago. hunter biden's counsel said there's no need to proceed with the jury selection because he's going to change his plea. we're excepting this alfred plea as i explained because it's up in the air.

the court will resume at 11:00 local, at that point, we'll have a little more information on what's going to happen moving forward. jose. >> david, thank you very much. katie, let's talk about this, again, this is just breaking right now. expected to change his plea. >> yes. >> and david was talking about the alfred plea. how does that work. >> david did a great job explaining it. you can plead guilty but say i'm innocent. it doesn't make a lot of sense to do that. basically saying that the government has enough evidence to move forward with the case, but you're not saying i am guilty of the charges. i'm allowing myself to almost like go to the court and say, your honor, i'm willing to resolve the case and be taking an alfred plea. it's not saying i'm absolutely guilty of the charges. why does this happen? well, one, jury selection was going to happen right now. but more importantly, he's already been found guilty by another jury for the gun charges

it you'll recall. >> yeah. >> and because of that there is a possibility that there has been a negotiation within which the sentencing could be concurrent sentencing for what he gets from the gun charges. what's remarkable about this particular case, jose, is that this is a tax charge case and this was the one that was supposed to be dismissed through a pretrial program that was negotiated with the doj until another judge who was coincidentally appointed by trump. because of the questions raised by that judge that agreement went by the wayside. it's a turn of events for hunter biden. >> and that those parameters of agreement were indeed unusual. even though it was also unusual that something like this would get to court, get to trial. but it was very unusual the different agreements, as far as parameters? >> i wouldn't say that it was very unusual, because it was a

negotiated resolution, if the government didn't want it, then they could have said we're not going to allow for this idea of immunity. i just think there was some struggle with the government and hunter biden's counsel how they're going to define immunity going forward. but at the end of the day there was a resolution reached by the two of them really not for the judge to accept it. >> and with the alfred plea, what does it change? i'm not saying if that's the defense or plea that the hunter biden and legal team are presenting -- want to do, uh-huh. the critical issue. >> does it change any outcome of anything just because you say, i'm pleading which is i'm not saying i'm guilty, but i accept it versus i accept it, i'm guilty? >> when i say he is not going to trial, i think it's almost a tacit admission by hunter biden

that he was going to be found guilty by this jury. i think because it eliminates the opportunity to go to trial for hunter biden, it means he wasn't willing to gamble and risk a jury finding him guilt of multiple counts of tax evasion and willful tax fraud. he was looking at 35 years. i think that he is saying, i already have that guilty conviction from another jury. i'm facing this. i'm just going to resolve it now without going through the jury selection process and the entire trial. >> the difference between saying i'm guilty and -- >> i'm accepting the government has enough to move forward and i could be found guilty but i'm not guilty. it's a bizarre thing, but it happens. it exists. he is exercising his right do that. >> joining us now, monica alba. any reaction or anything that the president has said about these criminal trials? >> reporter: he is about to depart for a trip to wisconsin.

he might take questions. my colleague peter alexander is out there ready to put this to him. it's important to note and remember that as a candidate, joe biden was asked after his son hunter was convicted on those felony counts related to a wilmington, delaware, trial in june and those gun-related charges, he was asked whether he had plans to pardon hunter. at the time the president said he had effectively ruled that out. he wouldn't be pardoning him. he was asked if a follow-up question about whether he would potentially commute that sentence. we don't have the sentencing yet for that trial. that was expected to take place in november, even though we know from hunter biden's team they still plan to appeal that conviction. that is happening on a separate track. there was always this question about now this trial that was going to get underway with jury selection. again, we should note even if hunter biden intends to change

his plea here, it doesn't mean that the judge necessarily will accept it. we have to wait and see if that is what we will take place and if the trial will be avoid. that remains to be seen in terms of what happens in these proceedings. there was a question about whether something like this could come together, because this upcoming trial was expected, even though the one in june had a lot of very personal, painful details of his addiction and his road to recovery, this one was also going to include a lot of very expected to be is a salacious period when he was spending money on drugs, on things like prostitutes. that's what the government was expected to lay out in great detail. we knew that leading up to this, hunter biden's team was preparing for that to be quite ugly. this is an idea here where if they can spare some of that,

that seems to be part of the thinking and part of the priority. we will see if that's accepted. since he dropped out of the 2024 race, president biden has not necessarily engaged certainly on this newer development that just happened in the last hour or so, but also on these larger questions of as president could he now potentially consider pardoning on commuting his son's sentences and criminal issues here, which is something that presidents have the power to do and he could do even up until his last day in office. it's something likely that wouldn't come, if it's something that happens, before the election. but it's possible that it could afterwards. we will see if this changes his thinking on any of that. >> thank you very much. joining us now, sarah fitzgerald. you were inside the courtroom. what did you see? >> reporter: it was a dramatic moment in the courtroom a few moments ago. the proceedings started kind of as planned. the judge was going through the

specifics of how they were going to pick jurors and the process of moving them from courtroom to courtroom. then hunter biden's attorney got up and said, i have -- there's no reason -- i have an update. there's no reason to proceed regarding the jury because there biden intends to change his plea. he said that he plans to enter what's called an alfred plea. there was commotion in the overflow room of the media, jumping up and running closer to the monitors. the prosecuors were caught off guard by this. the prosecutor said, this is the first we are hearing of it and asked for more specifics. hunter biden's attorney indicated he believes this process could be done by the end of the day. there's ample case law and that he is prepared and preparing to share it with the prosecution. the prosecution indicated that they seem to object to this process but that there's -- they

will confer and we will be in recess until 11 a.m. this caught the prosecution by surprise. there was some indication when we were outside of the courtroom, a member of the prosecutor team wheeled in a huge cart of binders and then five minutes later wheeled it out. when i asked the prosecution why that occurred, they said, they did not know. back to you. >> thank you so very much for being with us thisews hour. that wraps up the hour for me. i'm jose diaz-balart. thank you for the privilege of your time. andrea mitchell picks up with more news next. that gritty feeling can't be brushed away. even a little blurry vision can distort things. and something serious may be behind those itchy eyes. up to 50% of people with graves' could develop a different condition called thyroid eye disease,

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