>> reporter: the vice president said in recent days that -- that you didn't see delta coming. you didn't see omicron coming. how did you get it wrong? >> how'd we get it wrong? nobody saw it coming. nobody in the whole world. who saw it coming? >> did the administration not expect that there could be moments like this one where you'd have a highly transmissible variant? >> sure. it was possible. it was possible there could be other variants that come along. that's possible. but what do you plan for? you plan for what you think is available. that is, the most likely threat that's -- exists at the time and you respond to it. and i think that that's exactly what we've done and that's -- for example, omicron is spreading rapidly. but the death rates are much, much lower than they were. this -- this is not march of 2020. this is a very different time. that we're in now. >> the new comments from the president -- they come on a day like every other day this week that have seen major developments in the fight against the cadeadly virus. pfizer has now received fda approval for the first-ever antiviral pill, which is expected to substantially reduce the rate of hospitalization and death among high-risk individuals. according to pfizer, these pills which are taken over a period of days, have an efficacy rate of about 88% if treatment begins within five days of symptoms. it is expected to be easier to get and use than monoclonal antibodies, which are typically administered in a hospital or clinic. the administration hopes to have 250,000 treatment courses by next month and 10 million by summer. also tonight, new information from health officials in other countries about the spread of the omicron variant. both studies suggest that omicron, which again is now the dominant strain in new cases here in the united states, is leading to a lower rate of hospitalizations than previous variants. the studies are based on preliminary data and not been peer revied but dr. anthony fauci today said that it could mean a lower hospitalization rate, shorter hospital stays, and less need for supplemental oxygen. and in south africa, which first reported the existence of the new variant almost one month ago, medical authorities now believe they have passed the peak of the omicron outbreak. we start with what president biden said just a short time ago and cnn's jeff joins us now. so, jeff, what do you make of the way the president described his administration's response to omicron? >> well, john, i think he was right when he said nothing's been good enough because that is obvious when you look at the long testing lines across this country. when you look at empty shelves where there simpley are not at home tests. but what he struggled to do in that interview with abc which was taped earlier today here is really take command of this crisis that is enveloping his administration, still. of course, no one could have predicted exactly what this was going to be but testing has been a central theme, a central challenge for this administration and it simply has not been up to pace. and now, they are talking about, um, sending at-home testing next month in january. but it is unclear if those will even be able to be produced. and the president really struggled with, um, really some of the language of that. at one point, he said sending pills to people's homes. but then, corrected himself and said sending tests to people's homes so i think the overall takeaway, he just was not in command of this necessarily. but the bigger point here, the administration is hoping that news out of south africa actually is true. this is burning so hot right now. and they hope it burns very quickly here. but this was not one of the president's best interviews. i would actually say he -- you know, he just didn't take command of this challenge of this moment here today. >> talk about the 500 million test kits the administration is talking about, jeff. i mean, how confident is the white house that it can get them to people who want them in the timeframe they are promising -- january? >> well, a lot has to happen for this to go right. they have to get a website up and running, which has not even been started, to have people request these tests. these tests have to be produced and half billion. that is a lot of tests so they e going to use the defense production act. that is a lever of government that you can essentially direct private businesses to help speed up production here. so, everything would have to happen but the question is at what point would that be? this is not going to be early in january. this is mid-to-late january, probably at best. and there is no guarantee there will be a half-billion tests to be produced. so that is the challenge in the takeaway here. the testing remains the thing. but i think the president made one point very clear in this. this is not christmas last year. and it's not the beginning of the pandemic because of vaccinations. and once again, tried to use this as a venue to say get vaccinated and get boosted. >> the president said today -- you heard him say -- you just t talked about it that he doesn't see his response to omicron as a failure but look, there are these issues with testing two years into the pandemic and you can't tell people that can't find a test that they can when they can't so how does the white house explain these images we are seeing of empty shelves with the long lines? >> you saw the president sort of struggle to do that. he acknowledged this challenge. he acknowledged the pain that people are feeling but said, look, no one could have expected this to spread this quickly. but one thing that was on the calendar, that's christmas. everyone knew testing was going to ramp up before people go home for the holidays here, so that is one thing that is a bit hard to explain here. why this demand was obvious for the test but the supply simply is not there. yes, it's complicated. yes, there are government r regulations, bureaucracy they have to break through but this had is one thing that has really been vexing for this administration. other countries have done it. yes, they are smaller but this is something that, you know, really has -- has been a central challenge and it remains that going into the holidays. >> jeff zeleny for us at the white house tonight. jeff, thanks so much. >> sure. turning back now to the science and the potentially good news on the new pill and the studies we mentioned. joining us, michael osterholm, director for the center for infectious disease research and policy at the university of minnesota. he was also an adviser on covid during the biden transition. and from dr. leana wen, cnn medical analyst and former baltimore health commissioner, she is also the author of "lifelines, a doctor's journey in the fight for public health." and dr. wen, i just want to start with the approval of the pfizer anti-covid pill. when do you think we are going to start seeing the real-world impact of this? how big of a deal do you think it is? >> i think it's a really big deal. we've been waiting for something like this for some time. essentially, this is the tamiflu that we use for influenza, we now have this oral medication that appears to be very safe and that reduces the likelihood of progression to severe illness by almost 90%, which is really great. and here's where i think it can be very helpful. first, is there are a lot of people who are remaining unvaccinated. i wish they were going to get vaccinated but we know that there are some people who are just not going to do it. somehow, these people are ready to take treatments if they get infected even if they won't get the vaccine which is not understandable. but still, these people are the ones who are most lick lickly to get ill, to overwhelm our hospitals and if they can get a pill that -- that removes them from the hospital that -- um, that will help to save their life, but also will help to remove the strain on our -- on our healthcare system. i just think there's still so many logistical challenges in terms of producing the -- this treatment but also in terms of getting it to people. it requires early testing. it requires widespread distribution. and also, it requires people to behave responsibly and not hoard the medication in case they get it, rather than giving it to people who really need it. so, lots of things in the way but i'm very optimistic about this oral treatment. >> when it gets up and running, it could make a difference but it may take some time. professor osterholm, on these two studies out today and these are both from the uk that suggested omicron has a lower risk of hospitalization compared to delta. we saw it in south africa and now we see it in scotland and elsewhere in the uk. how likely is it, in your view, that the u.s. would follow a similar path? >> well, i think it will, john. in fact, there are good data today to support there surely are a spectrum of -- of cases with this variant. i think the challenge, though, we have right now is transporting data from one p population to another and saying that's exactly how it's going to work. for example, if you look at the uk, they have a significantly higher vaccination level than we do, so what is the underlying protection that comes from even some vaccination? so i think we are overall optimistic that you will see fewer cases. but again, reminding you the number of cases that are getting infected right now is really unprecedented in any respiratory pathogen i have ever seen and i think that that could surely go the opposite way and say even with fewer severe cases per thousand cases, overall, we may have more people hospitalized than we even did with delta. >> so, dr. wen, you made some waves recently when you said here on cnn that cloth masks were, quote, little more than facial decorations. so, in light of omicron, what kind of masks should we all be wearing? and were you surprised by the pushback from your comments? >> well, i was surprised because this is not the first time that i or professor osterholm or really any of us public health experts have been saying that cloth masks are not appropriate for this pandemic. it was -- it's not appropriate for omicron. it was not appropriate for delta, alpha, or any of the previous variants, either, because we are dealing with something that's airborne. we are dealing with a virus that's extremely contagious. at the very beginning of the pandemic, we didn't know about masking. and then, we didn't have enough masks, enough high-quality masks for healthcare workers and so we were trying to ration those. but then, pretty quickly, we recognized that covid is airborne and also that there are really high-quality masks that protect us from getting covid. and so, at this point, what people should do is wear at least a three-ply medical-grade surgical mask. ideally, you are double masking so if you really want to do that cloth mask, too, you can do the three-ply surgical mask and then you can put the cloth mask that is more well fitting on top of that. even better would be the n95, kn95 or kf94, the respiratory -- the respirator masks. and really, at this point, we should all be wearing these very high-quality masks. if our country and different jurisdictions are going to go as far as to mandate masks in some settings, let's at least wear the most effective masks. i am not saying don't wear a face covering at all. i am just saying if we are going to do it, do it the right way and really use it in the way that it's intended to prevent us from spreading and acquiring covid-19. >> professor osterholm, i know you agree with this because the masks in my house are the ones you recommended that my wife went and got right away. so i know you agree with that. >> and i think it's an important issue right now because it's one of the few things we can really do to be effective. you know, john, if we get everybody vaccinated today, possibly we could, they still are going to have two to three weeks before their immune response is going to be sufficient to really boost them back up again. you can start wearing high-quality respiratory protection right now, tonight. and i think that's an important point so i want to thank dr. wen for her comments. i think she has been very upfront with this and -- and in a very professionally important way. and please, listen. she's right. >> i want you both to listen to what president biden said tonight when asked about vaccine requirements for domestic flights. listen. >> it's been considered but the recommendation i have gotten, it's not necessary. >> even with omicron? >> even with omicron. tha that's the recommendation i got so far from the team. >> what do you think, professor osterholm? necessary? or no? >> you know, right now, i would throw everything, including the kitchen sink, at this if i could. i am a realist, however, and i realize what society will take. and i think that one of the challenges we have right now are leaders -- many who do believe that in order to keep our hospitals from overflowing and our systems literally breaking, not just bending -- we should be doing things like this. they are surely doing them in other countries but i don't think it's politically acceptable and that is an unfortunate situation. we will pay a price for that but i would have a mandate wherever i could right now just to keep unvaccinated individuals out of our hospitals and -- and dying from a virus they don't have to die from. >> professor osterholm, dr. wen, thank you both for being with us tonight. >> thank you. and just ahead, more on that new interview with the president, including what he said about why there is a shortage of covid test kits. also, what he said about whether he will run again. two white house veterans -- david axelrod and andy slavitt will join me. and later, the house january 6th committee wants to talk to one of their fellow congressman, a very public defender of the former president and someone republicans tried to put on that committee but failed. details when 360 continues. ♪ limu emu... & doug ♪ ♪ superpowers from a spider bite? i could use some help showing the world how liberty mutual customizes their car insurance so they only pay for what they need. (gasps) ♪ did it work? only pay for what you need ♪ liberty. liberty. liberty. liberty. ♪ spider-man no way home in theaters december 17th we're carvana, the company who invented car vending machines and buying a car 100% online. now we've created a brand-new way for you to sell your car. whether it's a year old or a few years old. we wanna buy your car. so go to carvana and enter your license plate answer a few questions. and our techno wizardry calculates your car's value and gives you a real offer in seconds. when you're ready, we'll come to you, pay you on the spot and pick up your car, that's it. so ditch the old way of selling your car, and say hello to the new way at carvana. more on breaking news on covid and that new interview with president biden. there is, of course, a political component to how the president and his critics have approached this fight against the virus. and during that interview tonight, the president defended his administration over the persistent lack of enough testing. >> if you go to the pharmacy, we hear this over and over again. empty shelves, no test kits. is that a failure? >> no, i don't think it's a failure. i think it's a -- you could argue that we should have known a year ago, six months ago, two months ago, a month ago. i've ordered half a billion of the pills. 500 million pills. i mean, excuse me, 500 million test kits that are going to be available to be sent to every home in america if anybody wants them. but um, the answer is yeah, i wish i had thought about ordering a half a billion pills two months ago, before covid hit here. >> i am joined now by two men who advised the two most recent democratic presidents, david axelrod, former senior adviser to president obama and cnn senior political commentator. and andy slavitt, a former senior adviser to president biden for covid response. andy is also the author of "preventable, the inside story of how leadership failures, politics, and selfishness doomed the u.s. coronavirus response." that is about the previous administration's response to the pandemic. andy, look, you heard president biden say he doesn't think that the testing issues are a failure. that is hard to sell to people who can't find the instant test kits in the drugstore right now because they are not there, by and large, when they go. and it is a hard sell to people who are waiting hours at clinics to be tested, otherwise. um, so, is the president's response satisfactory there? >> well, look, i think people are tired. but i also think the goalpost may be moving just a little bit, given that -- given how tired people are. i mean, here we are a year from now -- a year ago and we are facing even more aggressive variant that we didn't anticipate and the president has said no shutdowns, schools remain open, and people who have been vaccinated can safely go see their families. so, this is due to a tremendous amount of work. and so, while i think, you know, anything that doubles every two to three days is going to create shortages. i don't think there is any scenario that we could have analyzed and as i talked to of the white house that could have possibly anticipated creating enough supply for that situation. but having said that, i think in the main -- the advances that have happened over the last year, have been really substantive. whether people are in a position to recognize that or not, that he is something maybe david will have a view on. but it really is substantial progress. >> david? >> look. i -- i agree that there's been substantial progress and we are not where we were in the past. i mean, this question of testing has come up again and again and again in the previous administration, and now in this one. and, you know, i think what the president candidly said tonight was, yeah, maybe i wish we had anticipated this. you know, half a billion tests -- and andy's the expert, i'm not -- but half a billion tests are a lot of tests but we have 300 million people in this country. so honestly, it -- it doesn't sound all that much. i will say this. it isn't just the president who may have underestimated the need for testing but industry, as well. i mean, if, in fact, abbott labs and others who are producing these tests are now having to go into overdrive to produce more, they also underestimated what the need would be. and i think that's a function of dealing with a virus that takes a lot of unpredictable turns. but there's no doubt that, politically, there is going to be a lot of frustration among people who are lined up for those tests tonight. >> david, you know, there is an issue, though. the president -- first of all, covid has been his best issue from the day of his inauguration. um, people have the most support from him on that but he also did promise to get it under control. now, covid has its own ideas. coronavirus has its own ideas. the pandemic has its own path. but that was his promise. he did, in july, more or less, declare victory over it. >> yeah. no. i think -- look, i think if there are two things off of that interview tonight that -- that are valid criticisms, it's, you know, did he strike the right balance in july? you know, this country's so eager to be done with covid and because of the good work that andy and others did. and because, frankly, as the president said the other night because of the accelerated progress on vaccines, um, you know, we were making great progress going into july before delta arrived in -- in full force and i think the president wanted to give that country the jolt of knowing that this was behind us. we have had a couple of setbacks since then and -- and so the question is how do you strike the right balance? how do you strike the right balance to encourage the country to look past the virus and understand there will be a better day? and at the same time, deal with all the twists and turns that a unpredictable pandemic like this can deliver. >> yeah. and he has a real issue with where we are in this pandemic right now. in general, there is a nuance here. you want people to get vaccinated who haven't been. you are telling people to get boosted. at the same time, you are trying to send the message -- the president is -- people are doing all these things and are careful and are tested can spend time with their families over the holidays. it is a hard needle to thread there, andy. >> it is. and i think people should account for that in thinking about what he said around fourth of july. if people can even think back three worlds ago in april, the idea he said people get together with their families for a small barbecue, outdoors, people thought that was a radical idea and a radical suggestion. and in fact, they were able to. now, even in the face of the delta variant, which had been anticipated, they were able to. so the country has gotten back to work. people have slowly gotten back with their lives and u.s. ujust like in europe is having troubling having enough fest tests right now and they will. the bad news is you run into these shortages. the good news is as you reported earlier, it may be over more quickly. so this temporary supply issue is something you will just have to deal with the best you can and get a plan to get more hospital workers and beds built. but the hope is that the flip side of that will be we could be sitting here by super bowl and saying this is behind us. >> david, i want to play something else the president was asked tonight. listen to this. >> you said you would absolutely serve eight years if elected. do you plan to run for re-election? >> yes. but look. i am a great respecter of fate. fate has intervened in my life many, many times. if i am in the health i'm in now, if i'm in good health, then in fact i would run again. >> and if that means a rematch against donald trump? >> you are trying to tempt me now. sure. why would i not run against donald trump? that would increase the prospect of running. >> all right. david, what do you hear there? >> well first of all, i have heard him answer the first part of the question the same way before and it is the exact right way to answer, which is yes, i plan to run but i can't predict, you know, what my health will be in the future or what -- what events will intervene. he'd be absolutely nuts to say anything else. you don't make yourself a lame-duck president one year into your administration. and i think he -- he is -- he's genuine in his answer and very realistic. on the second part, he is also right. if he -- his chances of getting re-elected will be better if donald trump is the nominee of the republican party because trump remains unpopular outside of his base. >> david axelrod, ouror our thanks to you. andy slavitt, thanks for joining us tonight and thanks for everything you have done over the last couple years to help educate us. really appreciate it. happy holidays to both of you. >> thank you. we do have some breaking news to report. the third-ranking democrat in the house, south carolina's james clyburn, has now tested positive for covid. in a tweet just moments ago, congressman clyburn called his diagnosis a breakthrough case and said he is asymptomatic. he reiterated what so many public health officials have said, no one is immune and urged those who have not done so to get themselves vaccinated. we wish him well. again, asymptom at ilk like so many people we are hearing from. up next, the january 6th committee wants to talk to another lawmaker on capitol hill who was a fierce ally of the former president. who that is, next. oh no. for the gifts you won't forget. the mercedes-benz winter event. get a credit toward your first month's payment on select models. new vicks vapostick. strong soothing vapors... help comfort your loved ones. for chest, neck, and back. it goes on clear. no mess just soothing comfort. try new vicks vapostick. from the very first touch, pampers, the #1 pediatrician recommended brand, helps keep baby's skin drier and healthier. so every touch will protect like the first. pampers small businesses like yours make gift-giving possible. now, comcast business has an exclusive gift for you. introducing the gift of savings sale. for a limited time, ask how to get a great deal for your business. and get up to a $500 prepaid card with select bundles when you switch to the network that can deliver gig speeds to the most businesses. or get started with internet and voice for $64.99 per month with a 2-year price guarantee. give your business the gift of savings today. comcast business. powering possibilities. more breaking news. the january 6th committee wants to talk to another republican lawmaker and staunch supporter of the former president and his election lies. they have asked ohio congressman jim jordan to voluntarily sit down with investigators. yes, the same congressman jordan who wanted to be on the january 6th committee and house speaker nancy pelosi said no. tonight, on fox news, the congressman wouldn't say if he would comply with the committee's request. earlier this week, republican congressman scott perry declined a similar request from the committee. as for jordan, congressman bennie thompson, democratic chairman of the committee, says the panel sent jordan a letter telling him they want to learn more about his communications with the former president on january 6th and details on any communications he had with the former president's team to challenge the 2020 election results. just last week, you may recall, jordan's office admitted he was the lawmaker who, on january 5th, the day before the insurrection, forwarded a text message from a former federal inspector general to then white house chief of staff mark meadows. the text reveals the intense pressure -- pressure campaign put on then-vice president mike pence to overturn the election results. outlining a legal theory that he had the authority to stand in the way of certifying the election results. here is democratic congressman adam schiff, a member of the january 6th committee, sharing that text message last week. >> i want to display just a few of the messages he received from people in congress. the committee is not naming these lawmakers at this time, as our investigation is ongoing. if we could queue the first graphic. this one reads on january 6th, 2021, vice president mike pence as president of the senate should call out all electoral votes that he believes are unconstitutional as no electoral votes at all. >> again, congressman jordan's office admits he sent that text. the ranking member of the judiciary committee fronting a theory for a potential coup. the same jim jordan who is rarely at a loss for words when it comes to defending the former president, except this time when he was asked about his conversations with the former president on the days surrounding the insurrection. >> on january 6th, did you speak with him before, during, or after the capitol was attacked? >> i'd have to go -- i -- i spoke with him that day -- after? i think after? i don't know if i spoke with him in the morning or not. i -- i just don't know. i'd have to go back and -- i mean, i don't -- i don't -- i don't know that -- when those conversations happened. but um, but what i know is i spoke with him all the time. >> joining us is cnn justice correspondent, evan perez. evan, what more do know about this request from the committee? >> well, john, the committee considers jim jordan to be a key witness because he played such a big role in trying to prop up the former president's claim that the election -- or that there was widespread fraud, that there were problems with the election and his ideas for trying to overturn the results. including, according to the committee, they know that he was in touch with some of the -- these folks that were sitting at -- at the willard hotel near the white house there on the day before and -- and during the -- the day of the january 6th rally that the president had talking to people over there -- trump associates. and we also know that as -- as saw in that little clip, he was communicating with the president. we don't know how many times. we know of at least once. the committee says they know at least once. perhaps, more times that he has talked to the president that day. and they also know that he forwarded that message that you read just a minute ago. um, so a lot of these things, they know that -- that jordan has a lot of information that could explain some of the things that went on on january 6th. and that's the reason why they want him. by the way, if you notice, you know, jim jordan is, you know, you said on fox news he said they have received -- he's received the letter but he is not yet saying what he is going to do. i think that's interesting because he is, obviously, the top republican on the judiciary committee and he would take over if the republicans take over the committee. and so, he is going to be able to send subpoenas and i bet you, he is considering exactly how he responds because it's going -- it's going to -- it's going to weigh a lot on how he -- he gets responded to when he issues subpoenas. >> it's a good point. i want to bring in cnn chief legal analyst and former federal prosecutor jeffrey toobin. jeff, i mentioned jordan declined to say on fox whether he would comply with the committee's request. what do you think he'll do? >> well, i think he is obviously going to be torn in two directions. at one level, like -- like congressman perry from pennsylvania, he would like to say to this committee, um, a hand gesture involving one finger that i will not demonstrate. i mean, the -- the contempt that they have for this committee is -- is quite -- is quite intense. on the other hand, you know, jim jordan even more than perry is someone who enjoys the spotlight, enjoys being on television. would like to joust with this committee. and as evan pointed out, you know, he is phonotentially goino be in the position of sending out subpoenas soon. if he refuses a subpoena, you can bet that witnesses will -- will respond in kind if he becomes chairman of the judiciary committee. personally, i think he is not going to testify. i think he will find a way to tell the committee to go to hell. but i'm -- but -- but it's a little more complicated than perry's decision. >> to be clear, he hasn't received a subpoena yet. the committee hasn't given him a subpoena yet. do you think if he refuses to go in voluntarily, the committee would or should issue a subpoena? >> well, chairman thompson said it's under consideration. it's a somewhat unusual situation because, um, congress has always been reluctant to treat fellow members like ordinary witnesses. um, there is a tradition of deference and comity. there are also potentially constitutional issues involving the speech or debate clause that might allow -- allow, um -- um, any congressman to object. the fact is if he does object and goes to court to fight a subpoena, that would simply run out the clock. so, the real -- the -- the issue of whether jordan testifies is up to jordan. and um, you know, we'll see what he is going to do. >> just, evan, remind us about the context of this text that jordan sent to meadows. >> yeah. i mean, look. we can put it back up. you know, he lays out this -- this legal theory that the former-vice president mike pence, you know, had the legal power, had the constitutional power to reject, you know, these electoral votes from these states that trump claims were fraudulent. um, that includes, of course, pennsylvania, georgia, places that the former president was claiming there was kinds -- all kinds of fraud. there was fraud according to the former president in michigan and wisconsin and arizona, as well. so that's what this, um -- this lays out and what they are claiming was that it goes back all the way to the founders, to alexander hamilton. um, that this is some kind of power that the former vice president had, which of course in the end pence concluded he did not have. >> evan perez, jeffrey toobin, thanks to both of you. so just moments ago, the jury in the kim potter trial wrapped up the third day of deliberations without reaching a verdict. we have the details, next. y fir♪ ♪ the one desire ♪ ♪ you are, you are, ♪ ♪ don't wanna hear you say... ♪ ♪ ♪ i want it that way ♪ ♪ i see trees of green ♪ ♪ red roses too ♪ ♪ i see them bloom for me and you ♪ (music) ♪ so i think to myself ♪ ♪ oh what a wonderful world ♪ all right. breaking news. the jury in the trial of former police officer kim potter has finished its third day of deliberations with no verdict. the jury has deliberated for more than 24 hours, in total, over the last three days. cnn correspondent adrienne broaddus joins us now. any word, adrienne, from the jury tonight? because obviously, they were yesterday -- yesterday, they were asking the judge about what happens if they can't come to a consensus. >> john, nothing hat all today. at least not on the record. and yes, yesterday, the jury submitted two questions. so far, totaling three questions have been submitted on the record. the question that captured the attention of so many was that question about consensus. the jury, essentially, wanting guidance. wanting to know what steps should they take and how long should thiey continue to deliberate if they were unable to come to an agreement. and the judge re-read jury instructions directing them to deliberate until they are able to reach an agreement. and it appears that's what this jury is doing. they started early today. they ended at 6:00 p.m. local time. that's central standard time. and they were unable to reach a verdict. there had been other high-profile cases here in the state of minnesota. most recently, derek chauvin. we all know that name. after about ten hours of deliberating, he was convicted in the same courtroom where the potter trial took place. outside of derek chauvin, you might remember the name philando castile, the officer who shot and killed castile -- jurors in that case deliberated for more than 25 hours. and a lot like the potter trial, there was significant video evidence in that case. so, the jury will return tomorrow to continue the deliberations. >> what happens if they don't -- what happens if they don't reach a verdict by tomorrow night? because of course, then they run into the christmas holiday. >> ha. christmas eve is friday. and judge chu indicated if they don't reach a verdict by the end of the day tomorrow, she will not keep this jury from their family during the holiday. she will pause deliberations, and they will pick back up next monday. but keep in mind, the jury's sequestered right now. but if they don't reach a verdict by tomorrow, they will not be sequestered. john? >> that is interesting. adrienne broaddus, thank you very much. joining us now, criminal defense attorney, sarah azari and mark o'mara. mark, last night, you predicted that especial glichb the holiday weekend coming up, that there would be a verdict or a hung jury today. that didn't happen so what do you think's going on? >> so, in true lawyer fashion, i am not wrong yet. um, they may well be hung. it really seems -- a couple of surprising points -- one, not a question today. not even the question of, judge, we have been trying and we really can't reach a verdict. that may have either caused a mistrial or that one additional charge we talked about that go back and try one last time charge. they didn't even ask for that. so if i had to read the tea leaves, now i'm thinking, one, again, they're -- they are hung. they are -- they are stuck. but it may be one juror. it may be 11-1 where the 11 are going to wear down or wear out the one juror to try and get consensus because i got to believe if it was 4-8 or 6-6, they would have probably gotten to the point of telling the judge we are not going to get anywhere. so, my tea leaves is that it may just be one juror holding it all up. >> so, sarah, no questions today. i agree with mark, that was the thing that stood out to me the most, particularly after getting the question from the jury the other day where they said what if we can't reach a consensus? today, they were just behind closed doors. what does that signal to you? >> well i leave the sta tibtics to mark because i am not good at that. but you know, it's so difficult to tell what is going on with the jury. why they are taking so long. um, even though o'mara-azari dream team with 50 plus years of trial experience can't really say for certain but the three questions that we have gotten over the past thee days -- and we can't forget about question one on monday -- um, are very important. and to me, they are really one compound question. that question on monday was about the testimony of the defense' psychologist. the -- the guy that the prosecution argued was, um, the hired gun, you know, testifying just for the purpose of trial. and -- and the jurors asked, um, when was he -- when did he interview potter? and that goes -- translation, you know, that goes to credibility. do we believe what he says about an action error? um, can we believe him? or was he just hired for trial as the prosecution argued? and when you put that together with the other two questions, it tells us that they are struggling with the reasonableness of the mistake and this idea of her consciousness of that mistake. did she really believe that she had a taser when she had a glock and they were so vastly different? and that brings us to the second question yesterday of you know trying to actually physically examine and -- and observe the gun. so when you take these three questions, um, in -- in -- in the aggregate, john, i think it's pretty clear that the struggle is with reasonableness of the mistake and con -- consciousness of the mistake. and so, um, may very well hang but you know we are now at hour 24 and we will see what happens tomorrow. >> mark, the idea that if they don't reach a verdict tomorrow -- and look, maybe the holiday will create the pressure to get them to say something, one way or the other. but they will unsequester for the -- for the christmas holiday. that's unusual. i mean, what do you think the implications of that could be? >> so -- so, the reason why you have them sequestered is a couple things. one, keep them focused, keep them on point. but most importantly, keep them away from the outside influences that were always difficult, now are virtually impossible with the digital age that we're in. so, my concern -- you know, i -- i understand it's christmas. this is an extraordinarily serious case for this jury, for this defendant. unfortunately, maybe they shouldn't get un-sequestered even though it means missing christmas at home. not to rush them to verdict but my concern is that if there is some type of influence and there is going to have to be quite the interrogation, if not inquiry, of that jury to make sure none of them were -- were talked to or saw something. my concern is maybe keep them sequestered. but again, i think that there is going to be a -- a decision tomorrow. the decision is now looking closer towards that they are going to be a hung jury. >> first of all, i appreciate you humoring my vocabulary choices there. thank you for that. sarah, if there is a hung jury here, what do you think the likelihood is that the prosecution will seek to retry this case? >> i think that depends on the statistics that mark just laid out. you know? if the hung jury is mostly towards guilt, versus not guilty, then obviously it will be likely that the prosecution might try the case again. um, otherwise, they may not and they might, you know, use that as leverage and offer potter some sort of a lesser offense that she could plead to and maybe get probation or something so that they don't have to go through the -- the resources and the risk of trying the case again, given what they saw. and that brings me to another issue is that the prosecution was so certain in this case about the strength of their case that they did not include any lesser offenses in the instructions. and went forward just with the two manslaughter charges here. so -- >> sarah azari, mark o'mara, perhaps we will see you here tomorrow night. thanks, both, for being with us. >> thank you, john. >> so it took officials in virginia five hours to pry open a time capsule found in the base of a statue of confederate general robert e. lee. he had they had a list of items they expected to see, so were those items there? details on that ahead. for fast-acting sore throat relief. wooo vaporize sore throat pain with vicks vapocool drops. as a professional bull-rider i'm used to taking chances. but when it comes to my insurance i don't. i use liberty mutual, they customize your car insurance, so you only pay for what you need. wooo, yeaa, woooooo and, by switching you could even save 665 dollars. hey tex, can someone else get a turn? yeah, hang on, i'm about to break my own record. yeah. only pay for what you need. ♪ liberty, liberty, liberty, liberty. ♪ . so in richmond, virginia, the former capital of the confederate, there's a mystery that dates back to 1887. that's what when it's believed time capsule was buried inside the pedestal of the statue of confederate general robert e. lee. the statue came down this past september, and today they opened the time capsule and they got a surprise. with the story, here's "360's" randi kaye. >> it's tedious work, and yes, opening a 130-year-old time capsule is time-consuming too. the task was shared by virginia's department of resources. for more than a century, this time capsule was buried in the statue of robert e. lee in richmond, virginia. it was covered friday morning months after this historic moment in september. [ cheers ] crews dismantling the statue's base found what appeared to be a copper box as described in the richmond"richmond dispatch" bac 1887. the list of articles in the copper box was said to include dozens of items, including a battle flag, compass, 12 copper coins, even a picture of former president lincoln lying in his coffin. but it turns out this capsule was made of lead, heavily corroded, and partly covered in mortar. the box itself is an artifact, so they had to take care to preserve that too. using tongue depressors and -- a tool that vibrancy and has a hard metal tip that is much more easily controlled. it's good for getting the mortar separated from the lead. >> reporter: finally, late this afternoon, the time capsule was unlocked. [ cheers and applause ] inside, three books, a cloth envelope, and single coin. >> i saw one book that's an almanac from 1875. there was another book, i saw the word "love" on it and the author, berg win. i'll have the historians take a look at that and figure out why it's. >> all right there was no picture of abraham lincoln in his coffin. even more puzzling, along with the 1887 almanac was a book that appeared to be published in 1889, two years after the time capsule was apparently sealed. >> the original time capsule was supposed to be put in there closer to 1887. and so 1889, obviously, we will have questions and that's where the hitchhstorians des moines h. >> in terms of the condition of the items inside, most of them were pretty wet. now they plan to freeze them so they can stop them from getting moldy or deteriorating further. the big question is is this the right time capsule or is there possibly another time capsule out there because the newspapers clippings from 1887 say there should've been 60 items inside and there were only five. there certainly was not that picture of abraham lincoln, so now we'll have to rely on these historians to figure out what is going on here, john texas truth is out there. randi kaye, thank you very much. up next miraculous video of a rescue in kentucky. the extraordinary video next. pampers to be a thriver with metastatic breast cancer means asking for what we want. and need. and we need more time. so, we want kisqali. women are living longer than ever before with kisqali when taken with an aromatase inhibitor or fulvestrant in postmenopausal women with hr+, her2- metastatic breast cancer. kisqali is a pill that's significantly more effective at delaying disease progression versus an aromatase inhibitor or fulvestrant alone. kisqali can cause lung problems, or an abnormal heartbeat, which can lead to death. it can cause serious skin reactions, liver problems, and low white blood cell counts that may result in severe infections. tell your doctor right away if you have new or worsening symptoms, including breathing problems, cough, chest pain, a change in your heartbeat, dizziness, yellowing of the skin or eyes, dark urine, tiredness, loss of appetite, abdomen pain, bleeding, bruising, fever, chills or other symptoms of an infection, a severe or worsening rash, are or plan to become pregnant, or breastfeeding. avoid grapefruit during treatment. ask your doctor about living longer with kisqali. ♪ thousands of women with metastatic breast cancer are living in the moment and taking ibrance. ibrance with an aromatase inhibitor is for postmenopausal women or for men with hr+, her2- metastatic breast cancer as the first hormonal based therapy. ibrance plus letrozole significantly delayed disease progression versus letrozole. ibrance may cause low white blood cell counts that may lead to serious infections. ibrance may cause severe inflammation of the lungs. both of these can lead to death. tell your doctor if you have new or worsening chest pain, cough, or trouble breathing. before taking ibrance, tell your doctor if you have fever, chills, or other signs of infection, liver or kidney problems, are or plan to become pregnant, or are breastfeeding. for more information about side effects talk to your doctor. ♪ be in your moment. ask your doctor about ibrance. in the aftermath of the deadly tornado outbreak in kentucky this month, new body cam footage shows the miraculous two babies blown away from the storm. >> oh, my god. >> here you go. >> is she okay? >> two sheriff's officers rescue the 13-month-old babies found inside the bath tuchblt according to the baby's grandmother, when the tornado came bearing down, she put them in the tub with a blanket, pillow, and bible. the tub was lifted away from the tornado. she found to officers to help search for search. incredible story, john. thank you so much. i am michael smerconish, and welcome to cnnton. a trifecta of good news this wednesda