perino. good to be here with you. another hour. >> bill: i'm bill hemmer. things got serious it feels like. >> dana: it does. there has been a tone shift. >> bill: the president is in the room. the photographers are in taking their daily pictures and we'll share those with you when they become available. we'll hear from the judge in a matter of minutes giving the jury the instructions. defense and prosecution have spoken and made their cases and right now the judge will have the final word before they go behind closed doors, before they begin deliberations in the criminal trial from president donald trump and try to reach a verdict. maybe emphasis on try. we'll see. eric shawn begins a new hour outside the courthouse. good morning. >> good morning, bill and dana. well, the hour has arrived. the former president of the united states, a felony criminal defendant, waiting to find out his fate that is now in the hands or will be soon, of 12 ordinary americans. as you just said, the former president walked into court giving a thumbs up but did not make any comments this morning. he has always every morning basically lambasted and criticized this case but in a few moments the jury will finally get it. that after judge juan merchan outlines their jury instructions. the jury instructions is the legal roadmap the jurors will have to apply to the 34 counts of falsifying business records. both sides did have input in what merchan will say in a few moments but largely sided with the prosecution's side in those arguments. trump can be convicted if the jury finds he makes or causes a false entry in the business records, alters a true entry in the business records, owe mitts to make a true entry in the business records or prevents the making of a true entry or causes the emission there of in the business records. that's what the law says. yesterday prosecutor joshua steinglass told the jury trump did cause the falsifications and did that to protect his presidential campaign. but you know the only witness who directly tied trump to that alleged scheme was michael cohen. steinglass telling the jury, quote, the conspiracy to unlawfully influence the 2016 election, you don't need michael cohen to prove one bit. the name of the game was concealment and all roads lead inescapably to the man that benefited the most, the defendant, donald trump. todd blanche said there is not a shred of evidence that ties trump to any wrong doing and man did he put michael cohen's credibility through the test. you can't convict somebody based upon the words of michael cohen. thank you for paying attention. we went through a lot of evidence but it is important. the former president may not have said something when he walked in but earlier in the last 20 minutes or so on truth social he posted that quote the d.a.'s office was allowed to go on with five hours of bull yesterday. we may know today or sometime in the next several days after the jury goes through all this evidence if they agree that what they heard was a lot of bull or if it was true. bill and dana, back to you. >> bill: stand by downtown, eric. >> dana: we want to bring in mercedes criminal defense attorney and andrew cherkasky. before we get into jury instructions as we wait for this verdict questions that people might have. what could happen? here is a question. can trump still run for president if he is convicted? the answer is yes. can the jurors talk to the press? the answer is yes. my prediction is probably they will, at least one or two. can trump pardon himself? that's a no because it is a state issue. not a federal one. bragg is talking about a federal crime that he doesn't have jurisdiction over that. mercedes, you were down there yesterday. it did feel like as soon as president trump walked into court today that there has been a vibe shift that we realize this is a serious situation even though we can look at it and say we have common sense, it doesn't make -- it's not computing for us. how the jury would look at this. but there are some scenarios here where you could have a conviction, partial conviction, hung jury, and then what happens? >> you are exactly right. there are so many things that can happen. andrew and i are trial lawyers. this is really go time. when that journey sits down and listens to those instructions, about an hour and a half. there is -- you can hear a pin drop because of the intensity of that moment knowing your fate is in the hands of 12 strangers and no idea what will happen once they start deliberating inside those doors. it gets very real very fast. this is really the moment that everyone has been waiting for. what is the outcome of the trial? >> bill: call for number 12. we just talked to andy mccarthy a moment ago about this. jonathan turley wrote it up. it is a long, confounding, confusing way he wrote it up but he did it this way because what jurors have to consider. four jurors can find a state election violation. four can find a federal election violation. four can find tax violations. it will still be treated as a unanimous verdict. is that common? >> it is not common. todd blanche swung for the fences yesterday and did a great job in his closing argument but he has constantly been set back by judge merchan. he has come forward with an extremely unusual jury instruction and we'll hear more about it in a few minutes as he is reading it aloud. we haven't seen a pre-copy of it in the public. but what the idea is with the secondary crime, that the jury can come back with different opinions as to what that secondary crime was or how it was executed and not be unanimous in their theory of guilt. that is something that has a very constitutional tenuous type argument to it. i have seen it in some cases in a very rare -- >> bill: it does happen? >> it does happen. very few challenges. it is not something that is, i think, well regarded in most courts and appellate courts will be very skeptical of it. the sort of thing that would be a huge issue on appeal if it ever gets there. >> dana: mercedes, on that? >> exactly right. that's one of the biggest criticisms and really the defense bar is looking at this pretty seriously. now this theory of the case is taking the paradigm shift. i've never seen it. you may have seen it in some ran cases but generally not done. you have found him to have been guilty on all these counts when you talk about the underlying crime itself. there has to be unanimity in that as well. >> dana: congresswoman stefanik wrote this letter. she said one cannot help but suspect the random selection at work in the judge merchan democrat party donor to these cases is not random at all. warning of potential misconduct why acting justice merchan has been assigned to the cases whoever made the assignment intentionally selected acting justice merchan to handle them to increase the chance that donald trump, the trump organization and steve bannon would ultimately be convicted. how do you think of that and do you think that the recipient of the letter, the new york state commission on judicial conduct and the inspector general, would consider it? >> judge merchan and i this i the whole new york city judiciary needs to be investigated on this. i have heard gossiping in the hallways that judges are being hand selected for the trump trials. it is gossip in the holl ways but a problem if that's what is occurring here and we saw him having a return presence on trump trials. the entire organization in how these trials are set up and who is sitting on these trials and the fairness of the judges is something we have to have great concern over in every case. that's without regard to what side of the aisle you are on. >> bill: go back down to the courthouse with andy mccarthy. the latest email from maria. parties are seated at respective tables waiting on the judge. wants the jury charge begins no one leaves the courtroom. expect to take one hour. we should check for another update. there isn't one. saul wisenberg made this point an hour ago. he said the evidence wasn't shown physically before the jurors about some of these allegations that the state is making. and what the prosecutor said yesterday steinglass said this case as its core is about a conspiracy and cover-up. then he said these guys know each other well and speak in coded language and speak fast. the assumption there is that they know what they are saying to each other, they know what they are conspiring to do, but it is not written down, it is not in email form, it is not physically before the jurors. is that what the state is asking these seven men and five women to conclude, which i guess it's possible that you could get a conviction on that. but it seems almost as if you have to pull it out of thin legal air. am i right about that or not? >> let me try to explain this as simply as i can. you cannot have a conspiracy unless two or more people agree to commit a statutory crime. and what the government lawyers here have told the jury is that these guys conspired not to commit a statutory crime, but to commit something that was legal, namely, to suppress politically damaging information in hopes of influencing the 2016 election. they keep calling that the conspiracy to influence the election. that is not a crime. the only thing that can make that a crime, bill, is if you show that they interfered or conspired to influence the election by unlawful means. and the unlawful means in this case is the federal election violation. the problem with that is there is not a shred of evidence in the case that trump was ever even thinking about the federal election laws, much less willfully conspiring to violate them in 2016 and 2017 when the non-disclosure agreements were being negotiated and when cohen was being reimbursed. the federal laws don't even come into the case until after the "wall street journal" in early 2018 leaks the existence of the ndas and at that point the federal election commission starts asking questions. but that is in 2018. if it doesn't come up until 2018, they can't have been thinking about it in 2016 and 2017, but judge merchan has allowed the prosecutors again and again and again to tell the jury that michael cohen pled guilty to federal election crimes and that's how they are trying to fill the hole, even though that evidence is not admissible against trump. >> dana: is that why you wrote a piece for national review that says merchan and trump conceal the holes in bragg's case, where the former president is likely to be convicted? >> yes. he allowed -- judge merchan has allowed the federal -- dana, there is a concept-in-law called judicial notice like if it comes up in the case that albany is the capital of new york i don't have to prove that to the jury. i can ask the judge to take judicial notice that everybody knows albany is the capital of new york. judge merchan has treated the federal election convictions of michael cohen like that in this case. it is like the jury doesn't have to worry about proving or whether the government proved that because it is an established fact in the case there must have been a federal election crime because michael cohen pled guilty and told the jury encouraged by the prosecutors to do this that he committed that crime, which is the way the prosecutor framed it, at the direction of president trump. so they think that's already settled. i would be shocked if they thought it was an element of the offense that the prosecutors actually have to prove. so judge merchan took care of that part of it and then for his part, what trump did was he treated the non-disclosure agreements, which are legal, as if they were radioactive and that he had to stay a million miles away from it. and his lawyers told the jury in the opening statement that trump never reimbursed cohen, when there is a mountain of evidence that he reimbursed cohen and shouldn't have been worried about reimbursing cohen because it is legal to do an nda. so i look at this and i don't -- i don't blame the trump defense for what i think is going to happen here because i think the fix is in between the prosecutors and the judge. and allowing the guilty plea of michael cohen, which is inadmissible evidence against trump. that is very basic. even merchan agrees with that. but he allowed the prosecutors again and again to stress it to the jury. if you are the jury sitting there you are saying to yourself they wouldn't have the prosecutors tell me that 127 times unless it was important. >> bill: andy, you sound like roy comb. he was a lawyer in new york for a long time, took trump under his wing when he was a much younger man, and he would say don't tell me what the law is, tell me who the judge is. the answer you just gave sounds a lot like what he would say. find me the right judge. do you stand by that? >> well, in that particular bill i will take the comparison to him. i must say i haven't often been compared to him in my career, but i do think it was incredibly important who the judge was and the make or break in this case is that the judge has indicated or allowed the prosecutors to indicate to the jury that the federal election crime has already been proved when in fact -- i can't stress this enough -- the evidence in the case that is admissible -- we aren't talking about the guilty plea or pecker's entry into a non-prosecution agreement. the evidence in the case that is admissible is that the federal election commission and the federal law about campaign contributions didn't come up until 2018. the crimes alleged in the indictment were committed from 2016 to 2017. so it's not possible that those crimes could have been done for purposes of covering up a federal election crime that nobody was even thinking about at the time. >> dana: mercedes, do you agree or disagree, comments? >> definitely there are a lot of issues regarding what the judge is going to ask the jury to do and andrew is right about this whole issue regarding michael cohen having pled guilty to those federal crimes and how that can impact the jury's thinking. that is very clear. with respect to judge merchan i'm a practitioner, i won't be overtly critical of a judge. the litigants believe this is what they have been experiencing. in terms of what can happen, it can truly happen, a conviction can happen for the various reasons we're talking about. the underlying crime doesn't have to be defined unanimously. >> bill: here is what maria is telling us. the judge has the jury in the room now and instruct them on the law starting with basic instructions. the jury will not receive copies of the instructions. that was something saul wisenberg was hot on. they can be very complicated but they can have them read back to them. the judge will summarize the evidence. expresses no opinion. nothing the judge has said throughout the case, judge reminds the jurors they are trier of fact and he promise to be fair jurors and mindful of stereotypes. the beginning of the instructions from judge merchan. >> jury instructions are very standard . many of them that are blocked that we know exactly what it is going to be said. if the elements of the crime that we are all i think most curious about exactly how he phrases that to them and what their takeaway is. especially when receiving it orally in that fashion. i practice in many different jurisdictions and many times jurors get a paper copy and easier for them to go back. >> bill: is it smarter to do it that way? right? gowdy says how in the heck can non-criminal lawyers remember these instructions? >> dana: take notes? >> they need to take some notes. can come back and ask for more. in this case it might defer to donald trump's favor they don't have the paper copy if, in fact, these instructions will be as favorable to the prosecution as they seem to be. so now they kind of just have more of this general sense as to what is going on. i agree if the jury was it wrong to put legal expenses? it is an acquittal all day long. easy oh choice to make for any business they've ever run when you are categorizing a payment to a lawyer you categorize it as legal expense. if that wasn't wrong beyond a reasonable doubt it is not guilty on all charges, no further questions. >> bill: stand by for all of you. let's get a time-out. more jury instructions coming out and we'll read them to you as we get them right after this. >> the jury instructions that get into the law will be detailed coming from the pen from the hand of judge merchan. this is what the jury has as their guide book getting to a decision and that's why they are so powerful and why the judge in a case like this has so much power over the jury. bookkeeper, you're the first to know when high rate debt is stressing your budget. but your family's service has earned you a big advantage. the va home loan benefit. with the lower rate newday 100 va cash out loan, you can pay off high rate credit cards and car loans. that's real money you can use to take care of your family and home. the tempur-pedic breeze makes sleep feel cool. so, no more sweating all night or blasting the air conditioning. because the tempur-breeze feels up to 10° cooler, all night long. for a limited time, save up to $500 on select tempur-pedic adjustable mattress sets. i brought in ensure max protein with 30 grams of protein! those who tried me felt more energy in just two weeks. -ugh. -here, i'll take that. woo hoo! ensure max protein, 30 grams protein, 1 gram sugar, 25 vitamins and minerals. and a new fiber blend with a prebiotic. (♪) hey you, with the small business... ...whoa... you've got all kinds of bright ideas, that your customers need to know about. constant contact makes it easy. with everything from managing your social posts, and events, to email and sms marketing. constant contact delivers all the tools you need to help your business grow. get started today at constantcontact.com constant contact. helping the small stand tall. it's time. yes, the time has come for a fresh approach to dog food. everyday, more dog people are deciding it's time to quit the kibble and feed their dogs fresh food from the farmer's dog. made by vets and delivered right to your door precisely portioned for your dog's needs. it's an idea whose time has come. ♪ i love that my daughter still needs me. but sometimes i can't help due to burning and stabbing pain in my hands, so i use nervive. nervive's clinical dose of ala reduces nerve discomfort in as little as 14 days. now i can help again. feel the difference with nervive. >> bill: now the first -- it is a white shirt and yellow tie. >> dana: i like a yellow tie. >> bill: the judge delivering final instructions to the jury before we speak before they deliberate. talk to j.d. vance inside the courtroom prior. good morning to you. one of the things you said, every single person involved in this prosecution is practically a democratic political operative. is that the way you see it? >> yeah, bill, unfortunately that's correct. you have, of course, the number three at the department of justice going to join the new york prosecutor's case to do this. a soros funded prosecutor alvin bragg. a judge who donated to the democratic party and biden's presidential campaign and you have the daughter of merchan raising almost $100 million for democratic candidates off of the very trial that her dad is presiding over. so why aren't we asking some very tough questions about the corruption of enriching your family from the very trial that you are presiding over? i really hope donald trump gets acquitted. if he does it will be a miracle because of how loaded this judge has been from the start. i think we have to ask tough questions whether his bias was motivated by his family's financial interest. >> dana: you sent a letter from the attorney general. next week the trial of hunter biden begins. i wonder what you think if anything a.g. gar