>> dana: bye. >> bret: see you, dana. ♪ good evening, welcome to washington. i'm bret baier. breaking tonight, the jury has questions and wants to hear the judge's complex instructions to them again. the 12-person jury in the former president donald trump's trial deliberating for four and a half hours before being dismissed by the judge for the day. the panel sending two notes to the judge this afternoon asking to rehear potential crucial testimony about the alleged hush money scheme at the heart of this history-making case. and, asking to hear the judge's instructions to guide them on the law mooner time the presumptive presidential nominee calling the criminal case against the former president a political witch-hunt in comments just moments ago judge juan merchan gave the instructions on the law governing the case and what they can take into account in evaluating the former president's guilt or innocence. former president trump facing 34 felony counts of falsifying business records, charges punishable by up to 4 years in prison. correspondent nate foy is outside the new york state supreme court with the latest on all of this. good evening, nate. >> nate: good evening, bret. the jury deliberated for about four and a half hours today, this afternoon. this morning though, judge juan merchan during jury instruction revealed that the jury can find trump guilty in this case even if jurors disagree on the under lying crime that he allegedly committed while unlawfully influencing the 2016 presidential election. but trump maintains he is being politically persecuted in this year's election is being interfered with. >> it's a disgrace and i mean that. we will see. we will see how we do. >> jury deliberations are underway in the first criminal trial ever involving a former u.s. president. the jury will need to reach a unanimous decision to convict or acquit former president donald trump. trump is charged with falsifying business records to influence the 2016 election through unlawful means. but judge juan merchan instructed the jury quote you need not be unanimous as to what those unlawful means. were there the three options for the jury include a federal election campaign act violation, the falsification of other business records, or a violation of tax laws. these are the possible crimes that elevate trump's charges to felonies. today the jury sent two notes to judge merchan, one to clarify his jury instructions. and the other to revisit testimony about a 2015 trump tower meeting between trump, his one-time lawyer, michael cohen and former american media ceo david pecker. during the trial, trump's lawyers accuse cohen of lying on the witness stand as merchan instructed the jury today, quote: if you find that any witness has intentionally testified falsely as to any material fact, you may disregard that witness's entire testimony. cohen is the only witness directly connecting trump to the scheme to pay off adult film actress stormy daniels. while trump laments his time spent in court and off the campaign trail. >> they don't know what the crime is of. that's what the problem is it's a disgrace. this thing ought to be ended immediately. the judge ought to end it and save his reputation. >> tomorrow morning when court resumes, the jury will begin by revisiting those two notes that you mentioned, bret. one regarding the jury instructions from judge merchan and then the other revisiting testimony from david pecker and michael cohen. the trial resumes at 9:30 in the morning and the jury could decide to stay late until 6:00 p.m. eastern time tomorrow if they're close to reaching a verdict. bret? >> bret: we will be watching every minute. nate, thank you. more on this and the panel in just a minute. also breaking tonight though, we want to bring you. this justice samuel alito pushing back on critics and their demand for him to step aside from supreme court cases involving former president trump and january 6th capitol riot defendants because of the controversy over flags. that flew over his homes k0e6r79 david spunt joins us now. >> judge alito announced his decision to two rare letters to congress in the house and the senate. he said simply i'm not recusing myself. i want to read part of the quote he said a reasonable person who is not motivated by political or ideological considerations or desire to effect the outcome of supreme court cases would conclude that this event does not meet the applicable standard for recusal. i am therefore duty-bound to reject your recusal request. the controversy began several weeks ago when a photo surfaced of an upside down flag hung outside the alito's northern virginia home for several days back in january 2021. this was just days after the january 6th capitol riot. democrats say the display represents the stop the steel effort at a time when donald trump insisted without credible evidence the 2020 election was stolen. democrats gansded the leader recuse himself from a january 6th related case before the supreme court and, of course, the case involving the former president's immunity claim. but justice alito told fox news shannon bream exclusively a few weeks ago that mrs. alito hung the flag after a verbal altercation with a neighbor who used what he called, quote: the vialist epitaph that can be addressed to a woman end quote. neighbor who admits to using the phrase to mrs. alito tells the "new york times" the two had words several weeks after the flag was flown. contradicting with the justice told fox news. the "time" sites # 11 calls as evidence. justice alito wrote to to congress his wife's personal decisions are not his. he said i had nothing whatsoever to do with flying of that flag. i was not even aware of the upside down flag until it was called to my attention. as soon as i saw it, i asked my wife to take it down. for several days she refused. alito also addressed a flag that was flown at his vacation home called an appeal to heaven. critics say that it has the same connotations as the upside down flag outside of his virginia home. i will note that it date back to the revolutionary war. in fact the san francisco chronicle reports it hung outside the san francisco civic center in downtown san francisco for 60 years and was just recently removed. bret? >> bret: david, thank you. bragg didn't want to brings it. the wouldn't use the number one election attorney. he is making the rules. he doesn't know anything about elections. >> bret: that was former president trump moments ago. we do have live pictures of him outside of trump tower after leaving the courthouse. waving to fans there. getting ready to go inside. as he makes that trek as he has done every day he has been in court and heads home, let's get some analysis now from fox news chief legal correspondent, anchor of "fox news sunday," shannon bream and fox news chief political analyst brit hume. good evening to you both. shannon, first, i want to start with you. this is a big day. the instructions come out. they are very complex to the jury. the jury is deliberating for four and a half hours and reporters in the courtroom say they hear this antique kind of sounding bell that rings and the jury has two questions. specifically, when you look at what they are looking at, what do you take from it? >> shannon: then want to hear testimony from david pecker, of course, who was running the national inquire running ami owned the national inquirer. they want to hear from michael cohen. what the defense has said this case is all pinned on michael cohen and you can't trust him he lied to everyone in his life. admitted to lying and caught lying. the jury wants to hear something he said and david pecker. says to me they want to hear about. so deals that allegedly there was conversation about how they would go down there. is mention of karen macdougall. she is not part of this case. she did not testify here. but she was another person who was framed as one of these catch and kill stories that pecker was involved with for a different amount of money. a different situation. to me as if the jury still wants details on wasn't went down. and potentially these two men telling stories that ingo up. if they potentially are in conflict they are still assessing michael cohen as a sense or source of what they are trying to decide after the judge told them today you can disregard his testimony if you feel like he had not been truthful. >> bret: brit, the 12-person jury. as you look at them. we don't have pictures we have their titles and what they do. there are two attorneys on jury, and you know, one would think that they at least understand some of this. but it is very complex. take a listen to a cnn analyst about how complex. >> the crime here is not easy to explain and understand. i'm interested to see how they explain the tax crime. that one also is tough for me to understand. falsifying business records in order to falsify business records. >> very meta. >> bret: these are people spending every day trying to explain this thing to an audience instructions hour and a half. truth social said i don't know what the charges are in this rigged case. i'm entitled to specificity like anyone else. there is no crime. obviously prosecutors think differently. what do you think about this case as the jury holds it? >> brit: i think it's very hard to assess how a jury would react to a case like this. i have never seen anything quite like it and when the jury instructions run to an hour, hour and a half and they are not allowed to take them back into the jury room with them to refer back to them. it's completely understandable to me that they might be utterly bewildered by this wholening. in the face of this confusing case with this very exotic reading of the charge by the judge. since trump is not popular there they think they will get a conviction. i have know doubts. >> bret: tough to read juries. all politics is legal. all it takes is one skeptic juror and trump's team auto is eyeing one in particular who they hope might deliver. this person has appeared to nod along and seeming in accord dance with the defense at times and lit up when senator j.d. vance from ohio and trump surrogates showed up at the courthouse it. does only take one but reading jurors is always tough. >> shannon: it is really tricky. and it could be one who is asking these questions. it could be multiple jurors who are sending out these questions. remember, it comes down to unanimous. if you are going to acquit if you are going to convict. i suspect that they come back and say we are at an impasse. we just can't reach agreement on this. the judge is going to do what is an allen charge and send them back. you have a duty as a jury. you have agreed to do this. we want you to look back all the evidence again and try to get to an agreement. the question is if there is a possible hung jury, how often -- how frequently or forcefully does the judge do that before they come back and say we can't just get there we just have no indication at this point what the vote is if they do come back hung up i do not think that judge merchan is going to accept that on face value at first pass as judges often do not. >> brian: shannon, while i still have you mark levin said if there is a conviction. legal advice in bush v. gore the united states supreme court interseeded in the supreme court the state court was establishing new standards for a presidential election. the manhattan trial court has done worse. if president trump is found guilty of any of the 34 charges, i would strongly encourage the attorneys to seek an emergency appeal to the u.s. supreme court based at least in significant part on bush v. gore. in other words, saying that the onus here is because of the election and for the people who could vote for donald trump. unusual path to jump from the state court to the supreme court. there are instances and paths for that to happen. we have to see if they decide to todo. a lot of us are gaming out whether that would happen realize there is really nothing that they could lose in filing that -- filing with the court it. would take four votes normally to take up a case. five in many of the emergency situations. so you have to gauge how many justices might be willing to do that. it's not impossible tore a state case to jump over to the u.s. supreme court but it's rare. it does happen. >> bret: there is an election hanging in the balance. brit, last word, speaking of those justices, samuel flag story, what do you make of that and the fallout from it? >> brit: i think the whole flag controversy involving alito's wife and all of that goes back pretty frivolous. goes back three years. one flag in question is one that has been noted earlier was flown in san francisco outside of a office -- of a government building for 60 years. it was one of the flags by george washington. silly stuff. alito's refusal to recuse himself is completely merited and he made the case by it why itdidn't meet the standard. this is what happens when judges don't rule liberals like. some of it being cheesy this being a single example. >> bret: shannon and brit as always, th thank you. surprising announcement from senior israeli official on the expected length of the war. later, one time presidential candidate, who knows prance vice presidential prospect north dak burgum here on set. we will talk to him about a host of issues. ♪ this program is brought to you by b [music playing] tiffany: my daughter is mila. she is 19 months old. she is a little ray of sunshine. one of the happiest babies you'll probably ever meet. 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[music playing] ♪ my back got injured very bad. i was off work for about a year. i heard about relief factor from my wife... i took it every day, three times a day, for three weeks. ...look at her and i said, "the pain is gone." and she said, "i'm glad it helped." i said, "no, you don't understand. it's gone." you, too, can feel better every day with relief factor, a daily supplement that fights pain naturally. call or go online now and get 35% off your first order. ♪ >> bret: the chief of u.s. border patrol is reporting more than 52,000 special interest aliens were apprehended by border patrol since the fiscal year began on october 1st. almost 90% of them have been encountered in the san diego sector. special interest aliens are illegals from countries that have potential national security concerns. and they are supposed to receive additional vetting during processing. criminal charges against scottie scheffler, the world's top ranked golfer have been dismissed, ending a legal saga that resulted in him being arrested during the pga championship. scheffler was arrested prior to the second round of the pga for allegedly dragging a police officer with his car trying to get into the golf club. videos released afterwards did not show that dragging clearly. he had faced multiple charges including second degree assault of a police officer now all dropped. stocks were off today broad retreat. the dow plummeted 411. the s&p 500 lost 9, the nasdaq dropped 99. ♪ >> bret: overseas now, israel's military says it has seized control of a strategic corridor of gaza's border with egypt. senior israeli official makes a grim prediction about the role of hamas. trey lynx has the latest tonight from tel aviv. >> in unexpected announcement israel's national security adviser said the war in gaza will continue for another seven months. this as top u.s. officials are urging restraint from the israeli military. and it continues to operate in gaza's southern most city of rafah and for their counterparts to develop the plan when the war is over. in the absence of a plan day after there won't date of birth after. if not, we will have chaos, lawlessness in a vacuum. >> with international pressure growing on israel, the country has maintained a mixed relationship with the biden administration but prime minister benjamin netanyahu is not without friends in the u.s. today he met with senator lindsey graham who pledged u.s. support for israel as the international criminal court pursues an arrest warrant for netanyahu and his defense minister. >> i promise you that we will do all we can, mr. prime minister, to hold the icc in account for this outrage against the people of israel. >> as israeli troops operate in gaza today capturing the philadelphia corridor that sits along the border with israel and gaza. there is a renewed focus on support for palestinian civilians, an effort that suffered another setback when wn the u.s. was forced to stop aid deliveries to gaza by sea as the $320 million american floating pier was rendered inoperable by harsh weather conditions. the palestinian authority health minister on wednesday, called on the international community to step up pressure on israel to open the rafah crossing between gaza and egypt. an area that is now controlled by israel. >> i would expect that all our friends and the international community. >> dark smoke could be seen rising from rafah wednesday as reports say israeli troops are now fighting in the center of the city. bret? >> bret: trey yingst in tel aviv. trey, thank you. up next, president biden heads to the keystone state again to try to gin up support from black voters there. then an exclusive interview with governor doug burgum of north dakota, former republican presidential candidate talked about a lot of things. first, beyond our borders tonight, a volcano in southwestern iceland is erupting for the first time since december, spewing streams of lava and triggering the evacuation of a popular geothermal spa. the eruption began in the early afternoon following a series of earthquakes. this is a live look at japan. one of the big stories there tonight, china and japan agree resume regular talks between their ruling parties for the first time in six years. the ruling party talks between asia's two top economies were previously held once a year have not taken place since 2018. just some of the other stories beyond our borders tonight. we'll be right back. ♪ ♪ we go outside the friendship has kind of grown into a family i was overseas on a deployment. i got separated from my marines and i got hit in the neck, and it broke my neck and paralyzed me. 14 years ago, i was on a training mission. did a military freefall, and i had some faulty equipment. i hit the groun