>> and the jurors have been sent to begin deliberations. >> the jury finally has the case. >> a former president now awaiting his fate in a criminal trial. >> tonight, the testimony the jury wants to hear from david pecker and michael cohen. why even getting to this point is a positive sign for the rule of law. >> it will be talked about in the history books. >> then, justice samuel alito warms up the bus. >> as soon as i saw the upside down american flag i asked my wife to take it down, but for several days she refused. >> congressman daniel goldman on the response to calls for recusal. >> chief justice roberts must step in and make sure that he does not have any role in deciding these cases. >> when "all in" starts now. good evening from new york, i am chris hayes. the criminal trial of donald trump was turned over to the jury today. 12 of trumps fellow new yorkers, i say that somewhat tongue-in-cheek, deliberated for four hours today before being dismissed for the day shortly before 4:00. this afternoon the jury sent two notes to the judge requesting to hear for sections of witness testimony, as well as the judge's instructions. court will reconvene tomorrow morning with the court reporter reading back the relevant parts of the transcript before the jury continues deliberating. one consistent rule about juries is you just do not know what they are going to do. when you put 12 random strangers in the room, the outcome is never obvious. we do know there are three possibilities, broadly. the jury could acquit donald trump on the counts against him. all 12 jurors have to agree unanimously. we could get a hung jury if all 12 jurors cannot agree either way. it only takes one holdout for that outcome. or the jury could decide to convict trump if they agree he is guilty beyond a reasonable doubt. again, there are 34 separate felony counts at play, so these can be mixed and matched in a variety of ways. understandably a lot of people are very invested in the outcome of this trial. i do think it matters, but no matter what happens, i do believe that the process has already been a victory for the rule of law and a rebuttal to the worst and most dangerous aspects of trumpism. the fact the former president was investigated, charged and tried by a jury of his peers shows no one is above the law. that is not donald trump's vision of the law. in his view there is no such thing as a neutral free and fair process like a trial or an election. all that matters is out him. if he wins it is fair. if he loses it was rigged. he has said this about everything from legal trials to presidential elections to the emmy awards. that is donald trump's authoritarian view of the world. the powerful get to dictate what happens. it is the opposite of hours core civic commitments of equal rights, equal protection and equal justice under the law, that we are all subject to the same fair processes and we respect the outcomes of those processes. it is the basic liberal project. in a way this trial has been a test for america. for the first time in our history of former president has been prosecuted and tried for committing a crime. we know this process works in some other democratic countries. as happened in france, south korea, taiwan, where former presidents have been successfully tried and convicted. we've seen the process play out on the state level. for governors of illinois have been sentenced to time in prison. the most recent had his sentence commuted by none other than donald trump. connecticut governor john rowland was convicted twice for corruption, 10 years apart, spending 10 years in prison. the state's attorney of baltimore was sentenced to home confinement after being convicted of perjury and mortgage fraud. with the first trial near its completion the principle of justice for all in america is a bedrock one and just to be clear, it used to be, i think a consensus and it no longer is. trump and his republican toadies, people going to new york just like donald trump to stand at microphones, they all rejected and yet this trial is a real success in its own right. for weeks donald trump had to sit in a courtroom where justice is, day in and day out, dispensed to regular citizens. both sides presented a case to a jury of his peers. all while another group of trump lawyers try to convince the supreme court that he has a special status as a former president. a special kind of citizen unbound by the normal processes of mere mortals. donald trump does have more access to wealth and fancy lawyers then 99.9% of all criminal defendants who step into a courtroom in america and yet the process played out as it should for any american. he went through the full, normal process of a trial that any person accused of a crime would. that is what is at stake in the new york courtroom and in the supreme court's decision about so-called presidential immunity. ultimately our entire liberal democratic order rises and falls on our ability to produce fair and neutral processes that apply to everyone and lead to outcomes we can all trust. if it fails, we have trumpism, authoritarianism. so whatever the jury decides in trump's case is not as important as that process. the trial of donald trump, i believe, has proven that the process works. independent of the outcome and that alone is a rebuke of everything trump stands for. harry litman served as attorney general at the department of justice. as people that worked in that office and someone in the trial every day, do you agree with that assessment that as a process, as a sort of test of american equal justice under law, that independent of the outcome, it is a success? >> i agree. forgetting that it is donald trump, former president of the united states, this trial was orderly. donald trump, inside the courtroom, behaved himself relatively. the jurors came on time. there were no hiccups throughout the trial and most trials are like that. some there are hiccups. you are right, he is not above the law. no one should be above the law and most defendants, in many ways, he has received special treatment. he has four indictments and he is free, so that is one thing. but it is good for people to see, whatever the verdict is. that is how the system works and you have to respect that. >> it is an important and i would say beautiful point, really. he was brought to heel during this trial. he had to do as others do and it was a full and fair sort of oversight by judge merchan, but merchan is really channeling the law here. it was the law that made him sit, the law that made him show up, the law that subjected him to the same thing that happens to everyone else. people are understandably jittery now. unanimity is one of the features of due process that he received and in a way that is secondary. a possible political response, he could be convicted and sail through, but the fact that the process has happened, it is majestic. >> we don't know what the jury will do and i feel like if this were the january 6 trial, i know he is guilty. i saw it, i read the report. in this case i think it was a compelling case and as a watcher i think i probably think he is guilty, but again the independence of process -- one of the things i've been trying to balance and would love to hear you both as we await this. at one level you don't want to be like everything that runs the american justice system is great, because it is clearly not. you know having been in that building for 30 years. so i don't want to say if he is convicted it is fine. people get wrongfully convicted all the time. at the same time there is something so insidious to me about the entire republican party marshaling behind a kind of party line that this is a corrupt enterprise to its core. >> that was to me the most offensive part of the trial, which wasn't about the trial, but the speaker of the house of representatives, senators, congresspeople outside the courthouse while a trial is ongoing, basically trashing the process. criticizing the judge. talk about attacking an independent judiciary. criticizing the judges daughter. that was a statement against the rule of law. the trial was ongoing and they were doing that and that was shameful to me. >> and that is even kicked up a notch in the last few days where you have republicans lying. they are stupid or pretending to be stupid, you never know, but about what the jury instructions are. it has to do with the step up thing, but you have marco rubio and others propagating these sorts of lies against merchan and the whole process happening now. >> that's exactly right, but that's the political sphere. somewhere in a courtroom in manhattan, everything we hold dear happened and it really demonstrated his being subject to the same processes and that part itself kind of brought him down. he's someone who embodies the principle that no one can tell me what to do and here the law told him what to do and forcefully for several weeks. >> so i want to talk about the potential outcomes and your experience with it. acquittal, hung jury, conviction. each of those apply to each of the 34 counts. juries can say we are unanimous on these 12 and hung on these 22 or any combination thereof. >> they could say his signature is on nine checks, he's guilty of that, but then you could have some who are not sure about the ledgers and invoices, so you could have conviction on the checks, hung jury on the invoices, not guilty on the invoices or ledger entries. >> have you experienced that? >> often i would say, i don't have to worry about it being reversed on appeal, because it shows the jury was thoughtful. they went by each count and said guilty on this, not guilty on that. so that may happen. i don't know, because i can't read tea leaves. i do not think there will be 12 members of the jury who will say not guilty on all 34 counts. >> that is a bold prediction. >> ari melber made this point last night that really stuck with me about the difference between a hung jury strategy and an acquittal strategy. he made the point about o.j. simpson where he said it was an acquittal strategy because they say here is a comprehensive theory that can explain the evidence. the man was framed by the racist lapd. there is dna on these things, but actually it wasn't. that is an acquittal strategy. here the defense has offered no acquittal strategy. there is no comprehensive, reasonable, alternate theory i've seen where you can say he had nothing to do with the whole thing. >> no counter narrative. just you shouldn't believe michael cohen. in fact what was indicative of that is the way that todd blanche read out the prison point he was castigated for at the closing. that is can i get one, can i get a hung jury even being improper? they've given up and there is no prospect of an acquittal. >> it is the next best thing to an acquittal for a defense attorney. >> it plays as a victory, but your point unanimity is important. if it happens it is a political triumph, but still a legal victory that goes through the process. >> thank you, that was really edifying. appreciate it. coming up, why the judge spent more than an hour giving detailed instructions to the jury weighing donald trump's guilt. what to make of the questions the jury sent back, that is next. next. if you're living with moderate to severe plaque psoriasis or active psoriatic arthritis, symptoms can sometimes take you out of the moment. now there's skyrizi, so you can show up with clearer skin... ...and show it off. ♪ nothing is everything ♪ with skyrizi, you could take each step with 90% clearer skin. and if you have psoriatic arthritis, skyrizi can help you get moving with less joint pain, stiffness, swelling, and fatigue. and skyrizi is just 4 doses a year, after 2 starter doses. serious allergic reactions and an increased risk of infections or a lower ability to fight them may occur. tell your doctor if you have an infection or symptoms, had a vaccine, or 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[ bird squawks loudly ] to a pet shop. meg's moving company uses t-mobile. so she scaled down her fleet to save money. and don's paying so much for at&t, he's been waiting to update his equipment! there's a smarter way to save. comcast business mobile. you could save up to 70% on your wireless bill. so you don't have to compromise. powering smarter savings. powering possibilities. a few hours after the jury began to relations and donald trump's new york election interference trial, two notes were sent from the jury room to the court. the first asked for testimony from david pecker and michael cohen to be read back. about an hour later, a second note asked for the jury instructions to be read. the judge dismissed the jury, saying the refreshers will happen when court is back in session tomorrow morning. the jury will have the option to work late, perhaps going to 6:00 tomorrow night. charles coleman served as a prosecutor in brooklyn and they both join me here. it's great to have you. let me start with you, judge. let's just start with the process that produces those instructions. so, judge merchan give instructions for about an hour this morning. an hour and a half, so 10:00 to 11:30 or somewhere around there. how does the sausage get made on those instructions? >> well, the judge invited both parties to submit proposed instructions. the defense got to submit proposed instructions. the d.a. got to submit proposed instructions and last friday there was a charging conference. about three hours long in the afternoon and both sides got to make certain points. the judge got to make certain points. the judge seemed to be leaning the defense way and in other areas he seemed to be leaning the d.a.s way. we were expecting to see the is instructions -- to see these instructions earlier. >> they were just read today and that's all we got. did you have an impression of them? >> i was caught by surprise by one particular instruction. when the judge laid out the pathway to the felony, right? >> the fact that the misdemeanor had to be committed in furtherance of some other crime. >> right. 34 misdemeanor counts for donald trump falsifying business records. i've been to trial every day. i think there is abundant evidence to support them, starting with the nine checks he signed. but to get the felony they have got to be to conceal or commit another crime. so what was also in the instructions, which was not a surprise that the object crime that the people designated, we knew that last week during the charging conference. the object crime is new york election law. now what everyone had been assuming, including me, is that the essence of that is two or more people to conspiracy charge. act in a way to prevent or get someone elected by unlawful means. so the trick is unlawful means. everyone was thinking unlawful means is bringing this back to the federal election campaign act. >> right. >> fica is in there, that is not a surprise. the surprise is the judge added another menu in the instructions and i don't even remember this being discussed in the charging documents. if i did i probably would have remembered it and when i heard it today i was like okay. that plays four separate additional falsification of business records as a path. >> i just want to read those. although you must conclude unanimously the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous to what those means were. he may consider the following. violations of the federal election campaign act otherwise known as fica. falsification of other business records. violation of tax laws. >> the falsification of other business records was a surprise. records relating to michael cohen. there is extensive testimony and records that when he created this essential consulting, the vehicle to get the $130,000 under the table to stormy daniels, he lied. he didn't say this was for a star. he lied on the application. another false business record in there which i think is a really potential, big, big problem for trump is the falsification, causing the 1099 to be made for michael cohen for $420,000 in income that there is a mountain of evidence -- so, trump is going to have a hard time distancing himself from that if, if cohen's testimony is believed with respect to a key january 17 meeting in trump tower where he said he attended with allen weisselberg. >> right, that is the one. >> that is a pathway, though. >> they ask to get the instructions read back and in new york you don't get them printed out, so if you want them again you have to have them read again. >> i think the fact they are asking about instructions this release is two things. number one, these are complicated and they want to understand them. a lot of people thought going into this that it is very straightforward and i have been telling people it really isn't. the misdemeanor is straightforward and easy to understand, but to get to that felony, that is where it gets complicated and i imagine where the jury is getting hung up. they are going about looking at this case and the deliberations in an organized and serious fashion. we did not want a verdict on day one, because that would've shown they did not take this process seriously. the fact they are asking for the raid backs means they are likely corralling the evidence, starting at the beginning. when they are talking about the elements of the crime laid out in the jury instruction, i imagine they are taking the evidence they have and the testimony they received and match that to the elements to see if they have been met beyond a reasonable doubt. >> how often have you been shocked by a jury in your career? >> shocked by a jury? i don't know if i have ever been totally shocked. >> really? where you are like i definitely know the outcome here? >> no, no. >> what does that mean? >> meaning what? >> that you have not been or you just reserve judgment sitting in that chair? >> you reserve judgment, give people the benefit of the doubt and then see what direction they are going to go. i've never been totally stunned one way or another. >> as a lawyer you learn to reserve judgment until you get the verdict. i think there are signs you have a sense when you're trying a case of who might be with you. the question is, how with you are they? the other thing is that we have no idea as to what the juror dynamics are going