deliberations. >> the jury finally has the case. >> the former president now awaiting his fate in a criminal trial. tonight, the testimony the jury wants to hear from david pecker and michael cohen and why getting to this point is a positive sign for the rule of law. >> it will be talked about in the history books but i'm not allowed to talk about it. >> samuel alito warms up the bus. >> when i saw the upside down american flag, i asked my wife to take it down but she refused. >> 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, i'm chris hayes, the criminal trial of donald trump was turned over to the jury today. 12 of trump's fellow new yorkers, i say that somewhat tongue in cheek, deliberated four-and-a-half hours today before being dismissed for the day. shortly after 4:00. this afternoon, the jury sent two notes to the judge requesting to rehear four sections of witness testimony. court will reconvene tomorrow morning at 9:30 with the court reading them back before the jury continues deliberating. now, the one consistent rule about juries is that you just do not know what they are going to do. when you put 12 random strangers in a room, the outcome is never obvious. but there are three possibilities broadly. the jury could acquit donald trump on any ieor all of the 34 counts against him. all 12 jurors have to agree on that unanimously. we could get a hung jury if all 12 jurors cannot agree either way. it only takes one hold-out 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 count ins play here, so this could 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 the process has already been a victory for the rule of law. and a rebuttal to the most dangerous aspects of trump. the no one is above the law in america. of course, that is not donald trump's vision of the law. in his view, there is no such thing, crucially, as a neutral free and fair process, a trial or an election. all that matters is outcome. if he wins, it was fair, if he loses it was rigged. he has said this about everything from his legal trials to multiple presidential elections to the emmy awards. that is donald trump's authoritarian view of the world. power trumps all and the powerful dictate what happens. it is the opposite of our core commitments of equal rights, equal protections 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's the basis of the liberal democratic process. this will be a big test for america. for the first time in our history, a former president has been prosecuted and tried for committing a crime. we know this process works in some of our peer democratic countries. france, south korea, taiwan. we have seen the process play out here on the state level. four governors of illinois have been sentenced to time in prison. most recently, rod blagoyavich. rowland. the former state's attorney of baltimore was sentenced to a year of home confinement after being convicted of perjury and mortgage fraud. this principle of equal justice for all in america is a pretty bedrock one. it used to be a consensus one. people going to new york dressed like donald trump, they all reject it. and yet this trial is a real success in its own rights. for weeks donald trump has had to sit in the courtroom where the justice is dispensed to regular citizens. faced a judge who is fair and firm while both sides presented their cases to a jury of his peers. all that happened while another group of trump lawyers are trying to convince the supreme court he has a special status as a former president. a special kind of citizen unbound. he has access to wealth, lawyers than 99% 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 is what mais at stake in t courtroom and at stake. ultimately, our d entire libera democratic order rises and falls on our ability to produce fair and neutral processes that apply equally to everyone. if it fails, we have trumpism. authoritarianism. so whatever the jury decides in trump's case actually is important as that process, the trial of donald trump i believe has proven that process works. independent of the outcome. that alone is a rebuke of everything he stands for. katherine christian spent over 30 years a prosecutor in the mat hat tan district attorney's office. as people, as someone who worked in that office and been in the trial every day, do you agree with that assessment? that as a process, as a test of equal justice under law, that this has been a success? >> i agree it has been. forgetting that it is donald trump and former president of the united states, this trial was orderly. he, donald trump, inside the courtroom, behaved himself relatively. the jurors came on time. no hiccups throughout the trial. and most trials are like that. some, there are hiccups and you're right. he is not above the law. no one should be. and most defendants in many ways, he has received special treatment in some of his cases in just that 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 important. beautiful really. he had to do as others do. and it was a full and fair oversight by judge merchan. but he is really channeling the law here. it was the law that made him sit and show up and subjected him to the same thing that happens to everyone else. people are understandably jittery now. there be a hung jury? but unanimity is one of the features of due process that he received and in a way, that is secondary. it is possible a political response, he could be convicted and sail through. but the fact that the process has happened, it is majestic. >> yes, this is my point. we don't know what the jury will do. and i almost feel, if this was the january 6 trial where i feel like i know he is guilty. i saw it. i read the report. in this case, i think it was a compelling case. i would probably think he is guilty. but that independence of the process. one of the things i have balanced here is that at one level, you don't want to be like everything that run dit i american justice system is great. because it is not. we know this and you know it having been in that building for 30 years. so i don't want to say well, if he is convicted it is fine. but 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 as a kind of party line that this is a corrupt enterprise to its core. >> and 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, congress people outside of a courthouse trashing the process, criticizing the judge. criticizing the judge's daughter. that was a statement against the rule of law. i mean, the trial was ongoing. and they were doing that. and that was shameful to me. >> and that kicked up a notch the last few days where you have republicans lie. either they are stupid or pretending to be stupid. you have marco rubio and others, propagating these lies against merchan and the whole process. happening now. >> that is exactly right. but that's the political sphere, somewhere in a courtroom, a homely courtroom in manhattan. everything elthat we hold dear happened. and it really demonstrated his being subject to the same processes. just that part itself in fact, kind of brought him down. he is someone who embodies the principle that no one can tell me what too do. here the law told me what to do and forcefully for several weeks. >> so i want to just talk about these sort of potential outcomes. and your experience with it. acquittal, hung jury, and conviction. each of those apply to rythe ea of the 34 counts. jury cans say we are unanimous on these 12 and hung on these 22 or any combination there of. >> they could say look, the signatures are nine checks, he is guilty on that. you could have some jurors say i'm not so sure about the ledgers and the invoices. so you could have conviction on the checks. hung jury on e the invoices. not guilty on the invoices or ledger. so sometimes you have that when you have these multiple counts. >> have you experienced that? >> and i don't have to worry about it reversed on appeal. because it shows the jury was thoughtful. they went by each count. so, that may happen. i don't know. i can't read tea leaves. i do not think there will be 12 members of the jury who will say not guilty on 34 counts. >> ari melber made this point. >> that is a bold prediction. >> i could be wrong. >> ari melber talked about the difference between a hung jury and acquittal strategy. in the oj simpson, it was acquittal. because here is a comprehensive theory that could explain away the evidence. he was framed but racist lapd. and that is an acquittal strategy. here, the defense has anoffered no real acquittal strategy. there is no comprehensive reasonable alternate theory. that i have seen. where you could say like, yeah, he had nothing to do with the whole thing. >> no counter narrative. >> that's right. >> no naalternate story. >> just teyou shouldn't believe michael cohen. what is indicative of that is the way that todd blanche led out the prison point that he was so castigated for. that is kind of can i get one. there is no prospect of an acquittal. if it happens it's a political triumph. but a legal victory as well that it goes through the process. >> all right, thank good. appreciate it. coming up, why the judge spent more than around hour getting detailed to the jury weighing the guilt. what to make of the questions the jury sent back, that's next. the jury sent back, that's next. what is cirkul? cirkul is what you hope for when life tosses lemons your way. cirkul is your frosted treat with a sweet kick of confidence. cirkul is the effortless energy that gets you in the zone. cirkul, available at walmart and drinkcirkul.com. a few hours after the jury began deliberations in 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 former national enquirer publisher david pecker and michael cohen to be read back. an hour later, a second note asked for the jury instructions to be read back. the judge dismissed the jury saying that the refreshers will happen when they are back in session tomorrow. and they will have the option to work late going until 6:00 tomorrow night. george grass is a a judge and veteran of the police department. and a civil rights and criminal defense attorney are here to talk with us. judge, let me start with you. let talk about the process that produces those instructions. so, judge merchan gave the instructions from an hour this morning first thing. >> hour-and-a-half actually. >> 10:00 to 11:30. >> exactly. >> judge invited both parties to submit proposed instructions. the defense got to submit proposed instructions. the da got to submit proposed instructions. and then, last friday, there was a charging conference. both sides got to make certain points. the judge made certain points. in some areas he seemed to be leaning the defense way. in others he seemed to be leaning the da's way. we expected to see these instructions a little earlier. >> did you get an impression of them? >> i was caught by surprise by one particular instruction. when the judge laid out the pathway to the felony, right? >> this is the fact that the misdemeanor had to be committed in furtherance of some other crime. >> right. so, there's the 34 misdemeanor counts for donald trump falsifying business records. i have been to trial every day. i think there is abundant evidence to support them. starting with the nine checks he signed. but to get to felony, they have to be to conceal, or commit another crime. so, what was also in the instructions which was not a surprise, that the object crime the people designated, we knew that last week, actually during the charging conference, the object crime is new york election law. now what everyone had been assuming including me is that, the essenes 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 there is unlawful means. so, everybody was thinking unlawful means is bringing us back to fica. the federal election campaign act. fica is in there. that's not a surprise. the surprise is the judge added another menu in the instructions. i don't know if i remember hearing this discussed. if i did, i probably would have remembered it. when i heard it today i was like okay. that lays four separate additional falsification of business records as a path. >> can i read? i just want to read this. you must conclude unanimously they conspired. you may not be unanimous as to what the unlawful means were. you may consider the following. violations of the federal election campaign act. the falsification of other business records. violation of tax laws. >> the falsification of other business records was the surprise. and the falsification of records relating to michael cohen, there is extensive testimony and records that when he created this resolutions consulling, the vehicle to get the $130,000 under the table to stormy daniels. he didn't say this was for a porn star. he lied on the application. so, another false business record that is in there which i think is really a potential big, big problem for trump is the falsification causing a 10- 99 to be made for michael cohen for $420,000 in income that there is just a mountain of evidence that is reimbursement. so trump will have a hard time distancing himself from that if cohen's testimony is to believe with respect to a key january 17th meeting in trump tower, he said he attended with alan weisselberg. >> that's the one with the stuff written on it. >> that's a pathway though. >> they have also asked to get the instructions read back. in new york, you don't get them printed out. so if you want them again, you have to get them read again. >> that's correct. the fact they are asking about the instructions this early. >> and the testimony. >> what it says is these are complicated. and they want to understand them. a lot of people thought going into this, oh, it is very straightforward. and i have been telling people repeatedly, it really isn't. particularly, the misdemeanor is very straightforward and easy to understand. but to get to that felony, that is where it gets complicated and that is where the jury is getting hung up. it also tells me they are going about, looking at this case. and their deliberations in an organized and serious fashion. we did not want a verdict on day one. that would have shown they didn't take this process seriously. the fact they are asking for the particular read backs, they are likely corralling the evidence. starting at the beginning. and when they talk about the elements of the crime, i would imagine that they are taking the evidence that they have to the testimony they have received, and matching that with the evidence to see if these elements 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. >> were you were like i definitely know the outcome? >> no. no. no. >> what does that mean? >> mean what? >> that you haven't been? >> or you reserve judgment sitting in the chair. >> you give people the benefit of the doubt and see which direction they are going to go. i have never been like totally stunned one way or the other. >> as a lawyer you learn to reserve judgment until you get the judgment. until you get the verdict. there are signs you have a sense when you are trying a case of who might be with you. the other thing is that we have no idea as to what those juror dynamics are going to be in that room. there may be a juror who is on your side, so to speak, but may cave to pressure because they don't necessarily have the strongest voice in the room. >> that's the other thing. the whole conceit here is that average citizens with irrational faculties can discuss, argue, and persuade. are open to reason. and collectively can make a decision. >> and you hope for that. not to the point of favoring a consensus, but favoring what is reasonable. and what is appropriate. and what eres on the side of justice. >> what would shock me would be an acquittal. >> i think everyone is on board with that. >> that would be shocking. i think everyone is on board with that. >> thank you gentlemen. still ahead, samuel alito answers calls for his recusal on january 6th cases with a, well, wife-blaming extravaganza for the ages. she won't take down the flags! that jaw dropping term next. that jaw dropping term next. ah, these bills are crazy. she has no idea she's sitting on a goldmine. well she doesn't know that if she owns a life insurance policy of $100,000 or more she can sell all or part of it to coventry for cash. even a term policy. even a term policy? 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(announcer) dexcom g7 helps protect against highs and lows. call now! today, democrats on the house judiciary committee led by jerry nadler sent chief justice roberts a letter seeking more information about what he knew about samuel alito's multiple pro insurrection flags and when he knew it. pointing to the code of conduct the court adopted last year. how do you plan to enforce it? and he asked roberts does the chief justice have an obligation to report political speech or other violations of the code to congress? remember, alito's explanation to the scandal to reporters was that his wife martha anne was confronted by their liberal neighbors and called a vulgar name and she responded by hoisting an upside down u.s. flag, a distress signal that had been adopted by the stop the steal supporters. i will say to my mind, that in and of itself never made sense. weirder that the alitos have offered no explanation for the flag over their summer house. the reporter raises serious questions about the story alito told. the neighbors in question told kantor. they put signs in the yard saying trump is a fascist and you are complicit. the couple says there was no confrontation then. the signs came down quickly at the request of parents. then on january 17th, martha anne alito hoisted her upside down flag. but if it was a message to the neighbors they didn't see it. their house is not in direct view of the alito residence. so what about the confrontation? the first came on january 20th. joe biden's inauguration day which alito didn't attend. the neighbors drove by to see what they were up to that day. according to the neighbors, the text they sent to friends at the time. mrs. alito was outside and ran toward their car and yelled something to them t. wife of the supreme