time, i had a black trump courtroom battled the new border battle it's on again, sentiment in her shaw right now the battle over the jury instructions donald trump is watching it all go down let's see what -- when the court wraps and that is coming up. welcome everybody, i'm neil cavuto on a busy news they. nate foy outside the courthouse, what can we expect? >> former president donald trump has already spoken twice today, were expecting him to speak again at 4:30 but you mentioned right now throughout the entire afternoon session lawyers on both sides have been debating about the jury instructions about -- which will be handed to the jury after closing arguments and they will use these instructions as they reached their verdict and here are some of the key takeaways so far. judge merchan said that michael cohen's admission of guilt in related to federal campaign finance law -- after that. to dave scarcello talk about his close relationship with rudy giuliani, that he flaunted to michael cohen that relationship while he consulted with cohen in 2018. is a giuliani proposed setting up a so-called back channel from going to trump but costello said he sent messages at cohen's a request. trump himself did not testify. his son don junior said outside the courtroom today that it made no sense with how unfair this trial has been in his view. trump's team also does not to call former ftc chairman brad smith after judge merchan severely limited his testimony so again, trump is expected to speak after court wraps today at 4:30. the jury has been gone since this morning, neo, welcome back on tuesday win we expect in closing arguments. after that the instructions to the jury that are being debated right now will be handed to the jury and readable -- celebration will begin wednesday. >> martha: >> neil: tom dupree back with us -- why is this charging conference were important? what is it that gets cited? >> it's critically important, martha. it tells the jury how to apply the law. you tell them what the law is. just to get one important example in this case, the government has to prove, not only that donald trump did what they have alleged, they have to prove it that he didn't with intent to defraud. and not only that, not only did he needed with intent to defraud, but with the specific intent to commit or cover up another crime. so that jury instruction that tells the jury that and how it's worded can be very important. what it should say is even if you believe everything else michael cohen said or anything else the government put in, you cannot convict trump unless you prove beyond a reasonable doubt that he had the specific intent to commit another crime. and then the question is what crime? because the prosecution hasn't paid -- made it clear which exactly yearly they're going under. and so another important point, visit jury have to be unanimous on which other crime trump was allegedly trying to cover up? because the government has thrown out three different crimes that he was trying to commit or cover up their master all of this is incredibly important. they should spend a lot of time on it endures the attention to the jury instructions in my exper experience. >> neil: tom, i'm listening to what's being said, if you did a fence, you're kind of liking what -- worst potential be going right? >> you are. what we've seen so far from the judge during this charge conference is that he has made some rulings in trump's favor. is also made running in the prosecution's failed -- butler, is almost exactly regular jury instruction zone of the most critical aspects of the case and one big picture or one significant aspect to this that should be kept in mind is that if a judge gives the jury instructions wrong, if he meets -- miss instructed jury on the law is a classic example of what an appeals court will treat as a reversible error. there are many cases where you have a situation where a judge even when the law is complicated make his best guess as to how to instruct the jury and he gives an instruction that the appeals court later says turns out our been wrong. if that happens the consequences more often than not is an appeals court is going to flip it, vacate the riding and send it back. >> neil: in the meantime you graduated gets to go home for about a week or so they get everything they were heard, i know you're telling me a little bit earlier they're not supposed to be looking at the media or, you know, also cites and the rest. whether only human, they might be time to do and there are on their friends who might be curious to know -- knowing that they sit on this jury what their thoughts are. how does that process go? >> its something that how it goes is they shouldn't be talking to anybody about it. very hard to do in the age of social media. so i'll be very nervous about it if i were the prosecution or the defense might you always worry about that, i more were giving this jury pool -- given this jury pool in a populace of new york or be more worried about it from the inside. but it does give you more potential fodder for jury misconduct if you get convicted but, of course, it's much better not to have that them listen to that. if i could go back to -- for just a second to this critical point that you asked, there are many famous, well known white-collar cases that you're aware of, neil, that have been reversed not based on insufficient evidence but on an improper jury charge. the governor from virginia former governor bob macd macdonald, supreme court reversed it on those grounds you my dear remember the arthur anderson case? and drew weissman's baby where he convinced the trial judge to give a jury instruction that was improper in the supreme court ruled 9-0, reversed the conviction? that wasn't based on insufficiency of the evidence, it was based on improper jury charge having to do with intent. so this is really a big deal and you are correct. it's very easy to have this reversed if the judge gets it wrong. >> neil: so the judge can't go too far but if i'm reading so correctly, tom covers potential hear that going too four on his part invariably rests hurting the prose prosecution, right? he can play this in the hands of the higher cortical reversed everything? >> that is true. and look, sometimes are cases where the prosecution's biggest victories for the trial judge to refuse to give an instruction the profligate -- prosecutors want to give because he said look if i give the instruction you're telling me i should give i can get reversed on appeal and is in their gets thrown out. look at the judge obviously has a possibility to get the law write. is going to hear from the defense copies 20 are from the prosecution as to how the jury should be instructed but at the end of the day is the judge's call cap is his obligation and it's his duty directly to get it right and you tell the jury what legal principles they need to bring to bear in rendering a verdict. user obviously led jurors, i -- i guess teemak are lawyers but the majority of them are laid jurors and this is a company get an area of law so they aren't -- need to be given instructions that aren't only clear but also speak to the law accurately. >> neil: obviously donald trump is famous for making some remarks as he leaves, you probably make them again. but all this occurs as a judge is giving the sort of jury instructions and roadmap. does the former president had to be extra careful with what he says? that anything that could potentially mess that up? >> well, i mean, he's got to obey theoretically a gag order. 's had trouble doing that so far. he's gotten better about it the last few days. as long as he doesn't violate the gag order, i don't see anything that he does with respect to the jury instructions as presenting or talking about them represents a problem. >> neil: gentlemen, we wanted very closely. we are waiting to hear on a couple of the big developments, the former president himself walking out of the court room any minute no and may be give us his thoughts on the day and how it's going other sort of hammer out some of these charging instructions. don't forget we have my request -- his take on what chuck schumer is trying to d do. he wants to give another -- get another track on the secondary has -- him in the republican say its not happening, what it's always of time. majorca's here few minutes from now. >> ♪ ♪ her, leading armies to battle? was that your great aunt, keeping armies alive? drafting the plans. taking the pictures. was it your family members who flew? who fixed. who 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cells with a 99% cure rate. plus, there's no cutting, no surgical scarring and no downtime. i'm so glad i did it. it was successful in every way. to learn more, call today or go to gentlecure.com >> ♪ ♪ >> neil: this could be a case as you look outside the new york state supreme court of don versus merchan -- one, we are waiting for possible marks from the former president but jonathan turley there is judge one return that we could be the difference's biggest challenge or. he's here to explain. tell me about that. >> well it's not that i disagree with everything that judge has decided. he has made some good decisions. have largely gone in favor of the prosecution. some of the most important decisions he is taking on advisement but some of the decisions he's made today quite frankly are hired to figure out, you know, you -- for example, with costello the former attorney for cohen and the prosecutors stopped stella for -- from fully answering a question on what he meant in an e-mail. so when the defense got there translates that cole would you like to explain." and the prosecution said no. it's beyond the scope. that should have been a ridiculous objection and merchan however sustain it. it was the same scope, he was being asked what did you mean by that, and the judge to stain. so its moment like that wear you really feel like there might be a thumb on the sc scale. the most important stuff going on right now is probably the least engaging for a passerby. it deals with how the jury will be instructed. that could very well determine the outcome in this case. that government is arguing some pretty sweeping positions among them, they are arguing i don't have to prove willful intent on all of the elements on all of these actions. the exigency that things like unlawful means which is really an important term of influencing election can be satisfied by less than a criminal standard. and up in i think legitimately saying whoa, you know, you're going to convict someone on a lower than criminal standard on an important element. and this is really the result of this sort of frankenstein case, you know, the brad took this that this demeanor that and back to life as a felony by sort of stitching together different crimes. another government is trying to use that to say, yeah, we did that but it also means we don't have to who the full criminal standard on all elements. >> let me ask you about having brought robert costello understand. just judging, you know, hello lawyers. do you think that was a good move on the part of the event or the rest being overcome? >> neil, i had said earlier that i would not have called costello to the stand. that is largely because other criminal defense attorney attentively risk-averse. in this case is collapsing on it's only weight, i don't see how it could be assessing an appeal by the lawyers in that room have a different set of issues, you know, there are -- their client is running for president anything they feel they have a tough judge that is ruling against them but most importantly he judge that is -- has allowed this jury to hear and i think believe that there were election violations in this case which is not true. the judge has allowed them to hear that repeatedly from prosecutors from cohen, from packer. and i think that's why they decided to bring in what a call back i call a cal shot witness, you know, they're hoping that costello concealed a deal with at least a couple of witnesses to make this is more of a hung jury strategy because we are seeing look at we are going to get hit which they were but is this kid sealant, in the air some jurors who are already sort of feeling that they may stand against the rest if necessary, costello did hurt cohen. i mean, he did strongly contradict what cohen had just said under oath. but in bringing them on, the prosecutors were able to bring and rudy giuliani and back channels and costello's association or affiliation with donald trump. >> neil: you know, jonathan much has been said about a consensus that can develop budget -- and when i started to see on others besides fox where there was growing criticism of the prosecution and more compliments of the defense it's built up an expectation that you touched on or maybe a hung jury are this is not going anywhere but i'm old enough to remember cases that look like they were going one way, i'm old enough to remember the former labor secretary of ronald reagan -- 20 some odd -- anything from an propriety do you name it they could have landed him in jail -- the consensus -- before the jury announced that, you know, you would be living in a jail cell for the rest of his life, he was exonerated on all counts and gave amnesty said where do i get my good name back, and powerful -- paraphrasing here. but i guess i hacking that sickkids do you never know what a jury is going to the site what individual jury -- jurors are most impressed with or not. do you? >> you're absolutely right. i'm hoping that this jury can redeem the integrity of the new york legal system. something the prosecutors and frankly the court have not done. home hoping that this new york jury will be like they're getting played in new york's don't like to be chump -- new yorkers don't like becomes. he recognizes for what this is that there is no clear crime here and they are relying on a convicted serial perjurer and someone who is admitted to committing round larceny and he's not the one charged in the case? so it is possible. but there's also the other possibility, they're going home for a long time. as a criminal defense attorney that my hair would be on fire, to send a jury back in to the world for this length of time when your client is unpopular in this area? there will be with their neighbors, are not sequestered, is going to remind them how unpopular it will be if they acquit this individual. now i'm not as -- casting aspersions on them because i really do believe jurors tried to get it right. but there is a long time for the plans to have these people in the world. and we will see what happens but i think there is a greater chance now overhung jury that a lot of people assumed from this district. i'm hoping that at a minimum that would be the case. but because -- because i have to tell you i think this case has become more farcical by the day and i think that cohen really summed it up for a lot of people. i mean even folks on other networks have said that. back have to keep in mind all been talking about a host on another network who came out of the disastrous cohen testimony and said well, he did great. and that really was not stealing money, that was self-help for a bonus. black, some other jurors may have had back -- may have that same willful blindness, you know? >> neil: you never know because they may not want to talk to their friends about it but their friends will certainly want to talk to them for my jonathan turley that will see how that goes and we sort of screw over that over may be barbecues or the rest -- we are waiting to hear from donald trump. we know this much, no matter how this case goes, he is raising a ton of money off of this. we'll spell it out because he's already got an advantage on the latest decidedly over joe biden. where are also going to see what chuck schumer has up his sleeve trying to introduce that battered border sears security bill, republican say its not going anywhere, homeland security -- landry meyer got disagrees. he's here to tell us why he thinks we do need another shot others even if republicans they were not going to get. >> ♪ ♪ ha t is your glucose and can you have more carbs? before you decide with the freestyle libre 3 system know your glucose and where it's heading no fingersticks needed. now the world's smallest and thinnest sensor sends your glucose levels directly to your smartphone. manage your diabetes with more confidence and lower your a1c. the #1 cgm prescribed in the u.s. try it for free at 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>> it's very smart politics, neil. i can think of many times were candidates actually -- [inaudible] reagan in 1980 was in new york city, campaign in new york city the weekend before the election and a few weeks ago he was in the south bronx and in new jersey. on the other hand [inaudible] which was [inaudible] there was nowhere he was going to wrench california away from [inaudible] advertising dollars to california so [inaudible] it's good for momentum, it's good for morale, it's good for money. is -- it gives people -- get focus on other things, you know, trump -- >> neil: i'm sorry, grey cup were having some issues here -- the one thing i did notice when you talk about ronald reagan campaigning in the south bronx of course he famously kicked off his campaign in the statue of liberty in the back up there but there was also the supplemental message -- he one a lot of these bluest of blue states, in fact, almost every state in that election four years later doing it all over again. i'm just wondering, when a lot of people have criticized this can be criticized ronald reagan for appearing at the blue locales, and with her criticized donald trump back in 2016 for going to these battleground states, it was considered a waste of effort on the part of, you know, a guy who couldn't win there. i even remember them making fun of john f. kennedy when he was campaign -- company in west virginia of this rich senator with a hard hat on later on talking to cool minors there, that was a crucial primary human he beat hebert humphrey got it with a seminal event. so it could shock you. >> yes, it can. don't forget too, kennedy was a catholic. of course, that was very controversial in the 1960s [inaudible] heavily protestant so kennedy winning really helped the great momentum for his campaign the program for the democratic nomination. >> neil: so how do you see it now? obviously donald trump hopes to make a virtue out of what could be just a bad, you know, set of developments, campaigning in these areas but getting big crowds, is that telling? >> very much so. it's so good for your psychology, look, joe biden does not have the slickest mind right now he's having [inaudible] worrying about the money that trump is raising calvin pickard that he is raising and it's, you know, [inaudible] that's what trump is doing. is making lemonade. is doing a very good job at that. >> neil: always -- the search for reagan, while he is latest, so -- in the meantime here, taking a look at chuck schumer trying to maybe get a better sense of border security will that went down in flames, but he'll try it again, alejandro mayorkas on what he makes of that and why he thinks this time will be the charm -- charm. are specialist coming up. 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>> yeah. neil, like it does not surprise me that there will be this type of friction in a case particularly in a charge conference where the stakes are so unbelievably high. you will have lawyers from both sides being really aggressive and frankly maybe in the judge's view kind of running him the wrong way because they are pressing their arguments -- arguing issues of the judge thinks he's already decided and that sort of thing. it doesn't surprise me that you see these sorts of tensions here. i suspected what the defense is urging the judge to do is to basically issue instructions that the judge just does not feel comfortable giving copper in the defense lawyers job. they have an obligation to kind of push as hard as they can for every instruction i think -- they think the lockeport, the judge will not always see the way. again, it's unfortunate that this happened but it doesn't really surprise me giving them attitude of what's at stake here today. >> neil: you know, tom, the judge can lead -- instructions for jury, the jury has been on sort of -- this is our roadmap, this is what we had to decide. but i jury, jurors can wander from that, right. if they like donald trump they will not listen to those exact instructions. if they dislike kim kelly will not listen to those exact -- instructions. isn't that a risk? >> neil, what the lord will tell you is that jurors are presumed to follow the instructions but i can tell you as a practical matter that doesn't always happen. and look, you're never going to know what's going to go on in the sanctity of a jury's deliberation room and i do think that you have cases where the jury leads instructions and make the mistake, these are long, complex instructions. will probably take the judge at least an hour to deliver them week and i could very well envision a situation where jurors kind of go in one ear, come all the other when it comes time to deliberate, you know, maybe there is some random to those instructions, away in the back of their minds but to your point they will decide the way that their gut tells them in the right outcome. >> neil: how likely is it that judge merchan can -- we have three dozen counts against the former president, can he throw out some, pennies a all right, these are the remaining ones i want the jurors to deal with? >> yes. you certainly can do that. and, you know, we see the trump team is basically been arguing that you should throw out all the accounts because they are just deficient as a matter of law and prosecution has not proven its case. the judge has the power to do that. in this case i think it's pretty unlikely that the judge is going to throw out any of the charges and not let the jury consider them. we've seen the way the judge had approached this case from the beginning, he's not can i'm going the extra mile to rule in trump's flavour and i think it is probably too have you left right now to try to get this judge to throw these charges are. i think this judge has convinced that all these charges needs to go to the jury and expect the is probably what's going to happen. >> neil: but about this other argument about misdemeanor versus felony charges and other words, or other device on the part of the defense, let's make this -- we agreed to misdemeanor charges and is monitored we don't elevate them to felonies, what is a significant to that, is that even likely? >> well, i suppose it's possible. here's the thing. there's a big difference between convicted of a misdemeanor and been convicted of a felony. obviously the penalties are very different, in this case frankie i think there would be serious problems with the statute of limitations if they tried to convict trump just of misdemeanor so i think this big danger for the prosecution there. but the overarching point here is that if the jury is given an option, if they are given basically a menu of things they can you, in other words convict trump a felonies, convict trump of misdemeanors or a quick trump, that's a possibility that you could have what is viewed as a compromise rig where there are some jurors i might say we like to convict him of a felony, there are other jurors who might say we think it should be acquitted entirely. and then acquired of negotiate over the course of deliberations they say look at compromise and convict him of the misdemeanors. so if this jury is given the option that could be one of the most significant things that happens in the course of this entire case. >> neil: so what happens -- court is over for the delay by the way -- what happens over the next week? >> next week is when things are going to get even more interesting, neil. what will happen first is these instructions are going to be issued to the lack -- jury presumably after closing arguments. tuesday the judge anticipates maybe -- >> neil: donald trump is going to speak right now, let's listen in... >> mr. trump: thank you very much, jonathan turley just came out with a statement that he thinks that this case is collapsing on its own weight. this case is a disgrace. -- never seen anything like it. sens the judge -- stephen [inaudible] he says -- the judge did not declare a mistrial and everybody is saying [inaudible] andy mccarthy, what they have this kind of a case, federal persecutors and my own offices, southern district of new york wouldn't take -- it would not take this. the southern district, turned down this case. the case [inaudible] the case that bragg himself looked at in 2022 and shut it down. this is what we've been wasting all this time for. alan dershowitz, i've observed and participated in trials throughout the world, i've seen justice and injustice in china, russia, ukraine, england, france, italy, israel as well as in nearly 50 states. but in my six years as a lawyer, and law, i have never seen -- such as the one i observed [inaudible] of the courthouse. [inaudible] he is a great leader got great legal scholar for years, he's never seen anything like it. it's all politics, said -- if anyone tells you otherwise they're not a lawyer. let me just tell you that the white house is up the person or the group, or whoever gather the ones trying this case. [inaudible] representative from the white house, just recently. this is about biden campaign [inaudible] you trying to hinder his opponent. he's tried to hurt his opponent because they can't wear and at schmuck. >> neil: were monitoring this and this will be planning on our website but i do want to make time here for alejandro mayorkas, he is the homeland security, -- secretary and another developer and of the united states senate is there are trying to revisit that border bell. it looks like it's going nowhere. chuck schumer wants to take another stand -- stan added. again donald trump's marks on our website are coming in but we want to address this other important development here because the secretary has tried to resurrect this but it looks like an uphill fight. secretary, very good to have you. is it an impossible fight. republicans say you are just wasting your time, chuck schumer is wasting his time. what do you say? >> neil, thank you for having me on. the senators and i and others put into my is amount of effort and time into negotiating the bipartisan senate bill. that bipartisan senate bill would deliver for us changes to 30-year-old laws that are incredibly needed, we are dealing with terrifically woken asylum system and we'll deliver for us resources at a level that we desperately need, that we do not have. >> neil: that's not going to go anywhere, right -- neck that were you there chuck schumer is wasting his time, you're wasting your time, this isn't going to go anywhere? >> look, neil, i am focused on achieving needed outcomes in this legislation is a needed outcome and i'm not going to lose hope, nor am i going to stop advocating for it. the american people deserve and need it, the united states border patrol deserve and need it, the united states border patrol union supported this legislation. i'm going to continue to push for it. >> neil: but the president is doing a lot of things that are in this measure already and a lot of people criticize him for doing that. what took you so long, including this measure to shutdown the -- 4000 crossing survey, some of these other -- adjudication and to get done in 180 days or rather waiting for years? stuff that president trump come down all along but didn't, that are strike you out on? >> neil that we took action a long time ago. in my -- migration. >> neil: this which is an ounce the last -- >> phenomenon and we are seeing the results that take time to take hold. you know, rebuilds -- we built capability in foreign countries, and water marla, in costa rica, in mexico well. and sometimes they don't develop overnight, they take time to mature, and we continue to take actions within the confines of our authorities. we need congress to act. >> neil: medic -- i guess it struck a lot of people -- no disrespect, secretary, your predecessor was among those saying we are almost three and a half years in a greater than only now are they starting to take these executive actions. these are actions that we had been pleading with administration to take for two and a half to three years. what do you say to that? >> that is not accurate. that is why ice -- what i say. we implemented the asylum officer rule threw regul regulation. we implemented the circumvention of lawful pathways rule threw regulation. we have built additional facilities, deployed enforcement and removal operations officers. this year we have removed or returned more than 720,000 people who do not have -- qualify for relief under the law, more than any full fiscal year since 2011. we have been enforcing the law from day one despite the political rhetoric. >> neil: all right but, you know, -- your administration, maybe your boss, i know he was happy to see you may be survive this, got convicted in the united states senate, you are impeaching the house, only the second such cabinet member to experience something like that but i know you're trying to go on and move on but a lot of your critics have said as they have of your boss you watch this, he watched what's going on at the border. donald trump was much tougher on the border. believed in the wall, it seemed to work, you did not, the president did not and this has -- it all catch up for you guys. what do you say? >> neil, let's take a look at the history of migration or rather -- rather than take political snapshots. history of migration is that the level of encounters that are -- on our southern order increase almost 100% in 2019 over 2018. what distinguished 2020 when the numbers dropped. significantly? the covid-19 pandemic that really dropped migration, not just to our southern border, not just throughout the western hemisphere but around the world. and this country under the leadership of president bi biden, overcame the covid-19 pandemic more rapidly than any country in our hemis hemisphere, our economy came roaring back more than any country in our western hemisphere, and people seek to come to the united states because of the opportunities here, economic opportunities here. we still have approximately 8 million vacant jobs in the united states that american -- american workers are not filling. and so therefore our exam system, which is fundamentally broken, presents an opportunity for them to remain here for too long despite that within the authorities that we have that we have returned or removed more people in the last 12 months then in any full fiscal year. and we are using our legal muscle more aggressively than it has been in the past. with -- >> neil: that's good, secretary -- >> continue -- the must pass the legislation. >> neil: the bottom line is you were in charge of keeping us safe and do you think we are safe with how porous the border has become, not to say its all your fault under say that hour we seek your neck -- safer now than we were before 911? >> i would say three things, neil, one, i'm incredibly proud of the men and women updated states border patrol that risk their lives every day >> neil: i'm sure you are, but are we safe? >> number two, our screening and vetting capabilities are stronger than they ever have been. and three, the reality is, neil, that we, and not just the united states alone, but western countries, are in a heightened threat environment, especially after the october 7th terrorist attacks by hamas against israel. that has only elevated the threat environment in western countries, and that is why we are as vigilant as we are, 24/7, in keeping our country safe. >> neil: real quickly, switching gears, robert f. kennedy jr., he has asked repeatedly for secret service protection. you are the guy who would provide something like this, or say yes to it, and apparently you have said no, and he is still looking. why not? >> we have established factors. we have a bipartisan group of leaders in the united states senate, in the house -- >> neil: why wouldn't he qualify? given his family history, why wouldn't he qualify -- on that alone? >> because the factors are security-related. the bipartisan group of members have recommended to me that security be declined. it is ultimately my decision. but i have followed their recommendation each time. >> neil: do you think that would be a mistake? >> i do not knowingly make mistakes, neil, and in this case, i have followed the recommendations of a bipartisan group. >> neil: got it. secretary mayorkas, thank you very much. a lot of ground to cover, we appreciate you taking the time. that will do it for us here. 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