two. i'm john roberts in washington as we sit and watch and wait. >> sandra: every day is a new day. i'm sandra smith, and this is "america reports." the judge told the jurors they must be unanimous to find the former president guilty on any of the 34 counts that he currently faces. they also cannot hold trump's decision not to testify in this case against him. and when it comes to the prosecution's star witness, michael cohen, the judge told the jury that they cannot convict solely on his testimony. >> john: let's bring in our panel, trey gowdy, host -- andy gaudi, and lydia hu, correspondent for fox business. so andy, let's start with you. the jury has to unanimously believe that donald trump committed a crime in order to convict him. but they do not need to unanimously agree on what that crime was. and in what world does that work? >> andy: not in any world i have ever been in, john. you look at what makes it a criminal prosecution appropriate in the sense of taking somebody's liberty, the array of constitutional protections we have, i have always understood them in 20 years of prosecuting cases and then four years that i carried and analyzed them, i always understood that to mean every crime has a set of essential elements and what the jury has to be unanimous on is that the government approves the elements beyond a visible dock. it to me, it is an essential element of that case. of this case, it is the most essential element that they find this other crime because of the only reason we are here is because bragg used the other crime to inflate what would otherwise be a misdemeanor into a foley that allowed him to escape the statute of limitations. so that they didn't have to be unanimous on that makes no sense to me, constitutionally. >> sandra: trey, what did you think when you heard the instructions? >> trey: how in the world can ordinary citizens follow this? i mean, i have a law degree. i was not a great lawyer, but i always went for a long time. i had a hard time following up and up and then went to church votes in the instructions back, how in the world can you expect people to remember the intricacies of what he charged to andy's park, it is like a buffet. you say, okay, i want this crime. i want that crime. where i come from, something is a crime when it has been proven beyond a reachable doubt or when somebody admits to it. so what are the elements of these three additional crimes. i just think the jury instructions are incredibly important notion that you can't have them back there while you are deliberating. it is dumbfounding to me. >> john: lydia, we have seen in murder trials where the jury can find a defendant guilty of second-degree murder, aggravated manslaughter or involuntary manslaughter. but you can't have four people on the jury saying, well, i think it is second-degree murder and the judge says, i will accept it and then you have four others who say, no, i think it is aggravated manslaughter and jordan morris another thing and then you have this smorgasbord of what the jury thinks that person should be convicted on. but apparently some people are saying this is standard in new york law but andy, -- andy does not agree with that. what are your thoughts? >> lydia: yeah, this kind of feels like jury instructions and charges by a buffet where you can pick the way in which you want to assemble these charges and come up with some type of crime to convict the former president and i agree that it is extremely troubling. and i also agree with our colleagues here that these jury instructions were very confusing and a long. it took over an hour or about an hour to deliver them. we know that they are more than 50 pages typed out. so i can't imagine being a member of the drink now and being discharged after sitting through a marathon closing arguments just yesterday and now being asked to, you know, remember what the jury instructions are and apply the facts to the law as we now understand them. there are a couple things that i was listening for in the jury instructions, too, to your point, john. and one of the things that i did not hear from the judge was that it was an instruction about witnesses that we did not hear from. you know, we never heard from allen weisselberg in this trial. and that was a big question. we don't know why that is. but the big hole left in this case was that he could speak to or kind of informed and provide more context around the conversations with president trump with michael cohen, with respect to paying stormy daniels' nda. the conversation about cohen's reimbursement or payment into 2017. and the missing link there, the jury maybe asking, can we assume that we can draw a negative inference that if you were to survive, it would not have helped the prosecution's case? and it would have helped the defense? i think this question that i'm looking forward to hearing from the jury perhaps as they are, you know, considering the allegations now. >> sandra: trump attorney will sharp joint is to give -- will sharp joint as to give us his -- joined us to give as his takeaways. he said this. >> the prosecution has abjectly failed to prove that he had anything to do with the recordings made in question. that alone is reason for a speedy acquittal on the part of the jury here and i believe that any fair jury would see through at least that aspect of the case and certainly the fact that the prosecution is relying on michael cohen, a serial perjurer and liar who was thoroughly discredited on the stand for a crucial parts of their case. i think this case has more holes than swiss cheese and i'm hopeful. >> sandra: we want to get your thoughts on that, and does andy. >> andy: this goes to the accomplice point that we were talked about before. there is one aspect of the case at least that michael cohen is the only witness for. and that is this meeting where he and trump and weisselberg supposedly discussed how they were going to structure his compensation in 2017. unless i'm missing something, i don't think i'm missing anything on this. cohen is the only witness for the proposition that trump was in on that conversation and understood it and other than that, i don't know of any evidence that would give trump knowledge of the bookkeeping aspects of this. >> john: let me crawl on your expertise as a litigator and a former member of congress. when you take a look at the fact that you said many, many times during the trial that the strike zone for the prosecution was a very large and the strike zone for the defense was more like a temple. also, you added the fact that the gag order provided out of trouble from saying anything substantive about the trial. and this cafeteria aspect to the charges that the jury could convict on. if the president is convicted, how do you think all of that is going to play politically? >> trey: i don't think it will hurt him one bit. i thought maybe he had some exposure in terms of political exposure on the two federal indictments, neither of which will go to court before november. this one, i think it is possible that a conv conviction. abby cook, an allegedly progressive prosecutor put a tuxedo on a misdemeanor and called it a felony in a jurisdiction where donald trump got about 15% of the vote. i just don't think that is going to hurt him politically anywhere other than manhattan, which by the way, he was not going to carry anyway. >> sandra: lydia, almost any person who has left this student at are joining us the past hour plus, i asked what is your prediction? how long is this going to take. how would you answer that, ly lydia? >> lydia: oh, gots cassandro, that is so hard to predict but you never know what is going to the minds of the jurors. as they are being tested to decide these 34 counts. one would think that if it comes back fast that they are all in agreement. you know? all in agreement for a conviction or all in agreement for an acquittal. that it -- that is if it comes back fast. the longer they deliberate, perhaps it would suggest that they have some disagreement and maybe they have consensus or on some of the accounts or others. but there's certainly a lot to discuss with the 34 counts. >> john: all right, well, in terms of how long it is going to take, shortest deliberation and he was history with six minutes. magus deliberation in the world which is in the -- the record was for a half months but hopefully we are somewhere in between those as we go along. lydia, trey, andy, thanks so much. appreciate it. we will see you soon. >> sandra: i like that you keep that part of the ginnis worked -- book of world records. that is a live looks at the supreme court. deliberations are ongoing right now with the jury in the near versus trump trial case. we are watching this. we are waiting to -- together. quick break. mercedes: joining us on the other side. ue psoriasis. he thinks his flaky red patches are all people see. otezla is the #1 prescribed pill to treat plaque psoriasis. otezla can help you get clearer skin. don't use otezla if you're allergic to it. serious allergic reactions can happen. otezla may cause severe diarrhea, nausea, or vomiting. some people taking otezla had depression, suicidal thoughts, or weight loss. upper respiratory tract infection and headache may occur. live in the moment. ask your doctor about otezla. 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. 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-but the good news is... xfinity mobile just got even better! now, you can automatically connect to wifi speeds up to a gig on the go. plus, buy one unlimited line and get one free for a year. i gotta get this deal... i know... faster wifi and savings? ...i don't want to miss that. that's amazing doc. mobile savings are calling. visit xfinitymobile.com to learn more. doc? >> sandra: we are officially on verdict watch at the new york versus trump criminal trial. could we get a decision from the jury soon. that is the question at this hour and what does it mean for the former president if we do not correct. let's bring in trial attorney mercedes colwin -- mercedes colwin. is this going to be a speedy verdict or will this take some time. >> mercedes: that is the million dollar account -- million dollar question cassandra. it will ball to whether or not the intermittent -- unanimity amongst the jurors. i wish i was a juror. i've always been excluded during the jury process which is unfortunate. they will do a quick pour. generally speaking, when you are in the deliberation room, they will do a quick poll and say, where is everyone's thoughts? i know you have been thinking about this for a while. has been a five and a half with the trial. where are you? if there's unanimity done, then things are going to go very quickly whether it is for exoneration or full conviction. if there is not, it is likely won't be, this has been a long track a lot of evidence, a lot of testimony, a lot of witnesses. they will be a process and what my gut says, we will get the verdict before friday. we will have to see what that means that. >> john: so the fact that the judge has given the jury, mercedes, so many choices and what they can find trump guilty of in terms of the present -- predicate crime and the fact that there could be various commissions and permutations of what they agree on, five of them could agree on one crime. two could agree on another and then five could agree on another crime. but it is not all 12 the green on the same time. does that make it easier or more difficult to get to a verdict? >> mercedes: great question, john. it will -- because there does not need to be unanimity and there be several theories of this predicate crime. you would likely get more likelihood of a consensus. so there could be four individuals that say that it is -- which is the federal election crimes. it could be a tax evasion. it could be just goes i mean, there's three different theories that are sort of swimming around and a lot of individuals especially in this bar seemed to question in fact this morning, i question it. one of the other attorneys said that they have seen it actually happen in cases where the ju judge -- charge the jury in this way. where there could be a choice for the jurors to decide what that predicate crime might be. >> sandra: jonathan turley sent this in the near post on monday this week, mercedes. he writes, here is why the case against trump should eat and not guilty. mershon has ruled that the jury does not have to agree on what the crime is. the jury could split into three groups of four on which of the three crimes will be concealed. and mershon will still treat it as a unanimous verdict. can you expand on that, mercedes? >> mercedes: well, that is exactly what we are talking about. is that if there's no unanimity, let's say for instance you have three different versions of what that predicate crime could become one of them was just mentioned. expect a patient may be the other and the falsification of business records. so if you're looking at the three, there could be four that is a, i think this is an election crime. then the next four might say, this is a tax issue. and the other four might say, well, this is really just falsification of the business records with an underlying criminal purpose. and if you are looking at that type of split, then you can look and say, well, the crime has occurred. we're just not agreeing as to why that crime was done in the first place. so the underlying reasons for the crime, we are not unanimous in what that is. but in terms of actually finding guilty verdict on the basis of crime occurred, that we can all agree on. >> sandra: right. so sandra -- >> mercedes: so sandra, a lot of appellate lawyers have been saying that this would be ripe for an appeal if actually former president trump is convicted. >> john: so let's take a look at the makeup of the jury if we can put that up on the screen here. we have a man who works in sales, a man who works investment banking, a corporate lawyer who is a man, a man who is a security engineer, a woman who is a teacher, a woman who is a software engineer, a man who is a civil litigator, a man who is a retired wealth manager, a woman who is a speech therapy, a woman who works in product development, and a woman who works as a physical therapist. that is a pretty broad cross-section. new york a society. you got to attorneys there, corporate lawyer and a civil litigator. what do you make of the makeup of the jury? >> mercedes: smart entry. i love it. and this is my back-rim. this is where i try casis in new york. this is a cross-section of every smart jury. you have a lot of smart professionals on factory, even -- even that retiree has a business background. so these are very smart people. and you needed people to be very smart because there's so many facts here. the law has to be interspersed within the fact that you have to interpret a lot of complex issues. even though at the essence of the core, it does not seem to be difficult. but the application of the laws are going to be a little hairy for these -- for someone who is not -- what the judge is asking them to do. it is 90 minutes, i believe he was contorting them for about 90 minutes. in new york, they don't get a copy. they don't get a copy of the jury instructions. these jurors can ask for] that is also a reason why you want a smarter jury to walk through some of the complexity of the jury instruction and so i think it is a great victory. and two lawyers on the year, we will have to see if they become leaders within the deliberation. >> sandra: i want to play this from the former president this morning talking about this trial will be 1 for the history books, mercedes. >> president trump: they will be talking about it in the history books. what is happening here is weaponization at a level that nobody has seen before ever. and it should not be allowed to happen. i think the people of this country see that this is a great deal. it is a weaponized deal for the democrats to hit their political opponent. >> sandra: 1 for the history books. maybe one for the law books, too, mercedes. >> mercedes: yes, you know cassandra, i'm part of the criminal justice system. i'm part of the judicial system. it is something i have a lot of faith in the 36 him. this is where i work. this is the air i breathe. i have faith in the process. i have faith that these jurors will do the right thing. especially someone as an insider like myself who has been trying cases for decades. so i'm hopeful that the criminal justice system and the way it is supposed to work prevails. i'm sure there are going to be criticism on whatever the outcome is because it is in the eyes of the beholder. but at the end of the day, those of us who were insiders have tremendous hope in the criminal justice system and the judicial system as a whole. >> john: yeah, you know, it was interesting, mercedes, that former president have exited the courtroom from the lunch break, he almost seemed to have a sense of resignation that in fact, verdict ultimately could be guilty. listen to what he said. >> president trump: mother teresa could not beat these charges. these charges are rigged, the whole thing is rigged. the whole country is a mess between the borders and they go elections and you have a trial like this. where the judge is so conflicted he can't breathe. he has to do his job. it is a tough for me, that i can tell you. it is a disgrace. and i mean that. mother teresa could not beat those charges. but we will see. we will see how we do. >> john: what did you make of what he said? >> mercedes: it is someone who feels he has been falsely accused and partially prosecuted. i mean, this is not something that is unique to former president trump. you hear it from others who are facing prosecutions, across the country, where they feel that they are being persecuted for reasons other than the commitment of a crime. so it is not unusual, john, that those who feel that they are partially prosecuted will have those sentiments. >> sandra: all right, mercedes colwin, awesome to have you on. thank you so much. >> john: thanks, mercedes. >> mercedes: my pleasure. thanks for having me. >> john: kayleigh mcenany is coming up next as we await the jury to resume deliberations in tthis history-making trial. stay with us. oh, my leaffilter? i just scheduled an appointment online and the inspection was a breeze. they explained everything. leaffilter's technology protects your gutters for good! now my home is protected. call 833 leaffilter or visit leaffilter.com ♪ ♪ >> john: as the jur