criminal court in downtown houston, texas where the second migrant is set to am before a judge as we learn new details about the girl's murder, criminal investigation and suspects' immigration status. welcome to a now hour of "america's newsroom." i'm dana perino. bill hemmer is off. great to have you, bret. >> bret: i'm bret baier in washington. the judge yesterday setting bail for one of the suspects at $10 million. the other suspect will face the same judge today. they are accused of tying up the 12-year-old girl, killing her by strangulation and tossing her body under a bridge. >> dana: the district attorney telling us that additional evidence could trigger the death penalty. >> it is clear that a sexual assault likely happened. since neither defendant has admitted that, circumstantial evidence will have to prove it. we're waiting on lab tests now to see if the capital murder charge can be upgraded to one where they are death penalty eligible. >> dana: matt finn is live in arizona on the border with more. >> here at the southern border since president biden's executive order on asylum the number of encounters has plummeted. in the tucson sector a few months ago we were at 2500 illegal migrant encounters a day. now we sit at 400. when you take a look at that 400 number, that represents the number of migrants that law enforcement encounters. what has always been a key concern is not the migrants that are encountered, rather the gotaways who take off into the u.s. despite president biden's executive order the number of gotaways remains at 500 a day nationwide according to data obtained by fox. since the beginning of fiscal year 2024, for example, 61,700 got aways in the el paso sector followed by 54,000 in the tucson sector and 30,000 in the del rio sector. now, at the presidential debate president biden can be expected to tout that legal encounter numbers have dropped since his executive order. the number of gotaways continues to remain high and the critics say the border is still too porous. >> have a secure border. joe biden opened it up. he wants this policy and the reason we impeached secretary mayorkas. he is failing the american people at doing his basic job of keeping us safe. when he says the border is secure, we know that's a lie. he has also held press conferences saying they are vetting these people. we know there is no vetting going on. >> in arizona, mayorkas has a planned press conference together and vice president kamala harris was tasked with finding the roots of illegal immigration. she was in phoenix talking about abortion rights. >> bret: a sealed hearing coming up next hour in trump's classified documents case. his team is seeking relief to the raid of trump's home base. jeff paul following it all live in fort pierce, florida, with the latest. good morning, jeff. >> good morning, bret. day three in a series of hearings related to trump's classified documents case set to get underway in less than an hour. the first portion of today, no media will be allowed inside. once that ends at 1:00 eastern we expect trump's defense team to argue that the evidence taken by the f.b.i. during the search of mar-a-lago isn't done in a lawful way. trump's attorneys will push the judge to throw out all the evidence because they believe the search was unlawful. the basis of that stems from trump's legal team saying there was crucial information not given to the judge who signed off on that search warrant that could have been helpful to trump's defense. in previous days we've seen motions from trump's legal team to get the close thrown out because the special counsel appointment was illegal. and yesterday -- judge cannon hasn't ruled from the bench on any of the matters yet. we are expecting written orders in the coming days. fox news contributor jonathan turley says even though trump appointed judge cannon he doesn't see her leaning to one side or the other with her decisions. >> cannon has been hit with vicious attack and ruled actually for and against both sides. it's been very fair here. >> once court resumes here in less than an hour we'll monitor developments from the outside. at around 1:00 eastern we'll be allowed back inside with hopefully updates to follow. >> bret: thanks. >> dana: let's bring in a former deputy assistant attorney general. not on your resume is mind reader but what do you think could happen today? >> there are a number of interesting claims being brought by the trump team. i don't think this effort to suppress all the evidence is probably going to succeed but the bigger issue, the more interesting one, which i could see judge cannon ruling on trump's side that smith's appointment is illegal. you have to be a principle officer under the constitution. the president nominated you and senate gave advice an consent. here biden and attorney general garland are pretending smith has independence, that he is of the level of a principal officer bust he is not. he is something like an employee. that issue has never been addressed by the supreme court. judge cannon could be the first judge to hold whether the special counsels are legal. a long shot argument but because there are no precedents or past decisions by the supreme court i could see judge cannon suspending the trial until it gets to the justices. >> bret: this delay has made people very upset on the left and on jack smith's side. they are really going after judge cannon. have you ever seen anything like this as far as the media campaign, the other judges weighing in on what a judge is doing day-to-day as far as rulings in a case like this? >> i'm waiting for all the people who said the attacks on judge merchan in new york city were an attack on the rule of law to suddenly arise to judge cannon's defense. i don't see any of those people. i think judge cannon is currently suffering an unprecedented level of attacks. there are in some ways worse than what merchan went under in new york city. she has had her background questioned, made claims she can't rule fairly on this because president trump appointed her to office. saying she is inexperienced. you have leaks from other judges on the court saying she should step aside. i have not seen things like that happen with a federal judge before. >> dana: bill mcgurn says taking down judge cannon, if she preferred to jack -- we would probably have a very different conversation if that were the case, john. also the supreme court has some pretty big cases remaining that they will decide in the next week or maybe a little bit more if it goes past. let's put them on the board for everybody to see. presidential immunity, january 6th obstruction charges, biden administration social media censorship. the fishermen fighting federal power and abortion, emergency, these are big, controversial topics. how will things go over the next few days? >> the most important one for what we were just talking about are the two cases involving president trump. one about whether he has immunity from criminal prosecution by this very justice department. if that came out in trump's favor that might wipe out the case before judge cannon. the other case about the perk test whether the justice department went too far in prosecuting them with a law not designed for that. a lot of cases is question the judgment of this justice department. i agree with them. this justice department reached a plea deal to let assange out with time served when his leaks of classified information might have led to the deaths of american servicemen and pouring resources going after a former president for storing documents in his basement. when you compare it to assange you have to wonder whether this justice department is exercising good judgment in the cases they're bringing. >> bret: interesting, thanks. >> dana: we have another legal saga. the one of fani willis, still unfolding. the embattled district attorney is trying to get a lawsuit against her dismissed on whether or not she held back requested documents on her relationship with former special counsel eric wade. >> some are overtime and pay for nathan wade. he was the chief prosecutor. that affair began only after wade was hired is what they've said. no conclusive results from the hearing but under a number of different attacks. lawyers for former president trump filed a brief with the george court of appeals wanting fani willis disqualified for misconduct for her relationship with wade. they claim it started only after ward and since wade was forced to resign he has made a number of media appearances trying to make the case his romantic relationship with fani willis began only after he was hired. >> i believe that the public has, through the testimony and other interviews, the public has a clear snapshot that this is just a distraction, it is not a relevant issue in this case and i think we should focus on more of the facts and the indictment in the case. >> the big election interference case is entirely on pause until the georgia court of appeals will decide whether or not fani willis can continue or whether she will be disqualified. that decision not looking to come until well after the presidential election. dana, back to you. >> dana: always on top of that story for us, thank you. >> bret: a year's long legal saga coming to an end as julian assange cuts a plea deal with the d.o.j. details on all of that next. >> dana: a new report revealing the pentagon lost track of tax funds to wuhan. >> bret: a michigan family in mourning following the death of a sheriff's deputy. officers under siege and the heartbreaking story. >> it is easy to forget the answer, outside of work they're people like the rest of us. 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. with so many choices on booking.com there are so many tina feys i could be. so i hired body doubles to help me out. splurgy tina loves a hotel near rodeo drive. oh tina! wild tina booked a farm stay to ride this horse. glenn close?! with millions of possibilities you can book whoever you want to be. that's my line! booking.com booking.yeah wanna know a secret? 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>> i think foreign policy will dominate the debate because just take the middle east. under president trump the first president in modern history where the middle east was better off at the end of his term. isis defeated. iran broke, abraham accords breaking out and look at it today. on ukraine the president has been clear. he is focused on how does the war end and how do we drive both sides. former president, president trump and soon to be the next president is focused on how does the war end? how do we get both russia and ukraine to the table? is it in america's national security interest to have every russia out of ukraine including cry mia. how long will it take and how much will it cost in lives and treasure. an energy policy, president trump knows if we flood global markets with cleaner, cheaper american oil and gas, you drive down inflation, the price of oil and gas at the pump, and you dry up putin's bank accounts and his war machine and iran, too, for that matter. what happened to the vaunted mother of all sanctions that biden talked about in the run-up and then i think you will also hear that the war would have never happened under president trump and i think that's absolutely right. you look at biden's mistakes on in order stream two. the minor incursions comments and he practically invited and gave putin the green light for the invasion. >> bret: it will be fascinating to watch. thank you for your time. >> she was a very special little girl that deserves her justice and now it is my job to make sure it continues to happen. >> dana: heartbroken mother of 12-year-old jocelyn is demanding justice as the two migrants accused of killing the girl appear in court. could they face the death penalty? 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