and this is america's late news, "fox news @ night". we are going to show [ bleep ] [ bleep ] the power of the [ bleep ]. i am the hip-hop congressman, cease-fire now! >> trace: breaking tonight, jamal bowman officially heading for the fire exit. new yorkers standing up against progressive madness and voting the liberal squad member, october 7th denier out of office. results on that coming out. brand-new information on the brutal murder of a texas 12-year-old and the disturbing details uncovered in court today. texas lieutenant governor dan patrick will attend the young girls funeral and will join us live in moments. meantime the reports show a move the hartman -- commonsense with thoughts but we begin with fox news speaking to voters across the country about president biden's age and mental acuity ahead of thursday's debate. the senior national correspondent kevin corke is live with more on the overall consensus. >> reporter: evening trace. ask 100 people, 50 will say biden is doing a great job, 50 will say not so much, at least that's been the conventional wisdom especially ahead of thursday's presidential debate. but increasingly that's proving not to be the case with more and more americans backing away from the 81-year-old, according to fox news digital. >> president biden is not fit. >> his time has come and gone. >> every day it seems like he's not competent in the role. >> i'm not against him but i think we can do better as a democratic party. >> most voters at the end of the day it comes down to mental capacity and the ability to handle the job and i think we've seen that biden struggles with that. >> reporter: so say an increasing number of voters. this is the new york magazine report former president barack obama is so anxious about president biden's chances of reelection he's increasingly involving himself in the campaign. that extra effort coming as a 73% of voters think mr biden is simply too old to be an effective president according to a new york times survey. meantime former president donald trump is demanding that mr biden undergo a drug test before thursday's debate, days after predicting his rival would be jacked up on stage as cnn presents a debate. the former president added quickly he would immediately agree to one as well. so there's that, trace. >> trace: there is that, live in dc, thank you. let's bring in erin perrine and jessica anderson. welcome to both of you. biden is on day five of his prep, he's got 16 top advisers prepping him and they are going through all of former president trump's recent comments to get ready for the big matchup thursday. what do you think? >> i think it's a little bit worrying that the sitting president of the united states needs to take almost an entire week off of work to prepare for a 90 minute policy debate versus former president donald trump. it's clear that when it comes to mental acuity it's almost already baked into polling, the american people don't necessarily care but the idea that the president himself cannot be doing both his job and needs to be hold up to get ready to defend the failures he's had for last four years, i think that's the biggest red flag for biden going into thursday. >> trace: a lot of concern on this. meantime here are some voters, we talked about a few of them with kevin corke but here are more talking about joe biden's age. >> trump shows a much greater ability in his mental capacities and cognitive functions. >> he's just gradually gone downhill. >> it's time to retire. >> they are both arguably too old. >> i don't think it's that bad under biden either. >> i don't think you will make another four years. >> trace: the bottom line is he has to come out and he has to show people youth or something leaning toward that thursday night. >> something like that. that's certainly where the bar is set though. everyone is concerned about his mental stability, his age and his ability to defend the last four years of this administration. all three things i think will be on full display thursday and frankly it will be the first time the american people have heard from president biden in a while. he does not get out in front of the press often, he's done the least amount of white house podium press conferences since ronald reagan and so i think voters will be reminded of not only his age but his mental acuity and his lack of defense for the policies that he's put in place that have hurt our country the last four years. >> trace: what do you make of former president obama putting his hand in the mix? karl rove said the following... >> my view of the obama wing of the democratic party as they had their doubts about him in 2015, he was a sitting vice president and the president said i'm not going to support him in the 2016 election, i'm going to support hillary clinton. >> trace: bottom line is, karl rove went on to say obama doubts that biden can win this. >> it's true. obama has always doted joe biden, he told joe biden not to run for president. but the thing that obama and democrats tend to forget, especially obama, is that the election of president donald trump was a rejection of obama's policies and the direction he was taking the country. for him to feel like he is some great savior for joe biden when he steps into try to right the ship on the feeling campaign, obama can't make biden more likable or his policies better and both obama and biden and their policies together have already been was only rejected by the american people. >> trace: i'm going to put this up because these are some of the battleground states and i think the numbers are telling but specifically in pennsylvania, michigan, nevada, arizona, georgia, he's got leads and those, sometimes good leads in those, and i have to go but if he wins any three of those, it's over. >> that's right, it is. notice what state is not on there, florida, they've taken florida off the map is a battleground. trump has the ability to take home four if not five of those battleground states and i think you will see the senate candidates, the house candidates come alongside him and put together a ground game that is robust, turning out voters based on policy and through absentee and early vote and that will be key, getting the policy in front of voters, reminding them is there life better today than years ago. spoiler alert, it's not, just like we saw from these videos, and that will be front and center thursday to november. >> trace: very quickly, five seconds, jamal bowman losing tonight, trend are one off? >> i hope it's a trend because the progressive wing of the democrat party is not good for the country, nor is their behavior or policy. let's hope it's a trend. >> trace: erin perrine, jessica anderson, thank you. former president trump getting relief from his gag order will the biden a ministration deals with a step back to it's student loan payload plans. merry and rafferty is live with new information on those and more. good evening. >> a few big decisions affecting borrowers and president trump. the gag order has partially been lifted weeks after he was convicted on all 34 charges. trump's legal team had fought to lift that order at the start of the trial and increase their efforts ahead of the presidential debate happening this thursday. trump can now speak about protected witnesses and jurors but remains barred from talking about prosecutors or staff and their family members until after he's sentenced on july 11th. and on monday about -- obama appointed federal judges in kansas and missouri, blocking the biden a ministration from canceling more student debt for borrowers enrolled in the saving on a valuable education plan. a statement from the education secretary signals the administration is not giving up "president biden, vice president harris and i remain committed to fixing a broken student loan system and making college more affordable for more americans. the education department will be barred from any new provisions to the 475 billion-dollar plan aimed at lowering or eliminating monthly payments for borrowers as legal action plays out. >> it's an illegal unconstitutional attempt by the president to by votes in the key demographic where he's losing ground. i'm happy with the court's ruling, i anticipate the justice will appeal. >> reporter: meantime the court could rule on presidential immunity, a decision that could unravel trump's conviction in new york and georgia. >> trace: marianne rafferty, thank you. let's bring in kash patel, great to have you on the show. why partially lift the gag order? this thing is done, it's an election year, let's move on. >> great to be with you. this is just a way for them to retroactively say that they applied to the constitution to president trump before, during and after trial. of course a total farce. mainstream media will say this judge acted constitutionally and is allowing president trump to speak. well it's too late vented deprivation of due process to allow the defendant to speak after he's already been convicted in a fraudulent unconstitutional trial. at the misapplication of due process and it's another attempt by the mainstream media to gloss over what actually happened. >> trace: what do you make of alvin bragg dropping the charges against 31 of the 46 people who took over that all columbia university? if these were conservatives do you think he would have dropped those charges? >> of course not. it's the selective application of justice in a system crated by doj and state prosecutors. i recall the time when individuals firebombed new york police cop cars and were given a get out of jail free card instead of being sentenced to a minimum mandatory of 10-15 because they were compliments of the political left agenda. to me this is no different, another instance of a politically selective application of the law or misapplication and people are seeing it every day, there's no chance any conservative would have been treated this way. >> trace: the wall street journal says this about the courts knocking down part of biden's student low plan, "education secretary is terribly vexed, accusing republicans and special interests of harming their constituents by suing to block the plan." apparently he does not believe elected officials should stand up for taxpayers, they just keep trying, they get knocked down, what's the motive. we. >> simple, as her colleagues alluded to, trying to buy and get more votes since they can win on the issues of the day. this one is personal for me. i put myself through law school on a student loan application program. i'm still paying it back and i will pay it all back. i don't want it forgiven. then you get to the constitutionality of it. it shocking to me that the department of justice is going through an appeal for a constitutional application they know cannot be erased by executive order, a constitutional mandate given to congress in their ways and means processing and also how they budget for the annual cycle. this is a complete hijacking for political purposes and if the doj cared about the constitution they would go to joe biden and say you got it wrong, you can't erase this debt, not to mention the economic disaster wiping out 400 billion from our books. >> trace: i wanted to get your take on this, breaking news out of the house, the intel committee saying the letter that called hunter biden's laptop russian disinformation, that the cia they are saying, from the highest levels, including the cia director, knew about the letter and they did nothing to stop it. >> this is another example of exploding the lies from the letter. they said none of the individuals that signed had access to classified information when multiple had access. the cia director, the top intel official in the cia whose office was presented the letter, had access to that information, including fbi information which verify the laptop. so again i political operation at the head of the cia to sit silent and deprive the american people of the truth to execute a political vendetta. this is another misapplication of the law. >> trace: talking about election interference. great to have you on the show, thank you. meantime second illegal immigrant suspect and the brutal murder of a 12-year-old was in a texas courtroom today and the new information about the killing is, we should warn you, very disturbing. ashley strohmier is live with more on what we are learning about this. >> reporter: the second venezuelan migrant accused of killing the 12-year-old appeared in court today. the 21-year-old is also being held on a 10 million-dollar bond after prosecutors say he was looking to flee. >> we have gotten into his phone and found evidence that he was searching for ways to leave the country once his image was released to the media. >> reporter: the other suspect, a 26-year-old, told authorities that martinez was the ones who strangled a 12-year-old and suggested they throw her body in the water to remove dna evidence. authority said martinez had marks on him to show the victim fought back. meanwhile the biden a ministration is reportedly closing a detention center in texas citing cost. it's the largest and most extensive facility in the national detention network and that is according to i.c.e. according to customs and border protection data, there have been at least 194,000 known data ways reported since the fiscal year began on october 1st. dhs secretary it paying visit to arizona tomorrow, we are told he will be holding a news conference in tucson. i.c.e. president and borders are kamala harris in arizona yesterday but not to visit the border but to speak on abortion. >> trace: live from new york, thank you. the "fox news @ night" commonsense department does not know where to begin. turns out after 10 million illegal immigrants crossed the southern border, the department of homeland security decided last september to create an advisory board, a group of homeland intelligence experts to provide dhs with analysis on terrorism and fentanyl trafficking. that advisory board has now identified several potential domestic terrorism threats. except the people that they deem high risk did not cross the southern border, they are not here illegally. the fentanyl traffickers, the killers, the rapists, the terror suspects tied to isis are not high risk. you know who's high risk? trump supporters. military people and religious people. in other words, you, you are high risk. this expert board says the most dangerous traits facing the country are serving in the armed forces and going to church. commonsense would note this advisory board includes former director of national intelligence james klapper, former cia director john brennan, the very same people who lied and said hunter biden's laptop at the hallmarks of russian disinformation are now saying you have the hallmarks of a terrorist. commonsense thanks the people who vindicate killers and traffickers and vilify christians and veterans are the real threats to america. without let's bring in texas lieutenant governor dan patrick. great to have you on the show. i look at this dhs advisory board and i think they went out and they recruited known lawyers to go after trump supporters and former military people and religious people. >> you know, trace, this would be the plot of a really bad movie, except this is real life and it's killing americans. for this board to call out christians or people of any religious belief, our military, law enforcement, trump voters, 75 million trump voters, we are at risk of losing our country if we don't win this election in november and return the white house to commonsense conservative values, principles and policies of donald trump. with all of this, and you and i have communicated before on the show, our city, our city is just , they've taken a kick right to the heart with jocelyn nungaray. and you know what's going to happen -- >> trace: let me stop you quickly if i can because i know you are going to attend the funeral and before you go on to say this, and i know you are learning disturbing information about this, i want to play some sound from the mother of jocelyn nungaray and then i will get your take on what you plan to say to the family. watch this. >> i hear her sayings just replaying over and over in a loop in my brain. her dorking is, her quirkiness. she definitely made people laugh. i'm always going to remember those memories because she was just -- she had such a bright future ahead of her and i knew she was going to go very far. >> trace: lieutenant governor, you read the court documents, you've talked to people, the details in this our disturbing. what do you say to the family. these people should not have been here to go after that 12-year-old. >> and trace, to put this in perspective for everyone watching, i don't know the facts this is a little girl who was asked for directions allegedly. we have them on videotape leading her to a bridge. they tied her ankles and her hands behind her back, they stripped her naked from the waist down, we are waiting for the lab results but very likely sexually assaulted for hours, tortured, beaten, can you imagine this little girl and how good she fight back with her hands tied behind her back? the one alleged killer had bite marks on his arm, she was struggling for her life and they treated her like a ragdoll, just treated her and threw her in the river. have you heard anything from president biden about this? have you heard one democrat? at the funeral on thursday, at the same time that that little girl's casket will be before us in houston and in texas and america, illegal immigrants will be continuing to be released by joe biden and kamala harris and every democrat. is there not one democrat in the u.s. senate or congress who has enough guts to stand up and say this must stop? the blood of this girl and the others who have been killed just recently by a legal immigrants is on the hands of joe biden and i hope in the debate president trump looks at him and looks at america and says joe, have you no shame? will you not admit that this is on you? and what i'm asking the president tonight, i'm asking president biden to stop all immigration starting on thursday, close the border to honor jocelyn nungaray and her family who was tortured, killed and probably sexually assaulted at the hands of two animals. to close this border now until the election so there is not another death like this in america. >> trace: we know it's not going to happen. lieutenant governor dan patrick, thank you for joining us. coming up, a major upset in a new york democratic primary race, one so-called squad member being replaced by a pro-israel moderate. is it a trend in the democratic party? later in the nightcap, former president trump recently rolled out a new campaign strategy. watch. >> no tax on tips. it's done. we need to spread the word so that every time you leave a tip for the next five months, you put on the receipt, vote for trump because there's no tax on tips. >> trace: supporters he wants to write no tax on tips, many calling it a brilliant idea, big selling point, but critics say the idea is unserious, maybe a cynical campaign ploy. is it realistic or a last-minute political maneuver? let us know, x and instagram, we will read your responses in the nightcap. we are coming back right now. [♪♪] what tractor supply customers experience is personalized service. made possible by t-mobile for business. with t-mobile's reliable 5g business internet. employees get the information they need instantly. this is how business goes further with t-mobile for business. subject 1: i love you. [music playing] i love you. beckett: i love you too. subject 2: beckett's amazing. he's a miracle child. in the mornings, he'll wake up, and he'll roll the shades up. and da da, it's time to get up. it's a bright, beautiful day. beckett: