to get the cheese steaks. >> we love mama kelsey. >> ainsley: so cute because she became so famous. >> lawrence: we love our moms. you can get this for mother's day and slippers for your mom, a little robe, ainsley, would you like a purse? >> ainsley: a makeup bag, a purse. [laughter] that's a pink shirt. >> brian: if you order now we'll get it to you by mother's day. >> ainsley: fox news channel proud american mom. >> lawrence: i think you should get these. >> brian: right and left? >> ainsley: slippers are great. >> lawrence: this is your last chance to order them on mother's day gifts from fox news.shop. >> dana: fox news alert. day eight of new york versus trump. defense is about to resume the cross examination of former

publisher david pecker in a half hour. we wait to see if the former president talks to reporters on his way in as we've seen him do before. i'm dana perino. bill is off today. good morning, shannon. >> shannon: it's great to see you, dana. i'm shannon bream and this is "america's newsroom." the new york trial present venalityed former president trump from attending hearings at the supreme court yesterday. it was busy. justices heard three hours of arguments whether former presidents can be criminally liable for acts taken in office. the conservative majority -- >> dana: some level of protection and seemed in favor of sending the case back to a lower court. listen to kerri here. >> what was a remarkable statement made by the department of justice lawyer yesterday was that prosecutors don't prosecute for political reasons. i thought how can you possibly say that with a straight face

with what we're watching? >> the law fare we've seen unleashed against president trump this year we don't have to -- >> president trump wants to delay until after the election. it seems to be moving in that direction with these cases. >> dana: the trial is new york the severely limiting trump's ability to campaign and -- >> this is a trial that should have never happened. a case that should have never been filed. it was really incredible, an incredible day, open your eyes. we can't let this continue to happen to our country. >> >> shannon: jonathan turley is on deck. we get to eric shawn outside the courthouse. eric. >> good morning, shannon and dana. today defense attorney for the

former president will try and show that buying karen mcdougal's story was routine. he will continue his cross examination of david pecker to try to demolish alvin bragg's case against the former president. pecker has taken the stand now day four of his testimony. he said he still considers him a friend of trump's and testified about the catch and kill deal to protect the former president running as a candidate in 2016. he said he and trump for years had swapped salacious stories and tips and killed those stories in the "national enquirer" for decades. he bought stories to kill about alleged affairs from arnold schwarzenegger and tiger woods and others. when karen mcdougal wanted to get paid for her story it was business to buy that and kill it, too, he said.

under cross examination trump's lawyer tried to shake pecker's memory asking how many meetings has he had with prosecutors? pecker, i don't have my calendar in front of me. it's hard to remember the dates of these things even when they hap end just a few months ago? pecker told the jury after he was elected, trump thanked him for handling the mcdougal situation calling her my girl and discussed the deal when he visited the white house invited by the president, he said, to thank him for buying and hiding her story. so far during the direct testimony of mr. pecker, one thing we have not heard and that is tying the former president directly -- directly into buying the story of karen mcdougal to try to influence the election. we heard there were concerns by david pecker and michael cohen. so far that's a major part of this case that has been absent. we may hear it from michael cohen in the future.

so far all those claims have been hearsay and what we've heard from david pecker while he wanted to protect the president and michael cohen did, too, we haven't heard that those words were from the former president himself as it concerns the election. back to you. >> shannon: eric shawn at the courthouse. dana. want to bring in jonathan turley watching all of this. david pecker's cross examination continues today. what else should trump's team do to try to explain to the jury that this was not illegal? >> they are doing a good job largely allowing the case to collapse on its own weight. this case thus far is about a good a model as prosecution as the titanic is a good model for navigation. i don't understand why they would start with pecker. in my view he is disastrous.

first of all, i'm speaking as a criminal defense attorney. what most good prosecutors, if they know the criminal defense attorney will bring up something damaging will bring it up themselves. the most damaging aspect of pecker's testimony is that he did the same thing for a wide variety of celebrities. that is really quite damaging. and by not revealing that to the jury in your direct, there is a sense that there was a hiding of the ball here. you can lose credibility with the jury. that is really quite remarkable. pecker said that he was doing this for trump decades before he ran for office. he said he did this for people like schwarzenegger . was he trying to get him elected president? he can't be president. so at what point did the prosecutors think that this was going to come out and why they didn't bring it out themselves? today will be interesting. the key for the defense is don't rough this guy up.

he has not been a bad witness and testifying with a gun to his head. he has an agreement with prosecutors and he is actually giving you some good stuff. i would be very careful not to start taking wild swings at this guy. >> shannon: you and i have talked about the fact that we know that at least a couple of attorneys who are part of this jury pool and now officially on the jury, how much does that help potentially president trump's team? there has been a lot made of that. a lot of what is being presented may sound dirty to the average person out there if it doesn't amount to a crime and alvin bragg is doing something unique trying to get to that place, having folks like professionals on the jury, will that help? >> you know, shannon, i have always opposed attorneys being on a jury as a criminal defense attorney, i never want them on a jury. the reason is not to have any disparaging remarks about these

two attorneys. i have no reason to believe they won't be unbiased, but they just simply have too much authority in that room. this case has no crime that is discernible. many of us are still debating second week into this case what was the crime trump was trying to conceal? if one of those attorneys states in that jury room that they think that is a perfectly valid indictment, it probably will carry some weight. the key is it takes a lot for people to stand up in a jury room and be that one or two person to say i have doubts. particularly in new york where you have doubts of a conviction of donald trump. to have an attorney weigh in at that moment could silence those dissenting voices. that's why i think it is a bad idea and i don't think it is a good thing to have two attorneys on this jury. >> dana: now everyone has had a chance to have a sleep. i don't know if it was a good

night's sleep after the supreme court argument yesterday and supreme court justices heard their last case of all of these and you have an op-ed, the headline is oral arguments suggest the supreme court about to plunge into a constitutional abyss in the trump immunity case. what do you mean by falling into the abyss? >> because this is a case where you often have a case where there is an argument that is a cliff argument. you go over that cliff and you are not certain where you will land. this case is different. there are cliffs on both sides. both parties are advancing fairly extreme arguments. you've got the special counsel saying a president has no immunity. and you just had -- you have the other side saying a president has complete immunity. the justices, you have the three liberal justices seem to be supporting the special counsel. the other justices wanted to find a third option and didn't buy the government saying you

have to trust us, we're the government. you could almost see some of these justices looking north towards new york. the third lawyer in that room was alvin bragg. everything they were discussing about political cases is unfolding at the same time in new york. >> dana: do you have any last questions for jonathan, shannon? >> shannon: i want to ask the same question i keep getting asked. do we think it is an end of june argument or because this case has been on a rocket docket speed do you think they give a ruling in may? >> shannon, as you know, they can get this out as soon as they want. if they are going to remand it to the trial court, which some of the justices seem to be thinking along those lines, at least four of them were discussing the record and why it doesn't answer some of these questions of that line between

what's an official function, what is a non-official function? if they agree with that, they could send this back fairly soon. and even with that earlier result, i doubt that the district court could handle that question and still have a trial before the election. but obviously june is the end date that we'll have to be dealing with. what is also clear, though, is that the justices don't feel the sense of urgency of the special counsel. he said it is vital to prosecute and potentially convict this president before the election. it is not clear why. first of all, he could be president even if you convict him. but the special counsel sort of flipped the normal policy of the department of justice to avoid election periods for trials. he says that he may try this case all the way up to or even through the election. >> dana: jonathan turley and shannon bream, thank you for

kicking us off today. shannon bream is right there ready for all the action and we appreciate you both. be right back with this. day eight of former president trump's criminal trial about to get underway and wait to see if he speaks before going into the courtroom. we're on to have of it. our guests are ready to break it down from every angle. this trial is keeping trump from hitting the campaign trail. is it a ball and chain as he seeks a return to the white house or is the former president using it to his advantage? and you have to see this. a new documentary putting the spotlight on the sexual violence carried out by hamas on october 7th. sheryl sandberg and she is not letting the world forget. >> i think maybe i preferred death in those moments. i was scared. i was really scared. of listerine to your routine. new science shows listerine is 5x more effective than floss at reducing plaque above the gumline.

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[chanting and shouting] >> it's an amazing show of affection. >> i was there in the back and mr. president, please sign by welding helmet? secret service tried to deny at first and he was no, let me get that. i can't wear it again. this one will go on the mantle at the home. >> dana: the former president shaking hands with hundreds of workers trying to squeeze in some campaigning while he is tied to the courtroom. joining us now is rnc chair mike' whatley. the former president is here for the trial but making the most of what he can with the time he has. he went early yesterday morning. a couple of things. a poll call for four.

biden losing support in new york. still up 23 but here is what trump said yesterday, call for one about the possibilities of winning new york. >> we're very close in new york, i understand and leading in the country by a lot. normally a democrat will win new york. biden is the worst president in history. we have some very bad people here. but we have the greatest people and they are right behind me and they all want us to run. >> dana: maybe a typical republican from years ago say why bother to try to win new york? this might be different. i want to hear from the rnc. are you putting resources trying to win new york? >> the fact the president is here and talking about playing in new york. he is talking about a rally in new jersey. just shows you he is playing offense. i think what we're doing is opening up the map. the president biden right now is playing defense all across the country and president trump is playing offense all across the country. we're leading in the national

polls and leading on the issues and the polls in every single battleground state. so while he is here, he certainly is going to take advantage of the opportunities that are here. you look at the bodega visit he had last week and the construction visit he had yesterday while joe biden was still in bed. these are opportunities he has to get with. he is fighting for and showing a connection. >> dana: i learned yesterday in the nfl draft that offense wins championships. i'm feeling like i'm in the no. jason murray, the steam fitter on with jess watters last night had this to say about apparently they aren't hearing from biden. watch. >> our business manager, who is on tv. he reached out to every single presidential candidate to see if they wanted to address our membership and got a response directly from trump, directly from rfk and not received a

single email or memo from biden or his team. >> dana: union membership might be wanting to vote for trump. the union leadership seems at the end flirt with the republicans but end up going with the democrats. do you see that happening here? >> no, i don't. i think the leadership needs to follow their members. we saw ronald reagan carry a huge amount of union members. we've seen other presidential candidates, george w. bush did fantastic among union membership and donald trump will as well because he understands them and he connects with them and you can contrast the last time that joe biden was on camera talking to union members and yelling at them as opposed to what we saw yesterday with president trump here is just a remarkable difference because he is working for everybody in the lower class. he is working for the middle class and working for people who see the american dream. >> dana: i noticed this today. the first piece of news in axios

this morning. it says biden changing walking routine to marine one. that aides usually walking with him outside the white house visual effect is to draw less attention to the 81-year-old's halting and stiff gait. they felt like he look isolated out there and sometimes takes questions shouted at him from the press that drives me insane. regardless of that, this whole issue of who is older, who looks older, who has more energy, who has mental acuity to be able to do this job for the next four years where do you guys come down trying to exploit that? >> biden's team has a hard time. they will shield him from the press or allow him to interact with the press and when he does, it never goes well. this is a guy who does not show well on tv. he is going to bed at 4:30 in the afternoon. we're running events with donald trump out there before the guy gets out of bed. so the contrast could not be

bigger and they really do have a qua quandary. will they shield him or trot him out there and let him show the american people what's really happening? >> dana: this week the small dollar donation information came out. the reports and act blue the democrats' version getting a ton of donations. is that a concern to you and do the republicans have a way to counter it? >> look, we know the democrats will have a ton of money. they always have a ton of money. that's not a surprise. what we've seen, though, is that every day that president trump has been in court, we've been getting -- he has been getting a million dollars or more in small dollar donations that are coming in online. >> dana: i didn't know that. >> it is true that we are going to -- the president's team, joe biden's team has a lead because they have been in the white house for four years. we have been making up ground very fast and we'll absolutely have the resources that we need to be able to get our message out to the american voters.

>> dana: michael whatley. thank you. waiting to see if president trump will speak. we're on top of it. we'll carry those remarks live when they happen. is in florida.

i will be going there this evening after this case finishes up, this horrible, unconstitutional case. when it finishes up. we have a report that was just put out by house judiciary on the district attorney's office done by congress. i guess it came out a little while ago, a few moments ago. i haven't seen it yet. i haven't read it. it should be interesting. i think yesterday went very well in this courthouse. it was -- it should be over.

the case is over. you heard what was said and the case should be over. but you will have to make that determination. i think we have a judge that will never allow this case to be over. he is highly conflicted. the most highly conflicted judge i've ever seen. yesterday i think the supreme court having to do with immunity. i heard the argument was brilliant. i listened to it last night and thought it was great. i thought the judge's questions were great and all presidents have to have immunity. this has nothing to do with me. absolutely nothing. all presidents have to have immunity. or you don't have a president. not a president that the founders wanted. so we have another day of court in the freezing courthouse. it is very cold in there, on purpose i believe. they don't seem to be able to get the temperature up. it shouldn't be that complicated but we have a freezing courthouse. that's fine. that's just fine.

this is a weak trial. thank you very much. [shouted question] >> dana: looks like he won't take any additional questions as president trump as he goes into court this morning. let's bring in and drew cherkasky former federal prosecutor. as it gets underway today they'll start with the defense team continuing to cross-examine david pecker. from your perspective, what should president trump be watching for and listening for as he tries to stay warm in the freezing cold room? >> i think it was a very good day for him yesterday both at the supreme court. also in trial. the cross examination of mr. pecker started yesterday and what was exposed is the idea that mr. pecker and the newspaper were collecting stories not just for political figures but celebrities across the nation. the idea that mr. trump wasn't

necessarily looking for the extortionist type stories come out against him from stormy daniels and others for the purpose of influencing the election but to protect his own integrity and his image in the public. that's a wide image. a celebrity image he was like the others mentioned through the course of cross examination. there will be more exposure of other things that mr. pecker, other cases, other people that mr. pecker was killing stories for and the idea it's a celebrity-based idea not one that's politically motivated. >> shannon: want to get your sense of how long pecker stays on the stand? there has been back and forth whether the prosecution has to reveal who the witnesses are that will be coming up so the trump team can prepare. could you think there will be more back and forth on that? >> i think mr. pecker will be on the stand for a while today. he was almost apologetic to mr. trump referring to him as a

mentor, it seemed as though he seemed to be intending to be very favorable to mr. trump, as much as he possibly could under the circumstances. i think we'll see the defense try to play that out as much as possible. play out a lot of these comparisons. in terms of what will be the next witnesses, the defense needs to know who is going to come up next. there is a great deal of preparation that goes into each witness. a dynamic trial. if the judge wants to stay on path and wants the defense to have an adequate opportunity to cross-examine and to go along with the court schedule, they need to know days in advance who is coming up. >> dana: what's next after david pecker? do we know who the next witness is? there is not court on monday but next week they get back to it. where do you go if you are the prosecution after david pecker? >> i think they started with him to start where it all started. to start with the idea this is where the plan began and where the information started to come

in. i'm not sure where they go. a lot of questions of who will testify. is stormy daniels going to testify? what with would she say if she is called to testify. are they getting into the issue of the allegation she had an affair with donald trump is true in the first place or that she would testify about the money she received? ultimately the most important witness for the prosecution and the defense is going to be michael cohen. his credibility is everything. he is expected to testify to say he essentially was setting up this hush money deal in order to interfere with the election. he obviously would have been communicating that with president trump. that's what the defense is vehemently denying and i know that they have a very extensive cross examination. and with the amount of fraud and lies that michael cohen has had already, his credibility is going to be absolutely demolished through the course of cross examination. >> shannon: what is your sense

why we haven't gotten a ruling on the gag order yet? is it because there are more accusations and allegations added to the initial allegations? >> yesterday we have new allegation. donald trump saying yesterday david pecker's testimony seemed to be favorable to him seems to be something the prosecution is a violation of the gag order which is ridiculous. a criminal defendant should absolutely have an ability to make some comments about his -- the ongoing case in the public's eye and totally shut him down on that i think is a travesty of justice. the judge will likely be looking at all of these continuing flow of complaints from the prosecution about the gag order violations. it could be the judge is trying to put the ruling in a written form. that often takes more time. he no doubt has to expect that any sort of punishment, any sort of sanction that he puts forward to mr. trump is going to lead to an immediate appeal as that kind of seems to open a new door to

another appeal. it has already been done before. i anticipate the judge is trying to put it likely into written form so that as that moves forward his rationale is put down in paper and understood by the appellate court. >> dana: i sometimes play a lawyer on tv but i'm not one. i wanted to ask one thing about this. do you think one of the reasons the gag order has not been released is because michael cohen, who was basically really attacking president trump on tv and on x has said okay, i'll stop? will that weigh in on what the judge decides? >> it doesn't seem that the judge is particularly interested in what michael cohen is or is not doing. one of the fundamental problems and major complaint donald trump has. the witnesses can say whatever they would like. the prosecution can say whatever they would like. they have this robust statement of fact that came out with the indictment in the first place. shouldn't a criminal defendant have an opportunity to call into question the credibility of the

allegations against him and the credibility of the witnesses against him? the judge has seemed totally resistant to the idea the prosecution or any of the witnesses need to be gagged, just donald trump. for what purpose? it is not clear what sort of intimidation or what sort of factor is at play in terms of what would effect the outcome of the trial. with michael cohen having made dozens of statements in the past. even if he felt some sort of pressure from donald trump and his testimony shifted one way or the other, certainly the prosecution would be able to rely on the many other statements they've gathered from him. it doesn't make sense why the gag order is in place especially when all of these other characters are able to run their mouths all day long. >> shannon: the judge has to come up with what he thinks is the appropriate penalty if he finds violation of the gag order. you have some folks across the spectrum, mostly to the far left saying that the judge should actually incarcerate president trump. that's the only thing he will understand. the fines won't make a dent.

what are the odds that would actually happen? >> the judge has to take a measured approach even if he finds the gag order has been violated in order to discourage future violations of the gag order. the trump team in kind of a heated exchange with the judge seemed to be indisagreement about what words or specific claims or statements donald trump was making that would be in violation of the gag order. a measured approach to send a signal the judge is finding to some degree there was a violation of the gag order. these are the types of things that were a violation. now with a financial penalty if that continues perhaps that financial penalty will have an escalator next time around and then perhaps talking about confinement situation. something that would be terrible for the ends of justice and the nation at large. >> dana: last night there was a little bit of a dispute on "the five" as we sometimes have. basically trying to understand

what sort of agreement does david pecker have with the prosecution? >> he has a non-prosecution agreement. essentially in exchange for his cooperation, they've agreed not to criminally prosecute him in this case. that bias and the idea the prosecution is twisting his arm in order to give them beneficial testimony is something the defense will no doubt hammer in on throughout the course of the cross examination. imagine how much stronger it would be if the prosecution wasn't breathing down his neck hanging the non-prosecution decision over his head. >> dana: andrew, thank you so much. we're back with more. let's get you to this now. >> hundreds of bodies. >> i don't have words to explain what we saw. >> dana: hamas's atrocities on october 7th haunting the first responders who were on the scene. their stories and the harrowing

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>> dana: criminal trial of former president trump is underway in new york and we're getting new information from the courtroom. eric shawn live outside the courthouse. hi, eric. >> right now david pecker back on the stand cross examination by mr. trump's attorney as we have learned the gag order hearing that was scheduled for next wednesday will instead be next thursday. this will be the second hearing on whether or not the former president violated judge merchan's gag order. the prosecutors originally had ten examples. they have added four on top of that. the former president could face fines up to $1 thousand for each. prosecutors have said they won't seek jail time for that. the defense goal today in cross examination is try to distance the former president from the actions of david pecker, as well as michael cohen, to try to show the former president had nothing

to do with interfering in the election, which was the goal of cohen as well as david pecker in trying to buy or when they did buy karen mcdougal's story and trying to buy storm' daniels' story. it is his goal to try to show the former president had anything to do with his presidential campaign. it was trying to kill stories in the "national enquirer" to protect his brand, family and reputation say his attorneys. pecker testified yesterday that he worked with trump and other celebrities on the so-called catch and kill stories, negative information not just on trump but on others, mcdougal and her claim she had a year long affair with trump pecker's testimony only tied trump in based on hearsay. michael cohen claiming trump would pay for the deal. pecker, who will pay for it? cohen said, don't worry, you are

a friend. the boss will take care of it. when it came to stormy daniels pecker decided not to do a deal with her because she is a porn star and michael cohen was angry he ditched the story. quote, cohen was upset said the boss would be furious and he should purchase. but again pecker did not say trump told him that. pecker did not say that trump was furious. he said only that it was cohen telling him that. so that should be a major part of this case. we'll see if the defense attorney asks him about that during the cross examination. >> dana: over to you, shannon. >> shannon: let's bring in jerry baker, "wall street journal" editor at large. you have a couple of very piercing editorials. the headline, alvin bragg wants the 2016 election on trial. prosecutors are trying to spin a bookkeeping charge as a vast trump election conspiracy.

while it has been salacious and interesting and provocative, you all don't think there has been a criminal charge proven. can alvin bragg get there? >> who knows? he has a very friendly jury in a friendly jurisdiction in manhattan, a deep blue part of the country. we'll have to wait and see. in terms of the actual law, shannon, you know this better than i, this is -- the case he is trying to make here as the journal said today in it's editorial is relitigate the election to say that somehow that any candidate who does anything in effect that may improve his chances of winning would somehow what president did is unlawful. it is a really hard case to make stick in terms of the law because what president trump did, as you heard from the reporter, it's not in dispute that what happened was that

stormy daniels and karen mcdougal, they received money not to tell their stories. but that's extremely hard to make the case that is somehow interference in an election for all the reasons you just heard, president trump could have just not wanted those stories published. other people didn't want their stories published. to make it into a case that influenced the outcome of the 2016 election unlawfully is an incredible stretch. >> shannon: it provokes the question also when you hear about the other a-list stars and burying stories for them earp turning away stories not good for them that goes back decades. is alvin bragg interested in finding legal paths with those individuals in not running for president. but would he try to pursue a criminal theory against them? if these are all bold names but only donald trump is the one in the crosshairs, it raises questions. >> exactly. people have things they want to keep away from the public for

family reasons, personal reasons, for reasons of their grand and personal embarrassment. people do this all the time. the idea it's a criminal offense. as you well know bragg is bringing this under state law. he is a state -- a manhattan, local prosecutor working in new york state. he is trying to bring a case which somehow relates to federal election law. he has no standing to bring that case here. so he is trying to make connection between what trump supposedly did in terms of falsifying business records and making how it had some effect on his election campaign and represented an undisclosed contribution to his election campaign. it is incredibly convoluted and incredible story he is trying to build. i think actually the problem that it represents, irrespective of the outcome with the jury. it makes people see people are going -- these democratic

prosecutors are going after donald trump for political reasons and not legal reasons. i think can't help think it helps donald trump politically and certainly undermines confidence in the judicial system. >> shannon: and to the other major issue in the judiciary system the immunity arguments at the supreme court yesterday another editorial says basically it wasn't a great day for jack smith. the supreme court focused on the presidency and not trump. that gets to something that president trump said moments ago. here is what he said just walking into court. >> yesterday i the supreme court having to do with immunity. i heard the argument was brilliant. i listened to it last night and thought it was great. the judges' questions were great and all presidents have to have immunity. this has nothing to do with me. absolutely nothing. all presidents have to have immunity. or you don't have a president. certainly not a president the founders wanted.

>> shannon: that seemed to be a lot of what the justices were reading through yesterday. what's the future implication not just for this case but for presidents to come? i think it was justice gorsuch said we're writing a rule for the ages. >> exactly. that is the question here. not just about what you think of donald trump. but about whether or not the presidency, the institution of the presidency is protected from lawsuits that could make the execution, the president's ability to execute his or her job, make it incredibly difficult to do so. the president we know already has significant civil immunity. a case established back in the 1980 the question has civil immunity to protect him from being sued by individuals. the question of criminal immunity hasn't been tried before. the first time it's come up. it was clear from the justices' questioning at the hearing they're sympathetic to the idea,

a president can't have his actions circumscribed by the fear when he leaves office his political opponents will try to prosecute him. so it is clear they are looking for ways to establish some immunity, to establish some rules around that immunity. looks likely who knows what the court will decide. we don't know until they come out with a decision but sounded from the questioning as though they would hand it back to the trial court to say well, let's establish which areas of the president's actions do have criminal immunity and take it from there. long term implication being that there is almost no possibility, i think, of those cases coming to trial before the election. >> shannon: jerry baker, we appreciate your insight. thank you so much. dana. >> dana: that guy has a way with words. we're getting up-to-the-minute updates from the courthouse as the defense cross examines david pecker.

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defense attorneys are cross examining former tabloid boss david pecker. that's continuing. he is on the stand for a fourth day. right now taking questions about his meetings with trump in 2015. let's bring in a criminal defense attorney. it is interesting. i was thinking somebody like david pecker he is thinking what could they possibly ask me? what would you ask him? >> everything that continues to establish that he might look believable he may not be accurate. there is a big difference there. the more he says, the more he says it with authority, like this person was at a particular meeting on a particular day and then the defense is able to show him objectively you were wrong, and it might not have been he was trying to mislead anybody shows that you can look like you are being truthful but not be accurate. he can't be relied upon. the second thing is even if he is believable, even if they find

he is credible and believable, he is turning into a much more powerful defense witness than he was a prosecution witness. >> shannon: as you are watching this having worked with so many juries over the years, what are you looking for from them as far as body language, reaction, to mr. pecker in particular since he is the first witness we've had a chance at in this case? >> you are trying to gauge whether they can get their head around whether it was an actual crime or not. most jurors i deal with know the defendant is charged with murder, rape, robbery. we know what that is. we care a lot about it. we understand what a crime is. in this particular case, you are looking at them to see whether they understand this at all. they come into this thinking well wait, what's the crime exactly? why should we care? and i think there is a problem right now with the prosecution being able to show that what was done was unlawful.

they have a lot more to go but you are getting pecker as an expert defense witness to say for over 17 years, this was common place, buying stories, it wasn't just because of an election, we did it all the time on behalf of trump and so did all celebrities and it doesn't mean stories are true. it's the cost of doing business because people are looking for cash grabs or because you might have done something a little questionable and you have to buy it out because it will hurt your brand or affect your home life. or it might affect an election. >> dana: yesterday a new york state court of appeals overturned harvey weinstein's 2020 conviction for sex crimes. part of the reason it was unrelated. you have somebody writing this could also bear down on this case where bragg is forging ahead with something he is not fully explain to the jury what the crime was. >> that's possible. listen, all convictions,

assuming there is one, are subject to appellate review. the weinstein case was very different. prosecutors need to be very careful about what instances they bring into a case. as long as the defense is objecting to those things they preserve the issues on appeal. the biggest thing. if prosecutors prove that maybe, just maybe trump did something to affect the election, or possibly or with 100% certain, it is probable that he took these actions to affect the election, that's not enough. that's not proof to the exclusion of every reasonable doubt. they will need some solid evidence to say he did those things, number one, he did those things. knowingly, intelligently, voluntarily to affect the election and not for the myriad of other reasons he could have taken those actions. >> dana: thank you so much. we appreciate you. >> my pleasure. >> dana: a fox news